Keshav Malpani and Anushka Garg
Introduction
On May 6, 2020, the Uttar Pradesh State Government passed an ordinance, namely, the “Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020” to deal with the effects of COVID-19 and revive the economy of the State. The ordinance seeks to suspend 35 out of 38 labour laws prevailing in the State, for a period of 3 years. This move of the U.P. Government was followed with similar decisions by the state governments of Madhya Pradesh and Gujarat. The 3 Acts which will remain in force are: The Building and Other Construction Workers Act, 1996, the Workmen Compensation Act, 1923, and the Bonded Labour System (Abolition) Act, 1976. Moreover, Section 5 of the Payment of Wages Act, 1936, which provides for timely payment of wages, will also continue to be in force. The reasoning given by the state government for such a step is to boost industrial investment and to provide employment to a large chunk of the labour force migrating back to their home states due to COVID-19 pandemic and the resultant lockdown. This move practically means that there will be no enforceable provisions for minimum wages, maximum working hours, bonus, fair practices of hiring and firing, sanitation and extra payment for overtime work and so on. Moreover, there will be no formal body to put forth the demands of the poor labourers as labour unions and associations also fall within the purview of the laws that have been suspended.[i]
On one hand, supporters of this ordinance pointed out that this decision will not lead to any situation of anarchy since these protections were anyway available to only 10 per cent of the national labour force, while critics argued such concessions to the employers will have the potential to exploit the workers and this ordinance will take us a hundred years back in time when slavery used to be a norm and deemed it unconstitutional.
This article seeks to analyse whether there exists a provision in the Constitution of India to allow the state governments to pass such an ordinance that suspended almost all the labour laws. Moreover, we will discuss as to how this ordinance violates certain fundamental rights of the labourers. Furthermore, the blog pinpoints the possible merits and demerits of this decision from the perspective of the labourers and the economy as a whole.
Legality of the Ordinance
Issues related to welfare of labour, labour disputes and trade unions are mentioned in the Concurrent List. Thus, both the Central as well as the State Government have the right to legislate in these matters. However, a major issue that arises here is -whether the State Government has the authority to suspend the laws enacted by the Central Government. Article 213 of the Constitution provides the power to the Governor of a State to promulgate an ordinance if the Governor is satisfied that the prevailing circumstances require him to take immediate action. As per Article 213(1)(a) of the Constitution of India, prior sanction of the President is required for promulgation of any such ordinance or for such ordinance to come into force. Moreover, as per Article 254(2) of the Constitution, any ordinance relating to a subject in the Concurrent List, which may be repugnant to a Union law, needs the approval of the President for its enforcement. Thus, an approval of the President is required to bring this ordinance into force.
Striking at the touchstone of the Constitution
The surprising move by the UP State Government strikes at the very core of the Constitution and has ramifications as it affects the fundamental rights of the labourers. In the words of Ms. Gunjan Singh, specialising in labour laws at the Human Rights Law Network, “the suspension of these legal protections will leave India’s poorest citizens vulnerable to the worst exploitation and the consequence of suspending these Acts implies that labourers are being forced into bonded labour”. Article 23 of the Constitution prohibits forced labour and the same has also been recognized in the much celebrated Bandhua Mukti Morcha case that payment below minimum wages amounts to a situation of bondage. It was determined that forced labour is any labour for which the worker receives less than the stipulated minimum wage because “ordinarily no one would willingly supply labour or service to another for less than the minimum wage unless they are acting under the force of some compulsion which drives them to work though the amount paid is less than what they are entitled to receive under law”.[ii] In People’s Union for Democratic Rights v. Union of India and Others, the scope of Article 23 was interpreted to mean that the word ‘force’ has a wider meaning. It includes physical force, legal force and other economic factors which force a person to provide labour at a wage less than the minimum wage. Therefore, even if a person ‘voluntarily agrees’ to render his service at less than a minimum wage due to poverty, want, destitution or hunger, it accounts for forced labour. Article 23 imposes a positive obligation on the State to take steps to abolish forced labour but in this case, states seem to have positively enforced the same.
Moreover, Article 14 of the Constitution provides for equality before law to all the citizens of India. It was laid down in the E.P. Royappa case that, classification may only be permitted as long as it is ‘reasonable’ and the same is when it is based upon an intelligible differentia and has a rational objective with the Act that it seeks to achieve. The said ordinance violates these principles on two counts. First, the suspension of the Equal Remuneration Act lacks any intelligible differentia. This Act was promulgated to eradicate the pay imparity existing between men and women for the same amount of work done. Now that it is suspended for a period of three years, it gives ample opportunity to the employers to pay women less and pocket the remaining in the name of boosting industrial investment. Second, other states that have kept their labour laws intact will continue paying at least the basic minimum wage to their labourers. Now, it is against the principle of equal treatment and rationality that merely because of belonging to states that have suspended their labours laws, such labourers will not be entitled to the basic minimum wage as is guaranteed to other fellow labourers.
Article 21 of the Constitution has been characterized as the most organic and quintessential premise of all the fundamental rights. The concept of ‘right to life’ under Article 21 is enshrined to include the right to live with human dignity, and all that goes along with it, such as the bare necessities of life, including adequate nutrition, social security, clothing and shelter. In People’s Union for Democratic Rights v. Union of India, it has been reaffirmed that non-payment of minimum wages to the workers is a denial of their right to live with basic human dignity and violates Article 21. Further, in Olga Tellis v. Bombay Municipal Corporation, the Supreme Court held that ‘right to life’ also includes ‘right to livelihood’ within its perspective as it is the basic requirement without which no person can live. It includes the right to have basic shelter, food, education, occupation and medical care. Right to health also forms an essential part of Article 21 and the same was affirmed in Consumer Education Research Centre v. Union of India.
It is important to note that the Directive Principles of State Policy (“DPSPs”) also spell out certain duties in this regard. Under Article 39(a), the State must endeavour to provide that the citizens, men and women equally, have the right to an ‘adequate’ means of livelihood. Article 39(e) casts a duty to ensure that that the health and strength of citizens are not abused and that they are not forced by economic necessity to enter into avocations unsuited to their age or strength. Similarly, Article 42 requires the State to ensure provisions for securing ‘just and humane’ working conditions and maternity relief. And finally, under Article 43, the State has the duty to secure ‘a living wage and conditions of work ensuring a decent standard of life’.
Undeniably, the ordinance was promulgated with the intent of boosting employment in the country and provides an incentive to the employer to employ more and more labourers without having to comply with statutory requirements. While it may be argued that the ordinance will ensure the labourers’ right to livelihood and subsequently fulfil Article 21, it may have some counter-effects on the lives of the labourers. In such a scenario, it becomes increasingly important to put certain safeguards in place. Some rights under Article 21 such as the right to livelihood and right to health are so fundamental and indispensable that they must be placed on the lowest threshold as such rights warrant fulfillment even in the most troubled economic scenarios and sometimes, especially then.
A simple reading of these provisions suggests that the fulfilment of Article 21 must go beyond the letter of the law, that is to say, it must be fulfilled in its true spirit to ensure more than a minimalistic existence. The suspension of labour laws takes away the assurance of even the basic amenities such as proper sanitation, proper eating and drinking facilities and so on. Although, the DPSPs are not enforceable by law, it is the duty of the Government to take these principles into account while formulating any law or policy. Therefore, Article 21 read in light of the DPSPs, indeed guarantees the minimum level of rights that ensure an adequate and sufficient standard of life.
Conclusive analysis
It becomes evident that the ordinance not only lacks a statutory backing for basic rights but is also fraught with misleading hopes and takes us back to the draconian era. For instance, the Bonded Labour Act is kept intact and it creates a pretense that there is no situation of bondage, but on the other hand, employers are exempted from paying minimum wages. The implication remains the same, which is that without paying minimum wages, a situation of forced labour is created. Needless to say, the suspension of the labour laws deprives the already distraught of their fundamental rights and puts them in a precarious position.
The present situation of a pandemic can definitely be considered as that of an exigency and extreme measures will be required to combat the after effects of these unprecedented circumstances. There have been multiple media reports on shifting of many multinational corporations out of China. India is then seen to be a preferred destination for many such corporations. In such a scenario, providing them with adequate and favourable business and working environment may work in favour of the Indian economy. This could help in boosting foreign investment in the country, and ultimately turn out to be a huge step in reducing India’s problem of unemployment. Moreover, this will lead to a rise in GDP of the country and simultaneously our Per Capita Income will show a positive trend.
However, we cannot discount on the fact that India is a socialist, democratic republic and it is the duty of the Government to make sure that its workforce is not provided such circumstances at work where their most fundamental right, the right to life under Article 21 of the constitution is violated. A democracy cannot exist only by focusing on the business relations. Suspending labour laws will lead to a huge crisis even in terms of capital management. In an unprecedented scenario like this, it becomes more important than ever to take care of the labourers, who are undoubtedly most adversely affected by the ongoing situation.
Therefore, it becomes a prime objective of the state governments to balance the rights of these labourers with the advantages to ensure that the economy is benefitted as a whole. Thus, the steps taken by the State Government of U.P. are a bit too extreme given the circumstances, as poor labourers have been the most vulnerable class to be affected by this pandemic. Lakhs of such workers have lost their source of livelihood. Other States such as Madhya Pradesh, Gujarat have also proposed welfare measures to the extent that maximum working hours of labourers can be increased from 8 to 12 for a period of 3 months, provided they are compensated for the same. Such steps will not only increase the productivity in the economy, but also compensate the labourers for the loss of livelihood that they suffered in these unprecedented times. It seeks to strike a balance between development of the economy and fundamental rights of the labourers. Moreover, easing the regulatory compliances for the targeted sectors for FDI may be considered by the Government.
A PIL has been filed in the Supreme Court wherein all the states who have made unconstitutional compromises on their labour laws have been made parties. Thus, it remains to be seen what the judiciary has to say on this issue which is manifestly infringing on the fundamental rights of one of the most affected class due to this global pandemic.
[i] Trade Union Act, 1926.
[ii] Labour Exploitation Accountability Hub, Article 23, Available at: https://accountabilityhub.org/provision/constitution-of-india-article-23-2/.
Keshav Malpani and Anushka Garg, 5th Year Students at National Law University, Jodhpur.
Picture Credits: Obhan Associates
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