As the world is struggling to tackle the advent of a pandemic, several states in India have chosen to suspend certain labour laws. This paper seeks to evaluate the move by the Uttar Pradesh Government (U.P.) in passing an ordinance to suspend key labour laws in the state for providing the economy with a boost. These suspensions have been sought to provide businesses and employers with flexibility in order to ensure that the effects of the lockdown due to COVID-19 on the economy are minimized. Looking at how India is battling COVID-19, the economy has taken a huge hit. Recovery of the economy is important, but at what cost?
The State of U.P. has proceeded to withdraw the ordinance, though, we will still critically look at under what provisions were these labour laws suspended and whether such acts could be permitted under the law.
The Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020 (ordinance) was passed by the U.P. Government to bring about changes in the labour laws. The ordinance was passed under Section 5 of the Factories Act, 1948. Section 5 provides the State Government with the power, to pass a notification for exempting factories from certain laws in case of a ‘public emergency.’ This has also then been defined in the explanation to the same section. A public emergency would mean a grave emergency whereby the security of India or any part of the territory thereof is threatened by war, external aggression or internal disturbance. It will be looked at whether COVID-19 would fall under the garb of ‘internal disturbance’ or not, and if it does come under the same, could the court allow for such an interpretation or would it strike down the changes made to the welfare labour regulations.
The ordinance was passed by the Government under the pretext that the pandemic, COVID-19 has led to internal disturbance. The Government of India had declared a lockdown and other stringent methods to fight this. Due to the proclamation of such public emergency under internal disturbance, U.P. has chosen to suspend various labour laws for the period of 3 years. Though, provisions in relation to safety and security of workers and protection of children and women who are also employed and the right to receive timely wages are still functional and will continue to apply to laborers. Even though the exemptions of various acts may exist, they are subject to several conditions. The changes brought by include an increase in the daily work hours from 8 to 12 hours and also weekly hours changing from 48 to 72 hours and no pay of overtime wages for the same.
We can now look at whether this move of U.P. can be justified under the garb of internal disturbance as provided in section 5 of the Factories Act, 1948. After that we will evaluate whether the rights of the workers are being breached. Given that the nature of the present situation is a risky and harmful one, it is possible to interpret public emergency to include a health emergency. Public emergency consists of internal disturbance which corelates to some obstacle in the administration of the State. The term ‘internal disturbance’ must be understood as it is understood in relation to the emergency provisions of the Constitution of India.
This is possible even though the term was replaced for ‘armed rebellion’ in Article 356 of the Indian Constitution, 1949. Internal disturbance has been referred to in the Sarkaria Commission Report under emergency provisions and its importance has been highlighted. The Report very clearly leaves the term ‘internal disturbance’ to be interpreted with a very open-ended view. It also talks about how natural calamities of unprecedented magnitude could also be internal disturbance, and would include flood, cyclone, earthquake, epidemics, etc. which may also paralyze the government of the State and put its security in jeopardy. The Constituent Assembly Debates have also equated internal disturbance with internal disorder and as genuine physical disturbance due to riots, violence or any other physical manner which would require the forces of the State to quell the same with force or otherwise. But the fact that the term has been left there intact by the constitutional makers was done so to leave an open-ended interpretation as required. This means that even Covid-19 as an epidemic would end up interrupting the administration of the State effectively and has done so.
Having understood that internal disturbance could include epidemics, Covid-19 would come under it. This inclusion means that the decisions taken by the State Governments, especially that by U.P., is legally sound to this extent. Now comes the question as to whether the judiciary would allow for such an understanding of the same and what rights of the workers are breached. The judiciary could very well agree to the changes made by U.P. as being legal and that would mean the changes remain. Accepting these changes as being legal under Section 5 of the Factories Act, 1948 may seem reasonable, but these changes also breach various other rights of the laborers which also include fundamental rights such as right to life enshrined under Article 21, or even right to freely form associations as provided in Article 19(1)(c) of the Indian Constitution, 1949. It is now time to look at whether the laborers rights are not being given weightage as it is due to them. Article 21 of the Indian Constitution provides for the right to life and personal liberty to every person. This Article coincidentally also includes a right to live with dignity.
Given that in the present situation that the laborers are being subjected to increased hours of work without any increase in pay, or even proper rest and rules which would safeguard their rights to negotiate with the employer, it shows that the right of the laborers to live with dignity is being infringed upon. The right to form associations, which includes trade unions, by the laborers is also being infringed upon as the Trade Unions Act of 1926 would also get suspended. The non-application of the T.U. Act would mean that the laborers do not have a representative voice against the policies of the employers which could be heavily one sided. India has also ratified the International Labour Organization Ratifications Coo1 – Hours of Work (Industry) Convention, 1919 (No. 1), which provides for minimum working hours and due to changes proposed to the labour laws, India will stand in contravention to this convention too. This clearly shows to us the one-sided view that has been taken while making such changes. This serves to be an enabling environment for exploitation by employers while placing on the laborers and unequal burden of reviving the economy.
The exemption from the Industrial Disputes Act, 1947 denies the right of workmen to raise any disputes against the employer, and it also provides the employer with the sole power and discretion with respect to layoffs, retrenchments, strikes, lock-outs, and that the compensation would no longer be safeguard the interest of the workman. This unchecked power with the employer is unwarranted in a time of crisis. The Minimum Wages Act, 1948 also stands suspended but the ordinance is securing minimum wages “as notified by the government.” Looking at this, it could prove that the government will have free reign while deciding the wages, hence is also violative of the right to life with dignity if they do not receive the amount of wages to live a life with dignity. Looking at the fact that The Equal Remuneration Act of 1976 is also suspended, it would be violative of Article 14 of the Constitution if there is refusal to pay equal remuneration for equal work.
We have analyzed the legality of such an ordinance and even though there seems a probability of it being legally sound under the pretext of a public emergency. Though, labour welfare legislations cannot be suspended due to breach of fundamental rights of the laborers. It even seems that the State is not taking into consideration the environment and security/safety that the laborers would require to work efficiently for producing most output to boost the economy. It also strikes me that the State is not considering whether lack of governing legislations could also serve as an obstacle from receiving investments and that would prove to be counterproductive. It must be kept in mind that in the given situation, more than reviving the economy it is important for protecting the rights of our laborers who serve as the backbone of our country.
Endnotes https://www.livelaw.in/pdf_upload/pdf_upload-374550.pdf  Factories Act, 1948, Section 5.  Ashima Obhan and Bambi Bhalla, Suspension of Labour Laws Amidst Covid-19, MONDAQ (May 18, 2020), https://www.mondaq.com/india/employment-and-workforce-wellbeing/935398/suspension-of-labour-laws-amidst-covid-19  https://www.livelaw.in/pdf_upload/pdf_upload-374785.pdf  http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERVI.pdf  Report of the Sarkaria Commission, Chapter VI: Emergency Provisions., http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERVI.pdf  Volume IX – Part II Constituent Assembly Debates (Aug. 2, 1949), https://indiankanoon.org/doc/253809/?type=print  Maneka Gandhi v. Union of India, 1978 AIR 597.  https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:::NO:12100:P12100_ILO_CODE:C001:NO  Udit Chauhan & Aditya P. Arora, Exemption from Labour Laws: Unleashing the “New Normal?”, BAR AND BENCH (May 18, 2020), https://www.barandbench.com/columns/exemption-from-labour-laws-unleashing-the-new-normal  Id.  Id.
Author Details:Sahil Dhawan is a student at Jindal Global Law School.