COVID-19 Lockdown: Uttar Pradesh and Madhya Pradesh watering down labour laws is a body blow to the working class
If these ordinances are not repealed, we risk a return to a regime where labour is again pushed back to fighting for elementary right of the eight hour working day
The proposed ordinance in Uttar Pradesh titled, “Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance” exempts ‘All factories and establishments engaged in manufacturing process shall be exempted from the operation of all Labour laws for a period of three years’, subject to certain minimal conditions including payment of minimum wages, the working day being extended to 12 hours and retaining the protection of labour laws relating to the employment of children and women, as also bonded labour.
Another notification dated 8 May, 2020 specifically exempts all factories registered under the Factories Act, 1948 from provisions regulating weekly hours, daily hours, overtime, intervals of rest etc. of all adult workers. Thus Uttar Pradesh has in effect decided to suspend 35 of the 38 labour law for three years including laws related to industrial disputes, trade unions and contract workers.
Madhya Pradesh has gazetted amendments to relieve employers of the responsibility of virtually all provisions of the Factories Act from provisions of water and toilets to basic health and safety, allowing working hours to be extended to 12 hours instead of eight and weekly hours up to 72 hours, while also barring the raising of complaints and disputes under the Industrial Disputes Act save for on the question of closure for establishments with more than 300 employees all for a period of 1,200 days.
Gujarat is seeking to give any new investor in Gujarat a holiday that makes an investment that lasts at least 1,200 days of all labour legislation with the exception of the Minimum Wages Act and the Workmen’s Compensation Act. Himachal Pradesh has issued an executive order allowing shifts of 12 hours’ work a day or 72 hours of work a week with no provision of overtime. News reports also point to increase in working hours and tinkering with the operation of other labour laws in other states as well.
We can rest assured that this decision will be spun by those in power as being in the interest of workers. However, a close analysis reveals that this decision will be a body blow to the working class. There is a serious question of propriety and legality in using the ordinance route. It is settled law that ordinance-making power is given to the executive to promulgate a law when the urgency of the situation so demands provided the legislature is not in session.
An ordinance so promulgated must be laid before the Legislative Assembly of the state or when there is a Legislative Council in the state, before both the Houses when they reassemble. It shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature.
It is in the nature of an exception to the normal rule that law-making and this was clarified by BR Ambedkar during the Constituent Assembly Debates (Vol. 8 pages 208, 214,215) that it is not a parallel power of legislation and would have a very limited scope conferred only to deal with urgent matters when the Legislature was not in session.
The legality is suspect also given that labour is a concurrent subject on which the Central government has legislated in the form of the Industrial Disputes Act, Factories Act, Minimum Wages Act etc. Hence how can a labour regime be brought into force in some states, which does not meet the legislative intent and mandate of the Central legislations? Surely, there are more legal and technical grounds that could be raised in regard to the ordinances, but we will not dwell on that here.
One justification being offered is that flexibility has to be given to business and industry in this economic crisis to ensure revival. In reality, these ordinances which seek to deprive the working class of all legal protections break with an over 70 year compact between the state, labour and industry on protecting certain rights of labour.
While the history of the neo-liberal era is about the progressive whittling down of labour law protections, these amendments in one fell swoop attempt to take Indian labour back to the unregulated laissez-faire days of 19th-century European capitalism. These ordinances are not only illegal and unconstitutional but also starkly indicative of the larger designs of a state determined to take advantage of the pandemic to push the working class to the situation of rightlessness.
These ordinances will have to be contextualised within a larger assault on the working class which has been mounted ever since the onset of neo-liberalism. Ever since the New Economic Policy initiated in 1991 the rights of the working class have been under assault on three fronts.
The first strategy par excellence, which has defined labour law, ever since its inception has been the startling discordance between the law on the books and the law in action. Nothing illustrates this better than the fate of legislation which has a life and death relevance today, namely, the Inter-State Migrant Workmen (Regulation of Employment and Condition of Service) Act 1979.
If this legislation had been implemented in letter and spirit, it would have meant that migrant workers would have been paid fair wages, would have been guaranteed fair conditions of services and facilities as well as a journey allowance. The fact that this legislation was a dead letter is responsible for the misery inflicted upon the migrant workers who have been reduced to a condition of precarity, not getting paid during the lockdown, enduring lack of food and having no money to survive with dignity.
There has been the gradual whittling away of labour protections through judicial interpretation. The locus classicus (among many others) in this hall of constitutional shame is the judgment in Secretary, State of Karnataka and Others vs. Umadevi and Others, which has effectively gutted the Contract Labour (Regulation and Abolition) Act. The Supreme Court held that ‘[M]erely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance’ thereby rendering the Act redundant.
The last strategy has been the gradual repeal of existing labour law protections. This came to a head in the Code of Wages, 2019 which repeals existing labour legislations like Payment of Wages Act, 1936 as well as Bonus Act all of which were the outcome of a struggle by the working class and replaces them by the Code of Wages Act, 2019 in which the power of the worker is diluted and the power of the contractor is enhanced.
The Code of Wages, 2019 is only the first Act, with three other codes planned namely the industrial code, the code on social security and the code on occupational safety, health and working conditions. The Code of Wages has been passed but not implemented, while the other three codes are still in the drafting stage. A look at all four codes gives one a sense of the wish list of the Narendra Modi government for labour -- remove all protections for labour regarding collective bargaining, fair wages as well as safety standards.
Due to the judicial, executive and legislative acts of commission and omission, a large proportion of the working population in India remain outside the protection of even rudimentary labour laws. In that context why should one even protest this latest assault and overhaul the existing labour law regime?
With all the limitations of existing labour law, it should be noted that unorganised worker unions have taken forward their struggle in this hostile space and fought to extend labour law protections in the organised sector to those in the unorganised sector as well as fought to ensure implementation of specific labour law legislation. A combination of a struggle on the ground working hand in hand with strategic litigation has delivered concrete results for many unorganised sector unions around the country.
What unions and activists have always relied on to wage their struggle is a clear framework of labour law protections encoded in law. It is the protections embodied in the Contract Labour Act, Minimum Wages Act, Payment of Wages Act, Factories Act, etc. which have been sought to be extended to the unorganized sector in the form of legislation which embodies the basic principles of limits to the hours of work, holidays, safe conditions of work etc.
These ordinances threaten this edifice of labour rights which should apply to all workers be they in the organised or unorganised sector.
The birth of labour law was around the core idea of the limits to the working day. It was the struggle of the working class which resulted in the eight-hour working enshrined as a legal limit in factory legislation in countries around the world. As Marx put it ‘these laws curb capital’s drive towards a limitless draining away of labour-power by forcibly limiting the working day on the authority of the state, but a state ruled by capitalist and landlord’.
When the ordinance contemptuously throws aside this limitation of the working day, it is brushing aside an entire history of struggle and leaving workers at the mercy of owners of capital.
To read the chapter on ‘the working day’ in Marx’s Capital, Vol I is to reacquaint oneself with the voluminous evidence as to why in the first place the length of the working day had to be limited. Marx cites an 1861 Report on the Baking Trade which observes:
The committee believes that any constant work beyond twelve hours a day encroaches on the domestic and private life of the working man, and so leads to disastrous moral results interfering with each man’s home, and the discharge of his duties as a son, a brother, a husband, a father. That work beyond 12 hours has a tendency to undermine the health of the working man, and so lead to premature old age and death, to the great injury of families of working men, thus deprived of the care and support of the head of the family when most required.
Marx further documents what can happen when the working hour is increased.
A tremendous railway accident has dispatched hundreds of passengers into the next world. The negligence of the railway workers is the cause of the misfortune. They declare with one voice before the jury that 10 or 12 years before their labour lasted only eight hours a day. During the last five or six years, they say, it has been screwed up to 14, 18 and 20 hours, and when excursion trains are put on, their labour often lasts for 40 or 50 hours without a break. They are ordinary men, not Cyclops. At a certain point, their labour-power ran out. Terror seized them. Their brains stopped thinking, their eyes stopped seeing.
The extension of the working day is finally self-defeating as:
By extending the working day, therefore, capitalist production, which is essentially the production of surplus-value, the absorption of surplus-labour, not only produces a deterioration of human labour-power by robbing it of its normal moral and physical conditions of development and activity but also produces the premature exhaustion and death of this labour-power itself.
However ‘capital ..takes no account of the health and the length of life of the worker unless society forces it to do so.’ The factory’s legislations are the result of this force applied by society.
The Uttar Pradesh and Madhya Pradesh ordinances seek to destroy the initial gains of the labour movement which is the basis for all other gains which the working class has made over decades. If these ordinances are not repealed, we risk a return to a regime where labour is again pushed back to fighting for elementary right of the eight-hour working day.
It's also apposite to note that one of Ambedkar’s little recognised contributions is as a labour member of the Viceroy’s Council. As the member of the Viceroy’s Council he gave many speeches on the nuances and intricacies of Factories Bills, Payment of Wages as well as on the welfare and social security of workers.
Many of his reflections are particularly apposite in a time when the ordinances seek to do away with precisely those legislations which he sought to painstakingly craft to protect the rights of labour. Like Marx, Ambedkar was committed to the idea of a limited working day. He too recognised that it was only on the basis of reduction of the working day that the worker could become a citizen. As he put it:
The labour department’s memorandum on the reduction of working hours pointed out that it was both unjust and unwise to deny the workers a reasonable amount of spare time away from the factory, which was indispensable for the building up of citizenship and for the maintenance of his physical efficiency.
It emphasised that the present was an opportune moment for taking up this question because there was a need for giving relief to factory workers who had been put to a great strain during the war. Moreover, shorter hours would lead to greater employment. The memorandum made it clear that the reduction in hours should not be accompanied by any reduction in basic wages or dearness allowances unless there was a fall in prices. The rates of piece-workers should be adjusted on the principle that a piece-worker should earn not less than a time worker.
In the 7th Labour Conference held on 26 November 1945, in his presidential address BR Ambedkar lamented the reluctance to enact labour legislations especially on wages where he stated:
How can the workers be asked to agree to reduce standards of living in an economy in which the profits are to go to private individuals?
He went on the state as follows:
We must do our best and do it immediately to mitigate it and to prevent it from lowering labour standards. I believe three things are necessary to ease the situation. Firstly, to reduce hours of employment so as to provide employment for many. Secondly, to provide machinery for fixing wages. The absence of such machinery combined with employment is bound to cause labour standards to slump, which ought to be prevented. Thirdly, to provide the employers and workers with a resolve to collective bargaining and learn to work together in the solution of other common problems. Nothing in my judgment can bring this about more effectively than sound and responsible Trade Unions.
The Uttar Pradesh and Madhya Pradesh ordinances attack a fundamental proposition of what it is to be human. It reduces a labourer to a machine, renders his livelihood even more precarious and raises the question of what does the Indian Constitution mean for the worker? As Ambedkar rightly noted the ability to claim citizenship rights is based on the freedom of the worker from being a slave to his work.
To not be a slave beholden to his work, to enjoy constitution rights, labour laws are an essential substratum. It is this which makes Marx call the factories legislations, the ‘modest Magna Carta of the legally limited working day’ more relevant than the ‘pompous catalogue of the ‘inalienable rights of man’. It is this Marxian ‘modest Magna Carta’ and Ambedkarite ‘indispensable [condition] for the building up of citizenship’ which the UP and MP ordinances seek to destroy.
Arvind Narrain is based in Bengaluru, Maitreyi Krishnan is lawyer and trade union activist with AICCTU and Clifton D’ Rozario is lawyer and national secretary, AICCTU.
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