The outbreak of COVID-19 has unleashed an unparalleled humanitarian crisis around the world. In India, among other states, it has resulted in the mass fleeing of migrant workers to their hometowns, drastically reducing the availability of labour after lockdown. Several Indian states have addressed this by diluting the labour laws.

On 8 May 2020, the Uttar Pradesh state government promulgated a law named “Uttar Pradesh Temporary Exemption from Labour laws,” which allows the state to grant sweeping exemptions from labour laws. According to the state government, the justification for this law is to explore all possible ways to revive the economy by attracting investors and helping to set up new industrial infrastructure. Employers' associations, in favour of the ordinance, demanded suspension of certain labour laws barring some key provisions across the country for next few years to help the industry come out of the crisis induced by the lockdown.

Through this ordinance, the regional government will suspend 35 out of 38 existing labour laws in the state for three years—these include laws relating to labour unions, workplace safety, and disputes regarding working conditions. Only three labour laws will be retained, including the Bonded Labour (Abolition) Act, the Employee Compensation Act, and Section 5 of the Payment of Wages Act, which assures timely payments to employees.

The suspension of Indian labour laws in any capacity, though, presents serious concerns, including risks of worker bondage, a lack of job security, lower remuneration to women, and higher risks to safety for all workers.

LABOUR LAWS AT RISK

For example, with the suspension of Minimum Wages Act, 1948, there would be no regulation of the wages received by workers. Indian jurisprudence recognises that payment below the minimum wage would give rise to the situation of bondage, as affirmed by the Indian Supreme Court in Bandhua Mukti Morcha case. Additionally, non-payment of minimum wage to workers is a clear violation of article 23 of the Indian Constitution. The Indian Supreme Court also recognised, in the case Sanjit Roy v. the State of Rajasthan, that if minimum wage is not paid for labour, the work then falls under the category of “forced labour” in violation of the country’s constitution.

Similarly, the suspension of the Industrial Disputes Act means that there would be no regulation with regards to the employment and termination of workers. According to this law, permanent workers can only be terminated for a valid reason with permission of the appropriate government office. This Act gives workers protection from termination on unfair grounds, such as their membership in a trade union or participation in a strike for better wages or working conditions.

In another example, the suspension of the Factories Act, 1948, would further risk employee safety across the board. The Act provides a statutory basis for basic rights of workers, such as reasonable working hours, leave time, and overtime. In a case, Consumer Education & Research v. Union Of India, the Indian Supreme Court held that the right to health and medical aid—to protect the health and vigour to a worker while in service or post-retirement—is a fundamental right under article 21 of the Constitution. This law’s suspension will likely put in jeopardy essential policies for fire safety; upkeep of necessary safety equipment; and the maintenance and examination of other critical equipment like lifting machines, pressure vessels, and hygrometers.

Article 39 of the Indian Constitution also envisages that states should secure equal pay for equal work for both men and women. Another imminent suspension—of the Equal Remuneration Act, 1976—means that Indian women may be denied their right of equal pay. Relatedly, particular rules developed to protect women workers, including protections against sexual harassment rules, the establishment of maternity benefits, and the right to certain sex-segregated facilities could become null and void through the Uttar Pradesh ordinance.

INDIA’S PAST SUSPENSIONS OF LABOUR LAWS

Many remain sceptical over the Uttar Pradesh government’s claim that its proposed ordinance will attract new industries due to the experiences of several states in the past. The states of Andhra Pradesh, Rajasthan, and Madhya Pradesh took the same route of suspending important labour laws, but they still failed in attracting big investments and promoting industrialisation.

The Indian Labour Ministry even raised concerns over such flagrant violation of labour rights, pointing out the Central Government’s duty to protect the interest and safety of the workers. Additionally, a lawsuit has been filed before the Supreme Court seeking the stay on the “dilution of labour laws”.

Other countries like Canada, Australia, New Zealand, and many European states are trying to minimise lay-offs during this time by establishing programs to reduce displacement, distress, and loss of worker morale. India, on the other hand, is using a sledgehammer to abolish the whole system of labour laws, many of which are derived directly from articles of the Indian Constitution.

VIOLATIONS OF THE ILO

Ultimately, the Uttar Pradesh state’s suspension of the crucial labour laws via its proposed ordinance would also violate India’s commitments under the International Labour Organisation Convention. This Convention sets out the goal of advancing economic and working conditions that give all workers, employers, and governments a stake in lasting peace, prosperity, and progress.

Recently, the ILO wrote to Prime Minister Narendra Modi to call on him to ensure that the states uphold India’s international commitments on labour laws. This communication was prompted after several trade unions lodged complaints about the imminent violations of labour, including violations of the fundamental rights of millions of migrants across the country.

The ILO emphasised in its statement that any amendments made to India’s labour laws should be in accordance with its Fundamental Principles and Rights at Work. It further added that, in these times, workers need to be given occupational safety and health measures at work, access to health care, as well as paid leave. While admiring India’s commitment to ILO’s standard in all these years, the statement suggested that it is time to “strengthen social dialogue, collective bargaining and labour relation institutions and processes for implementing solutions”.

According to procedural mandate, after receiving the governor’s assent, the ordinance must then receive the assent of the president, which is yet to be given. Presidential assent is not a mere formality, and deliberations are perquisites for assent. This standard was reiterated in the case of Kaiser-i-hind Pvt Ltd v. National textile Corporation. It will be interesting to track whether this ordinance sees the light of the day and what ultimate rationale accompanies any assent.

The authors’ view is that there is a need for carefully tailored labour reforms, which must not be combined with complete deregulation. A full repudiation of labour laws as proposed by the Uttar Pradesh ordinance may, instead of boosting investment, lead to a slippery slope of labour unrest and state repression. India must seek broader political engagement to reach reasonable compromise between different interest groups.