Teaching of Labour Laws in Indian Law Schools - Prof. J S Mann and Sujit Kumar, NLU Delhi
Labour welfare is one of the founding principles of a democratic and constitutional setup. From times immemorial, the labor workforce has played a pivotal role in the country's development. From mammoth industries to the swanky skyscrapers to the homes we live in, the labour workforce has immensely contributed. Therefore, it is of utmost importance to safeguard the interest of the labor class through various legislations guaranteeing them adequate social safety and security net. In today's scenario, along with the constitutional safeguards, we have a plethora of legislation addressing the concerns of the labour class. Despite various constitutional and legislative safeguards, the labour class today is in huge distress. The Covid19 pandemic was a stark reminder of the distress the labour class lives in. The horrific scenes of migrant workers walking barefoot to reach their homes are still afresh in our memories. It is extremely heart-wrenching that it took a pandemic for us to realise the precarious conditions under which the labourers work and earn their bread and butter.
What is even more worrying is that the existing labour laws extend their application only to the organized or formal sector. According to various data, around 90% of the labour workforce are employed in the informal sector. These contribute to around fifty percent of the total value in the economy for whom there is no applicability of labour laws. Hence, they are bereft of any social security net. The same goes for the 'platform' or the 'gig' workers.' As the virtual space extends in the midst of the pandemic, the 'platform' and the 'gig' workers who hitherto were not covered under any labour laws must be brought under the ambit of the employer-employee relationship. Hence, it is heart-warming that the gig and the platform workers have been defined under the recently introduced "The Code on Social Security 2020" to extend social security benefits. Also, it is noteworthy that the Government, based on the Supreme Court order has decided to create a 'National Database for Unorganized Workers' and exhorted all the unorganized or the informal workers to register on the 'E-Shram' portal.
The Government's apathy towards the labour class was evident during the pandemic. It diluted the labour laws by consolidating the labour laws into four codes and gave the flexibility to the employer to hire and fire workers at their will. As a result, many workers were laid-off, retrenched, terminated by their employers. The Government's hyperbole surrounding 'Ease of Doing Business' too comes at the cost of labourers. The EDB index published by the World Bank requires the countries to have flexibility in the laws to make it more employer friendly and conducive to business. To improve its EDB rankings, India has used this opportunity to dilute labor laws to the detriment of the workers. It has led to a dilution of labour inspection system and allowed the employers to file self-regulation reports.
Therefore, teaching labour law to students requires making them aware of various laws and awakening labour sensitivity in them. Most of the people employed as labourers or workers belong to marginalized and vulnerable sections of society. Students today are generally career-oriented and look for lucrative jobs. Therefore, they find subjects such as corporate law more interesting and pay little attention to the issues impacting labour class. Hence, it is important to make students aware of the predicament and sufferings of the labor class. They approach the subject with a benevolent mindset and study it, keeping in mind the interest of the labourers and the workers.
Studying and teaching labour laws to require an interdisciplinary approach. It is important to make students aware of the interplay among constitutional law, administrative law and labour law. Therefore, as a teacher, it is imperative to ensure that students understand constitutional and administrative laws while studying labour laws. It is important to be aware of the constitutional provisions safeguarding the interest of the labour class. Important provisions like article 19(1)(c) guaranteeing freedom to form association or union in order to ensure collective bargaining, prohibition of forced labour under article 23, prohibition of employment of children in factories or hazardous industries under article 24. Then there are Directive Principles which require the State to ensure adequate means of livelihood and equal pay for equal work for both men and women under article 39, to provide for just and humane conditions of work and maternity relief under article 43 and the most important provision under article 43A which advocates for participation of workers in the management of industries. These important provisions under the constitution form the bedrock for the labour laws. When it comes to administrative law, students must be aware of the administrative functions performed by various authorities under the labour laws. The 'Industrial Disputes Act', which forms the heart of labour law legislation as the newly introduced labour codes are yet to come into force provides for various authorities in the form of Conciliation Officers, Board of Conciliation, Works Committee, Labour Courts and Industrial Tribunals. Therefore, the students need to be aware of the administrative actions performed by these authorities under the act so that they are well acquainted with the procedural requirements while taking such actions and remedies available against the decisions rendered by these authorities. For example- the function performed by the conciliation officer is 'pure administrative action with civil consequences' whereas under section 33A of the ID Act, the action performed is quasi-judicial in nature.
Similarly, under section 10 of the ID Act, the action on the part of the appropriate government to refer the disputes to Board, Courts or Tribunal is again pure administrative action with civil consequences and therefore there is no such procedural requirement to provide for a notice to the parties while making or rejecting a reference. A sound understanding of administrative law helps one challenge the decisions made by administrative authorities under the ID Act. For example- the labour courts or industrial tribunals exercise quasi-judicial functions and the decisions made by the tribunals are directly appealable before the division bench of the High Court as per the decision in L Chandra Kumar v UOI. Hence, making students aware of the underlying constitutional and administrative aspects is imperative in understanding labour law.
The next important step while teaching labour laws involves making students thorough with the important definitions and provisions under the Industrial Disputes Act 1947. Under the ID Act, detailed analysis of definitions like industry, industrial dispute, workman, lay-off, lock-out, retrenchment, strike, public-utility services, settlement is essential for a better understanding of labour laws. Apart from the definitions, it is essential to look at landmark cases delineating the scope and ambit of these definitions. Judgments like Bangalore Water Supply, Hospital Mazdoor Sabha, and others are important to understand what can be covered under industry definition. A bare reading of definitions is futile unless dealt with alongside the case laws.
Similarly, section 2(k) defining industrial dispute contains the phrase 'any person'. To understand the exact contours of the phrase 'any person as to who all can be covered under it, it is important to analyze landmark judgments like Dimakuchi Tea Estate. However, it is not to state that the students need to agree with the judgments readily. As a teacher, it is important to inculcate in students a critical perspective while analyzing judgments and have their independent view with respect to the judgments rendered. Hence, analysis of definitions alongside the case laws is essential for proper understanding and teaching of labour laws.
Contract labour is another important issue that needs to be dealt with in the classroom. 'Casualization' or 'contractualization' of work has become rampant under the pretext of ease of doing business. It is one of the methods by which the principal employers have evaded their responsibility under the labour laws and has left the labour workforce at the mercy of the contractors. In numerous instances, the contractual agreements are mere sham or camouflage to deny the workers benefit under the labour laws, which has caused huge misery to the workers. The Courts by their ingenuity have pierced or lifted the corporate veil and went beyond the control test to provide succour to the workers and impute liability on the part of the principal employers. Despite of various judgements and central legislation in the form of 'The Contract Labour (Regulation and Abolition) Act 1970' prohibiting contractual labour where the work is perennial in nature or the work is incidental or necessary to the industry or the work is ordinarily done through regular workmen, the employment of workers as contractual workers go unabated and unhindered.
Another important legislation that forms the bottom line of labour jurisprudence and needs to be dealt with by the students is the Trade Unions Act 1926. Trade Unions from time immemorial have played a pivotal role in advancing the concerns of the labour class and promoting collective bargaining at the industry level. The formation of the same is also recognized as a fundamental right under Article 19(1)(c) of the constitution. Under this part, we tell the students about the jurisprudence surrounding the strike. Strike is a very potent weapon in the hands of the workers to advance their legitimate concerns and enhance their bargaining power. Hence, a seminal question arose in the case of All India Bank Employees' Association v National Industrial Tribunal whether article 19(1)(c) grants the concomitant right to the workers in the form of fundamental right to strike. To this the Supreme Court answered in the negative and ultimately in the case of T.K. Rangarajan the debate got settled wherein the Supreme Court held that there is no fundamental right to strike. Other important provisions under the TU Act deal with the immunities granted to the Trade Unions while advancing their legitimate concerns. Section 17 and 18 of the Trade Unions Act respectively provide for immunity against the crime of criminal conspiracy for any agreement made between the members in order to further the objectives of the trade union and for any acts done in contemplation or furtherance of a trade dispute. However, no such immunity extends for criminal acts committed by the trade union members other than the crime of criminal conspiracy. Similarly, section 18 offers immunity only against lawful inducement and interference and workers cannot force other unwilling workers to join the strike by physically interfering with their work.
Apart from teaching, it is also important to apprise students of various employment opportunities associated with studying labour laws. These areas are as lucrative and prestigious as corporate and other jobs which students have a huge desire for. Students who wish to take up their career in labour laws can become labour officers or commissioners, practice litigation, undertake research. In addition, they can be academicians, welfare officers, personal managers, enforcement officers, ESI officers or commissioners. Hence, labor laws also offer many employment opportunities and have a very wide scope.
Hence, looking at the gravity of the subject and its impact on a wide section of the society and particularly to those belonging to marginalized and vulnerable sections of the society, the Bar Council of India has recommended it to be taught in two courses. But most of NLUs have only one course on labor laws. Therefore, it is imperative to pay heed to the recommendations of the BCI and the subject must be taught in two courses to give the subject a broader outreach. The teaching of labour laws has become all the more important at a time when the judiciary's approach has shifted from being pro-labour to pro-industry. Hence, the overarching aim while teaching labour laws must be to make students aware and sensitive towards the problems faced by the labour class today.