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Can Labour Laws Be Diluted at the Whims of Lawmakers?

Written by Hasan Khurshid

“Law grinds the poor and rich men rule the law.”
– Goldsmith

Looking from the casement of the recent past, we find that Yogi Adityanath started playing his inning as chief minister of Uttar Pradesh in March, 2017, with unusual, strange and extreme step by setting-up “Anti-Romeo Squads” across the State, using the lathi-happy State police personnel to harass, thrash and arrest the men-women going together on roads. He was crazy to begin the move even two days after his taking over as CM.

Although, Yogi’s score of such orders may not be less numbered, his recent move is the dilution of labour laws through promulgating an Ordinance. At a time when everyone is helplessly awaiting an early end to the life and livelihood crisis caused by global Covid-19 pandemic; State of U.P; has come out with an unreasonable plea of reviving the commercial and economic activity through the medium of this Ordinance, namely Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020, suspending for three years all labour laws, save a few ones, such as, The Bonded Labour System (Abolition) Act, 1976; Building and Other Construction Workers Act, 1996; Section 5 of Payment of Wages Act, 1936 and Workmen Compensation Act, 1923. The Ordinance came in to effect on May 6, 2020.

As they say, “you clap, so I clap”, following UP government’s move, Madhya Pradesh and several other States are following the suit. On May 7, 2020, M.P. government announced the same course to put all labour laws on hold, barring some provisions of Factories Act, 1948, for the next 1000 days.

Talking to Lawyers Update, noted Supreme Court Senior Advocate Mahalakshmi Pavani said, “Some States like Gujarat, Punjab, Rajasthan and Madhya Pradesh have taken the drastic decision of altering labor laws, considerably evincing a negative response from their respective States, which is becoming a contentious issue and is facing criticism for imposing mammoth burdens on the vulnerable labour fraternity. The States have clarified their position, after much criticism, assuring them their jobs will not be snatched but only minor adjustments will be made. While the State of Uttar Pradesh has leaped ten steps forward and draconically abrogated all labour laws for a period of three years which itself is absolutely perplexing since it is the most populous State, being home to the largest group of skilled, semi-skilled and unskilled workers employed in factories, industries and alike establishments. The presumably, logical reasoning offered for taking such a course of action is the promise of the receipt of bounty foreign investments from multinational companies, who have been given lucrative offers of legal, logistical and fiscal support by the State governments if they decide to shift operations to India after closing businesses in China. While this reason may be thought as bona fide, it is definitely ill-timed.”

“Labour Laws- such as the Factories Act, Employees State Insurance Act 1948, Employees Provident Fund Act 1952, Contract Labor Act 1970, Minimum Wages Act 1948, Building and Other Construction Workers Act, Industrial Disputes Act 1947 coupled with the 70 years of jurisprudence evolved by the Supreme Court and the high courts around it, have all provided a level playing field by bringing dignity of labour, equity and more strongly a cushioning effect to the destitute masses of the country who have been employed on short-term basis for meagre sums of wages and with the insecurity of their next assignment hanging in the balance. To my understanding, these laws essentially guarantee basic human rights to those being governed by such legislations and suspending such laws pro tanto will be adding insult to injury, especially given the current depressive economic scenario where the jobs of such people are already endangered. We have already witnessed for ourselves the pitiful manner in which migrant workers were not provided suitable transportation by State governments to go back to their respective home towns during the last two months. We, as a people owe a duty rather a debt of gratitude to the entire labour class who play a pivotal role in enhancing the infrastructure of our metropolitan cities for meagre sums of money. Let us be sensitive to them, for they need the umbrella of these laws and if not be sensitive be realistic realizing that We Need Them. We need to fend them or else much will be destroyed, not by the Pandemic but by the brazen anarchy that will follow as a result of this decision.”

Deo Prakash Singh, President, Central Association of Private Security Industry (CAPSI), Bihar Chapter said, “COVID 19, the pandemic propelled crisis has put India in the thick of a deep economic predicament causing a nervousness to the policy makers and the governance machineries . To offset this economic loss, some State governments have of late resorted to giving wholesale exemptions in labour laws through the ordinance route which is a Constitutional blunder.”

“Undoubtedly the revival of businesses and economic activities after months of forced closure is one of the sole objectives of the State governments. However, to achieve economic revival by sacrificing the rights of the most vulnerable section of the society is seemingly amoral and perverse.”

“These labour reforms are nothing but the curtailment of the labour rights. The country has been collectively watching the horror show of the miseries of labourers on the national highways as a consequence of the abrupt lockdown of transportation and businesses due to the apathetic attitude of the ruling class towards labourers and workers. The government is thinking that these Labour Reforms will only act as an effective vaccine against COVID-19 caused ills of the businesses which will prove wrong in due course of time.”

“These reforms by States are being brought in the midst of them being contemplated by the Union government through consolidation of code of wages, industrial relations and occupational safety with welfare conditions.”

“Lifting of statutory protection such as minimum wages, insurance, social security, right to form unions, 12 hours of duty without overtime factor are illegal. These are the Fundamental and Constitutional Rights of workers and can’t be diluted by State governments through Ordinance route.”

“States get the power of Ordinance through article 213 which provides that Governors can not promulgate an Ordinance without the consent and approval of the President. The Article 213(3) also forbids the governors not to promulgate an Ordinance which would not be valid if enacted in an Act of legislature by the State and if it does it is null and void.

Labour Laws enumerated under List Three of Schedule 7 of the Constitution are part of the Concurrent List. Governors can not promulgate an ordinance which is repugnant to an Act of the Parliament or an existing law with respect to a matter in concurrent list too until assented by the President.”

“Several labour laws are the fundamental rights of labourers such as Article 21 which gives the labourers and workers right to life with dignity and liberty. Art 19(c) gives the right to labourers and workers to form associations and trade unions which can’t be stripped through Ordinances. 44th Amendment of Constitution guards the fundamental rights of citizens on which even Parliament has been restricted to make laws and what to talk of Ordinance power either by Article 123 or 213. Article 256 binds the executive power of the State so as to ensure compliance with the laws made by the Parliament.”

“The recent labour reforms attempted by governments of Punjab, Haryana, Gujarat, Himachal Pradesh, Uttarakhand, Madhya Pradesh and Uttar Pradesh are in utter disregard to the very fabric of the federal structure of our country.

Labourers too are human beings and not merely the resources of the factory. Their rights too are aptly protected in the minds of the framers of the Constitution under directive principles, fundamental rights and suitable statutes. These attempted reforms by States are antagonistic to the recent attempts by the Centre to consolidate and codify these laws.”

“These reforms attempted to allow the factories to exempt even from the elementary duties such as providing drinking water, first aid boxes, protective equipments, sanitation and cleanliness at workplace, lighting, canteens, ventilation and provision of rest rooms and creches. There is limited evidence that suggests, diluting labour laws can increase employment and boost the businesses, production resulting in flourishing economy. Rather, it will invite irresponsible employers creating all round unrest and turmoil in the society of labourers and workers.”

“Thus the labour reforms attempted by State governments that too through Ordinance are illegal, immoral, unreasonable, inhuman and against the federal structure of India.

Central Acts can’t be abrogated or suspended by State government Ordinances. Labourers should not be treated as slaves in the name of employment and economic revival. Industries are the backbone of the economy and so are the labourers and their interest. It is incumbent upon the rulers and the judicial system to protect the rights and interests of the weaker sections of the society because they can’t do that on their own.

The Constitution mandates supremacy to Parliament on the topics of even on the concurrent list and if there is a conflict, a Central law will override a State law.”

Renowned Advocate H.L. Kumar, having to his credit over 55 years practice in Labour Laws said, “ The elements of labour law dilution were already on government’s agenda prior to Covid-19 lockdown, in the form of four labour codes aimed to consolidate 44 central labour laws, pertaining to wages, industrial relations, social security, occupational safety, healthcare and working conditions. However, the phenomenon of promulgating Ordinance suspending labour rights without tripartite debate is undemocratic.”

Advocate Kumar further said, “The extension of work day from 8 hours to 12 hours is an inhuman approach, which means that a workman besides doing 12 hours duty has to add almost two hours for coming to duty and two hours for going back. What time is left for his personal life and rest. Further, besides extending the working hours, there is no provision for overtime in certain States.”
Advocate Kumar expressed shock of U.P. government’s providing exemption to employers from complying with the Minimum Wages Act, 1948. The Ordinance also exempts employers from complying with Industrial Disputes Act, 1947. This means that the employers will have the liberty to hire and fire at will. The Madhya Pradesh Ordinance has exempted factories employing less than 50 workers from regular inspections, thereby snatching away the power of inspectors to conduct surprise checks.

Leading Advocate M.Y. Khan, practicing labour laws for the past 40 years said, “ The Ordinances of U.P. and M.P. governments to exempt manufacturing establishments from the purview of major labour laws on the pretext of creating employment and attracting investment is a very dangerous type of political move, which has hit hard the Constitutional obligations. The working conditions of the workers will become worse.”

According to reported news, office-bearers and activists of various trade unions organised protests against dilution of labour laws, asking the Central Government to accept the demands of industrial workers. The protesters urged the government to withdraw the decision to change Labour Laws on the pretext of proposed labour reform legislation amid the Covid-19 pandemic.
Activists of leftist outfits led by trade union leader Gurdev Raj Bhumbla alleged that the government had failed to watch the interests of industrial workers. Speakers alleged the Centre led by Prime Minister Narendra Modi had been trying to appease corporate houses by waiving their loans and tempering with established labour laws on the pretext of labour reform legislation when the whole world was fighting against the Covid.

“Most shameful part is the time that the government has amend chosen for appeasing corporate houses success and prosperity which has been nurtured with sweat of already exploited workers. The Modi government has benefited 50 corporate houses by waiving loans worth Rs 68.707 crore but is not ready to wipe tears of labourers who are forced to starve,” said Gurdev Bhumla. Bhumbla and called upon the office-bearers and activists of other leftist outfits to launch a coordinated struggle to impress upon the government withdraw the move.

Speakers, including Bhumbla, Mahesh Pathak, Mohinder Yadav, Satpal Singh and Balvir Singh, demanded that the decision to take work for 12 hours in industries should be withdrawn immediately and Rs 7,500 should be credited in accounts of all temporary workers. The Union also demanded that the notification regarding dearness allowance of Rs 401, which had been withdrawn, should also be resumed.

Economist KR Shyam Sunder of Xaviour Labour Relations Institute compares it with the North American hire-and-fire model to Indian hinterland economy.’

Communist Party of India (Marxist) general secretary, Sitaram Yechury wrote to President of India, Ram Nath Kovind for his urgent intervention to stop “such naked savagery against the working class and the working people.”

Tapan Sen, general secretary of left-leaning, Centre for Indian Trade Unions (CITU) said, the government had “pounced upon the working class.”

Ironically, C.K. Saji Narayana, President Bharatiya Mazdoor Sangh, which subscribes to RSS and BJP ideology has remarked that “This is the worst time to labour laws.”

A petition has been filed in the Supreme Court on May 14, to challenge the decisions of Uttar Pradesh, Gujarat and Madhya Pradesh to freeze major labour laws, a move the State governments deemed necessary to revive the economy amid the challenges presented by the coronavirus disease (Covid-19) outbreak. The changes give industries more flexibility in hiring and firing employees, determining their wages, and reduce their liabilities in terms of providing employee benefits. The petitioner, Jharkhand-based journalist Pankaj Kumar Yadav, submitted that diluting labour laws will lead to exploitation of labourers, many of whom have already lost their livelihood due to the national lockdown necessitated by the Covid-19 outbreak.

“A welfare State cannot be expected to force its least fortunate and most oppressed citizens into further miseries on the pretext of facilitating economic activities/development by taking away their existing rights,” the petition said.

Yadav pointed out that the labour laws in India are legislations intended to protect the “oppressed class”. He said that freezing the labour laws will lead to an increase in daily and weekly working hours and deprivation of basic human facilities at the workplace, the right to approach courts of law and routine inspection of industrial units by the factory inspectors, etc.

The petition highlighted the exemption granted from the Factories Act. The same was granted under Section 5 of the Factories Act, which allows government to exempt industrial units from the purview of the Act during “public emergency”. The Act defines “public emergency” as a grave emergency threatening the security of India caused by a war, external aggression or internal disturbance.

The petitioner argued that the Covid-19 pandemic does not fall under the category of “public emergency”. Yadav said that many of the labour laws were enacted after 1947 but before the Constitution of India came into force in 1950, which highlights the significance which the founding fathers of the country attached to those laws.

Hasan Khurshid, Associate Editor

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Hasan Khurshid

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