“It is the opinion of Author and LTJ do not agree or disagree with the same”
This Article is submitted by –
- Ajikrishnan S., practicing lawyer in Kerala.
- Bijolse Johnkutty, practicing lawyer in Kerala
As constitutional enthusiasts, we have little doubt when we heard the news that the State of UP has enacted an Ordinance to suspend labour laws in the State, that it breached the provisions of the Constitution. The only question that remained was as to the nature of the injury inflicted upon the constitutional rights of workers’ by this far from ordinary executive measure. Would this cause only an abrasion or a deep cut on their rights? After initial contemplation, it appears that it causes both. Here, the word ‘deep cut’ is used in the sense of violation of justiciable rights and ‘abrasion’ in the sense of violation of non-justiciable rights.
Briefly stated, the Utter Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020 suspended all major labour legislations for a period of three years in the State. Going by newspaper reports, over thirty legislations are going to be frozen. It may be mentioned here that, after the UP Ordinance, some other States have followed suit by diluting labour legislations. Such measures are ill-considered and insensitive, but a luring choice available perhaps with no bargain at this fateful time. Nobody can bargain effectively without violating the lockdown restrictions for now. Four Acts are said to be out from its purview, luckily, section 5 of the Payment of Wages Act also, that entitles workers to receive timely wages. Right to receive timely wages without minimum wage is, to be modest, outrageous. It is constitutionally illegitimate to provide for right to life without minimum standards, right to health without basic protection, right to livelihood without basic stuffs to live, right to (working) environment without minimum safety measures, right to equality without substantive equality. In fact, these amenities are contained in the suspended welfare statutes, enjoyment of which is a right once enacted. Unlike many other statutes creating vested rights, some welfare statutes are a separate class as they infuse life breath to Part IV rights. Non-justiciability of such Part IV rights cannot be taken as a defense by the State once they breathed life through legislations without sound reasons. State or private actors cannot take away in whimsical fashion or frustrate these rights. Economic necessity, is a poor defense, which the State often tries and fails always.
It is surprising that the word ‘certain’ is used in the title of the Ordinance, which is quite opposite of what is intended and done in it. It is a legislative deception, as the proper word would have been ‘major’ as it conveys correct meaning to the reader and interpreter of the legislation. ‘Certain’ is, by all accounts, vague, which is not a good virtue of a draftsman. In this case, we can only caution readers to be “beware of language that is so indefinite that it is meaningless”.i
The Ordinance, in effect, takes away even basic protections to workers. First and foremost, doing away with basic safety, protection, minimum working hours, and proper working conditions violate fundamental right to health and live with dignity which are deep rooted in article 21. Right to health, here connotes employees’ right to have safe and hazardous-free working conditions. Right to live with dignity stands for, to use a well-known expression, life which is “more than
mere animal existence.” That is, a life that ensures minimum comfort at a particular point of time; (it is interesting to recall that recently animals’ and plants’ rights were read into article 21 which is tempting to limit one’s prayer to a life of animal existence. It is now a luxury indeed!). Then they must include minimum wage, equal wage, conditions free from exploitation as well as to enjoy basic amenities and welfare measures. (Right to equal wage is predominantly a part of article 14 that guarantees right to equality.)
Furthermore, the ordinance violates article 23 of the Constitution that provides for right against forced labour. If a person is asked to work without minimum wage in unsafe working conditions, then it goes against the spirit of article 23. The employee may work as s/he has to feed their family, but it breaches their right under article 23. When it comes to Part IV rights which are given a go- by are articles 38, 39 (a) (d) (e), 41, 42, 43, and 47; if one glances through these provisions, workers’ rights, in particular, are axiomatic in them and that obviates expounding it further.
Now let us scan for some interpretations by Hon’ble Supreme Court of these part III and IV rights. In Bandhua Mukti Morcha v. Union of India (AIR1984 SC 802), it was stated that “the right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers…just and humane conditions of work and maternity relief and no State can deprive a person of the enjoyment of these basic essentials” (para 14).
In Olga Tellis and Ors. v. Bombay Municipal Corporation (AIR1986 SC180) it was held that, if the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. “It was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom” (para 32).
In C.E.S.C. Ltd. v. Subhash Chandra Bose (AIR1992 SC 573), it was stated that right to social and economic justice is a fundamental right. “To the tillers of the soil, wage earners, labourers, wood cutters, rickshaw pullers, scavengers and hut dwellers, the civil and political rights are ‘mere cosmetic’ rights. Socio-economic and cultural rights are their means and relevant to them to realise the basic aspirations of meaningful right to life” (para 30).
In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde (1995 (2) SCALE 672), it was stated that “to make right to life meaningful and effective, this Court put up expansive interpretation and brought within its ambit right to education, health, speedy trial, equal wages for equal work as fundamental rights. Economic empowerment is a basic human right and a fundamental right as part of right to live…to the poor, weaker sections, Dalits and Tribes” (para 14, 23).
In Dalmia Cement (Bharat) Ltd. and Anr. v. Union of India (1996) 10 SCC104), the Court approved right to social security as a fundamental right of workmen. “To make the life of the workman worth living with health… it is the duty of the State and the employer to provide facilities and opportunities for ensuring sustained good health and leisure to the workman as a facet of right to life under Article 21” (para 14).
In Occupational Health and Safety Association v. Union of India (AIR 2014 SC 1469), it was stated that right to health i.e. right to live in a clean, hygienic and safe environment is a right flowing from Article 21 (para 10).
In People’s Union for Democratic Rights and Ors. v. Union of India (AIR1982 SC1473), the Court held that non-payment of minimum wage violates article 23. If a person is compelled to work for less than minimum wage due to compulsions “arising from hunger and poverty, want and destitution”, it amounts to forced labour (para 20).
Finally, in Secretary, State of Karnataka v. Uma Devi (AIR 2006 SC1806), the court dealt with the question of fundamental right to employment under article 21. It was held that, “the argument that the right to life protected by Article 21 of the Constitution would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right (para 42).”
Right to work is not in itself a fundamental right; but safe and healthy working conditions are. They deserve to be protected now, in the midst of these testing times. The expansive interpretation of the Court shows the fundamental importance of protection of such rights, even if they are not per se ratio decidendi.
Fast revival of economy creaking under the strain of Covid-19 is being touted as the objective behind such an Ordinance. Economy went into the doldrums when lockdown was imposed to fight off pandemic. Hardly one has any doubt as to the objective of the government. Boosting production to bring back economic normalcy is need of the hour. But, the real question is, could it be achieved by dispensing with labor legislations and thereby throwing safety and caution to the wind, that too at a time when everyone needs to observe more safety measures. Could government objective be achieved only by jeopardizing the rights of a class of citizens? Experts say no.ii Neither it is the measure to address the problem, nor will it help the government to achieve its ostensible objectives. Economic reform should not be undertaken by human rights retrogression. An Orwellian future is in the offing for workers with these kinds of measures.
Thus, we can say, with little difficulty, that the UP Ordinance makes serious inroads into the rights of workers guaranteed under articles 21, 23 and 14. It is a deep cut and a burning abrasion, as this blanket suspension can neither be legally justified, nor socially or economically. We can only hope that wisdom will prevail with governments when they plan such actions, lest it will make them susceptible to judicial review. It would not be in the interest of our country at this juncture to make such unconstitutional and arbitrary laws and seduce the judiciary to do the ineluctable. This Ordinance is fated to die being too weak to withstand judicial scrutiny, derailing the stream of other reform measures.
One wonders, why employers need to be happy now. If it is workers’ rights today, why can’t employers’ tomorrow. After all, it is in the name of reviving economy. Then, that too, will violate fundamental rights (of employers)! That said, one cannot turn a blind eye to the genuine concerns of employers. Without any business activity for over a month, asking all employers to pay full wages and other entitlements may not be in the interest of an enterprise. Workers must listen to and co-operate with employers in fighting this pandemic together. Cooperation, not thoughtless decisions is what needed at present. It is the duty of governments to actively encourage both workers and employers for the same.
Thus, we are not hesitated to conclude that it will not be in the interest of our country, or employers, or workers to run roughshod over the rights of a class of citizens in the name of reform. Workers form a wheel in the smooth and swift motion of economy. Damaging the cogs in that wheel is not the best way, nor the better, nor good at all, to repair it or stabilize the motion. Even the mundane people knows it, but why not political representatives? Let’s hope and pray that the Judiciary save citizens, if not, “God save this country”iii.
“It is the opinion of Author and LTJ do not agree or disagree with the same”
i BR Atre, Legislative Drafting- Principles and Techniques (5th ed. 2017).
ii See, https://www.thehindu.com/opinion/lead/labour-rights-are-in-free-fall/article31609817.ece ; https://www.thehindu.com/opinion/op-ed/are-indias-labour-laws-too-restrictive/article31585617.ece ; https://www.thehindu.com/opinion/lead/provide-income-support-restore-jobs/article31577278.ece
iii This usage is inspired by the book ‘God Save the Hon’ble Supreme Court’ by the legal luminary Fali S Nariman, and was taken from a traditional chant in the US Supreme Court and “amended” to address the “desperate times” of the highest court of India by its author!