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Introduction

The autumn of 2020 in post-colonial India was marked by the introduction of several labor reforms by the current Modi Government at the union level. Whilst the premise of introducing these laws in the public domain was based on welfare and improvement of working conditions for millions of Indian workers who were otherwise as stated by the government on multiple occasions; ridden with a “complex labor legislative framework”, in a rather unfortunate turn of events these laws would on the contrary - further push the perpetuating neoliberal model of the state which is grossly anti-working class. This research in particular attempts to judiciously opine and establish why the labor codes has faced its fair share of criticism from all respects; particularly labor organizations and unions and how the implementation of these rights will lead to workers losing some of their most crucial rights. This analysis seeks to also prudently point out an adverse observation; Indian labor legislation has consistently and only prioritized the State’s capitalist agenda over public welfare.

 

Historical Background of Labor Legislation: India

 

Pre-independence: India is a common-law land wherein in the colonial era; all legal obligations, rules and regulations between employers and workers were categorized under a “master-servant” based contractual nature of law. There were several instances to point out how violating these regulations were; a simple breach of contract invited criminal sanctions against Indian workers which shaped the narrative and voice of the British regime; the one ridden with profit maximization and not public welfare.

 

However, the period of post-WWI witnessed a period of deeply rooted social tensions that were ridden with labor tensions and aggravating wartime inflation. This was marked by stark industrial unrest and an unprecedented need for more production which implied that legislators and employers couldn’t be explicitly ignorant to workers’ conditions anymore. One such instance of a progressive development per se in labor rights was the establishment of the International Labor Organization post the Treaty of Versailles in 1919.

 

Post-independence: India was independent yet the labor legislative framework was still mirroring the rules under the governance of the British Crown. For instance, the model of ‘juridification’ was adopted in postcolonial India; specifically in the ambit of labor welfare under the introduction of Industrial Disputes Act of 1947, trade unions were relegated to a weak role on account of the Trade Unions Act of 1926. As a result of these collective factors; processes and non-negotiable tools of labor welfare i.e. union empowerment and collective bargaining - took a severe and adverse hit.

 

Critical Analysis of the Labor Codes

 

1.     CODE ON WAGES, 2019

The code affects a workers’ salary and ability to hold their respective employer/(s) accountable per se. This code in particular indeed defines terms such as “employee” and “worker” on the face of it yet a further analysis clearly suggests and establishes that the terms keep conflating in order to create a stark confusion with respect to the rights attributed to both of the stated roles.

 

Another pertinent thing to observe is that the definition of ‘wages’ in accordance to the act as stated verbatim in the act, “wage shall mean to include all remuneration whether by way of salaries, allowances or otherwise, expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled”. This definition of wages in particular commits an abhorrent mistake of excluding overtime, holiday wages and paid leave. The code also adversely contributes to blatant centralization of powers since there is no defined concept of minimum wage and the code provides for a committee to determine the same yet it must be kept in mind that this committee would be inclusive of only more government representation and not of employers and employees - any and all recommendations that would be made would not be binding over the government. Some might argue that instead of minimum wage - the code states a term titled ‘floor wage’. Yet, floor wages can be unjustifiably low and might be plausibly excluding any input from employees or even employers and can effectively replace the minimum wage required for workers’ sustenance.

 

This code also includes the proposal of renaming ‘inspectors’ as ‘facilitators’ and allows for web-based inspection; which would require the consent of the appropriate government authority before inspection which entirely removes the element of surprise regarding due and effective enforcement entirely. This leaves workers with absolutely no recourse to ensure that their employer follows the due procedure of law.

 

2.     INDUSTRIAL RELATIONS CODE, 2020

The IR code in particular essentially harms a workers’ rights to unionize; the concept of collective bargaining would suffer a massive blow. From registration of trade unions to choosing trade union leaders; this code makes these essential and non-negotiable rights almost impossible through an unbridled web of red-tapeism.

 

Strikes are the most important instrument of radical labor rights. An extremely shocking development which this code sought to establish is the provision of providing a mandatory notice that is to be given to employers by the workers before going on a strike. This is in its utmost sense; undemocratic and not in alignment with worker rights and solidarity since it makes it easier for the government to quash any dissent by imposing heavy fines, denoting any strike as ‘illegal’ and even imprisonment on workers who go on these ‘illegal’ strikes according to the government.

 

Another regressive addition to this code is that almost any and each employee in the private sector will have no legal protection against mass firings. Under the previous law, employers who employed more than 100 workers required prior government approval for mass layoffs/retrenchments in order to ensure that malafide mass firings did not take place - yet under this code the limit of threshold has been raised of prior approval to 300 workers.

 

3.     CODE ON SOCIAL SECURITY, 2020

Running in a blatantly contrasting fashion with respect to opposing its very title; the code on social security creates barriers in access to social security in reality. The benefits of social security apply to only establishments above a certain size and number; workers have to register themselves in order to avail said benefits; workers need to provide a proof of identification; in particular an Aadhaar card to avail the benefits. Anyone who does not have an Aadhaar card or does not want to provide theirs on account of privacy concerns most likely is arbitrarily excluded. The code directly excludes many categories of workers by not mentioning them at all, such as scheme workers like ASHA workers, part time workers, and agricultural laborers. Zero actual schemes for funding social security to these new categories of workers in the code have been devised. The code does not mandate the central government to make any financial contribution towards social security in the country; thereby creating absolutely no obligation over the government to fulfill its duties towards workers.

 

4.     OCCUPATIONAL SAFETY, HEALTH & WORKING CONDITIONS CODE, 2020

The code in question here adversely affects a workers’ safety at their workplace, overtime work and the right to food and rest at work. The code weakens all available rights of contract workers, including the right to equal pay and benefits as a category under permanent workers. It must be prudently noted that about 70% workers in the private sector and about 50% workers in the public sector are contract workers. These workers per se will; in case the code is implemented - have no absolute and defined recourse to legal protection. These unfortunate set of workers also includes migrant workers, who suffered gross injustice in the first lock-down and clearly seek more and better legal protection.

 

The code has also fed into bourgeois notion of working and gave into exploitation of workers by removing earlier limits on overtime work, i.e. work beyond a period of 12 hours a day and in addition to this, the code now also allows the appropriate government authority to allow work beyond six days a week on its own whims and fancies.

 

In an egregious chain of functioning, the government has designated itself the power to prescribe all safety standards for all sorts of workplaces by repealing all specific and previous legal safety requirements. Under this, establishments with less than 500 workers are not even required to have an ambulance readily available for use; canteens are required only in establishments with 100 or more workers; lunch and rest rooms are required only with 50 or more workers. Evidently, the basic rights of workers in small enterprises; concerning medical attention, food and rest, have been trampled.

 

 

Conclusion

 

“Save the people and save the nation”, has been the main slogan of strikes across the subcontinent in active resistance against the retrograde labor codes to be implemented. This year in itself, the Central Trade Unions (CITU) issued a call for a nationwide general strike in February; particularly during the budget session of the parliament. A join statement; to denounce the Modi-led governments’ hasty move designed to impose slavery on workers - that was issued verbatim by CITU read the following, “dates of nationwide strike are finalized as…..,against the anti-people, anti-worker and anti-national destructive policies of the BJP Government at the centre.”

 

A call for an active and radical resistance; to the erosion of hard-won rights and needs for workers, requires to be strong, articulate and fearless.

 

This blog is authored by Akshiti Chauhan, student of Army Institute of Law, Mohali


ENDNOTE CITATIONS

In due course of my diligent research, I’ve referred to the following resources in order to get a profound sense of the topic at hand: -

1.     https://docs.google.com/document/d/1a0Az2fqaJBZ8grcMKzDdvLTffItivmjiZ0m -0ibqyp8/edit#

2.     https://www.gilderlehrman.org/history-resources/teaching-resource/historical-context-post-world-war-i-labor-tensions

3.     https://medium.com/tech-people/new-labour-codes-explained-48a4679d4a29

4.     CITU PRESS STATEMENT: http://citucentre.org/551-citu-denounces-bjp-govt-s-hasty-move-of-so-called-labour-law-reforms-designed-to-impose-slavery-on-workers

5.     Kharbanda & Kharbanda’s New INDUSTRIAL & LABOR CODES: textbook by Law Publishing House (2021)

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INTRODUCTION

Uniform Civil Code (UCC) is undoubtedly the most debatable topic after India got independence. Since then, we have had many instances where political leaders, policy analysts, and constitutional experts have expressed their personal views on UCC and how its implementation or non-implementation would impact India in the coming future. It is noteworthy that implementation of UCC is no easy task as it requires a humble understanding of all sects of people in India irrespective of their religion, belief, or faith.

The Union Law Minister, Kiren Rijiju, while addressing the Lok Sabha has duly stated that State governments are free to legislate on matters concerning the Uniform Civil Code, which may also imply that since the Narendra Modi-led Central government has an inclination towards implementation of UCC, therefore the states which are under Bhartiya Janta Partyor National Democratic Alliancerule may in the future course of time starts the procedure for implementation of UCC. Recently, BJP-led Uttarakhand Government has announced to have formed a 5-member drafting committee led by Retired Hon’ble Supreme Court Judge Ranjana Desai for the implementation of the Uniform Civil Code. Such a thing may lead to polarization in states where the majority of people may want UCC but due to the State Government’s stand on UCC, there is no such implementation.

Uniform Civil Code will fundamentally change the personal laws of all religions majorly concerning laws related to divorce, marriage, inheritance of property, custody, and adoption. Additionally, it will bring in such changes which may not be acceptable to any one of the major religions in India but it is to be noted that after the adoption of UCC people will not have a chance to back out from the clause of UCC until and unless it is unconstitutional in nature and can be challenged in the court of law.

Furthermore, the only benefit of UCC even before its draft or implementation would be equal rights for women. In Hindu Law as well as Muslim law, women are regarded as a secondary person who doesn’t enjoy as many rights as man do. The UCC will definitely make sure women are given more than just basic rights. As we see in many cases the Apex Court has to interfere and give women such rights which are not even laid down in the personal laws of a different religion. 

HISTORICAL BACKGROUND OF UNIFORM CIVIL CODE

During the reign of the British Empire, personal laws were firstly framed mainly for the Hindus and Muslims. They even tried to implement uniform personal laws but out of fear of opposition from both the major religious communities they did not do so.

After a brief period of time in the year 1941, under the leadership of Shri B.N. Rau, a committee was formed to frame the Hindu Personal Law draft. Subsequently, he drafted and proposed Hindu Code Bill in the year 1951 which lapsed as a result of the detailed and prolonged discussion on the same by the constituent assembly. Thereafter in the year 1952, with some modifications and changes, the Hindu Code bill was resubmitted which was accepted in the year 1956, which today is known as Hindu Succession Act, 1956.

LEGAL POINT OF VIEW

The Constitution of India in its Part IV provides for the Directive Principle of State Policy (DPSP) under which Article 44 states - Uniform civil code for the citizens- The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Article 44 enormously delineates the in-depth desideratum of having a Uniform Civil Code for our diverse country. It may not be observed now the impact UCC holds, but since our own Central Government is inclined towards imposing common personal laws, we might see UCC becoming a reality in the coming years. However, Article 44 was placed in Part IV- DPSP since it is not enforceable in any court of law but in the future, it could hold quite an importance.

According to constitutional experts, Article 44 was a violation of the Right to Religion [Article 25 to Article 28] after all it wouldn’t let citizen practice their religion according to their religious text or sacred books. The uniformity will harm people’s choice of practicing their religion. Furthermore, some people believe that if personal laws are the same as those of other religions, then their own religion will become identical to those of other belief systems.

It is also very well known that Goa is the first and the only Indian State to have common personal law for all religions ever since Goa joined Indian Union after the Portuguese left. The Portuguese Civil Code of 1867 was legalized as the Indian version and implemented in Goa state for holding common family law. Nevertheless, as pointed out by the former Chief Justice of India the Goa civil code is not exactly a Uniform Civil code since it doesn’t have uniformity in the case of marriage and adoption.

The next imperative development that happened in course of the Uniform Civil Code was in the landmark case of Mohd. Ahmed Khan v/s Shah Bano Begum AIR 1985- famously known as Shah Bano Case, wherein it was held by the Supreme Court of India that an aggrieved Muslim woman was awarded maintenance by her husband after he pronounced Talaq thrice. This attracted quite a controversy from many sections of Muslims in the country as this judgment was against the rule of Sharia. Shah Bano Case could have been one of the chances for then the Government to impose UCC in India and today people would have peacefully been practicing the same but the fear to lose the Muslim vote bank prevailed.

UCC IMPLEMENTAION AND ISSUES

The beauty of India lies in its diverse population but many times such diversification results in less progression. India is a democratic country thus no such thing can be imposed upon us without the wilful satisfaction of every section of people. Uniform Civil Code is politically motivated agenda for Muslims mainly. As it has been stated in one of the resolutions of Jamiat Ulama-e-Hind that they completely oppose UCC, and even many Muslim religions, as well as political leaders like Mr. Asaduddin Owaisi, oppose such law. Most of the time people who belong to that community come in support of their leader and without giving it a thought they disapprove of it.

Now, in India Muslims are the largest minority group and without their kind support, such modification is not going to take place in the near future. With the Supreme Court of India and many other High Courts extending their support in favour of the Uniform Civil Code, it has again become a controversial affair. It has to be noted that till we will take UCC has politically motivated agenda we may not arrive at a certain point of end and it will continue till eternity.

We certainly need to de-politicise UCC and for doing so our political leaders of national and regional parties should come together on one stage and discuss the issue of UCC at large scale and convince Indian citizen to support the cause. By doing this they will crate an atmosphere of confidence in all those community who things UCC will take away their Right to Religion as granted by our Constitution

CONCLUSION

Uniform Civil Code won’t be at all easy to implement owing to the diversification of India. Although the main motive of UCC is to create simple personal laws so that the general public gets a better understanding of it but it comes out to be the exact opposite. The rationale behind UCC was to have common personal law, gender quality, the principle of justice, and the promotion of secularism.

Today, we need to have a new set of laws for UCC so that it doesn’t create misconceptions and misunderstandings of the concept of religion with that of law. We need to take a Western approach while drafting and implementing UCC, since India as a land of complex diversity won’t have everyone satisfied the same. Hence, the idea of the Uniform Civil Code- “ONE NATION ONE RULE” should now become reality to ensure social justice and uniformity in personal laws.

AUTHORED BY: Kirtika Gupta, Student at Ramaiah Institute of Legal Studies Bangalore, Affiliated to Karnataka State Law University.

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Introduction

The constitution of India refers to the country as a quasi-federal. It is mostly federal but also gives off a strong sense of being unitary. The first US constitution, the articles of confederation, supported a UnitedStates of America of where each state has the greatest level of discretion and where the federal government and each state derive their authority from the same foundation, the Constitution. Federalism refers to the division of authority between the federal government and state or local governments. So, in a nation like the United States[i], there is a federalist system in place, meaning that some powers go to the national government and others to the state governments. In this case, there is a centralized entity known as the federal government, while the various states have independent governments. Similar to the Union States, the federal government also has the authority to declare war and control interstate commerce. States also have authority since they have their own state laws, state police, and independent schools.Contractual concepts serve as the foundation for the formation of federations. It denotes the reciprocal and mutually beneficial agreement of sovereign entities, such as states or municipal governments, to form a federation. Such a free union federation is only possible in a democratic context. James Bryce stated more than a century ago that "a federal state is a political contrivance meant to combine national unity and authority with the preservation of state rights."[ii] However, not all federal states have actually broken away from sovereign state unions.

 

Federalism in the United States of America

The American system of government, known as federalism, shares authority between the federal government and the states. Federal government is another name for the national government. The power structure between the federal government and the states is outlined in the US constitution. Powers that are solely granted to the national government are referred to as delegated powers, sometimes known as granted powers. like to manage foreign affairs, wage war, and uphold copyrights Some of these powers are explicitly specified in the constitution as "enshrined," while others are "posited," which means they are not explicitly listed but are nonetheless exercised by the national government in order to carry out the recognized functions. Powers that are only granted to states are referred to as reserved powers.Similar to how states can grant licences for things like marriage, hunting, and driving, they similarly administer elections. Both the federal government and state governments have concurrent powers. For instance, the state has the authority to set up courts, collect taxes, and take loans. Despite of having a federalist system in place since 1789, the interaction between the federal and state governments has shifted over time. The United States used to have a dual federal structure in which the federal and state governments were equivalent and each oversaw a certain region. As a result, a cooperative federalist system has developed, giving the national government additional authority as its functions overlap with those of the stage.For instance, under dual federalism, states had the authority to determine their own educational guidelines and requirements. The national government, on the other hand, has power over laws like the No Child Left Behind Act since the advent of cooperative federalism. Thus, it is not that the federal administration has put away the states' authority; rather, there is a collaborative system because the federal government is also involved in education.[iii]

 

Federalism in India

Federalism[iv] is an ideology that discusses the methods or processes used to run the government of the nation. Now, the federalist form of government divides power into two levels: the central government and the regional authorities. There is a separation of powers between the national and state governments in India. Similar to how chapter 1 of part XI's articles 245 to 255 divides legislative authority between the centre and the state, so does this section. There is also a seventh schedule, which has three lists. The panchayats and municipalities under Parts XI and XIA, which are the urban local government and the rural local government, respectively, are part of the third tier of government.Our written and ultimate constitution contributes to India's federal structure. It is difficult to amend our constitution because it is somewhat strict in nature. Now, Article 368, which discusses amendments, distinguishes between three sorts of changes: simple majority, special majority, and special majority with approval from at least half of the state. The court, which decides the conflict between the central and the state, is our ultimate arbiter. Additionally, the supreme court has the authority to interpret the constitution in its entirety, and it is up to them to maintain its principles. Federalism was cited as the fundamental tenet of the constitution in S.R. Bommai v. UOI, 1994, and the court clarified that although centre is powerful and has much more power, the states have always had independent statutory existence, the freedom to handle their own affairs, the authority to enact laws relevant to them, and the ability to successfully regulate their particular state. The court further stated that an exigency is really an exemption.[v]

 

Comparative Study of Indian and US Federalism[vi]

The formation method: A group of independent, autonomous states that make a private contract to govern specific issues of shared interest are known as the federal union of America. Up until the Government of India Act of 1935, India's constitution was largely centralised. It's crucial to keep in mind the unusual history of India's federal structure. The Provinces were not "autonomous" entities like the States of the American Union before or after the Act of 1935. No pact or arrangement between sovereign countries can be attributed to the Constitution, which was written by the "People of India" united in the Constituent Assembly.

 

Role of the state in the Federation: Prior to the creation of the union, the states in the United States were regarded as sovereign and independent entities, and they were reluctant to cede that sovereignty any more than was necessary for establishing a national government to accomplish their common goal. Due to the fact that Indian states are not sovereign entities and our constitution is based on the Canadian context of power distribution, there is no requisite for such rights in India. As a result, the federation constitution contains multiple safeguards for the protection of "state rights," whereas there is no such requirement in India.The state is not "indestructible" in the Indian Federation, unlike the US Constitution. In contrast to the United States, where it is against federal law for the federal government to redraw the state's borders without the approval of the relevant state legislature, India's parliament has the authority under article 4(2) to do so by a simple majority.

Additionally, unlike the constitution of the USA, our constitution does not guarantee equal state representation. The upper chamber of the Indian Constitution has between 1 and 31 state representatives, which causes states with greater interests to be unaware of the interests of smaller ones.

 

The Nature of Polity: The American constitution divided everything logically and sensibly to maintain state sovereignty, including dual citizenship, two sets of officials, and two systems of courts. A citizen of the United States is also a citizen of the state in which they live. Since the federal and state governments are independent of one another, the individual is "subject to two Governments, and owes allegiance to both" when they operate. The Indian Constitution's Article 5 exclusively recognises one type of citizenship, namely Indian citizenship. The federal and state governments in the United States each have their own officials to carry out their separate duties.The Indian Constitution, however, does not contain such a separation. Article 312 of our constitution allows for the development of All India Services, but they belong to both the union and the state. In the United States, there is a division in the judiciary between the federal and state governments. Federal courts hear cases involving laws of the federal constitution, whereas state courts only hear cases involving laws of the state constitution.

 

Conclusion

Both India and the US have increased the number of players in their casts, enlarged the scope of some judgement forums, increased their ability for cooperation, increased the likelihood of political and practical policy conflicts, and raised issues with third-party engagement performance. In conclusion, the Indian Constitution is a combination of the two, not wholly federal or wholly unitary. It lays the foundation for the idea that "the national interest should take primacy, despite federalism."


This Blog is authored by Ritesh Dandapat, Student of Symbiosis Law School, Noida

[i]Jennifer Nicoll Victor, U.S. Federalism: Definition and Background, (July 23, 2022, 7: 55 pm), https://www.wondriumdaily.com/us-federalism-definition-and-background/

[ii]Graham Maddox, James Bryce: Englishness and Federalism in America and Australia, Vol. 34, Oxford University Press, pp. 53-69 (2004),  https://www.jstor.org/stable/3331156

[iv]The Editors of Encyclopedia Britannica, https://www.britannica.com/topic/federalism, (July 24, 2022)

[vi]Prerna Sharma, Federalism in U.S. and India: A Comparative Study, SSRN, (July 25, 2022, 8:36 pm), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3855630

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