Daniyal Qureshi | Symbiosis Law School Pune | 5th June 2020
In a desperate and much criticized attempt to provide support to the crumbling capitalist economic business setups, the state governments in India have taken to suspend labour laws to provide dirt cheap Chinese like labour in India to promote entrepreneurship and to and attract international businesses in a time where numerous business are talking of withdrawing or have already withdrawn their manufacturing units from China. The state of Uttar Pradesh and Madhya Pradesh have been the first states to take this measure. And naturally this measure has attracted widespread criticism. It is a complex decision with multiple legal and socio-economical facets.
The order of ordinance – Uttar Pradesh.
On 6th May 2020 the State government of U.P. passed the order of ordinance and sent it to the central government to be rectified since labour is a subject under the Concurrent List of Seventh Schedule of the Constitution. The Uttar Pradesh Temporary Exemption From Certain Labour Laws Ordinance 2020 provides exemption from all labour laws in the state except three laws which are Bonded Labour Act 1976, Employee Compensation Act 1923 and Other Construction Workers; Act 1996. The ordinance thereby suspends 35 of the 38 labour laws in the state.
The ordinance does not merely just suspend the labour laws. The ordinance lays down certain guidelines.
Wages to be paid to the workers according to the minimum wages prescribed by the government and to be paid in time in accordance with Section 5 of Payment of Wages Act 1936.
Furthermore, the employers are barred from paying wages in cash. The ordinance mandates that the wages shall only be paid in their bank accounts.
The state government of Uttar Pradesh feels that the labour laws of the state act as cumbersome obstacles on the road of economic development and getting rid of these protections awarded to the lower class of the society will lead to the betterment of the society as a whole including the labour class itself.
The Uttar Pradesh government through its spokespersons has claimed that the suspended laws only benefitted to only about one tenth of the total work force anyway. The government claims that this move does not affect the vast majority of the workers involved in the informal unorganised sector. It is claimed that the suspension of laws will help the citizens of the state who have migrated back to the state in light of the ongoing pandemic.
A critique
While the move may seem unethical and violative to some and economically judicious to other, the question is, if rectified by the central government, does the ordinance pass the test of law?
The question to the constitutionality of the ordinance has been raised with great fervour and protest by those in the socialist camp.
A bittersweet realisation that must be accepted is that the constitution of India is not a law. It is a socio-legal document. And the wellbeing and health of the spirit of the constitution is in the hands of the seated government. It depends upon their discretion to enforce or not to enforce the same or not. This idea is reflected under Article 213 (1) and Article 254.
The state government anticipates repugnance by the ordinance and has therefore sent the ordinance to be rectified by the central government and obtain the assent of the president of India. Part III of the constitution operates in a positive manner. That is to say that it forbids enactment of legislation that is in violation of fundamental rights.
The question would not be “Can the state pass an ordinance that does not pass constitutional test?”. The obvious answer is no. But what determines the constitutionality of any legislation is the merits of the case. Therefore, it is questionable that whether the withdrawal or suspension of laws could amount to violation of fundamental rights. However in the opinion of former Madras High Court Judge Justice K Chandru suspension of almost all labour laws would be a violation of fundamental rights and directive principles of state policies.
The question that is to be discussed is whether the constitutional principles and morals are tantamount, supreme or are they mere feel good showpieces at the face of a capitalist regime that intends to run a state like it were a corporation. Is there a paramount interest that condones the sacrifice of the rights and safeguards against exploitation of the working class against economic welfare of the upper classes.
Would the hire-and-fire culture that would be instituted in the absence of the protection of labour laws, that are conveniently viewed as “obstacle to economic welfare” translate or transcend into economic stability? To understand this question better, let us take an example of the garment industry setup in Bangladesh. The dirt cheap labour available in the country due to the abysmal condition of labour laws lead to Bangladesh becoming the hub of garment manufacture across the world. The most prestigious of the companies’ such as Gucci have their manufacturing units setup in the country. But has this really translated into the betterment of the condition of the people in Bangladesh? The unfortunate answer is no. While the cheap labour availability in Bangladesh has failed to provide a holistic economic boom to the country, exploitation of human resource has become rampant. The workers work in inhuman and without adequate pay or any benefits at all. Article 21 of the Indian Constitution has been widely interpreted by the courts in India that life does not mean mere animal existence. It is a duty of the state to ensure a dignified life to its citizens. While the economical slowdown is worrisome, nonetheless suspension of the rights of the poorest class of the country is equivalent of treating the poor as fuel for the society, one which can be burned and replaced. We must uphold the ethos of liberty and freedom as paramount and integral to the existence of the state itself.
It is a matter of weighing interests and the less privileged lose out the battle against the state sponsored exploitation. It is a testament to the incompetency of the state that the state can do nothing except take away the rights of the people to give boom to the economy.
Under no circumstances must the Republic of India outweigh human life in comparison to anything.
Conclusion
While the state may argue that the suspension of the labour is for the greater good the fact remains that the liberty and dignified freedom of a vast majority of the Indian populace is the greater good and the ordinance to take away the rights of the labour class is the anti-thesis to the welfare of the labour class. India is a democracy. A dignified life is one of the core and fundamental ideas of the foundation of the Republic of India. It is a shameful faux pas to chase after the economic outlooks such as the Chinese. The holistic development of a society is rooted in the welfare of the working class.
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