The government of Uttar Pradesh has done this by way of an Ordinance. Article 213 of the Indian Constitution[1] states that when the state legislature is not in session the governor has power to pass an Ordinance, provided, that the necessary condition exits. In this case the outbreak of COVID – 19 along with the massive return of the migrant population back to the state of Uttar Pradesh has resulted in a state of serious crisis for the government. Centre has made more than fifty labour laws for the protection of the employees in working condition.
The issue which we need to understand in this context is that - as to how can Uttar Pradesh make a law overriding the Central Laws made by the Parliament? Labour is a Concurrent List subject, which means that the Constitution recognises that there are certain areas where the Centre and State need to make laws, Labour happens to be one of them.
OUTCOME – WHEN THE LAW PASSED BY THE STATE IS IN CONTRADICTION TO THAT PASSED BY THE CENTRE
Our constitution makers have kept this in mind, which is why they have enacted Article 254 in the Indian Constitution[2], which clarifies such a situation. In case a State enacts a law, which is violative of the law passed by the Centre in order to be valid then the state law must get the approval of President of India. This Uttar Pradesh Temporary exemption from certain Labour laws Ordinance, 2020 goes against lot of Labour Laws enacted by the Centre. There are still chances that the president may not approve this Ordinance, and the labourers of this country may heave a sigh of relief.
RIGHTS WHICH THE WORKERS ARE GOING TO LOSE
One of the important rights which the workers will lose is the Right to form Trade Unions under the 1926 Act. The Labourers will also lose the right to approach the Labour Court in cases for Unfair Labour Practices by the employers or masters under the Industrial Disputes Act, 1947. Workers are also said to lose their social security as laws like – Gratuity Act, 1972, The Employees Provident Funds and the Miscellaneous Provisions Act, 1952, and the Employees` State Insurance Act, 1948.
1. By suspending the Building and other Construction Workers Act of 1996, workers lose the following rights:-
a. Creation of Welfare Fund for the benefit of construction workers.
b. Provision of basic facilities like first aid, crèches, drinking water, sanitary.
c. Wages to be double of normal for overtime work.
d. Establishment of State Welfare Boards to oversee the implementation of the Act.
2. Factories Act, 1948 provides for certain minimum standards which the factory must maintain, such as:-
a. Entitlement to annual leave with wages.
b. Provision of basic cleanliness, hygiene and drinking water in factories.
c. Provisions for rest areas, canteen and washing facilities for workers.
d. Detailed conditions of working hours, extra wages for over time, etc.
e. Appointment of Welfare Officer.
f. Maintaining a register of adult workers for inspection.
3. The State has also suspended the Inter – State Migrant Workmen Act, 1979, which means the migrant workers which enter the state of Uttar Pradesh will not be provided with any form of security and other such rights by their employers, which includes:-
a. Establishments employing migrant labourers to be registered.
b. All contractors must be licensed.
c. Responsibility of contractors for payment of journey allowance to visit their hometown, to provide clothing, to ensure they are paid regularly etc.
d. In case the contractor fails to make payments, the Principal Employer must pay.
RIGHTS THE WORKERS ARE LEFT WITH
Only the provision regarding the safety and security of workers under the Factories Act, 1949 and the Building and Other Construction Workers Act, 1996 continue to remain in force. Wages will be set by the Uttar Pradesh government under the Minimum Wages Act, 1948 and they must be paid within the time limited prescribed under Section 5 of the Payment of Wages Act, 1936.[3] Labour Laws enacted for the welfare of women and children such as the Maternity Benefit Act, 1961, Prevention of Sexual harassment at the work place (Prevention, Prohibition and Redressal) Act, 2013, Child Labour Act,1986 continue to remain in force. In the case of death and disability the Employees Compensation Act, 1923 is applicable. Labourers can work up to maximum of 12 hours (which includes breaks), Bonded Labour System Abolition Act, 1976 is retained, and this means that the force labour is not permissible.
U.P. ORDINANCE VIOLATING THE INDIAN CONSTITUTION
1. The Preamble of the Indian Constitution states that India is a socialist country, which means that we put labour welfare very high on the list of priority.
2. The Fundamental Right under Article 19(1) (c) of the Indian Constitution[4] guarantees the Freedom to form association or unions.
3. India is a signatory to the International Labour Organization Convention of 1976 – India is bound to promote International Labour Standards in consultation with its workers as per the 1976 tripartite consultation convention. This clearly states that Trade Unions are integral stake holders for providing labour standards.
By taking away their right to form organised unions, the state is taking away fundamental right to agitate and descent, which is a very basis of a democracy and is a tool to protect them from any exploitation.
4. In the case of Bandhua Mukti Morcha v. Union of India[5], it was held that Article 21[6] ensures an individual a right to live with human dignity and right to live free from exploitation. It was also stated that, the government is bound to ensure the observance of the social and welfare laws which protect the dignity of our labourers.
5. The Directive Principles of State Policy, which are the guiding principles of any state action and are also the part of the basic structure of the constitution state that the, state must provide for just and humane working condition. By passing an Ordinance which suspends the responsibility of the employers to provide decent working condition to the labourers goes against the grain of our Constitutional framers.
To this extend this Ordinance can be deemed to be Unconstitutional. Laws cannot be arbitrary in nature. They must be formulated after due deliberation. The Hon`ble Supreme Court in the case of Hindustan Construction Company Ltd v. Union of India[7] stated that manifest arbitrariness is a ground to strike down a law under Article 14 of the Indian Constitution.
CONCLUSION
The solution to bad labour laws does not lie in suspending all Labour laws but, rather by drafting a good Labour Code. The laws must be simplified in such a manner so that it`s easier for employers to do business and labourers get their rights. The pandemic has shown to the world as to how vulnerable the labourers are. Let us not hit them, when they are at their lowest.
ENDNOTES [1]Indian Const. art. 213. [2]Indian Const. art. 254. [3] Payment of Wages Act. Sec.5. [4] Indian Const. art. 19. cl. (1) (c). [5] Bandhua Mukti Morcha v. Union of India, (1997) 10 SCC 549. [6] Indian Const. art. 21. [7] Hindustan Construction Company Ltd v. Union of India, 2019 (6) ARBLR 171 (SC).
ABOUT THE AUTHOR
This blog has been authored by Pranjali Pandya, who is a Final Year B.A., LL.B. (Hons.) student at Damodaram Sanjivayya National Law University, Visakhapatnam.
[PUBLICATION NO. TLG_BLOG_20_122_04]
Comments