AUTHORED BY: GAURAV PURI (MANAGING PARTNER, GLS LAW OFFICES)
Introduction
In wake of the global pandemic and the economic distress that set in thereinafter at least three states being Uttar Pradesh, Gujarat and Madhya Pradesh have recently promulgated ordinances with the effect of suspending almost all labour law protections in their states including social security laws, equal wage laws and laws that prescribed basic working conditions to be maintained in the workplace for the next three years. The ordinance has led to wide criticism of the respective Governments by members of the civil society, academics and labour unions. Recently, during the announcements of the ‘aatmanirbhar bharat scheme’ while addressing the migrant labour crisis, the Hon’ble Finance Minister spoke about the efforts in Parliament for enacting the Labour Code with the objective to make labour standards uniform across the country in terms of security, wage, working conditions etc. which essentially is the opposite of what these states have done by virtue of these ordinances. It has since been reported on May 16, 2020 that the U.P government has withdrawn the said notification but no such news has been received from the other two states.
The ordinances do away with all other national and state legislations dealing with labour laws that applied to the these states including but not limited to the Industrial Disputes Act, Minimum wages act, Equal Remuneration Act, Maternity Benefit Act, Inter-State Migrant Workers Act, Factories Act, Trade Unions Act, Contract Labour act amongst others. According to the Labour Minister of State of U.P. 35 out of the 38 labour laws applicable in the state will stand void for three years due to the ordinance. All of the above laws that have been done away with are protected by Part III and Part IV of the Constitution.
In the post the author argues that the entries of labour law that currently are a part of the Concurrent List under Schedule VII must be shifted to the Union List via an amendment to the Constitution. The move serves the twin purpose of [1] maintaining uniformity of labour laws in India and [2] it empowers the labour in terms of bargaining power and does not leave their fundamental rights merely at the mercy of the Industrialists and the State Governments.
Schedule VII and Labour Laws
Under Schedule VII the entries dealing with labour legislations fall in List III i.e. the Concurrent List in the following entries:
“1. Entry 22: Trade unions; industrial and labour disputes.
2. Entry 23: Social security and social insurance; employment and unemployment.
3. Entry 24: Welfare of labour including conditions of work, provident funds, employers’ liability, workmen’s compensation, invalidity and old age pensions and maternity benefits”
In accordance with Article 246 (2) of the Indian Constitution both the State and the Centre can exercise power over the legislations dealing labour subjects. The Article reads as, “Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).”
Doctrine of Repugnancy and Article 254(2)
In cases of a conflict between the two Governments the Centre will supersede to the extent of repugnancy as mandated by Article 254 (1) that introduces the Doctrine of Repugnancy in the interpretation of lists.
The article states that, “any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.”
A bare reading of the subjects in the Concurrent list shows us that the matters enumerated are subjects of national importance and go beyond the borders of the state. At this point it is important to look back at the legislative intent of the Concurrent list and doctrine of repugnancy. The Concurrent list was made for matters where both centre and state could legislate. This list was reserved for matters that at the first instance did not assume national importance and hence the centre may not feel the need to legislate on them basing them on State-wise considerations. Yet, the over-riding power in these subjects was reserved with the centre so as to make changes as and when it was felt that these matters assumed national importance and hence would require uniformity across the Country.
Yet, an exception to the rule of repugnancy was also provided under Article 254 (2) which reads as, “Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State”
The Supreme Court in Bhuwalka Steel Industries Ltd. v. Bombay Iron & Steel Labour Board [(2010) 2 SCC 273] has held with regard to the interpretation of Article 254 (2) vis-à-vis a conflict between a Central and State Law dealing with labour that, “All arguments must fall to the ground once the Presidential assent under Article 254(2) was given to the Act”
Therefore, on a reading of the Centre-State relations with respect to the matters enumerated in the concurrent list it is the view of the author that Labour Legislations have now assumed national importance to a point where there need to be a uniform set of laws whilst dealing with the legislations. In course of the pandemic it is the labour that has been the worst affected and been kept at the mercy of States. It can be seen throughout the history of labour movements that their bargaining power against the employers is at its worst stage during this pandemic to a point where in many states migrant labours were not even allowed to leave as the same was requested by industries and factories for their economic gain. By shifting the entries to the union list the protections given to labour cannot be bypassed by the state as is attempted now. Article 254 (2) should be of no avail to states in matters of labour legislations and protection anymore. Furthermore, it will go to show the Centres resolve in protecting the labourers of this Country.
Secondly, a move of the entries into the union list will guarantee equal protection of fundamental rights to all labourers across the country. According to the Supreme Court in PUDR v. Union of India (1982) 3 SCC 235 it is the duty of the state that there is no breach of statutory benefits that lead to a violation of fundamental rights. The protection of the Government cannot be differential to labourers in different States this goes against the mandate of Article 14.
Maintaining the Federal Spirit
It is also clarified that if such an amendment were to be brought about then the shifting of legislative entries will not violate the principle of federalism as the amendment to the lists in schedule VII compulsorily require, “to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent“, which is in addition to being ratified in both houses by a majority. The Constitution ensures that amendments affecting the federal structure are not passed without the approval of the States. Therefore, the federal principle of the Indian Constitution is not violated.
Conclusion
The recent labour law ordinances have shown that the States can dilute labour laws completely for economic considerations. The fundamental protection to the labour migrants should not be subject to varied industrial needs across states. According to the author, the protection of labour laws in India should be uniform across the nation. Secondly, for the labourers that work across many states also known as inter-state labour migrants, there should be a uniform law and equal protections across state lines to ensure that basic labour conditions and rights are not diluted and uniformly maintained across the country.
Therefore, protection by the centre becomes a way so as to not let the states take advantage of Article 254 (2).
In a case where the states that want to do better for the labour can do so via the State list that has entries such as Industries (subject to such entries in the union list), public health and relief to disabled and unemployed under which the State can help the labourers on their end over and above the protections provided by the Centre but not lower than the minimum standard as prescribed i.e. ensuring uniformity of protections. According to the principles of interpretation of lists such measures as can be taken by the State and will be harmoniously constructed and made to co-exist ensuring that the States wanting to do good for the labourers will still have the means to do so whereas the States looking to complete do away with labour protections will not be able to do so.
In conclusion the author believes that the labour needs to be protected by Central Legislations that come from subjects in the Union List for the reasons mentioned above. It is essential at this point to balance social considerations of labour with the economic revival of the Country. Human Rights of the workers cannot be compromised for economic gains. Therefore, States shall be made devoid of the power to take away such rights and the protections must flow from the Parliament removing any legislative options for the State to try and dilute the fundamental rights of workers.
Published in: Lex Humanitariae Journal For a Change on June 30, 2020