It's a Hobson's choice for labour amid corona lockdown

Chittarvu Raghu

Suspension of crucial labour laws for varying lengths of time by some of the states viz. Uttar Pradesh, Madhya Pradesh, Gujarat, Rajasthan etc., reflects the paradigm shift in relation to labour policies consequent to COVID-2019.

Already the economy is struggling with the lockdown and the labour is starring at the uncertain future. It is claimed that the labour laws have been suspended to incentivize economic activity in the respective states irrespective of the party ruling the State. In the process, the legislations that have been made to protect the welfare and the interest of the labour have been jeopardised.

Article 246 contemplates the subject matter of laws to be made by the parliament and legislatures of the State. The VII Schedule of the constitution consists of three lists i.e., (1) Union list, (2) State list & (3) Concurrent list. Entry 22, 23 & 24 of the concurrent list relate to the labour laws.

Article 254(1) states that if any provision of law made by the legislature is repugnant to any provision of law made by the parliament in relation to the matters enumerated in concurrent list, the law made by the parliament shall prevail and the law made by the legislature to the extent of repugnancy shall be void. However Article 254(2) saves such repugnancy if the assent of the President is received.

Article 213 empowers the governor to promulgate such ordinances as the circumstances appear to him require. The proviso to Article 213 stipulates that the governor shall not without instructions from the President, promulgate any such ordinance if the Act of the legislature of the State containing the same provision would be invalid under the constitution unless the assent of the President is received.

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A conjoint reading of Article 246, 213 & 254 shows that a governor cannot promulgate any ordinance without the assent of the President in relation to an ordinance suspending the labour laws. Even assuming that the instructions of the President have been received before promulgation of the ordinance, still the same is unconstitutional for the reason that it is in violation of Article 23 of the Constitution. The main statutes such as the Industrial Disputes Act, 1947, The Employees Provident Fund Act, 1952, The Factories Act, 1948 and The Minimum Wages Act, 1948 are also included in the said ordinances. The concepts contained in Payment of Wages Act, 1936, The Minimum Wages Act, 1948, the Payment of Bonus Act, 1976 are incorporated in the Code of Wages 2019.

The main objective of the Industrial Disputes Act, 1947 is to secure industrial peace, harmony by providing machinery and procedure for the investigation and settlement of Industrial Dispute by negotiation. The objective is to provide support measures for securing and preserving good relations between employer and employees.

The Employees Provident Fund Act, 1952 contemplates compulsory contributory provident fund for employees in factories and other establishments. The said contribution has also been exempted from any court attachments, which shows that it is welfare legislation. Similarly the Minimum Wages Act, 1948 has been enacted to secure minimum wages for sustenance and The Factories Act, 1948 which mainly emphasises on the health, welfare, safety, working hours, annual leaves with wages and employment of women and children has been enacted to prevent exploitation of labour.

The very objective of these industrial laws is to put an end to unfair labour practices and provides for the rights privileges, obligations, and responsibilities of the workforce. The other main objective is to safeguard the workers against exploitation.

All the above legislations have been bought into force for the purpose of preventing exploitation of labour. Article 23 of the Constitution specifically prohibits ‘forced labour’ of any form. Suspension of the said legislation opens an avenue for ‘forced labour’.  

Article 37 of the constitution mandates that the Directive principles of State policy laid down are fundamental in governance of the country and it shall be the duty of the State to apply these principles in making laws.

Article 43 directs that State shall endeavour to secure by suitable legislation to all workers, a living wage, and conditions of work ensuring a decent standard of life. The aforesaid legislations have been passed in the background of the said constitutional obligations and cannot be trampled upon under any circumstances. The Hon’ble Supreme Court in Peoples Union Vs. Union of India has held that there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and there are found inter-alia in Article 17, 23 & 24 of the constitution.

The Apex Court also held that Article 23 is clearly designed to protect the individual not only against the State but also against the other private citizens. The sweep of Article 23 is held to be wide and unlimited. The constitution makers, when they set out to frame the constitution, found that they had enormous task before them of changing the socio economic structure of the country and bringing about socio economic regeneration with a view to reaching social and economic justice to common man and it was necessary to carry forward social, economic revolution with a view to creating social economic conditions in which everyone would be able to enjoy the basic human rights and participate in the fruits of freedom and liberty in an egalitarian social and economic framework.

The Hon’ble Apex court also analyzed as to why, the subject of ‘forced labour’ was included in the Chapter on Fundamental rights. It is held that the prohibition of forced labour is intended to be a general prohibition, total in its effect and all pervasive in its range and also against any other person indulging in any such practice and Article 23 strikes at ‘forced labour’ manifested in any form which is in violation of human dignity and human values and the word force must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received is less than the minimum wage. In a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its face voluntary but it may, in reality, be involuntary, because while entering into the contract, the employee by reason of his economically helpless condition, may have been faced with hobson’s ‘choice’, either to starve or to submit to the exploitative terms dictated by the powerful employer.  

Therefore the decision of the State government to suspend the Labour laws as an incentive to the employer would be unconstitutional. The State cannot take advantage of the present adverse circumstances and the lack of bargaining power by the labour. It cannot act detrimental to the interests of labour welfare. The State has to abide by the directives contained in the Directive Principles and act in a manner to promote the interest and welfare of the work force and prevent any scope of exploitation by the employer. The easing of the lockdown, at the threshold, if experiences such adverse decisions, it would drastically effect the industrial peace and harmony.

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