Labour laws and rights in peril in India?

Image Courtesy: Skanda Gautam/THT

There is no denying that the worst hit section or class of people ever since the nationwide lockdown was haphazardly and recklessly declared, have been our “workers”. This is a rather generic term that stretches across sectors; it covers the vast numbers of those who work in our unorganised sector, migrant labourers and landless labourers. Right from a mason, carpenter, kedia, plumber, zardozi embroidery worker, to one who drives an autorickshaw and one who sells vegetables for a living. Basically, any such person who lives a hand-to-mouth existence and is at risk of losing even a day’s earnings or wages leading to their entire family becoming unable to afford a good meal the next day.

Plight of workers during COVID19

Since March 24, when the first lockdown was announced and all transport came to a standstill and people were locked up in their homes, these very workers were yearning to go back home in the absence of any means of their wages, unable to buy food or pay rent to their landlords. These ‘guest workers’, the Kerala lingo for migrant workers, were then to be provided for by the host state as it was found unfeasible to send them back to their home states. Most of the host states failed to deliver even though citizens’ initiatives bravely and stoically stepped in.

Straining at the leash -stressed out in cities like Mumbai and in Gujarat where the COVID virus spread was not being contained – crowds gathered, in Mumbai, in Surat and few other cities, desperate to reach home. What seemed unfeasible then was made feasible just a few days later when special trains were arranged for these workers to go back to their home states, to enable them to at least live a life of dignity, in their homes in their village rather than living off the ration and essentials given by some well meaning citizens groups and, in some cases, the government.

Most host states, that benefit from the hard work and labour of these “guest” or “migrant” workers, have just not been able to instil a sense of trust, leave alone give these workers what they demanded in this moment of pandemic driven crisis: some transparency and communication forget a life of dignity which would let them earn through their hardwork and provide for their families.

The massive human tragedy as lakhs of migrant workers found themselves stranded during the lockdown, without any means of getting food or work.  Much of this could have been averted had the laws on migrant workers been properly implemented, and all of them been duly documented. Many of these workers have not been paid for months. Again, had the laws relating to the timely payment of wages been enforced, many of these workers would not have been forced to take desperate measures like walking thousands of kilometres back to their homes.

Modi 2.0 Govt’s attack on Dignity of Labour

The COVID 19 pandemic brought out the worst among those in power and even the urban elite. Staring at starvation, the narrative of this section of Indians now dots micro-blogging sites and the discussion shows on some television channels. India reels under a particularly non-transparent and authoritarian government. Unmoved by the “plight” and “narrative” of the “nowhere Indian” our guest or migrant workers, the Modi 2.0 government and several states owing allegiance to the Bharatiya Janata Party (BJP) and even a couple with Congress governments have seized the opportunity to bring in ordinances to curb the recognised and hard-earned rights of the workers in the organised sector as also the unorganised sector.

It has been reported that states like Uttar Pradesh, Madhya Pradesh and Gujarat are paving a way to dilute the rights of these workers, in short aiming for diluting labour laws. The ordinances cleared by Uttar Pradesh and Gujarat cabinets, which would indiscriminately suspend all labour laws except a few basic ones, for close to three years. Notifications by the governments of Madhya Pradesh, Rajasthan, Himachal Pradesh, Punjab and Haryana have also suspended crucial portions of their labour legislations. These moves could force a large proportion of our population to inhuman servitude and destitution.

 Uttar Pradesh, through an ordinance called ‘Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020’, has suspended 35 out of 38 labour laws for a period of 3 years. The state justified this step on the grounds that economic activities need to get back on track and industrial investments opportunities need to be created. The Centre of Indian Trade Unions (CITU) called the move barbarous and termed it as encouraging slavery of workers.

On May 7, Madhya Pradesh Chief Minister Shivraj Singh Chouhan announced that his government will exempt new manufacturing units from almost all provisions they have to follow and comply with under the Factories Act, 1948 for nearly three years.

The first step towards dilution of these labour rights were taken by states when working hours of workers was increased from 8 hrs to 12 hrs, without lawful compensation. This paved the way for the suspension of labour laws, as dared by Uttar Pradesh and Madhya Pradesh. There are reports that UP has gone back on this decision, however not the overall Ordinance.

Why do we need Labour Rights?

The swiftness with which many states in the nation are dismantling the protection afforded to workers under various labour laws is worrying: These laws provide many of the basic guarantees to workers; ensuring that employees get paid decent wages on time, have reasonable working hours, and are not subject to discrimination. They require employers to provide basic necessities such as drinking water and clean toilets to workers and protect them from accidents and occupational hazards and diseases. Labour laws are essential for ensuring fundamental rights for our workers – rights which are guaranteed by the Indian Constitution to all Indian citizens, at all times. The withdrawal of these protections from the working population in an effort to entice new businesses, is an unconstitutional, immoral and unethical attempt to revive an economy at the expense of its weakest citizens. 

Rights Diluted or Snatched away?

Labour Laws ensure basic living conditions for a large section of the population

Remuneration for Work

Employers are mandated by law to pay workers no less than the minimum wages in a timely manner, and also supplement the incomes of their low wage employees with yearly bonuses drawn from their profits. In addition, laws on gratuity ensure that at the end of employment, due to retirement, death or disability, the employees or their families are compensated for the length of their service. Workers covered by Employee State Insurance (ESIC) are entitled to half of their monthly wages as unemployment benefits for a maximum of two years, and the Employees Provident Fund (EPIF) allows them access to a small fund at retirement, or during an emergency. 

Poor implementation of the Law: In actuality only a small proportion of all workers are enrolled in ESI and EPF, even in industry notified under EPF. For example, in the brick-kiln industry, it is estimated that anywhere from 5-8 million workers do not get this benefit. Similar is the situation in relation to Gratuity and Bonus. The demand should be to make these protections universal; instead, these provisions are being suspended even for existing workers.

Most of the currently proposed labour law amendments guarantee only the minimum wages and have suspended all other benefits.  Congress-ruled Punjab has also rolled back its latest increase in the minimum wage and other states may soon follow.  UP and Gujarat propose to suspend gratuity, bonus, provident fund, and all other benefits, which are crucial to sustain the workers at this time.  

2.      Working Hours  

Factories Act mandates that working hours should be limited to 9 hours in one day, with a maximum of 48 hours per week.  Any additional hours of work have to be compensated as overtime wages at twice the ordinary rate. A large number of states including Rajasthan, Punjab, Haryana, Himachal Pradesh, Gujarat, Uttar Pradesh and Madhya Pradesh have extended the workday to 12 hours per day, for the next 3 months, with no increase in the number of rest intervals. A majority of these states have also extended the workweek from 48 hours to a gruelling 72 hours. Worse still, Gujarat and Uttar Pradesh have exempted their industries from having to pay overtime wages for these extended work hours.  

Extension of working hours also goes against the stated aim of these labour law amendments to increase overall employment, because they effectively incentivize the employers to employ fewer workers than required, and compel them to work for longer hours. 

Limiting the working hours to 8-hours a day and 48 hours in a week originated during the Industrial Revolution in order to protect the workers’ health and safety by providing them with adequate amounts of rest and recuperation. Considering that the right to shorter working hours was the subject of the very first Convention of ILO ‘International Labour Standard (C001)’ adopted by the ILO and ratified by India, these steps by the Modi 2.0 government and several state governments is turning the clock back more than 100  years of workers’ struggle.

It is especially against the very requirement of health and immunity following Covid-19; this is because simultaneous with the 12-hour workday, the rest time for the worker will now be available not after the first 4 hours, but after 6 hours of continuous work. This will have an adverse impact on the health and emotional state of the workers. Also given the high increasing rate of unemployment, this will further limit the employment opportunities. The hours work should be reduced to six.  

3.   Health, Safety and Welfare of workers

Factories Act, Mines Act and Dockworkers Act are some of the labour laws that enjoin employers to protect the health and well-being of their workers. These laws provide for clean, ventilated and adequately lit working spaces with drinking water, and toilets. An employer is also expected to provide first aid facilities, sitting spaces and creches. These laws also mandate inspections for safety and health, safe disposal of hazardous materials, notifications of industrial accidents and occupational diseases. 

As a pandemic rages in our country, and with a living memory of the Bhopal Gas Disaster and the recent Styrene gas leak causing the death of 11 people and serious injuries to over 200 people in the LG Polymers India plant in Vishakapatnam on May 7, 2020, it is obvious that these measures not only secure the health and safety of industrial workers, but also of entire communities.   

4.   Grievance redressal machinery and the Right to Collective Bargaining 

The central Industrial Disputes Act and the state Industrial Relations Acts primarily protect workers from uncompensated lay-offs and retrenchments, unreasonable changes in their working conditions, unfair labour practices etc. They allow for a system of labour courts, industrial tribunals and arbitration boards where the workers can raise an industrial dispute relating to wages, working hours, conditions of work etc, and get their grievances redressed.  The Trade Unions Act recognizes associations of workers to act as their representatives and enter into collective agreements with the employers. 

The Tripartite arrangement ensured after years of struggle among the workers is aimed at ensuring a more equal bargaining power with the worker, who, without the assurance of some adjudication is left to the mercies of rapacious employers and unregulated work conditions.

This machinery is essential for ironing out the tensions between the labour and the management, without having to take recourse to the lengthy and expensive litigation, or acrimonious strikes and lock-outs.  Highest level labour related bodies at the National (Indian Labour Conference) and International (International Labour Organisation) level are tripartite in nature. To compromise on this arrangement is to hit at the very structure of equitability and accountability, both must for democratic governance. 

5.   Worker Welfare   

In addition to these, there are many other labour laws which afforded some protection to the most vulnerable category of workers, such as pregnant women, migrant workers, contract workers, manual scavengers, and those working in the beedi industry, in mines and in the unorganized sector, who are now also left open to exploitation by industry owners. 

Diluting labour laws will not attract additional investment

The justification given by various governments that existing labour laws are a deterrence to investment by industry, and by extension, to the prosperity of the state, needs to be examined more critically. The notion that stringent labour laws are the primary impediments to investments in states is highly debatable – manufacturing industries depend on a complex set of factors such as reliability of infrastructure, access to credit, availability of skilled workers, good governance and freedom from corruption.  

Several studies have shown that strong labour market institutions and social welfare legislation are necessary to reduce inequalities and encourage inclusive growth[1], and that high levels of inequality can retard growth in developing economies[2].  Even the UN Trade and Development Report, 2019, warns governments against “promoting cuts to labour costs” as their “adjustment strategy of choice” when faced with economic downturns. Instead, the report encourages governments to adopt progressive fiscal arrangements, and expanded social insurance, among other measures for achieving Sustainable Development Goals.[3]  An increase in the average wage of the worker will drive domestic demand, fueling growth in the economy. 

Suspension of Labour Laws is Unconstitutional & violates International Covenants

The new industry regime ushered in by these changes, where employers can pay rock-bottom wages, hire and fire workers at will, coerce them into working long hours each day, and prevent them from unionizing, goes against the very grain of our constitution, and is also in violation of many international conventions. Such precarious working conditions are clearly violative of Article 21, the fundamental right of workers to live with dignity, as held by J Bhagwati in the `People’s Union for Democratic Rights v. Union of India’ (1982)[4] case.

The Supreme Court has held that Article 21 also encompasses the “protection of health and strength of workers and just and humane conditions of work.[5]” 

The rights of workers to non-discrimination, a living wage, safe and humane working conditions, and a decent standard of life and full enjoyment of leisure and social and cultural opportunities, is also enshrined in our Constitution through Directive Principles of State Policy[6].  

The right to form trade unions and engage in collective bargaining is protected by Article 19(1)(c), which guarantees all citizens the right to form associations or unions for a lawful purpose.  It is also a fundamental human right recognized by the Universal Declaration on Human Rights, 1948, enabling the effective participation of workers in economic and social policy. 

History of labour laws in India

Pre-independence

The history of labour rights dates back to colonised India. The concept of some sort of labour welfare in colonial India was introduced by the British government through the Apprentices Act of 1850 and further the Fatal Accidents Act, 1853 which sought to provide compensation to families of workmen who lost their lives due to an actionable wrong. The law which actually aimed at improvement in labour conditions was the Factories Act of 1881 and was first such law which prohibited employment of children below 7 years of age and mandatory 4 days leave in a month, among other things.

After the International labour Organization (ILO) was founded in 1919, a new law was passed superseding the previous law and was called the Factories Act, 1922 which limited 11 hours of work per day and cap of 60 hours work through the week.

The earliest Indian statute to regulate the relationship between employer and his workmen was the Trade Dispute Act, 1929 (Act 7 of 1929). Provisions were made in this Act for restraining the rights of strike and lock out but no machinery was provided to take care of disputes.[1]

Post-independence

After independence a committee was set up called the Committee on Labour Welfare which gave definition to the term labour welfare as follows:

“labour welfare includes such services, as facilities and amenities as adequate canteen, rest and recreational facilities, sanitary and medical facilities, arrangement for travel to and from work and for the accommodation of the workers employed at a distance from their homes and such other services amenities and facilities as contribute to improve the condition under which workers are employed.”

Independent India saw several laws related to labour rights. Labour is a concurrent subject which mean both, the Centre as well as the states can make laws on it. There have been several labour laws, for Employees’ insurance, for mine workers, for cine workers, dock workers, for equal remuneration, for maternity benefit, for gratuity, for resolving industrial disputes, for security of unorganized labour, for plantation labour, for journalists and so on. There are more than 50 such laws enacted by the Centre alone and then each state has its own set of labour laws.

The significance of labour laws relates to the establishment of a better working culture among the employees and also makes sure that the interests of all three parties i.e the employees, the employers and the trade unions are protected.

Labour rights in courts

The principle of equal pay for equal work for upheld by the Supreme Court in 1982 in Randhir Singh vs. UOI (AIR 1982 SC 879). It held that even though this principle is not expressly mentioned in the Indian Constitution as a fundamental right, it is certainly a “constitutional goal” and hence can be enforced in cases of unequal scales of pay based on irrational classification.

Right to livelihood is organically a part of labour rights. In Olga Tellis vs. Bombay Municipal Corporation, known as the ‘pavement dwellers case’, a five-judge bench of the apex court had ruled that right to livelihood is include in right to life guaranteed by Article 21 of Indian Constitution.

“If right to livelihood is not treated as a part of the constitutional right to life, the easiest ways of depriving a person of his right to life would be to deprive him of his means of livelihood. In view of the fact that Articles 39(a) and 41 require the state to secure to the citizen an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life.”

In PUDR vs. UOI (1982 AIR 1473)the Supreme Court held that the right against forced labour included the right to a minimum wage. It noted that often, migrant and contract labourers had “no choice but to accept any work that came [their] way, even if the remuneration offered… is less than the minimum wage”. Consequently, the Court held that “the compulsion of economic circumstance which leaves no choice of alternatives to a person in want and compels him to provide labour or service” was no less a form of forced labour than any other, and its remedy lay in a constitutional guarantee of the minimum wage.

To cater specifically to labour issues, there are labour courts, Industrial Tribunals and National Industrial Tribunal set up under the Industrial Disputes Act. A labour court is at par with a district court.

Labour and Constitution

Labour is a concurrent subject, as mentioned before and labour as a subject is dealt with under Chapter III which is fundamental rights as well as chapter IV which is Directive Principles of State Policy.

Fundamental Rights related to labour:

Art. 16: Equality of opportunity in matters of public employment:

This Article provides that no discrimination be made during employment and also enables governments to pass laws for reservation of appointments for backward class of citizens

Art 19(1)(c): Right to form associations or unions-

This Article gives labour the right to form unions. In India Trade Unions are governed and registered under specific law called the Trade unions Act. Trade unions play a significant role in asserting labour rights which have been provided for in the Constitution as well as under various labour laws. They help in negotiating better working conditions for workers and also help in settlement of disputes between employer and workers.

Art. 23: Prohibition of traffic in human beings and forced labour

This Article provides that any kind of forced labour is punishable. This seems relevant in today’s time when Karnataka government was accused of indulging in forced labour when it forced migrant workers to stay back in the state in order to resume construction activities. This decision was revoked within a few days after it met with a lot of criticism.

Art. 24: Prohibition of employment of children in factories

This Article prohibits child labour in any factory or mine or in any other hazardous employment. This further paved way for the Child Labour (Prohibition and Regulation) Act, 1986 which when amended in 2016 prohibited the employment of children (below 14 years) in all kinds of occupation and of adolescents (between 14 to 18 years of age) in hazardous occupations.

Directive Principles of State Policy

Article 39 requires the state to direct its policy towards securing:

a. that the citizens, men and women equally, have the right to an adequate means to livelihood;

…d. that there is equal pay for equal work for both men and women

…e. that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength

Article 41

 Right to work, to education and to public assistance in certain cases The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Article 42

Provision for just and humane conditions of work and maternity relief. The State shall make provision for securing just and humane conditions of work and for maternity relief

Article 43

Living wage, etc, for workers The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co operative basis in rural areas.

Article 43A

The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry.

Labour laws still need to evolve

The current health crisis or the COVID19 pandemic has brought to fore the utter disregard for the unorganised sector in India. No strict penalties or regulations were formulated for the financial and social security of these unorganised sector workers. Although there exists a law for their social security called Unorganized Sector Social Securities Act, 2008, it does not clearly define what social security means neither is it clear what kind of establishments under unorganized sector can become beneficiaries. Hence, clearly there is lacunae in the law.

Another problem, which many social security laws in India also face, is effective implementation which ultimately means the real beneficiaries largely end up deprived of their rights. If labour laws are implemented in their truest sense, India can achieve its projected goals of labour empowerment which was envisioned by the framers of our Constitution.

First published in Sabrang India.