Kavish Arora
Apropos the present pandemic, various state governments like that of Rajasthan, Gujarat, Punjab, Madhya Pradesh etc. have granted considerable exemptions from the various acts which come under the umbrella of labour law. The rationale behind such move is to kick start the slow-paced economy due to the COVID-19 pandemic and also to lure potential capitalists in the country. The various statutes which have developed the nomenclature of “Labour Laws” are constituted to protect the “oppressed class” from the “oppressor class”. Further, they are present to countervail the inequality of bargaining power between labours and capital owners. However, the dilution of labour laws in the country will give an unfair advantage to the “oppressor class” to further suppress and exploit the “oppressed class”.
The state governments have exempted several industrial units from various labour welfare statutes. This involves depriving them of the right to approach the courts of law, increased daily and weekly working hours, abolition of the provision for payment of minimum wages, suspending inspection of the factories by factory inspector etc. India being a welfare state should treat its citizens equally during this testing period rather than treating a class of already deprived people like resources of the industry.
The question of Public Emergency
The various state governments have used the power allotted to them under the Section 5 of the Factories Act, 1948. The said section, in case of a “public emergency’” allows the state government to exempt any factory from any or all the provisions of the Act. Herein, the term “public emergency” incorporates any situation whereby the security of India or any part of its territory is threatened, whether by war or external aggression or internal disturbance. It is evident that the state governments have equated the current pandemic with “public emergency” as expressed in the aforementioned section. Considering the present pandemic and the strict lockdown guidelines laid down by the government there can be no case of internal disturbance in the state territories. Furthermore, the security of the state has not been threatened. There is no doubt that the present pandemic cannot be construed as a “Public Emergency” under Section 5 of the Factories Act.
The purpose of the said section is not to deal with a pandemic but to deal with a war like situation. Even though the state governments have construed the COVID-19 pandemic as a war like situation, they ought to have considered that the present pandemic is faced by all and the same has worst struck the labourers. The purpose of the state governments to revive the economy cannot be at the cost of the living conditions of the labourers.
Does the dilution of labour laws constitute forced labour?
The state governments with the dilution of the labor law legislations have suspended the welfare and health measures, increased working hours and have deprived the labour class to approach the courts of law. Furthermore, with the suspension of the Code of Wages, 2019 the factories and other establishments have no statutory obligation to provide timely wages to their employees. This violates Article 23 of the Indian Constitution as interpreted in the landmark case of People’s Union for Democratic Rights v. Union of India. It was construed in the case that it is not merely ‘begar’ which the Article 23 constitutionally prohibits but also other similar forms of forced labour. Further, it was construed that there could be no logic in interpreting that if a person is forced to render any service or labour without receiving any remuneration at all, it is sufficient to attract the censure of Article 23 but if some remuneration is paid for it, then it will be outside the ambit of Article 23. Furthermore, the Apex Court stated that the ‘force’ which compels a labour or service as ‘forced labour’ can arise in several ways. It could be physical force, force through legal provisions and also compulsion arising out of hunger and poverty.
Owing to the present pandemic, it is transparent that the labourers are compelled to work in these abysmal conditions with no welfare and health measures, arbitrary increase in working hours, non-payment of wages for the overtime work and the non-enforcement of right due to hunger, poverty and loss of earnings. Article 23 prohibits ‘forced labour’ as it is something that a person is forced to provide. Herein, the labourers are forced to work due their deteriorating conditions due to the pandemic. Therefore, the impugned laws come under the ambit of ‘forced labour’.
Dilution of Labour Laws within the Constitutional Contours
The labour laws in India have developed over the decades but they find their roots in the Indian Constitution. However, the ratification of the impugned laws violates the various rights of the labourers and the duties of both the central and the state governments towards the labourers as conferred in the Indian Constitution. Article 19 of the Constitution confers the fundamental right to form associations and unions. States like Madhya Pradesh have suspended the chapter dealing with the recognition of the representative unions or associations under their respective Industrial Relations Act. This directly violates Article 19(1)(c) of the constitution. Furthermore, it was categorically held in the case of Damyanti Naranga v. Union of India that the right to form an association includes the right to its continued function. The impugned laws not only hamper the continuous function of the labour associations but also takes away the rights which were conferred to them.
The impugned laws further violate the right to health which has been interpreted as a part of Article 21 of Indian Constitution as held in the case of Sunil Batra v. Delhi Administration. The impugned laws like increasing the weekly work hours from 48 to 72 hours and increasing the daily work hours from 9 to 12 hours passed by the states of Gujarat, Rajasthan, Uttar Pradesh etc. will have a detrimental effect on the health of the labourers. Further, the suspension of health and safety measures will have an adverse effect on the labourers. This not only violates the Article 21 of the constitution but also the Article 42 and Article 39(e) of the constitution. Furthermore, the right to minimum wages is also held as an integral part of the right to life in the case of People’s Union for Democratic Rights v. Union of India. The impugned laws which suspend the legislation relating to the minimum wages leads to a situation of bondage for the labourers. The Hon’ble Supreme Court in the case of Bandhua Mukti Morcha v. Union of India have interpreted that any payment below the nominal wages leads to the situation of bonded labour. In furtherance, it is also violative of Article 43 of the constitution.
Test of Manifest Arbitrariness
In Shayara Bano v. Union of India it was highlighted that manifest arbitrariness is something which is done by the legislation capriciously, irrationally or without any determining principle. Herein, the state governments have suspended the various labour law legislations which has led to an increase in the working hours for the workers and the deprivation of various fundamental rights which violates the due process of law. In furtherance, the impugned laws have no nexus to the sought object of labour laws which is to protect the interests of the labours. Further, the impugned laws are irrational on the basis that the laws place economic development at pedestal above the welfare and rights of the workers. Thus, manifest arbitrariness will apply to negate the legislation under Article 14 as well.
Conclusion
The COVID-19 pandemic has been one of the largest health crisis India has ever faced, which has handicapped the Indian Economy. It is the obligation of the Central and the State to revive the subdued economy. However, the most egregious way to revive the economy is to sacrifice the most vulnerable class of people in the country. The impugned laws are not only violative of the various fundamental rights but also the various Directive Principles of State Policy. The states under the garb of economic development have invaded the rights of the workers. Social justice, equality and dignity of person are the corner stones of an egalitarian democracy. The impugned laws are violative of the constitutional realms and principles. Further, they strip away all the protection provided to the labourers and leave them to be exploited by the upper class. The impugned laws violate the due process of law, are arbitrary and are not in consonance with the Constitution.
Kavish Arora (First Year student at Symbiosis Law School, Hyderabad)
Picture Credits: Asianet Newsable
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