By Sahil Sonkusale and Nipunj Niket
The world has been pushed into an uncharted territory due to the COVID-19 pandemic. None of the sectors of the modern-day nations remain unaffected. This pandemic has had a deep impact on the global economic setup. The world, apart from defending itself against the virus, is faced with imminent recession. Agencies throughout the globe have been continuously monitoring the unprecedented lockdown and have opined that we are headed for an unavoidable economic crisis.[1]
Where the great economies are struggling to cushion themselves against the financial fallout, our nation has tried to convert this crisis into an opportunity. The obvious backlash that China has faced, due to the major economic players planning to abandon their Chinese production units and relocating them at an alternate location, has moved India to a unique beneficial position. The central and various state governments are leaving no stone unturned to ensure that they get the biggest possible share of the cake. The Indian economy is witnessing the worst phases of slowdown and thus the response of the governments are well intentioned for reasons more than one. Revival of the economy, ensuring the workers their jobs and ultimately helping India continue to develop on a steady pace are the major goals of the governments. To ensure the same, the governments are trying to reform the legal setup as soon as possible. In the light of the recent reforms carried out by different governments, the authors have tried to analyse the impact that the reforms will have on the rights of the labourers employed at workplace. The article uses the reforms carried out by the Government of Madhya Pradesh as a standard to assess the impact on various fundamental rights, and intends to explain the need of balancing the economic aspirations of the nation against the rights guaranteed to the individuals.
The long overdue Labour Law reforms have made the corporates believe that the existing framework of Labour Laws are unduly stringent and thus they are apprehensive of setting up their production units in India.[2] Thus, one of the first and major reforms that states undertook is to suspend various provisions of Labour Law legislations, including major provisions of the Factories Act, 1948 (‘the Act’). The Act was enacted “primarily with the object of protecting workers employed in factories against industrial and occupational hazards. For that purpose, it seeks to impose upon the owners or occupiers’ certain obligations to protect workers unwary as well as negligent and to secure for them employment in conditions conducive to their health and safety. This Act also requires that the workers should work in healthy and sanitary conditions and for that purpose it provides that precautions should be taken for the safety of workers and prevention of accidents.”[3]
Section 5 of the Act empowers state governments to exempt factories from the application of the provisions (except Section 67) during public emergencies.[4] In exercise of this power, governments have suspended the majority of the provisions of the Act including those which ensure safety of workers’ life (Section 7A)[5] and those which are essential for ensuring a healthy work environment and ensuring dignity of human life (Sections 11 to 20).[6]
Why should one be bothered if at the end of the day whatever the government has planned is aimed at the overall economic well-being of the nation? While the move of the governments may be well-intentioned, they might as well have overstepped into a prohibited land. Article 13(2) of the Constitution of India (‘the Constitution’) prohibits the state from making any excursions into the Fundamental Rights which must remain inviolate. Article 21, among these bundles of rights, is arguably the most precious human rights which forms the ark of all other rights.[7] Right to health while in service is a fundamental right of a worker under Article 21 and compelling necessity to work in a workplace exposed to health hazards due to indigence to bread-winning for himself and his dependents should not be at the cost of health and vigour of the workman.[8] Hence, Right to health i.e. right to live in a clean, hygienic and safe environment is a right flowing from Article 21.[9]
Directive Principles of State Policy have to be applied in the governance of the nation and which the state has an obligation to incorporate in the laws that it makes. Justice P.N. Bhagwati, while delivering the judgment for Minerva Mills,[10] held that when the directive principles impose any obligations or duties on the State, the State would be bound by a constitutional mandate to carry out such obligations. It is the duty of the state to provide at least the minimum facilities to ensure human dignity at the workplace. But when workers are engaged in such hazardous and risky jobs, then the responsibility and duty on the state is double-fold. Articles 39(e), 41, 43, 48-A read with Article 21 make the life of the workman meaningful and purposeful with dignity of person.[11]
As discussed above the Government of Madhya Pradesh vide its order dated 5th May, 2020[12] invoked Section 5 of the Act, making major provisions of the Act defunct in the state, thereby putting the occupational safety, health and working conditions of workers in considerable danger.
The responsibility that the state has is to not make any excursions into the Fundamental Rights by making any law which contravenes fundamental rights. This case is slightly different for reasons to follow. Very few instances can be thought of where there is a positive duty to make laws which will protect the Fundamental Rights of citizens. Though the Act is a pre-constitutional enactment and belongs to a time where Fundamental Rights were not recognised, it is an example of those laws where provisions have been enacted to ensure that the rights of the workers employed in various factories are not violated. After the Constitution came into force, the Parliament has amended the Act a number of times to insert provisions and embolden the existing provisions to make sure that the worker’s rights are not subject to factory owner’s whims and fancies.
But, interestingly enough Section 5 of the Act was left unamended. It gives immense powers to the states to deal with situations arising out of public emergencies by suspending the provisions of the Act. The states are thus empowered to suspend even those provisions which are there for protection of the above mentioned rights of the workers. The effects arising out of the same are grave. Instead of the undesirable effect of violation of the specific fundamental rights, the rights can be directly thrown out of the picture as if they never existed. The effect is that of nonrecognition of the rights by a simple order issued under Section 5 of the Act.
For instance, the order of the state government suspends the operation of Section 7A of the Act which imposes the occupiers of the factories with the responsibility of reasonably and practicably ensuring the health, safety and welfare of all workers employed. After suspension of Section 7A, the occupiers are no longer required to observe the same degree of care and precaution in these matters. These orders also suspend the operation of the chapter on “Health” which contains Sections 11 to 20 of the Act. These provisions are important as they contain provisions relating to cleanliness, disposal of wastes and effluents, ventilation and temperature, dust and fumes, artificial humidification, overcrowding, lighting, drinking water, lavatories and urinals, and spittoons. The suspension of these provisions also suspends the operation of the rights that the workers of the factories have in these matters for the duration the orders remain in force.
The move of the various governments to revive the economy at their levels is commendable. However, the reforms have also ushered in a few things less desirable along with them. Where the economic growth of the nation is of prime importance to sustain the lives of citizens in the long run, the trade off with the rights of the workers that is inevitable in the light of above-mentioned reforms is totally unacceptable. The reforms that undermine the safety of those who work to make the economic dreams of others come true must be treated as an unconscionable bargain. The factory-workers setup must be a symbiotic relationship where both the entities benefit mutually, instead of this setup being parasitic in nature where the seemingly stronger entity starts feeding on the entity in a position of disadvantage.
The authors, Sahil Sonkusale and Nipunj Niket, are currently law students at the National Law Institute University (NLIU), Bhopal.
[1] Gita Gopinath, The Great Lockdown: Worst Economic Downturn Since the Great Depression, April 14, 2020, available at https://blogs.imf.org/2020/04/14/the-great-lockdown-worst-economic-downturn-since-the-great-depression/ (Last visited on May 13, 2020).
[2] The missing piece, The Indian Express, November 26, 2019, available at https://indianexpress.com/article/opinion/editorials/labour-code-industrial-relations-2019-workers-6136618/ (Last visited on May 18, 2020).
[3] Lanco Anpara Power Ltd. v. State of Uttar Pradesh, (2016) 10 SCC 329, ¶ 26.
[4] The Factories Act, 1948, §5.
[5] The Factories Act, 1948, §7A.
[6] The Factories Act, 1948, §§11-20.
[7] Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors., (1981) 1 SCC 608, ¶ 6.
[8] Consumer Education & Research Centre and others v. Union of India and others (1995) 3 SCC 42, ¶ 24.
[9] Occupational Health & Safety Assn. v. Union of India, (2014) 3 SCC 547, 10.
[10] Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, ¶ 110 (per P.N. Bhagwati J.).
[11] Supra note 8, ¶ 25.
[12] Govt. of Madhya Pradesh, Dept. of Labour, No. 953-02-2020-A-16 (May 5, 2020).
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