As state governments scurry to relax multiple labour laws (and then repeal some relaxations like the UP’s recent notification over working hours) to tide over the Covid-19-induced economic crisis, most legal experts feel that before they come into effect, these measures will have to undergo judicial scrutiny. Business Standard spoke to analysts and experts to get a sense of the various tests such laws would have to pass.
The constitutionality test
This test is for every individual relaxation that states plan to give in labour laws. Some relaxations may come into effect, whereas some may be struck down, say legal experts.
The first test imbibes the state vs Centre conundrum. The state would need the Centre’s approval in order to bring some relaxations to effect. The reason behind this is the Concurrent List, which divides the legislation powers on certain issues between the two. If the state doesn’t get the Centre’s assent, relaxations of those provisions, which come under the Centre’s ambit, will be unconstitutional under Article 254.
It seems the states are aware of this issue, which is why many Ordinances are now being sent for president’s assent. “This is a relatively low bar to meet,” says Anand Prasad, partner at AP & Partners.
The second test pertains to Fundamental Rights accorded to each citizen. Experts point out that courts have often interpreted them liberally.
The right to equality has been interpreted to include the test of non-arbitrariness. This means that if an object has to be achieved (in this case, to attract businesses), the means to achieve it, cannot be arbitrary. This relates to relaxations, adopted by some states and relating to cleanliness, disposal of waste, urinals, and even drinking water.
“The courts will test whether the means to achieve that object are arbitrary or not. If yes, the law will be struck down,” says Manisha Singh, a lawyer.
Under Article 19, citizens are given the freedom to form associations. Since the Trade Unions Act has been suspended, unions could argue that it violates that right.
The past and the present
The Apex Court has been vocal on the subject of workers’ rights. In a landmark case, it stated that the right to life also meant the right to work. As relaxations make hire and fire provisions easier, this test may also be put in effect.
“The judicial approach is to provide remedial justice and their interpretation is not merely literal,” says Arya Tripathy, lawyer at PSA Legal.
In another landmark case, involving the People’s Union for Democratic Rights, the court stated that forcing someone to work does not merely have to be only physical or legal, but could include instances where a person is compelled to work. For instance, a worker may have to work in unsanitary conditions because he has no other option but to return home hungry.
These are broad questions that states may have to answer.
The global picture
Already, several trade unions have expressed their desire to approach the ILO. India has signed several ILO conventions, which include the following: Freedom of association, to bargain collectively, and the need for tripartism- decision making involving employers, employees and the government. If the ILO takes note of the complaint, it can form a commission of inquiry, formed only 13 times in its history, to investigate and then take action