In 1921, when Mahatma Gandhi called for the non-cooperation movement, thousands of tea plantation workers in Assam left to partake in India’s fight for independence against the British rule. Prohibited to move out of their plantations without permission under the Inland Emigration Act of 1859, these workers defied authorities to leave the premises to join the freedom struggle – in the hope of a better life. While some workers could escape; most were caught midway and brutally punished by the police.
Around 100 years later, due to the Covid-19 crisis, workers stranded away from their home states are struggling to go back. After more than a month of lockdown- with no source of income, and no family for support- they saw a ray of hope when governments decided to enable their movement through special trains. However, soon after the decision was made, the Karnataka government withdrew its request to the Railways seeking special trains to carry migrant workers back to their home states. Reportedly, the reason for withdrawal was the concern expressed by industries and construction sector regarding shortage of labour, once the lockdown eased and curbed would be removed. Facing heavy backlash from all quarters, the government back-tracked and started coordinating with other state governments to seek their consent regarding return of migrant workers. Whatever the outcome; the withdrawal of request was a significant indicator of the pro-capital policy of the BJP governments.
One cannot help but compare the attempted stoppage of movement of migrant workers by the Karnataka government to the response of British India to the mass exodus of Assam plantation workers. The analogy could appear hyperbolic and lacking of nuances. We were a colony then; we are a free country now. The British authorities brutally assaulted the workers; the Karnataka government did no such thing. The circumstances in both cases were entirely different. However, both governments have one noticeable similarity, that is, economic gains of the capital holders have always been more important than the life, rights and liberty of the working population. Labour was the most dispensable asset for the colonial rulers, and labour remains the most dispensable asset for our democratically elected leaders.
Recently, the Uttar Pradesh government passed the Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020. This ordinance is said to exempt businesses from the purview of most labour law provisions for the next three years, with the exception of laws related to bonded labour, deployment of women and children and timely payment of salaries. Thus, laws on labour welfare, industrial dispute, factories act, among various others shall stand suspended for three years in order to salvage the projected economic losses that the pandemic induced lockdown shall cause. Many of them being Central Acts might require the consent of the Central government for the Ordinance to come into force. But, considering that both the Centre and Uttar Pradesh are governed by a BJP- led majority; it should not be difficult to secure the requisite permissions.
Relaxation in laws such as the Factories Act, come not only with negative consequences on labour but also raise environmental concerns. Any massive industrial that happens due to lax labour regulations could potentially have a long term impact on the environment – such as the Bhopal gas disaster. Factories Act deals with provision on health – cleanliness, disposal of waste, overcrowding, drinking water; safety – employment of young person, pressure plants, protection against dangerous fumes, gases, explosive or inflammable dust, precautions in case of fire, safety of building and machinery; provisions relating to hazardous process – appraisal committee, disclosure of information, responsibility of the occupier, limits on exposure to toxic substances, safety management; welfare; working hours; etc. With increasing numbers of industrial disasters that we have seen in the past few days such as the Vishakhapatanam gas tragedy, boiler explosion in NLC thermal plant in Tamil Nadu’s Neyveli, toxic fume release from Madhavram warehouse in Chennai – can we really say that labour laws are dispensable: even for a single day?
It should be noted that the Factories Act under Section 5 permits state governments to relax the applicability of the Act during situations of public emergency. However, this relaxation is permitted only for a period of three months at a time; unlike the three year time frame that the UP government proposes. Also, the way public emergency has been defined under the act, as a grave emergency whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance – the Covid pandemic does not meet the bill.
Uttar Pradesh is not the only state to come up with such ordinance on labour law relaxation. The Madhya Pradesh government has also exempted employers from some obligations under various labour laws, like Madhya Pradesh Industrial Relations Act, the Madhya Pradesh Labour Welfare Fund Act, the Madhya Pradesh Industrial Employment (Standing Orders) Act, Industrial Disputes Act, and Contract Labour Act for 1000 days. New factories have been exempted from inspection by the Labour Department under the Factories Act, and can instead have third party inspections. Madhya Pradesh, Rajasthan, Haryana, Himachal Pradesh and Punjab have also extended the working hours in manufacturing units to 12 hours from existing 8 hours.
These steps are said to be taken in light of India’s economic slowdown and are being argued to possibly have a positive impact on the ease of doing business and attracting more investors. India’s ranking in the World Bank’s ease of doing business report has been increasing. In 2019, it ranked at 77th, which is a massive jump from the 142nd place in 2014 – when the Modi-led BJP government first came to power. Various legal reforms such as the Goods and Services Tax and the Insolvency and Bankruptcy Code have been credited as the reasons behind this jump. It is in public domain that the government has been striving to further increase its doing business ranking and making the country more investor friendly. The government has also previously been accused of relaxing labour norms and environment policies in wake of the Prime Minister’s ambitious plan of achieving a $5 trillion economy by 2024. Thus, the exemption of labour policies, appear another step in the chain of events that had been put in motion long back by the BJP government.
It needs to be questioned whether drastic measures such as the current ordinance are the only way out from the economic crisis that India shall be facing as an outcome of the ongoing pandemic. The Constitution of India calls for a socialist state in the Preamble. The term was inserted with the 42nd amendment to showcase the state’s desire to remove socio-economic inequalities present due wealth concentration in the hands of a few. The Directive Principles of State Policies under Part IV of the Constitution also provide guidelines to governments to ensure social, economic and political justice to all sections of the society. It has specific guidelines relating to welfare of workers against exploitation. When labour rights are suspended for whatever reason, a part of the Constitution is violated – its sanctity is questioned.
These ordinances not only violate the domestic legal principles, but also the international legal standards. The Universal Declaration of Human Rights, the ICESCR, International Labour Oraganization principles – all stand violated by these moves. The International Trade Union Confederation, the world’s largest trade union federation ranks India among the worst countries for working class. With impending suspension of labour regulations, this ranking is only going to go down. It will also have a negative impact on India’s ranking regarding protection of human rights. In these times, it is of utmost importance that business and human rights principles are strengthened further. The United Nations Guiding Principles for Business and Human Rights (UNGP), which talk about state’s duty to protect, corporate responsibility to respect and access to remedy become even more important in current times. India had planned to introduce a National Action Plan (NAP) on Business and Human Rights in line with the UNGP. It is pertinent that an NAP is enforced to ensure an ethical business conduct keeping in mind the rights of the working population.
The ordinance making power also needs to be stricter judicial scrutiny. Recent times have seen a perceptible rise in passing of ordinances by state governments that prima facie appear motivated by their political agenda – without going into the legality of the subject matter. Some examples are the UP Recovery of Damages to Public and Private Property Ordinance, and the amendment to amendment to Section 200 of the Andhra Pradesh Panchayati Raj Act, 1994. Government need to realize that Ordinance making power has been provided under the Constitution as an emergency power and is ‘to be used to meet an extraordinary situation’ and cannot be allowed to be ‘perverted to serve political ends.’ (DC Wadhwa v State of Bihar)
Majority of India’s population resides in poverty. India’s poor are the worst affected with no source of income, loss of livelihood, and loss of lives. The deaths of 16 migrant workers in Aurangabad, who were run over on rail tracks is one of the countless examples of the plight of those who are left without means of survival. In trying times, state policies should be directed towards benefitting the worst affected – rather than towards securing the benefits of those who hold India’s wealth. Laws should be used for realizing societal goals beyond economic development of a certain kind. We need better policies for economic revival – and not policies that give rise to exploitative tendencies. Article 21 guarantees right to life with dignity to every citizen of the nation. In reality, the lives of some have become inadvertently cheaper than others. It would be a huge disservice to law and to morality to continue on the path of exploitation that we are treading on. The workers cannot be burdened with the weight of reviving an economy which treats them as expendable.
Tanaya Thakur is Junior Research Fellow (Law) at IIT Kharagpur. She holds masters in international law from South Asian University, New Delhi.