SUSPENSION OF LABOUR LEGISLATIONS: THE LONG AND SHORT OF IT
To meet with the exigencies arisen out of Pandemic, State of Uttar Pradesh, Madhya Pradesh and Gujarat have suspended several labour laws, following which some other State governments also made changes in the application of labour laws. The suspension of these laws in U.P., M.P. and Gujarat are of more significance as they are to have bolder consequences. The reason behind this is that nation-wide lockdown has slowed the pace of industrial and economic activities in the state. While justifying the suspension of all but three labour laws, the state government said in its statement: “For encouraging new investments, setting up new industrial infrastructure and benefit of existing industries and factories, it is imperative that they are provided temporary exempted from the existing labour laws in the state. Therefore, it is important that existing labour laws in Uttar Pradesh are relaxed for a period of three years. To this end 'Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020' has been introduced." [1]
Madhya Pradesh government directed
that all labour laws barring some sections of the Factories Act 1948 would be
suspended for 1,000 days. Similarly, Gujarat exempted all new units from labour laws with a
condition that such units should operate for 1,200 days.
What is the rationale of
the State governments behind the move?
This move primarily aims at luring industrialists,
also focuses on restarting horticultural and economic activities in the state
that have been severely affected and slowed down. Attracting foreign companies which are looking to shift
base out of China is also one of the motives behind exempting the labour laws.[2] The relaxations in work
timings brought in by various state governments of Gujarat, Himachal Pradesh
and Punjab under Factories Act are either in the exercise of their powers in case
of a public emergency or to address an exceptional press of work. It is therefore evident that the governments wanted to remove the
structural hurdles through this decision so that organized workforce could
prosper.
What
would be the effect of Suspension of these Labour Laws on the workers?
Migrant workers’ exodus reveals that
they are among the worst hit
by the lockdown imposed since March 25, as economic activities ceased leaving
them with no jobs and incomes. These workers belong to both the organized and
unorganized sector. The main reason of their plight is the poor implementation
of existing labour laws. This move by the State governments may further their miseries. With this relaxation of
the labour laws, the states would be depriving this "oppressed class"
from welfare measures at a time when they need it more than ever.
Already there
were so many cases when workers worked overtime but were not given their dues.
But now without the labour laws, all responsibility and accountability towards
the workers will be negated.
Out of all these laws, suspension of The Industrial Disputes Act may have
catastrophic results in the sense that employers will be at liberty to hire and
fire workers at their own will. The accountability of the employers can not
be done away with to facilitate business, avoiding the labour welfare aspects.
Moreover, a consequence of suspending The Minimum Wages Act would be forcing labourers into
bonded labour. Indian jurisprudence acknowledges that pay below minimum
wages amounts to a situation of bondage. There are numerous Supreme Court
judgments on bonded labour —Bandhua Mukti Morcha[3]
being the landmark case wherein it was held that any payment below the nominal
wages amounts to a situation of bondage.
The Articles 21, 23, 24, 38, 39,
39-A, 41, 42, 43, 43-A and 47 of the Constitution, contain the idea of
conditions under which labour can be employed for work and also the
responsibility of the Government, both Central and State, towards the labour to
secure for them social order and living wages, keeping with the economic and
political conditions of the country and dignity of the nation. Article 23 of the Constitution
prohibits traffic in human beings and the beggar and other similar forms of forced
labour.
In Sanjit Roy v. State of Rajasthan[4], it
has been held that the payment of wages lower than the minimum wages to the person employed on Famine Relief Work is violative of Art. 23. This decision of
the State governments would result in low wage rate, increase in working hours
along with adversely impacting their overall working conditions. The
governments’ contention that this the decision will enhance productivity and will meet the economic challenges is
not very promising. V.V. Giri
National Labour Institute in 2017 conducted a study “Amendment in Labour Laws
and other labour reform initiatives are undertaken by state governments of
Rajasthan, Andhra Pradesh, Haryana and Uttar Pradesh: An analytical impact
assessment” where it found out that even after two years of severe reforms in
labour laws, states did not succeed in luring investments or creating more
jobs.[5]
This was later substantiated by CUTS international where the labour was held to a secondary reason for enhancing productivity.
Whether suspension of these Labour Legislations pass the legal test?
This decision of State
government is being opposed by the Labour Unions and experts on the subject for a number of reasons, the primary argument being that it is Unconstitutional and violative of human rights. The centre’s approval
for the decision is still awaited. The move has also been challenged in the Supreme Court on the
ground that it is violative of fundamental rights and Directive principles of
state policy. It is also pertinent to note that since labour is concurrent list
subject under the Seventh Schedule of the Indian Constitution, both the centre
and the states can make laws on it. Most central labour laws have provisions
that delegate certain powers to the state government, however, while the states
do have the powers to exempt several provisions from enforcement in their
respective states, in matters where the centre holds the field, the state
cannot directly move to make exemptions. Most of these suspended labour
legislation are central enactments. There is no provision conferring power on
state governments to nullify the central legislations in one go. Section
5 of the Factories Act, 1948 empowers the State governments to exempt only in
case of a “public emergency” which
is explained as a “grave emergency whereby the security of India or
any part of the territory thereof is threatened, whether by war or external aggression
or internal disturbance”. This Pandemic can not be counted as a threat to
the security of India now. The state governments have, however, equated the
ongoing health crisis with a public emergency to exercise this power. Furthermore, the suspension of these
laws is also in violation of International Labour.
Organisation (ILO)
convention No 144.[6]
India has been a committed and founding member of ILO and is therefore expected
to implement the social welfare legislations. India being the welfare state
cannot allow the suspension of these laws as they are part and parcel of the social
security framework. Even if this relaxation of labour laws passes the legal
test and helps in reviving economic activities, it would be at the cost of
exploitation of workers in a myriad of ways. Governments are under a constitutional
duty to ensure humane conditions of work promoting the welfare of the labourers and
therefore such suspension could result in stripping of human rights of the
labourers, in absence of an alternative legal framework for their protection.
[1] “UP allows the industry to hire
and fire! Suspends all labour laws, except three”, Bussiness Today, May 8th,
2020
[2] Samrat Sharma, “Does UP, MP labour law
suspension pass the legal test? Debate heats up on states’ freedom in labour
rules”, Financial Express, May 12th, 2020
[3] 1984 AIR 802
[4] 1983 AIR 328
[5] Dr Sanjay Upadhyaya & Pankaj Kumar, ‘Amendment in Labour Laws
and Other Labour Reform Initiatives Undertaken by State Governments of
Rajasthan, Andhra Pradesh, Haryana, and Uttar Pradesh: An Analytical Impact
Assessment’, V.V. Giri National Labour Institute.
[6] Tripartite Consultation
(International Labour Standards) Convention, 1976
This is so crisp and covers all the major dimensions. Well written Habiba.
ReplyDeleteThank you, Saurabh! 🌼
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