Authored By: Sanighdha
“Workers’ rights should be a central focus of development.” –Joseph Stiglitz
It was not so long ago that the migrant labourers of India were forced to return to their native places because of the present medical emergency. Due to the same, the ‘human’ dignity of these ubiquitous yet imperceptible working classes was avulsed and disgraced with the highest level of inconsideration, and that too, in just a blink of an eye. Racked apart by the Act of God on one side and coerced by hunger, starvation, fear and anxiety on the other; the strongest limb of the Indian economy was theatrically flung out into the nihility of the most discriminatory, depressed and dirtiest chasms of our ‘civilised’ society. Amidst all this, certain State governments have considered passing ordinances that tend to limit the operation of labour laws in their respective States. The present article seeks to discuss the constitutionality of the Ordinances proposed by the Uttar Pradesh and the Madhya Pradesh Governments and suggest remedial provisions, with respect to the ailing condition of the labourers in the present scenario.
The Indian Labour Scenario:
The economy of any country in the world is driven by the complex juxtaposition of labour and machinery. It was only after the Industrial Revolution of the 18th century that machines started getting a bit more respect than the manual labour. The Indian economy is particularly sui generis due to the fact that, the economy still relies largely on the handiwork of the unskilled labourers. With 90% of the country’s total 500 million workforce engaged in the vicious spiral of informal sector work; worker rights become all the more important so as to provide a secure and safe employment to our labourers. With an ILO (International Labour Organisation) estimation of 400 million informal sector workers being exposed to below poverty line levels, the impact of Coronavirus is just beginning to cast its shady colours on the already indigent classes of socially and economically insecure labourers. The recent Periodic Labour Force Survey has projected an addition of 12 crore newly poor people in the urban areas, with rural areas adding 28 crore to the same quota. Not surprisingly, the initiation point of this depressing tale is the aforementioned reverse migration. The said Poverty Deepeningwhen coupled with the unspoken endemic of hidden hunger perfectly makes an ideal baseline for another punishing pandemic. The Centre for Monitoring Indian Economy (CMIE) has highlighted an overall increase of 23.8% in labour unemployment rates in India, with 30% share of the urban areas and 21% of the rural dwellings. The same data puts 40 million of urban informal sector workforce in highly jeopardised economic spheres, which are more prone to the harsh effects of the altered legal regime.
The Recent Ordinances- A Constitutional Perspective:
Lack of job security and contract-based employment is what ails the informal sector labour. If not curbed quickly, these economic and legal failures coupled with prevalent starvation and inequality show a clear road to a more significant economic and social divide. The recent proposal of labour law ordinances by Uttar Pradesh and Madhya Pradesh is nothing but, a death knell to the already dying labour market. Proposed as an inevitable instrument to aid investment for reviving a dying economy, the aforementioned ordinances are going to have a harsh and irreversible effect on the informal sector. Relaxation in labour laws will not only attract international companies to setup their respective branches in the country, but will also ensure an uncomplicated procedure for layoffs and hiring mechanisms. This way, one of the parameters of the World Ease of Doing Business Index i.e. starting a business– can be achieved by India. The proposed Ordinances have the ability to put a shocking stop on the operation of labour laws in the respective State, for a prolonged period of three years. Barring certain exceptions such as provisions of Factories Act, 1948 and Bonded Labour laws; the Ordinances (still not approved by the President) have the singular effect of benefitting the big industries in terms of giving them a free ride in hiring and firing labourers on their wishes and whims. But sans labour rights and minimum wages isn’t the condition of the migrant labour workforce equal to that of the bonded labours?
In Bandhua Mukti Morcha (1984 AIR 802), the Apex Court pointed out that, payment below minimum wages is equivalent to bonded labour. Article 43 of the Indian Constitution mandates the States under the Directive Principles of State Policy (DPSP) to provide the workers with a Living wage and not merely minimum wages. But the present ordinances exude arbitrariness and erode the notion of nomocracy. Even before the present proposal only 10% of the labour workforce was availing these rights before. A more humane step for assisting the informal sector labourers could have been an effective implementation of The Unorganised Workers’ Social Security Act (2008), thus mandating the industries to work in close coordination and cooperation of the poor labourers. But the same was not done for some inexplicable reasons.
India being a founding member of ILO and having signed Equal Remuneration (1951) as well as Discrimination (Employment Occupation) Convention (1958) , has a constitutional as well as an international obligation towards protecting labour rights. However more strikingly and quite contrary to the decision so taken, India is also a ratifying party to the Tripartite Consultation (International Labour Standards) Convention, 1976; which recognises the importance of a three-party consultation-between the worker, country and the employer-while abridging the labour rights. Section 5 of the Factories Act, 1948 gives green light for suspending the provisions of the Act only and only, in a situation of public emergency meaning thereby-the threatening of India’s sovereign territory by war, external aggression or internal disturbance. However none of these criteria seem to be fulfilled in a scenario where, the whole country is racing fast on the path of unlocking the lockdown. The operational logic behind quashing the labour laws for three years falls blatantly on the anvil of constitutional principles because; the Ordinances have still not got the President’s approval as a pre-requisite provided in the Constitution.
The major issue pertaining to the constitutional validity of the Ordinances (under Article 213) the fact that according to Article 213(1) (a), a prior assent of the President is required for the operation of such Ordinance; where both the State and Centre (Concurrent List matters) can legislate. Additionally, Article 254(2) of the Constitution clearly states that if any State law is being made under the authority of the concurrent List and the same is repugnant to the Union Law, the assent of the President becomes inevitable. Without following all these constitutional mandates, the clearance and operation of these Ordinances is nothing but a faux pas of our democratic system.
The right to earn one’s livelihood is a penumbral right of Article 21 and cannot be taken away by the State authorities; rather the State must provide equal opportunities for earning the same. This observation was opined in Olga Tellis v Bombay Municipal Corporation (1986 AIR 180).Conclusively, Articles 38 and 39 providing for social and economic justice stand to be transgressed if such a move is allowed to be initiated.
Determinatively, none of our constitutional principles or the Directive Principles provides a legal backing to the Ordinances. The already shifting tendency of the industry form manual to digital has imperilled the labour class to the highest extents. As much as we become a market or a digitised economy, we must not forget our Gandhian-Nehruvian values that our Living Constitution has invariably imbibed. Right to Health and right to lead a dignified life with something much more than mere existence is what our democratic principles stand for. We must not allow market interests to prey upon the simplistic yet indispensable human rights. The socio-legal infrastructure by channelized skill training and employer-contractor facility programmes for providing wage subsidies to the workers, must be included in the governance system. Summarily, this is not the time to take away the guaranteed rights but to ensure, to one and all, that much more will be provided in these trying times.