The Conundrum Surrounding Labour Laws in Uttar Pradesh

  • Aman Kumar Yadav

 “Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history.

Dwight D. Eisenhower

Introduction

The Government of Uttar Pradesh has stirred up the whole legal fraternity after its proposed Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020 (‘Ordinance’)[i] which seeks to suspend all labour laws in the state but three, Building and Other Construction Workers Act,[ii] Workmen’s Compensation Act,[iii] and Bonded Labour System (Abolition) Act.[iv] Also, it proposes to suspend all the provisions of the Payment of Wages Act[v] except Section 5. The Constitution of India provides for the matter related to Labour laws in List III under Schedule VII thereby any proposed change needs President’s assent.

Is the Use of Ordinance Ultra Vires?

Ordinance making power:

The ordinance making power of the Governor under Article 213 of the Indian Constitution (‘the Constitution’)[vi] is an extraordinary law-making power which should be used judiciously. It empowers the State’s executive head to legislate in time of assembly’s break. The apex court in Krishna Kumar Singh v. the State of Bihar held that ordinance don’t create enduring rights and in order to promulgate one, the Governor must be satisfied that action required is immediate.[vii] Here, during the pandemic, when the government should be taking pro labourer and workers measures, it is trying to bypass the principles laid down by the apex court under the garb of reviving the economy post the COVID-19 crisis.

Directive Principle of State Policy:

The apex court has time and again reiterated that although Directive Principles of State Policy (‘DPSP’) are unenforceable in a court of law, where legislation is already enacted by the state providing basic requirements to the workmen, then the State can certainly be obligated to ensure observance of such legislation. Non-implementation of such laws would amount to a denial of the right to live with human dignity as enshrined in Article 21.[viii] Since the DPSPs are enshrined in the Constitution under Arts. 39(e), 39(f), 41 and 42 for providing safeguards to the workers and labourers, the act of the executive’s head is said to be ultra vires as, instead of preserving the already provided rights, it is superseding the existing laws.

Poor Implementation and suspension of various acts

In the present crisis, the migrant workers have suffered the most. States have no record of the number of migrant workers. The Interstate Migrant Workers Act,[ix] that requires registration of migrant workers when they go from their home state to a destination state, would have made it much easier had it been implemented properly. The states could have reached out to them, helped them and transported them back to their home states. This clearly shows how poorly the laws are implemented on the ground level.

What happens when the applicable laws are suspended

The Trade Unions Act[x] provides for the registration and protection of the Trade Unions in India. In a country like India where the employer is always at the driving position, we cannot take away the protection provided to the Trade Unions. They used to stand for the basic rights of the workers and bargain on their behalf. Suspension of this act will take away their bargaining shield from them.

The most important of all, the Industrial Disputes Act[xi] that governs the field of employment and termination of workers will also be suspended. Its suspension would lead to complete arbitrariness, employers will be at full liberty to hire and fire workers at their whims and fancies, job security will be a thing of the past. In India, the payment below minimum wages amounts to a situation of bondage. Now the government has also suspended the Minimum Wages Act[xii] by an ordinance, the employers cannot be questioned for a wage below the prescribed amount. The whole rationale of the Bonded Labour Act will be defeated as the worker won’t have any remedy to go to a court of law even when they are underpaid, indirectly resulting in bonded labour.

The current situation is so desperate that the labourers will work for any amount of money. On one hand, the government is keeping the Bonded Labour Act to show that they are not forcing labourers into a situation of bondage, but on the other, the government is increasing exploitation of the labourer by exempting employers from paying minimum wages. The Factories Act[xiii] which provided for the safety of workers in the establishments, for potable water, electricity, and other necessary facilities also stands suspended. Now the employer won’t be bound to provide for any essentials.

The government is planning to suspend labour laws to focus on industrial growth. It has always been contended that we have too many labour laws that have barred industrial growth. But the question that comes up is, can any healthy democracy focus on industrial growth at the cost of exploitation of labourers?

The Bonded Labour System (Abolition) Act, the Contract Labour (Regulation and Abolition) Act and the Interstate Migrant Labour Workmen Act are interconnected laws. One cannot be repealed without affecting the other. The term ‘Migrant Worker’ is associated with the concepts of contract labour and bonded labour. The Inter-State Migrant Workers form a large part of contract labour with the additional and aggravating character of having come from another state. In its turn, contract labour is by and large bonded labour. Contract and migrant labour, subspecies of bonded labour are peculiar in Indian industries. All three share some commonality among themselves. The Compact Committee Report of 1977, after examining the case of the Dadan labour (Inter-state migrant labour of Orissa), observed that the characteristics of the Dadan labour systems resembled in some cases to bonded labour system. The statesman stated that the acts related to women and children will continue to prevail. However, it has not been made clear that what all laws will come within the purview of women and children related acts.

In one blow, the government has removed almost all the labour laws, putting the labourers in a very perilous state. The nation as a whole has already made them suffer a lot by the poor implementation of these laws, and now this ordinance only adds to their suffering.

It will (a) take away their job security, employers can hire and fire them at their will, (b) suspend the minimum wages law, which will force workers into bondage, and (c) will waive off all the laws mandating statutory requirements for worker health and safety. Those people cannot be said to have dignified life guaranteed under the Constitution. Deliberately or not, the State of UP also invoked the Essential Services Maintenance Act (ESMA), 1968, thereby banning strikes in all corporations and departments under it for six months. Under this, the police authority has the power to arrest anybody without a warrant if they are found violating the provisions of the Act.

Conclusion

No matter how noble the intention of the government is, it cannot encourage exploitation of labourers, that too when you are a labour-intensive economy. This is surely an abuse of the power given to the Governor for filling up the legislative gaps in time of need. It will not only increase the hardships suffered by the workers, but also the practice of hiring and firing. This step was a drastic measure whereby the government of other states including the like of Madhya Pradesh, Gujarat, Rajasthan etc. also went on to provide certain relaxations in the applicable labour laws in the state. The ordinance violates the boundaries set by the Constitution of India. It has not yet been approved by the President and it is expected from the executive head of the nation to protect the rights of the labourers who are at their most vulnerable state.

The author is a 3rd Year Student of NLIU, Bhopal


[i] Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020 (May 6, 2020).

[ii] Building and Other Construction Workers Act, 1996.

[iii] Workmen’s Compensation Act, 1923.

[iv] Bonded Labour System (Abolition) Act, 1976.

[v] Payment of Wages Act, 1936, § 5.

[vi] Constitution of India 1950, Article 213.

[vii] Krishna Kumar Singh v. State of Bihar, 2017 (2) SCJ 136.

[viii] Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

[ix] Interstate Migrant Workers Act, 1979.

[x] Trade Unions Act, 1926.

[xi] Industrial Disputes Act, 1947.

[xii] Minimum Wages Act, 1948.

[xii] The Factories Act, 1948.

The Transgender Persons- (Protection of Rights) Bill, 2019: A Toothless Tiger?

  • Anisha Singh

Transgender people incorporate Hijras, Eunuchs, Kothis, Aravanis, and others, who have been a part of Indian culture for a considerable length of time. They held prominent positions in society. But their status started degrading when the British rolled out the Criminal Tribes Act in 1871 which particularly targeted them. This Act was revoked in 1952, yet the harm it caused is still noticeable. Transgender, for the first time, was recognized as the third sex in the 2011 Census.

After gathering ubiquitous criticism for its previous bills relating to transgender rights, the Government has once more concocted another Transgender Persons (Protection of Rights) Bill, 2019 (“the bill” from herein). This bill was introduced in the name of protecting transgender rights but sadly it dehumanizes and humiliates transgender living in India. The bill was passed by the Lok Sabha on 5th August 2019 and the transgender community marked it as “Gender Justice Murder Day[i]. Presently the bill has been passed by the Rajya Sabha with no changes and is anticipating the President’s assent. This paper is an endeavour to toss light upon the principle provisions of the bill and analyze whether they pass the assessment of legality.

Shortcomings in the bill

There are a plethora of lacunae in the bill which needs the urgent attention of the people of the Parliament to re-examine it, which are as follows:

1. The definition of Transgender is not accurate

The bill unequivocally centres on transwomen and hijras. On the contrary, there is a little accentuation on intersex, genderqueer and even transmen communities. It characterizes a transgender individual as one whose sex doesn’t coordinate the sexual orientation doled out during childbirth. It was pointed out that while the proposed enactment has no meaning of the discrimination, the meaning of transgender is vague.

2. Prohibition against discrimination

The bill forbids oppression against a transgender individual, including denial of service or unfair treatment in connection to education, employment, healthcare, access to, or enjoyment of goods, opportunities accessible to people in general, or generally involve a property, chance to hold public or private office, and access to a government or private establishment in whose care or custody a transgender individual is[ii]. Moreover, no government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion. Yet after all of these prohibitions against discrimination, the bill doesn’t offer reservations in employment and education for the transgender. In NALSA versus Union of India[iii], the apex court announced that transgender people are to be considered as a third gender. It furthermore gave them the benefit of self-identification of their sex as male, female or third gender. In addition, the court likewise held that on the grounds that transgender individuals were treated as socially and economically backward classes, they will be given reservations in admissions to educational institutions and occupations. But, the bill is silent on this.

3. Right to self-perceived gender identity

The bill expresses that transgender people will have the right to self-perceived gender identity. But again, the difference in gender identity in documents is impossible without accreditation by the District Magistrate after verification of a sex reassignment medical procedure is provided. This procedure of applying for a certificate and following a specific methodology could be said to be in contravention to the soul and spirit of the Judgment which recognizes privacy, self-identity and personal integrity as fundamental rights of Transgender persons. In Justice K.S. Puttaswamy vs Union of India[iv], the Supreme Court held that the right to privacy is a fundamental right under Articles 14, 19 and 21 of the Constitution. Accordingly, the non-inclusion of a confidentiality provision includes a further dent upon the legality of the bill. Notwithstanding it, the explanations behind refusal and the procedures like the right to appeal if the declarations are not given, the procedure to correct the defects, etc are not referenced in the bill.

4. Offences and penalties

The bill imposes punishments for the offences against transgender people like bonded labour, denial of use of public places, removal from household & village and physical, sexual, verbal, emotional, or economic abuse[v]. And yet, this was condemned on the ground that the bill doesn’t satisfactorily characterize these offenses and retains provisions that could be utilized in a prejudicial way to target transgender individuals for criminal prosecution. The bill sets out lighter sentences for several crimi[vi]nal offences like sexual and physical abuse when they are perpetrated against transgender individuals. Notwithstanding sexual offences upon cis-women pull in stricter punishments that may even reach out to life imprisonment. In this way, there is a tremendous dissimilarity between the punishments of a transgender as opposed to a cisgender individual. This biased treatment is unintelligent and disregarding Article 14 of the Constitution.

5. Right to residence

The bill implements a minor’s right of residence compelling any trans individual below 18 to live together with their natal family. Though, the families are frequently a source of abhorrent viciousness against the trans community driving them to isolate from the natal family. It is generally realized that Transgender persons face various difficulties with their biological families, for example, the strain to adjust to the sex they were brought into the world with, being outcasted, and even brutality. This provision doesn’t address these issues yet just requires the Courts to send them to rehabilitation centers.

6. Health Care

The bill additionally tries to provide rights of health facilities to transgender people including separate HIV surveillance centers, and sex reassignment surgeries. It likewise expresses that the government will review the medical curriculum to address the medical problems of transgender people, and give far-reaching restorative protection plans or medical insurance schemes to them. In spite of the fact that it’s a positive step taken by the Government, the medical community needs information on transgender bodies and gives no course of events for the implementation of the same. 

7. Establishment of National Council for Transgender Persons (NCT)

The NCT led by Union Minister for Social Justice alongside different ministers will prompt the central government to monitor the effectiveness of strategies and policies for transgender people. The bill will likewise review the complaints and redress the grievances of transgender people. However, there ought to be a more noteworthy portrayal of the individuals of the transgender community in the decision-making process as it will affect them directly.

8. Other Issues

Certain criminal and personal laws that are at present in power just perceive the genders of ‘man’ and ‘woman’. It is uncertain how such laws would apply to transgender people who may not relate to both of the two genders. The bill doesn’t address issues relating to marriage, inheritance, parenthood, and adoption as well. Given that these are basic human rights and that the judge perceives the fundamental right of the transgender community, keeping away from tending to these issues is by all accounts a glaring hole for the rights and welfare of the Transgender community.  Additionally, the bill is silent whether a trans individual who holds a male or female gender certificate can approach for government welfare plans and projects implied for transgender individuals.

Implications of the bill

The bill will make all stakeholders responsive and responsible for maintaining standards underlying the bill and likewise, expedite greater accountability on the part of Central and State Governments/Union Territories (UTs) administrations for issues concerning Transgender people. It will profit an enormous number of transgender people in mitigating the maltreatment, abuse, stigma, and oppression against this marginalized section so as to bring them into the mainstream of society. The bill will likewise prompt more prominent comprehensiveness and make the transgender people productive members of society. These will bring a tremendous change in society if only, the shortcomings are analyzed properly.

Conclusions & suggestions

The bill has left more questions unanswered than the concerns it intends to address. If this bill is passed into law in its present form, it would create only hurdles for existing transgender who are already struggling in society. Transgender rights activists’ emphasized the bill has left them uncovered, helpless before a law. In light of these concerns and certain critical shortcomings identified above, the bill in its present structure requires re-examination.

A few of the recommendations that the author would like to mention:

  1. The reference of intersex persons in the Indian bill is significant incorporation yet the bill ought to be renamed the Rights of Transgender and Intersex Persons Bill and incorporate unequivocal protections for intersex individuals in accordance with India’s International human rights commitments.
  2. The appropriate government should implement stigma and discrimination reduction measures through mass media awareness. Thailand is one of those model nations wherein all the necessary facilities are being made accessible to the Transgender Community.

The author is a 4th Year Student of CNLU, Patna


[i] https://www.downtoearth.org.in/blog/governance/why-is-transgender-community-unhappy-with-trans-persons-bill–67158.

[ii] Section 3, The Transgender Persons (Protection of Rights) Bill, 2019.

[iii] National Legal Services Authority vs. Union of India, (2014) 5 SCC 438.

[iv] Justice K. Puttaswamy vs Union of India, (2017) 10 SCC 1.

[v] Section 18, The Transgender Persons (Protection of Rights) Bill, 2019.