Dismantling labour rights during crisis

In this article, Mathew Idiculla, a lawyer and a consultant with the Centre for Law and Policy Research in Bengaluru, outlines the changes made in labour laws by some of the BJP-ruled states during coronavirus pandemic.

Bengaluru: As India moves deeper into a public health and economic crisis due to COVID-19, state governments are introducing measures that strip away the legal rights of workers.

States like Uttar Pradesh, Madhya Pradesh and Gujarat have announced the suspension of a gamut of labour laws. These “reforms” seek to attract investment by exempting factories, establishments and businesses from key regulations that provide workers many protections regarding minimum wages, layoffs, occupational safety and working conditions.

States like Rajasthan, Punjab, Haryana, Himachal Pradesh and Uttarakhand have also announced some less extensive dilution of labour regulations in the form of extended working hours. More states might follow suit.

The most radical changes to labour laws were introduced by Uttar Pradesh. The Yogi Adityanath-led Bharatiya Janata Party (BJP) government passed the Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020 which wholly suspends almost all the labour laws that govern the state for three years.

Read:Major labour laws suspended in UP for 3 years

The only labour laws that have been retained are the Building and Other Construction Workers Act, 1996, the Workmen Compensation Act, 1923, Bonded Labour System (Abolition) Act, 1976, and Section 5 of the Payment of Wages Act, 1936.

However, most crucial labour laws including the Minimum Wages Act, 1948, Industrial Disputes Act, 1947, Factories Act, 1948 and about 30 other laws regulating working conditions seem to have been summarily suspended.

Following the announcement by Uttar Pradesh, states like Madhya Pradesh and Gujarat have also kept key provisions of labour laws in abeyance.

These measures allow businesses to hire and fire workers at will, exempts new establishments from following existing safety and health norms and allows firms to impose longer working hours.

While states like Rajasthan, Punjab, Haryana, Himachal Pradesh and Uttarakhand have also provided the flexibility of working hours by extending it from 8 to 12 hours per day, the employers in these states are required to provide higher wages to the workers for overtime.

The dilution of labour laws, especially their wholesale suspension in states like Uttar Pradesh and Madhya Pradesh, has drawn the ire of trade unions, social activists and opposition political parties.

Read:Labour law amendment not without Centre's approval: Congress

The Centre of Indian Trade Unions (CITU) called it a “barbarous move to impose conditions of slavery on the working people who are actually creating wealth for the country.”

Congress leader Rahul Gandhi stated that the coronavirus crisis “can't be an excuse for crushing human rights, giving permission for unsafe workplaces, exploitation of labourers and suppressing their voice.”

Even the Bharatiya Mazdoor Sangh, affiliated to the Rashtriya Swayamsevak Sangh (RSS) and BJP, has criticised these decisions.

The suspension of labour laws by these states raises serious constitutional and legal questions. Labour falls under the List III- Concurrent List under Seventh Schedule of the Constitution.

Hence, both the union and the states can make laws on the subject. There are presently about 44 central legislations and over 100 state legislation on various aspects of labour. State legislatures may also pass amendments to central labour laws.

However, under Article 254(2) of the Indian Constitution, if the legal provisions introduced by the state is in variance with that of the centre, it would need the assent of the President.

Uttar Pradesh and Madhya Pradesh have suspended central acts by issuing ordinances under Article 213 of the Indian Constitution which allows the Governor to promulgate ordinances, which has the same force of law, on matters of urgent need when the State Assembly is not in session.

Since the suspension of some of the labour law provisions affects the operation of central laws, it would need the assent of the President, who acts per the advice of the union government.

Hence, the ball is now in the court of the Narendra Modi government to decide whether such suspension of labour laws should be permitted.

Since these ordinances seek to completely undermine India’s labour law regime, the central government would normally have apprehensions in giving its approval.

However, since the state governments in question are also run by the BJP, it will be interesting to see whether the centre objects to the decisions taken by the UP and MP governments.

Even if the President gives his assent, these ordinances can be legally challenged before the judiciary. Such wholescale suspension of labour laws, on the face of it, seems to be unconstitutional as it violates the fundamental rights of workers guaranteed under the Constitution.

Read:Labour laws suspension by states to pull businesses out of crisis: ISF

Article 23 of the Indian Constitution provides each citizen with a fundamental right against exploitation from practices like “forced labour.”

The meaning of “forced labour” is not restricted to bonded labour but has been given a more expansive interpretation by the Supreme Court of India. In the landmark case, People’s Union for Democratic Rights vs Union of India (1982), concerning contract workers employed for

Asian Games, the Supreme Case held that “when a person provides labour of service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words “forced labour” under Article 23."

Hence, the suspension of labour laws by states, especially of legislations like the Minimum Wages Act, 1948, violates the fundamental rights against exploitation guaranteed under the Constitution.

These measures also violate the International Labour Organisation (ILO) Convention No 144 to which India is a signatory.

At a time when workers are undergoing extreme distress due to the economic crisis brought about by the harsh coronavirus lockdown, introducing such measures are not just legally dubious, but morally abhorrent.

The dilution of health and safety standards like fire safety rules, provision of toilets, safety equipment etc., further endangers the life of workers at a time of a public health crisis.

While India’s labour law regime has certain fundamental infirmities that have resulted in more than 90 per cent of its workforce in the informal sector, the suspension of labour laws by states are not “reforms” that address this challenge, rather, these measures further push the formal workforce also into precarity.