Written by: Shaika Siddique, Student, Aligarh Muslim University
'UTTAR PRADESH TEMPORARY EXEMPTION FROM CERTAIN LABOUR LAWS ORDINANCE, 2020'
The UTTAR PRADESH TEMPORARY EXEMPTION FROM CERTAIN LABOUR LAWS ORDINANCE, 2020 promulgated and cleared by the Uttar Pradesh government seems to have a grey zone as far it's constitutional validity is concerned. The said ordinance has exempted the business and industries from all labour laws except for these;
BONDED LABOUR SYSTEM (ABOLITION) ACT, 1976,
BUILDING AND OTHER CONSTRUCTION AUTHORITIES ACT,1996
WORKMEN COMPENSATION ACT, 1923
SECTION 5 OF THE PAYMENT OF WAGES ACT,1936
The provision of the ordinance will be applicable to the existing and new industries and factories that will be there in the coming years for a period of 3 years.
SIMILAR LABOUR LAW REFORMS HAVE BEEN INTRODUCED BY THE MADHYA PRADESH GOVERNMENT
Working hours increased from 8 hours to 12 hours
Overtime upto 72 hours
Licensing process made it easier for the factory ( earlier factories have taken license every year now once in 10 years)
Startups to register only one time and no renewal of registration.
Employers can " hire and fire" the employees as per their convenience
Exempted new factories under the Factories Act,1948 from inspection from the labour department
There are a plethora of other reforms too introduced by the other state governments which include the state of GUJRAT, RAJASTHAN, MAHARASHTRA, HIMACHAL PRADESH, UTTARAKHAND and others.
1.PREAMBLE OF THE INDIAN CONSTITUTION
The Preamble promises it's citizens of
· JUSTICE- social, economical and political
· EQUALITY of status and opportunity
These labour law reforms have slaughtered away the promises of the preamble as there is no justice be it social, economic or political being served to these workers. Socially these labourers have been cut from the mainstream and left to fend for themselves, economically today they are bankrupt and politically it seems they have no political guardians.
The words 'Equality of status and opportunity' seems to recede away in silence as these moves made by the government fails to show any equality between the employer and employee.
Whereas Article 43A provides for the participation of the workers in the management of the business, portraying a string of equality between the two, the present reforms are purely political trying their best to supplement the capitalist interest and ignoring the working class which is an equally important stakeholder.
A step which is pro-capitalist strips of the Constitution of its provision on equality.
2.WHAT IS THE ROLE OF THE ORDINANCE
The main objective of Ordinance is to create laws, to further the laws but this power provided by Article123(PRESIDENTS POWER OF MAKING AN ORDINANCE) Article 213 ( GOVERNORS POWER OF MAKING AN ORDINANCE) of the Constitution is used in a reverse direction. Presently the LABOUR LAW REFORM ORDINANCES has led to the banning of the majority of labour laws.
The life of an Ordinance is six weeks from the date of assembly of the houses ( whichever house is later in date ) if this is the legal provision how can it be lawful to make an ordinance for three years at once.
Making Ordinance is an executive power which is to exercised in case of an urgency when the houses are not in session, the question here arises is, can the exercise of an executive power be sufficient to do away the Centrally prevailing laws made by the legislature.
The action taken by the BJP ruled states further puts a question as to whether there is a lack of synchronisation between the centre and state because on one hand where the Central Government has recently legislated the Wage Code, 2019 which subsumes four labour laws, on the other hand, the state government is altogether taking an entirely different route by exempting the state of the centrally prevailing labour laws.
Is the Ordinances and labour law reforms not contradicting the whole idea of what the government has been advertising at the pitch of their voices "ONE NATION ONE LAW "
There are certain limitations which are applicable on the Parliament while making of laws i.e. article 13, similar limitation are there while making of the Ordinances but the recent trend of labour laws reforming ordinance doesn't seem to incorporate these limitations as there is a blatant violation of article 21 by these ordinances. When a law legislated in contravention of the fundamental right stands void what is the legal standing of such an ordinance which deprives workers of their fundamental rights.
3. SAY OF THE FUNDAMENTAL RIGHT
(a). ARTICLE 19(1)(c) OF THE CONSTITUTION - SUPREME COURT REFUSES TO RECOGNIZE THE RIGHT TO FORM TRADE UNION AS A FUNDAMENTAL RIGHT
G.D.H. Cole defines, “a trade union means an association of workers in one or more occupations, an association carried on mainly for the purpose of protecting and advancing the member’s economic interests in connection with their daily work."
Section 2(h) of the Trade Union Act ,1926 provides the statutory definition of Trade Union
"Trade Union” means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions.
In a nutshell, it can be said that trade union are the guardians of the workers looking for economic and other well beings of the workers which can be detailed as the objective of the trade union.
1. To regulate terms and conditions of employment
2. To improve the working conditions at the workplace.
3. To raise the living standards of workers.
4. To protect the workers by the exploitation of management.
5. To help in the maintenance of discipline of organisation/industry
6. To ensure the proper implementation of personnel and welfare policies.
7. To replace managerial dictatorship by worker’s democracy
8. To establish industrial peace by improving employees and employers relations.
9. To act as the best negotiator machinery.
10. To safeguard the interest of the organisation and organisational health.
11. In a broader sense, to protect the interests and welfare of workers.
Suspension of the Trade Union Act,1926 would deprive the workers of a negotiating body which is crucial for the fair working of the employee and employers relation. In the absence of the Trade Union, it is inevitable that the workers will fall prey to the dictatorship of the employer class. The relation of the employer and employee will become that of the master and the slave. It is of utmost importance that there must a driving body to bring the employer to the table for dialogue and negotiation.
This particular clause which provides for the right to form association and union has not been provided as a helping hand to the labourers by the Apex Court as the same refused to recognise right to form trade union as a fundamental right. The Kerala High Court in T.C.C. Thozhilali Union vs T.C.C. Ltd. [1] has opined two important aspects. (i) recognition is a matter of volition on the part of the employer; (ii) a trade union has neither common law right nor statutory right which enables and entitles it to compel an employer to give recognition to it as the bargaining agent of its members; this view of the Kerala High court finds concurrence from the Apex Court in its judgment in Delhi Police Non Gazetted Karmachari Sangh Vs Union of India [2] whereby it held that there is no fundamental right for a trade union to be recognized.
(b) ARTICLE 21 OF THE CONSTITUTION
Labourers mostly derive their rights from article 21.
Article 21 secures two rights -
1. Right to life, and
2. Right to personal liberty
Amid this pandemic and the kind of treatment meted out to the labourers, part one of article 21 reinstate a number of rights to them;
1. Right to live with human dignity
2. Right to livelihood
3. Right to social security
4. Right to health
5. Right to medical care
6. Right to get pollution and clean free water and environment
No situation allows the government to rob it's citizens of their fundamental rights under article 21 even if it is a health emergency such as COVID -19. Deceived by their elected representatives generally and employers particularly, these migrant labourers walking home to their native place without the aid of any basic amenities is a shame on the government which had miserably failed in protecting it's one of the most deprived class of citizens. Penniless, weary and despaired when these labourers decided to return back to their native place, mainly Uttar Pradesh, Madhya Pradesh, Jharkhand, Bihar and Rajasthan the chief labour exporter states of India, states like UP and MP and many other states demonstrated a unique welcome to these labourers by introducing sweeping changes in the labour laws , to the detriment of the labourers
In the case of Kharak Singh v. State of Uttar Pradesh[3], the Supreme Court quoted and held that: By the term “life” as here used something more is meant than mere animal existence.
These workers loading all their belonging ,without any money, no food and walking miles doens't seem to fit in the kind of " life " decribed by the court in the above case.
Living with human dignity for these workers is like a dream which they have been forbidden to see.
Francis Coralie v. Union Territory of Delhi,[4] observed that "The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities the basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of human self.
Bandhua Mukti Morcha v. Union of India [5],Characterizing Art. 21 as the heart of fundamental rights, the Court gave it an expanded interpretation. Bhagwati J. observed: “It is the fundamental right of everyone in this country… to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief
The revival of the " hire and fire " scheme is a direct curtailment of the right to livelihood and this is particularly connected with the flagrant violation of right to social security along with the violation of security of tenure . When the situations demand is to protect the most vulnerable group the states are busy crippling the rights of this meek section of the society. The hire and fire scheme is a mockery to their inability to raise their voice and ignorance of law.
Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose, [6]held that right to social and economic justice is a fundamental right under Art. 21. The learned judge explained that the right to life and dignity of a person and status without means were cosmetic rights. Socio-economic rights were, therefore, basic aspirations for meaning the right to life and that Right to Social Security and Protection of Family were an integral part of the right to life.
In Consumer Education and Research Centre v. Union of Indian[7], the Supreme Court laid down that:“Social justice which is a device to ensure life to be meaningful and livable with human dignity requires the State to provide to workmen facilities and opportunities to reach at least minimum standard of health, economic security and civilized living. The health and strength of worker, the court said, was an important facet of right to life. Denial thereof denudes the workmen the finer facets of life violating Art. 21.”
When the whole world is uniting to fight against the pandemic , these workers are doubly burdened as survival is utterly important to defend the pandemic. Seeing the condition of the workers it will be foolish to assume that they can even think of claiming this right when starvation is what has already killed them.
Where the Apex Court asserts on minimum standard of health, it is painful to see that there is no medical assistance being given to these migrant workers.
The Acts dealing with labours safety and other basic amenities has been done away with.
Amidst the pandemic when cleanliness has so much been emphasized on , will depriving the workers of a decent standard of work environment and clean water and filth free toilets is not a violation of their rights. When the Central Government has time and again emphasized and advertised it's mission of SWACH BHARAT , and then depriving this particular class of people to enjoy a bit of their Swach Bharat , if this could not be termed as hypocrisy then what else could be a better example for the same.
In Milk Men Colony Vikas Samiti v. State Of Rajasthan[8] the Supreme Court held that the “right to life” means clean surrounding which leads to healthy body and mind
4. DIRECTIVE PRINCIPLES OF STATE POLICY
Directive principles of state policy also has a say in the labour welfare as many of the articles advocate for the said class.
The labour benefitting ideas reflected by the DPSP can be categorised into three heads-
· Idea of living wage and fair wage
· No exploitation of the workers
· Resources shall be so organized that there shall be no concentration of wealth
Article 38
Provides to remove inequalities in status and income
Article 39
Provides that the operation of the economic system does not result in the concentration of wealth
Article 39 (a)
“The State shall, in particular, direct its policy towards securing; That the citizens, men and women equally, have the right to an adequate means of livelihood. It means that every citizen of the country has the right to earn a livelihood without getting discriminated on the basis of their sex.
Article 39 (d)
Constitution says that “The State shall, in particular, direct its policy towards securing; that there is equal pay for equal work for both men and women. Wages will not be determined on the basis of sex rather it will be according to the amount of work done by the worker.
Article 41
Constitution provides “ Right to Work” which means that every citizen of the country has the right to work and the state with the best of its abilities will secure the right to work and education.
Article 42
Provides for the upliftment of the working conditions for workers. It talks about creating a suitable and Humane workplace. This article also talks about maternity relief, i.e leave provided to women when they are pregnant.
Article 43
Talks about the “living wage” for its citizens. Living wage not only includes the “bare necessities of life” but also the social and cultural upliftment of the person. It also includes education and insurances for a person.
EDWARD MILLS V. STATE OF AJMER [9]it was held that if the employer can't provide the minimum wage then he has to shut down his unit .
Exemption of the Minimum Wages Act strengthen the belief that we are being regressive in our approach . While we should strive to move toward Fair Wage , we are belittling our working class by depriving them of the minimum wages.
CONCLUDING REMARKS
Constitution has always reflected its idea, by various articles, of protecting the underprivileged, marginalised and weaker sections of the society. Seeing these workers walking on highways, passing through the cities and villages to reach their destination has become a usual site which is both painful and pitiful. Several High Courts are taking suo motu cognizance of the condition of these migrant labourers, asking the government to make the needful arrangements for the workers to enable them to reach home safely. However, the government's response is despairing. On a daily basis, mishappenings pertaining to these labourers flooding the newspapers be it the Aurangabad railway track incident or the collision of the two lorries carrying the labourers resulting in the death of twenty-four of them on NH-19 near Auraiya. The role of NGO's have also been appreciating in providing certain relief to these workers but the threat this pandemic poses has forced them to discontinue their services. Everyone is making contribution proportionate to their capacity but the government has shunned away it's the responsibility and turned a deaf ear to the sufferings of these workers or rather what the government is doing is just not proportionate to its capacity.
Anubhav Sinha tweeted "Only in Indian history will Corona be recorded as the most unprecedented callous, heartless, ruthless, megalomanic humanitarian crisis and not a pandemic."
NHRC took cognizance of the mother pulling suitcase with an exhausted kid sleeping on.
The APEX COURT too has failed to rise to the occasion to mitigate the suppressing of the oppressed workers. This crisis demanded a quick response from the court but when a PIL advocating the cause of the migrant workers came before the court, the court refused to entertain the same and made the following observation, "How can we stop them from walking? It is impossible for this Court to monitor who is walking and who is not walking?", the bench orally observed while dismissing an application seeking urgent directions to all DMs across India to identify walking labourers and to ensure that they reach their native places, free of cost and in a dignified manner.
Since the labour related matters pertaining to the concurrent list, the Centre has a crucial say in it and the assent of the President is what will make the Ordinance enforceable. The last ray of hope lies with the one whose assent would finalise the misery.
ML KING said , " A wise man dies when he refuses to stand up for that which is right , a wise man dies when he refuses to stand up for justice, a wise man dies when he refuses to take la stand for what is true. "
References
[1] 1982 (1) LLJ 425 [2] 1987 (1) LLJ 121 [3] AIR 1963 SC 1295 [4] 1981 AIR 746, 1981 SCR (2) 516 [5] 1984 AIR 802, 1984 SCR (2) 67 [6] AIR (1992)573 :(1991) SCR Supl (2) 267 (Minority Opinion) [7] AIR (1995) 922, (1995) SCC (3) 42 [8] (2007) 2 SCC 413 [9] 1955 SCR (1) 735
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