Hyderabad: In the name of reforms, the Labour Law is diluted. The constitutional principles of labour freedom and right to work or live are violated.
In the year 2020, several changes have been made to the labour laws in India. Previously, there were 29 labour laws in India. Better we call them as consolidated, ethics, or suggestions associated with the labour policies of the country. The four Codes are made, subsuming more than 30 Acts.
1. Code on Wages, 2019:
This labour code subsumed the Acts are: Payment of Wages Act, 1936; Minimum Wages Act, 1948; Payment of Bonus Act, 1965; and Equal Remuneration Act, 1976
2. Industrial relations code bill, 2020:
The guidelines of this Code states that employers can hire and remove workers easily; this provision has also reduced the scope of the workers to go on strike. A reskilling fund will be provided to a retrenched worker. This labour code subsumed the Acts are: Trade Unions Act, 1926; Industrial Employment (Standing Orders) Act, 1946, and Industrial Disputes Act, 1947.
3. Social Security Code bill, 2020:
Under the amendment of the bill the national Social Security board will be formed aiming for the betterment of the employees in an unorganised sector or temporary workers. This labour code subsumed the Acts are: Employees’ Provident Funds and Miscellaneous Provisions Act, 1952; Employees’ State Insurance Act, 1948; Employees’ Compensation Act, 1923; Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959; Maternity Benefit Act, 1961; Payment of Gratuity Act, 1972; Cine-workers Welfare Fund Act, 1981; Building and Other Construction Worker’s Welfare Cess Act, 1996; and Unorganised Workers Social Security Act, 2008
4. Occupational Safety, Health and Working conditions bill, 2020:
The amendment of this bill has mentioned that the definition of ‘factory’ has been altered; now mining does not come under the
definition of factory. The Acts subsumed are: Factories Act, 1948; Mines Act, 1952; Dock Workers (Safety, Health and Welfare) Act, 1986; Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996; Plantations Labour Act, 1951; Contract Labour (Regulation and Abolition) Act, 1970; Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; Working Journalist and other Newspaper Employees (Conditions of Service and Miscellaneous Provision) Act, 1955; Working Journalist (Fixation of Rates of Wages) Act, 1958; Motor Transport Workers Act, 1961; Sales Promotion Employees (Condition of Service) Act, 1976; Beedi and Cigar Workers (Conditions of Employment) Act, 1966; and Cine-Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981.
The pro-Government people say that while industries are entitled to make a reasonable profit on investment, workers are equally entitled to reasonable wages and good and safe working conditions and the four labour codes have been rightly grouped together. Some classified some labour codes as “historic”, the Union government terming them as “landmark” and “game-changer”. Using the States’ power by Centre The Central Government has used the power through States to change the labour laws via Uttar Pradesh, Madhya Pradesh, Rajasthan and Gujarat have pushed through changes to their labour laws by way of ordinances or executive orders. They exercised the ‘concurrent subject’ under the Constitution of India, instead of using the power in Central List, besides of course, some other special general laws through Parliament. Anyway, the Centre has to say ‘yes’ even to make them ‘Acts’ through Legislatures.
For instance, the Uttar Pradesh used power of making an Ordinance for exempting businesses from the purview of all the labour laws except few for the next three years, which exhausted by 2023. The other labour laws related to settling industrial disputes, occupational safety, health and working conditions of workers, and those related to trade unions, contract workers, and migrant labourers will become defunct. And laws related to bonded labour, deployment of women and children and timely payment of salaries will not be relaxed. These changes were affected to labour laws of existing and new factories. The Government of Madhya Pradesh suspended many labour laws for 1000 words, effecting the points:
a) Employers can increase working hours in factories from 8 to 12 hours and are also allowed up to 72 hours a week in overtime, subject to the will of employees;
b) The factory registration now will be done in a day, instead of 30 days. And the licence should be renewed after 10 years, instead of a year. There is also the provision of penalty on officials not complying with the deadline and
3) Industrial Units will be exempted from majority of the provisions of the Industrial Disputes Act, 1947. Contractors will get ‘freedom’ though told to be ‘limited’. employing less than 50 workers will be able to work without registration under the Contract Labour (Regulation and Abolition) Act, 1970.
However, but the new industrial units, there will be major relaxations like:
Exempted from provisions on ‘right of workers’, which includes obtaining details of their health and safety at work, to get a better work environment which include drinking water, ventilation, crèches, weekly holidays and interval of rest, etc. Exempted from the requirement of keeping registers and inspections and can change shifts at their convenience. Employers are exempt from penalties in case of violation of labour laws.
Such law changes are criticized that they will allow more factories to operate without following safety and health norms and give a free hand to new companies to “keep labourers in service as per their convenience”. It says that denying the rights of workers is a violation of human and fundamental rights, it may create insecurity among the workers and may lead to desperate conditions for workers.
Criticized by Justice Gopala
Referring to ILOs and several Conventions, Justice Gowda explained that the India was a founding member of the International Labour Organisation (ILO), and of the eight Core Conventions of the ILO, India were ratified six. These are Forced Labour Convention (No. 29); Equal Remuneration Convention (No.100); Abolition of Forced Labour Convention (No.105); Discrimination (Employment Occupation) Convention (No.111); Minimum Age Convention (No.138); Worst forms of Child Labour Convention (No.182). While the other two, Freedom of Association and Protection of Right to Organised Convention (No.87) and the Right to Organise and Collective Bargaining Convention (No.98) have not been ratified by India yet, the public position of the Ministry of Labour and Employment itself is that the ILO conventions serve as a guiding law for labour laws in India, and the government strives to bring domestic labour law at par and in conformity with the high standards set by the ILO conventions. India has also ratified Tripartite Consultation (International Labour Standards) Convention, 1976, which enforces the tripartite consultation process between the country, employer and workers that is at the heart of the spirit of the ILO. These ordinances prima facie is in clear violation of the ILO Conventions, which are a globally recognised standard of what domestic labour laws should aspire to be.
Justice V Gopala Gowda said that these changes would result not only an unprecedented humanitarian crisis, but an economic crisis as well. The response of some state governments to the closure of factories and businesses on account of the nationwide lockdown has been to introduce ordinances to dilute the effect of labour laws.
Attack on ‘the Constitution of Labour’
There is no such ‘constitution’ in this name. But the Government attacked the Constitution in principle and its spirit. Article 254(1) provides that when a law enacted by Parliament holds the field, then the law enacted by the state shall be void to the extent it is repugnant to Parliament law.
Article 254(2) however, provides an exception to Article 254(1) and provides that the repugnance can be cured if the assent of the President is received, and that law shall prevail in the state once the President assents to the same. Justice Gowda referred to this provision is often employed by state governments to introduce specific provisions for their state on subjects that fall in the concurrent list.
In a landmark judgment ‘Kaiser-i-Hind Pvt Ltd v. National Textile Corporation (Maharashtra North) Ltd.’ [(2002) 8 SCC 182], a Constitution Bench of the Supreme Court held that the giving of assent is not an ‘empty formality or an automatic event necessitated or to be given for the mere asking’ of a state government, as emphatically explained by Justice Gowda.
The Supreme Court further held that: “In a federal structure, peculiar to the one adopted by our Constitution, it would become necessary for the President to be apprised of the reason as to why and for what special reason or object and purpose, predominance for the state law over the Central law is sought deviating from the law in force made by Parliament for the entire country, including that part of the state.” Thus, deliberation and application of mind are the prerequisites for giving assent to a repugnant state law to hold the field. In terms of Article 213 of the Constitution, the Governor of a state cannot promulgate an ordinance without instructions from the President on a law that requires his assent.
Recently, these provisions also attracted much attention in the context of the Land Acquisition Act, 2013, and amendments by states to them to dilute key provisions such as social impact assessment. Acquisition of property is also a subject in the concurrent list. Justice Gowda explained that the assent of the President was required before these state amendments could be passed into law. The attempt by state governments to promulgate these ordinances without the assent of the President is thus patently illegal, unconstitutional and a clear disregard for the federal structure, which is a part of the basic structure of the Constitution.
Do we have Constitution of Labour law for India? Do we have right to ‘strike’? Ultimately, do we have right to work? Do we have anything to celebrate May Day?