On 6 May 2020, Uttar Pradesh Government promulgated ‘Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020’. This ordinance suspended 35 out of the 38 labour laws in the state for three years. This includes the Minimum Wages Act, The Trade Unions Act, The Industrial Disputes Act, The Factories Act, Equal Remuneration Act, 1976, etc.
The reasoning given by the Uttar Pradesh government for this measure was that it was necessary to fasten the slow pace of economic and industrial activities due to the COVID-19 Pandemic. However, the Ordinance could stand unconstitutional as it is violative of the fundamental rights of the workforce and exposes them to serious exploitation by taking away their legal protection.
The outbreak of COVID-19 brought social and economic life to a standstill and it has affected almost all sections of society. In India, central government had ordered nation wide lockdown on 24 March 2020 to eliminate spread of the deadly Coronavirus. Under the lockdown most economic activities, other than those classified as essential activities, were suspended.
According to World Bank, the lockdown in India has impacted the livelihoods nearly 40 million internal migrant workers. Chief Labour Commissioner of Uttar Pradesh estimated that 21.69 lakh workers had returned and UP itself had sent back 1.35 lakh.
To encourage investment, boost the economy and address rising unemployment of migrant workers in the COVID -19 pandemic, some states have provided relaxations to establishments from their existing labour laws. On 6 May 2020, Uttar Pradesh Government promulgated ‘Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020’. In accordance with the ordinance, UP government suspended almost all labour laws except Labour laws provisions related to women and child, Bonded Labour System (Abolition) Act, 1976, Building and Other Construction Workers Act 1996,Workmen Compensation Act 1923 and Section 5 of Payment of Wages Act, 1936 for the next three years.
What Is Mean by The Term Ordinance?
- The Oxford dictionary defines the term “ordinance” as an authoritative order. Ordinance is a decree or law promulgated by a state or national government without the consent of the legislature. Under the Indian Constitution, an ordinance is a special kind of executive decision (issued by a Governor or President on the advice of the State or Central Government respectively) that operates as a law. Although law making power usually lies with the legislative branch of the government, the executive is given the power to issue ordinances in exceptional situations. The ordinances remain in force for a limited period of time.
- Article 123 of Indian Constitution grants the President certain law-making powers to promulgate ordinances when either of the two Houses of Parliament is not in session. The President has to be satisfied that there are circumstances that require taking ‘immediate action’. An ordinance has to be converted into legislation within 42 days of commencement of the Parliament session, or else it will lapse. An ordinance can be re-promulgated only thrice.
- Article 213 of Indian Constitution grants Governor of states certain law-making powers to promulgate ordinances when the state legislative assembly is not in session. Governor can roll-out an ordinance for only those matters on which state legislature can make laws.
- The Government of India Act, 1935, allows the issuing of ordinances with proper safeguards.
Note- The separation of power is pivotal in countries such as US and Britain. The US or British governments do not have the power to issue ordinances.
UP Labour Law Ordinance
Labour falls under the Concurrent List of Indian Constitution. Therefore, both Parliament and State Legislatures can make laws regulating labour. Currently, there are over 100 state laws and 40 central laws regulating various aspects of labour such as resolution of industrial disputes, working conditions, social security, and wages. A state may regulate labour by: (I) passing its own labour laws, or (ii) amending the central level labour laws, as applicable to the state.
According to Article 254 (2) of Indian 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 has to be cleared by the Centre, which would advise the President to give his assent. This applies to an ordinance as well due to Article 213 (1).
The Uttar Pradesh Cabinet has approved the Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020. The Ordinance seeks to exempt all factories and establishments engaged in manufacturing processes from all labour laws for a period of three years. Also, all factories in UP are exempted to Increase weekly hours of working from 48 hours to 72 hours. Daily Working hours are increased from 9 hours to 12 hours. Section 3 of the Ordinance lists down labour laws, sections of labour laws and other rules which will remain in force for three-year period.
Labour Laws Which Continue to Be Enforceable in The State Are as Follows-
1. Bonded Labour System (Abolition) Act, 1976
Bonded labour refers to the system of forced labour where a debtor enters into an agreement with the creditor under certain conditions such as to repay his or a family members debt, due to his caste or community, or due to a social obligation. The Bonded Labour System (Abolition) Act deals with abolishment of bonded labour or in other words that no labour shall be forced to provide bonded labour under any contract, agreement, or social custom in existence.
Women and children: Provisions of labour laws relating to the employment of women and children will continue to apply.
2. The Building and Other Construction Workers Act, 1996
The Building and Other Construction Workers Act, 1996 as the name suggests protects the workers and the interests of those who work in construction activities of any kind be it a building, street, road, railway tramways, airfields, irrigation, drainage, embankment and navigation works, generation, transmission and distribution of power, water works, oil and gas installations, electric lines, wireless, radio, television, telephone, etc. This Act regulates the hours of work, welfare measures, and other service conditions of such workers.
3. Workmen Compensation Act, 1923
The Workmen’s Compensation Act, 1923 guarantees compensation for injury or death of the workers in the line of duty. It provides for payment of compensation to workmen and their dependents in case of injury and accident including certain occupational disease arising out of and in the course of employment resulting in disablement or death.
4. Section 5 of the Payment of Wages Act, 1936
Sec. 5 of payment of wages act provides that workers must be paid within the time limit prescribed. The Act specifies that: (i) establishments with less than 1,000 workers must pay wages before the seventh day after the last day of the wage period and (ii) all other establishments must pay wages before the tenth day after the last day of the wage period. Wages must be paid into the bank accounts of workers. (iii) It provides that a terminated employee must be paid before expiry of second working day from day of termination. (iv) the wages must be paid on working days.
Constitutional Validity of The Ordinance
The Ordinance is still not a law as it has not received the President’s assent, however the Uttar Pradesh Government has started receiving a lot of criticism for approving such an Ordinance which on one hand promotes investment and ease of doing business but on the other nullifies the rights of the labour workforce considerably. At a time when the current pandemic has already diminished the work and the lives of the poor and the labour, such an Ordinance is found to infringe upon even the basic and fundamental rights of the labour workforce as it gives the power to the factory or industry owner to treat the labour however they please in absence of stringent labour laws.
The Ordinance has been sent for approval of President. However, this ordinance violates Article 213 of Indian Constitution. Article 213 states that President’s instructions for promulgating any such ordinance by Governor is mandatory which if made by state legislature, would require President’s assent for becoming enforceable.
Section 86 of Factories Act, 1958 empowers state government to exempt public institutions and other institutions connected with public institution which work in the field of education, training research, or information from any or all provisions of the act, except those related to work and holidays. This ordinance seeks to make exemption regardless the unit is attached to public institution working in the field of the previously mentioned categories or not.
There are no circumstance or conditions given in statutes or the Constitution regarding temporary suspension, in absence of imposition of National Emergency, President’s rule or financial emergency.
Suspension Labour Laws and Infringement of The Fundamental Rights of Workforce
- suspension of laws like the Industrial Disputes Act, 1947 will lead to complete lawlessness as employers will be able to hire and fire workers at their will. Workers will be left without any job security or any source of livelihood.
- Factories Act, 1948 ensures the safety of workmen and the implementation of humane working conditions in the workplace, such as ensures the availability of drinking water, regulates health, safety etc. Even if the ordinance is for a temporary period will reverse the wheel on worker’s age-old struggle for humane working conditions in factories and will have an adverse impact on their safety.
- The suspension of the Minimum Wages Act, 1948 which ensures that a minimum wage is paid to workers, will have an adverse effect on the economic conditions of the workers who are already high-flown due to Covid-19. In case “Bandhua Mukti Morcha v. Union of India”, the Supreme Court of India held that any payment below the nominal wages amounts to a situation of bondage. Without this Act in place, labourers will not be able to approach the courts against their employer.
- The suspension of the Equal Remuneration Act, 1976 which ensures that women are not discriminated against men in terms of wages, will enable the employers to pay less to women as compared to men for equal amount of work. Not paying the same wages, despite the work being the same, is violative of Article 14 which protects the fundamental right to equality and Article 39(d) which states that the State must ensure that wages are not determined on the basis of sex but on the amount of work done by the worker.
- The ordinance could violate Article 19(1)(c) of Indian Constitution which protects the right to freedom and expression of the citizens. This right encompasses the right to form associations and unions which includes trade unions. With the suspension of the Trade Unions Act, 1926, the employer will terminate any worker who decides to form a union and employ others.
This Ordinance also violate of International Labour Organisation Convention No. 144 to which India is bound as it is a signatory to it. This convention aims towards social justice by proposing various methods for bringing together governments, employers, and workers. The implementation of this Ordinance will result in India a step back from the development of international labour standards.
According to latest report of Financial Express, the parliamentary standing committee on labour had asked the state governments to desist from making such sweeping changes in the labour laws. It was asked after it was opposed by the International Labour Organisation (ILO) and trade unions. Also, Uttar Pradesh government was initially forced to retract its order on 12-hour per day work hours after a PIL was filed in the High Court of Allahabad against the ordinance.
Through this Ordinance, the State Government seems to make a trade-off between industrial growth and fundamental rights of the workforce. Such a trade-off will take India back over a century in its labour reforms. The suspension of labour laws is not legally and constitutionally well-founded. Courts should be very cautious while adjudicating upon this issue since it implies suspension of laws in absence of emergency. If this ordinance gets approved by the parliament and assent of president the there is a high risk of misuse of such power, governments may try to suspend different laws on pretext of various reasonable and unreasonable grounds in future. This may lead to tyranny and destruction of rights of people by State machinery.
There is still hope for workers as approval from the central government and assent of president will be required to enforce the ordinance. Also, a plea for judicial intervention to stop this unlawful ordinance has also been made.
What Is Mean by The Term Ordinance?
The Oxford dictionary defines the term “ordinance” as an authoritative order. Ordinance is a decree or law promulgated by a state or national government without the consent of the legislature. Under the Indian Constitution, an ordinance is a special kind of executive decision (issued by a Governor or President on the advice of the State or Central Government respectively) that operates as a law.
Which Labour Laws Continue to Be Enforceable in The State of Uttar Pradesh Under UP Labour Law Ordinance?
Bonded Labour System (Abolition) Act, 1976, Building and Other Construction Workers Act 1996, Workmen Compensation Act 1923, and Section 5 of Payment of Wages Act, 1936.
Which Articles of Indian Constitution Grant President and Governor of States Certain Law-Making Powers to Promulgate Ordinances?
Article 123 and Article 213 of Indian Constitution grant President and Governor of states certain law-making powers to promulgate ordinances, respectively.
How the UP-Labour Law Ordinance Is Unconstitutional?
The UP-labour law ordinance is infringing the fundamental rights of workforce as it suspends the importance labour laws which gives workforce ground fight for their rights. Mainly the fundamental rights guaranteed under article 14 and 19 of the constitution could be violated as Equal Remuneration Act, 1976, Minimum Wages Act, 1948 and Trade Unions Act, 1926 are suspended by the ordinance.
Constitution of India, 1949
 1984 AIR 802