By: Rakshith Bhallamudi and Rhea Shimaria
The Labour Ministry of India has, recently, consolidated 29 Labour laws into four Codes (hereinafter ‘Codes’) – Social security, wages, industrial relations and occupational health. In the matter of ‘working hours, the Codes could now enable the factories to extend the existing 9-hour work shift norm under the Indian Factories Act, 1948, to 12 hours per day for four days per week- providing the workers with a weekly three-day rest period thereby. Poor working conditions, affecting the health and safety of workmen, women and even children, have existed for centuries. Lack of time off for leisure, alongside minimal wages and unstable housing facilities, among other things, form crucial risk factors in this regard- something that many labour legislations recognized and acknowledged as early as the early 19th century. Despite the long-standing recognition of this issue, the proposed development is being sought to be implemented without due regard to these acknowledgements. This piece is a critical take on this development and argues for its serious reconsideration owing to its utter disregard for the overall well-being of an individual, in various ways.
To begin with, the proposed developments are in direct contravention of the 1919 Hours of Work (Industry) Convention and the Universal Declaration of Human Rights (hereinafter ‘UDHR’). The former limits the daily employee work hours to 8 hours and weekly work hours to 48 hours. The latter provides for the following vide Article 24:
“Everyone has the right to rest and leisure, including reasonable limitations of working hours and periodic holidays with pay.”
Article 24 of UDHR has been especially subject to frequent critiques, with some calling it the ‘least-defensible’ of social rights. There appears to be some sort of bias against a ‘right’ advocating for rest and leisure as this has been largely ignored even by politicians, leisure academics and professionals, and so, it is necessary to (re)-emphasize the importance of having such a ‘right’.
The right of ‘Leisure and rest’ is much broader than meaning mere recovery from or absence of work. What seems to be forgotten or rather ignored, is that it also functions as a concomitant right, that is essential to enable and realize countless rights guaranteed under various national and/or international instruments, and close ties to an important concept within ‘rights’ literature- Dignity. Many cases are touching upon this aspect. The right is necessary to lead a dignified life. This is supported by a long line of evidence- both empirical and theoretical, that shows/explain the importance of rest and leisure to the overall well-being of an individual. “Well-being” here is understood not just in the hedonistic sense that includes, for example, the health of a person, but also in terms of the Self-actualization of an individual- a person’s capability to realize their potential.
Well-being understood in the hedonistic sense includes health, both physical and mental. There is ample scientific evidence, as shown below, that warns against the risk of long work hours per se, irrespective of the rest days- studies that warn against its adoption, owing to its grave mental and physical health impacts. Briefly, compared to 8-hour work days, working 12-hour days in specific, not only increase the risk of occupational injuries by 14%, but also has strong links to insufficient sleep that in turn increases the risk(s) of diabetes, obesity, occupational health, high blood pressure, cerebral vascular accidents, myocardial infarction, and even work errors. Additionally, long working hours especially in the case of physical labour, directly and gravely impact an individual’s quantity and/or quality of sleep- a right explicitly recognized by the Indian judiciary to be a part of article 21 of the Indian Constitution. To complement these studies, the scholarship also elaborates on the positive effect(s) of adequate rest and leisure, relating it to constructive psychological recovery from negative life events, overall life satisfaction and happiness, creative capacity of an individual and free expression, and in providing a nurturing environment for human development.
Now coming to well-being is understood in the ‘self-actualization’ sense. The second normative claim under Sen’s theoretical framework– the capability approach- puts forth that well-being ought to be understood in terms of peoples’ functioning or capabilities. A person’s capability is their opportunity to be or do such things, and functioning is realized capabilities. Now, to realize these capabilities, the most important element is the first normative claim Sen reflects- that of real Freedom. The freedom is ‘real’ in the sense that it is not just ‘formal’ freedom to be or do a thing, but the considerable prospect(s) to achieve it.
A person’s freedom to realize their capabilities is disturbed by the work hour rule in two ways- one, by being a barrier to achieving well-being even in the hedonistic sense discussed above-if a person is or arguably even likely to be unhealthy and/or is not sleeping well and enough, they are put in a position of un-capability. Two, by the (Indian) context of the operation of this rule. The first point is more or less self-explanatory and any further explanation is refrained from. The second point is elaborated, and it understands the work hour rule in light of two existing Indian contexts-first, the poor implementation of laws in the country and second, widespread unawareness on part of the masses. The operation of the rule within these contexts, it is argued, also places the workers in a position of un-capability in their own way.
It is not unknown that ideas or laws alone are insufficient for effective legal regulation. Any change in laws has to be supported by simultaneous changes in culture, legal consciousness as well as proper implementation of the change-imposing laws. The implementation of laws about labour laws and even in general within the country is poor. One very relevant example relates to the case wherein, to lift the economy, a dilution of existing labour laws and consolidation of laws was proposed, for which the president gave his assent. In addition, the Madhya Pradesh Labour Laws (Amendment) Ordinance, 2020, The UP Temporary Exemption from Certain Labour Laws Ordinance, 2020 and some changes to The State of Karnataka amended some provisions of the Industrial Disputes Act, 1947, The Contract Labour (Regulation and Abolition) Act, 1970, and The Factories Act, 1948 were done by the respective states. These codes raise several thresholds but most relevant for us is that of changes made by Karnataka wherein an increase in Overtime from 75 hours to 125 hours per quarter was allowed- a change which is argued to be unconstitutional on account of being forced labour under article 23 of the Indian Constitution, while also going against the decision in the People’s Union For Democratic Rights case, at least in spirit. The fact that existing labour laws that are being consolidated now, have not been properly implemented in any state despite them being around for decades, speaks volumes. Not just for labour laws, but implementation issues span and persist across diverse areas. Next, in the context of lack of legal awareness on part of the workers and the masses generally, which among other things, leads to employer exploitation. One good example is the case of section 12 of the Minimum Wages Act, 1948 which provides for overtime pay by the contractor- a provision hardly adhered to in reality and a situation that is worsened by the lack of awareness, legal or otherwise, on part of the workers.
Individually and/or together, both these contexts embellish the problem of working hours. In the matter of its implementation, there is already no clarity on the specifics of it- no clarity on the sub-rules to be framed under this change about the structuring of the rest days, the nature of the rest days (mandatory or optional), the discretion concerning availing them, and their accumulation and encashment. Depending on how they are dealt with and considering the matter of lack of awareness, the law could yet again provide greater leeway for employers’ exploitation. As it is, Indian workers not only work the longest but also earn the least with nearly no time for leisure.
Now, it may be argued that “people still have the time to ‘realize’ their capabilities in the 3 days they are given”. Even though there is no clarity on the sub-rules as mentioned above, the contexts make it clear as to why the realization is tough. At this point, it may then be argued that these contexts do not change no matter what the rule is. However, not all rules end up utterly disregarding the national/international law and the well-being of individuals understood in the hedonistic sense of health. Nothing appears to take away from it, that the change from 8 to 12 hours work days seems to have been proposed, without any investment in understanding its impact on the overall well-being of a person, understood in the hedonistic and the capability sense, as well with utter disregard to the existing law.
The intention of the law in this regard may be good, but ‘good’ for whom? The proponents of the Codes as a whole have not been shy in being vocal about the Codes’ benefits to the enterprises/employers, especially in case of ease of doing business. Just in one month from March 2022 to April 2022, we recorded one of the highest surges in the labour force from 424.4 million to 437.2 million, but also at the same time, saw an increase in the rate of unemployment from 7.57% in March to 7.83% in April. Labour legislation has a key role to play in achieving and maintaining the many balances, and the work hour rule is a harmful weak link.
(Rakshith and Rhea are Associate at T S Suresh Associates and an undergraduate student of law, at Pravin Gandhi College of Law, Maharashtra respectively. The author(s) may be contacted via mail at email@example.com and/or firstname.lastname@example.org).
Cite as: Rakshith Bhallamudi and Rhea Shimaria, ‘Working Hours And The New Labour Code: The Need To Reconsider’ (The RMLNLU Law Review Blog, 19 July 2022) <https://rmlnlulawreview.com/2022/07/19/labourcodes/>date of access.