COVID-19: ANALYSIS OF LABOUR LAWS DURING LOCKDOWN IN INDIA
Updated: Jul 29, 2020
[Co-Authored by Nishant Tiwari, a 3rd year law student at National University of Study and Research in Law, Ranchi and Suyash Shrivastav, a 3rd year law student at Hidayatullah National Law University, Raipur.]
There has been talk for some time about easing labour laws as it is already seen in industry circles as too rigid and acting as a barrier to growth, specifically to facilitate those who emerge from the lockdown. It's not just about getting out of there, there is also the problem of surviving what appears to be a brutal and protracted global economic recession. Obviously, there is little room to doubt that it will take time for the world to emerge from the blow it has suffered.
In India, one of the key changes devised has been to allow an increase in the working day from eight hours to 12 and the working week from 48 to 72 hours. It had been reported in the second week of April, 2020. Even in the first phase of the national lockdown, the Centre was considering amending the Factories Act of 1948 to allow this. Although the Centre has not yet followed up on this but several states have already issued notifications in accordance with the provisions of the Factory Law, increasing the workday of factory workers to 12 hours.
Even as the states have the power to suspend some provisions of the labour laws, they can’t exempt all labour laws. Since labour is on the concurrent list under the Seventh Schedule of the Indian Constitution, and both the centre and the states can make laws under this subject. Most central labour laws have provisions that delegate certain powers to the respective state government. However, while the states have the powers to exempt several provisions from enforcement in their respective states in matters where the centre holds the sector, the state cannot directly move to make exemptions. There is often a claim of repugnancy by the central government when the respective state government tries to suspend entire laws and not just those sections delegated thereto. Further, Article 213 of the Constitution mandates that an ordinance is needed to be sent to the President for his assent and according to Article 254 (2) of the Constitution of India, 1950, any Bill concerning a subject in the concurrent list, which may be repugnant to a Union law, would strictly need the approval of the President. This means that the state is trying to fulfil the mandate under Article 213 of the Constitution of India, 1950.
According to Article 254 (2) of the Constitution, “any Bill relating to a subject in the concurrent list, which may be repugnant to a Union law, needs the approval of the President for its enforcement”. This means that it must be approved by the Centre, which would advise the President to give his consent and the same applies to an ordinance due to Article 213 (1) of the Constitution of India, 1950.
An ordinance is passed when the respective state government considers the matter so urgent that it cannot await the state Assembly to resume its normal course. An ordinance has the same effect as a law passed in the legislature. However, the ordinances are required to be placed within six months, before the Assembly for its consideration. Most Central labour laws have provisions that delegate certain powers to the respective state government. While the states may have the powers to exempt these provisions from enforcement, in matters where the Centre holds the sector, the state cannot directly move to make exemptions. While the idea of the state governments is to boost economic activity that has seen a sudden dip due to the coronavirus (COVID-19) outbreak, it is obvious, every sector of the economy to question this move. Their idea here is to increase the work hours and also dilute laws related to industrial disputes and occupational safety so that corporates can get back to work and avoid disruptions.
The pertinent question here is that ought to force-start the country’s economic activity by pushing workers to a tougher work condition with barely any rights against exploitation and measly pay. A report said that Labour and Employment Ministry pointed to 47 worker injuries and three deaths occurring almost every day in factories across India. With dilution of labour laws, the injuries owing to worker fatigue and overwork will only climb steeply. With no responsibility being placed on companies to uphold worker rights and safety, mid-sized and smaller entities are expected to take full advantage of the COVID-19 situation and make 12 hour shifts in factories and construction sites the new normal. Workers would have no right to protest against employer decisions related to retrenchment, overtime wages, or establish/join unions. Several state governments plan to pass ordinances that give employees virtually a "free hand". Workers may be forced to work long hours without breaks and in unsafe environments. Furthermore, the legal organization of workers through unions to protest ill-treatment of staff would also be illegal. Realistically speaking, a worker on a construction site could be forced to report to work, even if he is not well and can be fired if he takes a leave or complains about inadequate safety equipment.
Worse still, workers would be at the mercy of the respective industry/site owner who could hire and fire with/without proper wages at their will. For migrants and daily-wage earners with no source of income, these conditions could be the new normal as they would be forced to accept all regressive terms and conditions. While there is a dire need to reform archaic labour laws in the country, and there is a set constitutional process that needs to be followed. Unification of the thirteen labour laws is in process by the central government and is in the right direction to bring a single code for wages and worker safety. But abruptly diluting labour laws to meet the needs of the industry is not feasible and will affect productivity in the long term.
Agreed that COVID-19 has presented India with a tough choice between starting up, resuming production and maintaining minimal infection spread, but opening up cannot be at the cost health and basic rights of several million workers. If economic productivity is to be at the expense of the health and safety of the workforce of 450 million people working in small and large industrial units across India, state governments may need to reflect on whether it is worth the risk.
 Saubhadra Chatterji, Govt plans changes in law to allow 12-hour shifts in factories, Hindustan Times (Apr. 11, 2020, 12:05 AM), https://www.hindustantimes.com/india-news/govt-plans-changes-in-law-to-allow-12-hr-shifts-in-factories/story-eODI0qrWT6p757VMRPSqTP.html.  INDIA CONST. art. 213.  INDIA CONST. art. 254, cl. 2. Radheshyam Jadhav, 3 workers die, 47 are injured every day in factory accidents, The Hindu Business Line, (Feb. 26, 2019), https://www.thehindubusinessline.com/companies/3-workers-die-47-are-injured-every-day-in-factory-accidents/article26378544.ece.