Source: Gajendra Yadav, Photo Journalist (Indian Express); Image only for Representational purpose
On May 6th, the Uttar Pradesh government issued an ordinance suspending the operation of 35 out of 38 labour legislation for the next three years. While the ordinance will only come into effect if it receives Presidential assent, this is almost a given due to the constitutional requirement that the President acts on the advice of the Prime Minister’s cabinet, and that UP is a BJP-ruled state.
Consequences of the Ordinance
One of these legislations is the Industrial Disputes Act (‘Act’), under which permanent workers can only be terminated for a valid reason with permission of the appropriate government office after at least two months notice. This gave workers some protection from termination on unfair grounds such as membership of a trade union or participation in a legal strike for better wages/working conditions. Workers also could attempt to resolve disputes through conciliatory methods, before proceeding to adversarial proceedings in tribunals or labour courts.
The suspension has created a situation in which workers who are now more vulnerable to exploitation than ever, have had their ability to collectively bargain curtailed. This is for three reasons: firstly, they are no longer protected from termination if they unionize or otherwise attempt to collectively bargain; secondly, they simply cannot afford to strike for better conditions as most workers have not received any wages during the lockdown; and thirdly, any public protest may be shut down on public health grounds.
Constitutional Restrictions on Ordinances
The Constitution under Article 13(2) and 213(3) requires ordinances to be compliant with the fundamental rights. In D.K. Yadav v J.M.A Industries, it was held that the non-justiciable Directive Principles of State Policy (‘DPSP’) could not be used to compel affirmative action by the State to provide a livelihood, but any person deprived of livelihood except by fair procedure could challenge the same under the right to livelihood flowing from A. 21.
Insofar as it relates to the Act, the ordinance is unconstitutional because it creates a lacuna in the law wherein the statutorily mandated fair procedure no longer exists. Since there is no limitation on the grounds on which a worker can be terminated, even the existence of a ‘fair procedure’ would be toothless. The intent behind the suspension was to make the state more attractive for business by reducing the ability of workers to legally dispute terminations, an interpretation which is supported by the Labour Minister of the state.
The ordinance is also in conflict with the legal precedent that any international obligation in harmony with the fundamental rights must be read into its provisions to enlarge its content. As the suspension of the Act violates internationally binding obligations under the Universal Declaration of Human Rights and the ILO conventions, it can be challenged on these grounds as well.
Impact on the Future of Labour Laws
Several other states have already suspended the operation of some labour laws, although not to the same extent as Uttar Pradesh. However, the social and legal acceptance of this ordinance may embolden other states to take similar measures in the future, resulting in a situation wherein workers are made even more vulnerable to exploitation. This continues the worrying trend of governments using public emergencies to diminish the rights of the most marginalized and vulnerable.
This blog is authored by Madhavi Gopalakrishnan.