THE LABOUR LAW AMENDMENTS 2020 AS DILUTING THE CONSTITUTIONALITY

ABSTRACT:

This paper aims to discuss about the changes in Labour Laws and its implications on easy of doing

business in India. Besides the federal Government, State Government has also commenced in introducing

various measures by way of amending Labour Laws. This paper will enlarge the applications regarding

the Constitutionality of suspending the Labour Laws by the State Government and the legal as well as

Constitutional implications of unprecedented changes on the Labourers, whether it has adhered to The

Global Standards of International Labour Organisations .

HIGHLIGHTS: New Labour Law Bill’s, suspension, Constitutionality, diluting the rights, impact of

such Laws.

INTRODUCTION:

The National Democratic Alliance Government has now merged 29 central Laws into four code, as it was

named a historic step. However, it was historic step for a wrong reason. Since for the first time of post-

Independence India, Labour Laws enacted by the Government through Trade Unions and experts has

been dismantled in a way of structuring to the trends of Industries and diluting the workers basic rights.

Three new Labour codes passed in Lok Sabha is, The Industrial Relation Code Bill,2020, code on Social

Security Bill,2020 and The Occupational Safety, Health and Working Condition Code Bill,2020 as the

Government seeks to Amalgamate 44 Central Labour Acts into four codes towards simplifying the

Labours Laws.

FULL THROTTLE ON LABOUR REFORMS:

The major issues faced by the Industries now is non availability of Labours and generating demand,

without deriving the conceptual support for it the Governments Labour Reforms will not help out. Either

it has to focus on Infrastructural facility, Literacy Rate, Human Development Index. The States of

Maharashtra, Gujarat, Tamil Nadu has moulded with Foreign Direct Investment not because these States

have relaxed Labour Law but because they force on the Supply Capacity, Cheap Materials, Land, better

Infrastructure, Port connectivity. To Strengthen Demand, The State has to take both demand and supply

side measures. Naturally there were many cases where workers employed overtime and were not given

their Duties. Now the Labour Laws have given the Enterprise a free hand which will Neglect all the

Responsibility and Accountability towards the Labour, at the end it Exploit the Labours.

INTERNATIONAL LABOUR CONVENTIONS:

International Labour Conventions are the base which serves for guiding the Labour Laws. India is a

founding Member of International Labour Organisation. India has ratified nearly six Conventions, Forced

Labour Convention (No.29), Equal Remuneration Convention (No.100), Abolition of Forced Labour

Convention (No.105), Discrimination Convention (No.111), worst forms of child Labour Convention

(No.182), Minimum age Convention (No.138). India has ratified Tripartite Consultation (International

Labour standards) Conventions 1976, which provides Tripartite Consultation process between the

Country, Workers, Employer in spite of ILO but these Ordinances are contravention to the ILO

Conventions. India has ratified the hours of work (Industry) Convention, 1919 in 1921 which provides a

maximum 48 Working hours for a week and present extension to 72 hours is Violative to International

Norms. States are bound by the ratification of Labour Conventions.

UNCONSTITUTIONALITY OF ORDINANCES BY STATE:

The State Government is incompetent in promulgating an Ordinance out of its reach, which is ultra vires

and unconstitutional for the following reasons,

1. State Government are not Competent to Promulgate such Ordinance in Absence of Delegated

Power under Parent legislation:

There are almost 40 Central Laws and 200 State Laws Governing the Labour practise in India. The

current issues are, whether The State has the power to suspend Centre Labour Laws, as Labour Laws are

part of concurrent list of Seventh Schedule. By the virtue of Article 162, Law making power of The

Legislature is Co-Extensive with that of Executive and the Ordinance making is the legislative power of

executive. Interpreting the scope of Article 73 and 162 of the constitution, Supreme Court in,

A.P. Public Service Commission v. Baoji Badavath &ors, held that with respect to the subject

matters under List III, the executive function shall ordinarily remain with the States, subject to the

provisions of the Constitution or of Parent Law of Parliament. Therefore, in the instant case suspended

Labour Laws are Central Acts which has not Delegated any power to the State, hence there is lack of

Legislative competency to Promulgate the same.

2. Such Ordinances is Repugnant and it's a Clear and Direct conflict with Centre Labour

Legislation under list III:

Article 254(1) explains the provisions relating to Repugnancy, Laws made by Legislation of the State is

Repugnant to any provisions of Law made by the Parliament, with respect to any of the matters

enumerated in Concurrent list. As this is subjected to Exceptional provisions in clause (2) of this Article.

If a State Law is made with respect to any of the matters contained in concurrent list is Repugnant to the

provisions of the Law made by the Parliament or an existing Law with regard to that matter then the State

Law if it has been reserved for the assent of the President and has received his assent shall prevail

notwithstanding such Repugnancy. This Ordinance has not been promulgated or received any assent from

the President yet. However, it's the case of suspension of Labour Laws for Temporary period. This

provision to clause (2) can be override by a Subsequent Law passed by the Parliament. If such Law is

made then the State Law would be void to the extent of Repugnant with Union Law

3. The Ordinances is Violative to fundamental rights of the workers under part III.

In Smt Ujjam Bai vs State of Uttar Pradesh, Stated that any Law enacted by the Legislation which is not

competent in eye of Law will be Violative to Fundamental Rights. Denial of Fundamental Rights to the

Workers is untenable. State Government is in competent authority without the delegated power to

Promulgate an Ordinance for suspension of Labour Laws. Owing to the suspension of the Minimum

wages Act, any Payments Below The Minimum Wage amounts to Forced Labour and its Violative to

Article 23 and 21 of the Constitution.The Suspension of the Industrial Disputes Act also takes away the

Right of Fair Trial.

THE UNPRECEDENT CHANGES IN LAWS:

Under the Industrial Relation Code Bill,2020, it restricts the rights of the workers to strike. Workers

cannot go for strike without 60 days' notice and not while proceeding before the Tribunal. Industrial

establishment with 300 or fewer workers will no longer required to furnish standing order. The Social

Security Bill, 2020, has initiated a National Social Security Board which has Responsibility of Organising

Schemes for unorganised workers like platform workers. Which will include them under the ambit of

Social Security Schemes like Disability Insurance, Provident Funds, Health, Skill up gradation. The

Occupational Safety Code Bill,2020, though it extends the Working hours for the Labourers, it also

enhances a provision for journey allowances which shall be paid to the workers to travel between his

native place and employment site.

Legal implications under Factories Act Section 65(2)(3) empowers to amend section 51-52,54 &56. The

Number of Working hours in a day should not exceed 12 hours, total number of Working hours should

not exceed 60 hours. Each State except Punjab has provided for extension of a total 72 hours in a week

which is contraction to section 65. State Government under section 5 of Factories Act, which allows

States to exempt Industry unit from looking into the provisions of factories act during a period of" Public

Emergency" for the period of 3 month. Public Emergency is a Grave Emergency whereby the Security of

India or any part of India is threatened, either by war or external aggression or armed rebellions.

These provisions gives the workers a right without remedy. No New Trade Unions can be registered in

State for next three years. Workers will have no access to any Redressal Mechanisms to address their

Grievances. The implications from the provisions of Factories Act relating to Maintenance of Hygiene,

Health, Basic Amenities and Labour inspections will not be enforceable to the Factories for the period of

three months from the date of publication of the notification.

CONSTITUTIONAL IMPLICATION:

The Industries are given with free hand to pay the wages as per their convenience, follow hire -fire policy

to their needs, force long Working hours without proper wages, which even disposes the power of

Collective Bargaining. It was held in PEOPLE UNION FOR DEMOCRACTIC RIGHTS VS UNION

OF INDIA, it was held that non-payment of Minimum Wages to the workers employed in various Asiad

projects in Delhi was a denial to them of their Right to Live with the basic Human Dignity and it was

Violative to Article 21 of the Constitution.

CONCLUSION:

The Essence of Federalism lies in the sharing of Legal Sovereignty between Centre and State

Government. Article 246 of the Constitution plays a dominant role in Demarcating the subjects between

them. Suspension of Labour Laws are not found to be legal, rather there is high risk of misuse of powers.

The Government or an Industry to take such actions which promotes the Healthy, Safety of the Worker

Men during the period of employment and even after Retirement. The Right to life with Human Dignity

encompass within its fold. But the present Labour bills are contravention to the Fundamental Rights . It's

Violative to the rule of law and equality before law.

i.ww.ilo.org

ii.(2009)8 SCJ 426

iii.DR.J.N. PANDEY,The Constituitional Law of India,47th Ediyion,pg:642

iv.In Zaverbhai v. State of Bombay

v.(1963) 1 SCR 778

vi.bnlegal.com

vii.PUDR V. UNION OF INDIA(1983)SCR (1)456

credit: SELCIA.S

clg name: BBALLB(Hons),TNDALU

School Of Excellence In Law,

Taramani,Chennai.