During the hearing, the bench, also comprising Justices JB Pardiwala and Manoj Misra, expressed dismay and took strong exception over Governor Khan sitting over the eight bills for a period of two year. As per a report in the LiveLaw, CJI Chandrachud observed that “No reason has been given by the Governor to keep the bills pending“. Referencing to the judgment passed by the Supreme Court on the Punjab Governor case, the CJI further criticised the conduct of Governor Khan and held that “The power of the Governor cannot be utilised to pause the law-making exercise of the legislature”.

The bills mentioned in the petition:

As per the report in the LiveLaw, the following bills had been mentioned in the writ petition filed by the state of Kerala. The period for which the said bills had been awaiting the assent of the Governor is also provided.

1. University Laws Amendment Bill (1st Amendment) 2021 -23 months
2. University Laws Amendment Bill (1st Amendment) 2021-23 months
3. University Laws Amendment Bill (2nd Amendment) 2021 [APJ Abdulkalam Technical University (Mal)] -23 months
4. Kerala Co-operative Societies Amendment Bill 2022 [MILMA] -14 months
5. University Laws Amendment Bill 2022 -12 months
6. Kerala Lokayukta Amendment Bill 2022-12 months
7. University Laws Amendment Bill 2022 -9 months
8. Public Health Bill 2021 -5 months

On November 28, Governor Khan had cleared the Public Health Bill and referred the rest to the President. Among the referred bills are bills which proposed to divest the Governor of the powers to make appointments in State Universities and another bill that sought to limit the powers of Kerala Lok Ayukta. Another bill related to the MILMA society have also been referred to the President.

Arguments during the hearing:

Advocate Venugopal urges for court to lay guidelines on power of the Governor to refer bill to the President

Advocate Venugopal, representing the state of Kerala, highlighted that some of the bills pending with the Governor had been passed back in the year 2021 itself. The senior advocate further raised the argument that a Governor cannot simply refer a bill for the President’s consideration and urged the Court to issue guidelines for the exercise of that option by the Governor. He pointed out that of the seven bills, three were earlier issued as Ordinances, for which the Governor had granted assent. The issue of contention that he raised in reference to these where that how could the Governor have an objection to the bills at this stage and refer them to the President, when he had passed the same an Ordinances.

However, when the aforementioned arguments where raised, the bench pointed that a prayer for guidelines will be broadening the scope of the present writ petition. As reported in the LiveLaw, the CJI highlighted that with the passing one bill and referring the others to the President, the Governor has taken some action and the initial grievance ventilated in the petition has been resolved. In reference to the same, the petition that was moved under Article 32 of the Indian Constitution lay resolved. 

Upon this, advocate Venugopal sought liberty to amend the petition to seek reliefs regarding guidelines. “There is no single power in the Constitution vested in any authority which is arbitrary. The constitution would say Art 14 would apply to any action,” Venugopal had argued, as per the report in the LiveLaw.

Advocate Venugopal submitted that the Kerala Governor had sent seven of the eight bills before him to the President though the said bills were not in conflict with any central law. He also pointed out that eight new bills, including a money bill, have been sent to the Governor for his assent. Decrying violation of Article 200, advocate Venugopal stated that “Now seven out of eight bills sent for Presidential assent. This is just to delay the case. He can do so only if there is an inconsistency with a central law. He cannot blindly take the seven bills and send to president. There are eight other bills pending before him and it was passed in September and he is sitting on it,” Venugopal said.

While praying for keeping the present application pending with liberty to amend the prayers, advocate Venugopal further pointed the adversarial conduct by the Governor is affecting the working of the state. The senior advocate stated “For two years a welfare bill is not allowed to be law. The governance of the state is suffering. This is adversarial. Unless your lordships step in very strongly, it will affect citizens.” 

Advocate Venugopal re-iterated the crucial need for laying down clear guidelines on the power guaranteed to the Governor of the state to refer a bill to the President so that the people of the state do not suffer. The counsel had stated, “Time has come today that this court should lay down some guidelines as to when the bills can be reserved for the presidential assent and unless this is laid down the state is suffering. A bill cannot be kept pending for two years like this. This seems adversarial. Unless this court steps in strongly the people will suffer,” as per a report of Bar and Bench. 

Attorney General for India R Venkataramani refuses to get into the political arguments, assures action by the Governor

Throughout the hearing, AG Venkataramani was vehemently objecting to the demand for laying down of guidelines on power of the Governor to refer bills to the President being raised by advocate Venugopal. The AG maintained the stance that the said relief cannot be sought in the present petition.

After advocate Venugopal made his submission, the CJI remarked that there was some merit in the arguments raised by advocate Venugopal and asked the AG, “Mr AG, there is some merit in the argument. Why is governor sitting on bills for 2 years?” as per the LiveLaw report.

Upon this, the AG replied that he does not want get into a political battle and said “I don’t want to get into a political…I do not wish to go into this as it will open up a lot of things” said the AG.

Refusing to take the issue highlighted by advocate lightly and settling for the reply given the AG, the Supreme Court bench pointedly said “We will get into it very much… There is accountability by the Governor and it is about our accountability to the constitution and the people ask us about it,” the Court said.

Regarding the money bill that was recently sent before the Governor, the AG assured the bench that the Governor will act on it. “He will act accordingly. I don’t think he will sit on money bill,” AG said. Notably, the bench had recorded the AG’s assurance in the order.

Order of the Court:

The said hearing saw many interesting twists and turns taking place. It is crucial to note that initially, the Supreme Court bench was not inclined to lay down the guidelines being requested by the State of Kerala. “The prayer for guidelines will not strictly arise in the frame of petitions as it stands now,” the Court had initially said in its order, as per Bar and Bench. 

However, the meritorious arguments raised by advocate Venugopal as well as the lack of adequate responses provided by AG Venkataramani resulted in the bench changing its stance. The CJI-led bench then stated, “We have to keep the matter pending. We thought of disposing the plea, but it will not be proper. Because then how they file another plea seeking just guidelines. This is a live issue. We have eight live bills and if we dispose this bill then we will do disservice to the petition. Let them amend the petition.” 

With this, the Court allowed the State of Kerala to amend its plea to seek guidelines to be laid down by the Court for Governor to send bills passed by the State to the President. The Court, however, refused to interfere with the action of Governor Khan to send seven bills passed earlier by the State legislature to the President. The Court said that the with the Governor forwarding the bill to the President, the Constitutional requirement under Article 200 as regards granting assent to bills stood satisfied.

“It was only after this plea that Governor reserved seven bills for president assent and cleared one. The fact of the matter is Governor has albeit after this petition exercised his constitutional power by granting assent to 1 and reserved seven for the president. Now Article 200 requirements stands met,” the Court said in its order, as per Bar and Bench. 

Even as the Court was dictating the order, it hoped that better sense would prevail among the political opponents in the State. The CJI remarked that in case there is no political consensus and the deadlock continues, the Court will do its Constitutional duty and lay down the law if needed. “Let us hope that some political sagacity takes over the State and we hope some sagacity prevails. Otherwise we are here to lay down the law and do our duty under the Constitution.”

The AG, once more, voiced his displeasure and opined, “We do not want to get into all of this. There is a lot happening in the State.” 

However, not letting the remarks pass, advocate Venugopal defended the state government of Kerala and said, “He is making a lot of insinuating statements… State of Kerala is functioning beautifully in education, infrastructure, health care… these are serious statements.” 

Related:

By holding up bills, are Governors undermining democracy? 

India today has all the markers of a failing democracy. But the situation is not irreversible

The principles of democracy can’t be scarified at altar of majoritarianism: Justice Govind Mathur

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On Tuesday, July 23, the Bharatiya Janata Party (BJP) government moved two bills in Lok Sabha apparently to “reduce the compliance and administration ‘burden’ emanating from multiple legislations.”Some government-‘supportive’ media websites define these as “integration of labour regulations, minimise anomalies of contradictions thereby reducing litigation interpretation of statutes.”

While the Code on Wages 2019 (WC) seeks to combine four laws covering minimum wages, payment of wages, bonus and equal remuneration, the Occupational Health, Safety and Working Conditions Code 2019 combines 13 laws which include the Factories Act, the Contract Labour Act, the Interstate Migrant Workmen Act and specific laws covering beedi workers, cinema workers, journalists, construction workers, dock workers, plantation workers and motor transport workers, sales promotion employees and others.

The intent and objective of the WC bill says that this will lead to facilitation for ease of compliance of labour laws will promote setting up of more enterprises. The vocal discussion around the WC attempts to make it look like technology used in its enforcement will reduce violations, however, the bill’s use of technology appears actually be only to transform the entire system of labour inspection.

Besides, the long standing demand of established trade unions, to make the non-payment of minimum wages and such other basic violation of human rights cognisable offences, have been ignored. Worse, the bill has increased minimum wage by a laughable Rs. 2.

Now, apart from the definition of employee and worker running into each other, there is a creation of an additional authority- appellate authority. The appellate authority has been given all the powers of a civil court under the Civil Procedure, 1908, for the purpose of “taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such authority or appellate authority shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.” This appears to open up a murky terrain as it’s yet unclear how this authority will function. Moreover, matters or grievances that could earlier under the law, be taken to courts of law, with independent functioning and well-tested procedures, will be taken to an “authority”, which, in all possibilities, may not either function independently or take real or effective steps to address issues.

There appears legitimisation of the contractor and contract labour. By diluting or taking away the role or responsibility of the principal employer for the payment of wages and other benefits, including bonus, there is a legitimisation of the contractor.While defining “contract labour” the WC says that it means a worker who shall be deemed to be employed in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, “with or without the knowledge of the principal employer”. The “with or without principal employer” aspect gains importance here, because in effect it means the principal employer isn’t responsible for the labour that is hired in their organisation or industry if it is sub-contracted out .

The introduction of combined labour contract licenses for all tasks in an establishment removesthe possibility of identifying for contract license, a perennial task from a non-perennial task. This takes away from core principles of Contract Labour Act and will provide employers a legal cover to hire contract workers in a perennial and core tasks.

On similar lines, the amendment of motor vehicle act provides no safety but makes provisions for large companies to enter. There are excessive penalties on the driver. Role of conductor has been omitted.

Reactions to this move by the Modi 2.0 government have been sharp.

Ashok Singh, Vice President of Indian National Trade Union Congress (INTUC) said, “To ‘reform’ the labour laws, labour itself hasn’t been consulted. It’s pro-capital. Public sector is being privatised and poor are being pushed out of things.”

The WC bill also is conspicuously silent on gender related issues. It doesn’t contain any provisions to protect workers against discrimination. It’s a violation of constitutional provisions of equality of opportunities and international standards and guidelines such as the ILO Convention on Discrimination (Employment and Occupation), 1958, ratified by India. A statement by Ajeevika bureau said, “Unlike Equal remuneration Act, 1976, it talks only of wage inequality but is blind to discrimination in recruitment, promotions, transfers and trainings.” It’s a well-known fact the people from marginalised backgrounds, especially backward castes, religious minorities and those from discriminated genders, have to bear the brunt of their background at each step of the employment cycle. Hence no explicit mention of these forms of discriminations leaves the room wide open for interpretation and work place harassment of marginalised people.

Vasudevan Nambiar from the New Trade Union Initiative (NTUI) said, “The WC combines existing laws into few codes. How does it arrive at that conclusion? The objective [of the bill] has been to facilitate more exploitation, provide cheap labour, hire and fire and more such cosmetic changes. The employers are free to do what they want just because they employed someone.”

On the aspect of accountability he said, “The system of supervision and inspection has been taken away.” In the WC, the aspect of inspection is being aided by a “facilitator”. The role of a facilitator is again, subject to actual circumstances and doesn’t strengthen a robust inspection process.

Nambiar added, “Because the employment itself is coming with an expiry date, the scope of unionisation has become very limited.”He added, “On the one hand they say “Make India great”, “Freedom for investment”, on the other they are rapidly enforcing these changes already at many places. These just remain words on paper with hardly any relief for workers.”

Similarly, the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act of 1955says the Industrial Disputes Act of 1947’s provisions apply to journalists. In case of retrenchment, however, lawyers state that the Working Journalists Act enhances the protections for journalists above and beyond the protections the Industrial Disputes Act offers to workers in other sectors. 

While the Industrial Disputes Act Section 25F gives only one month notice period in case of retrenchment of a workman, the current legal protections are that if one wishes to retrench a journalist, one has to give three months’ notice, and if the person is at the level of an editor, then one has to give six months’ notice. This, as per lawyers and experts, has been done to protect “free speech and the independence of journalists, insulating them from political pressure on media owners”. However, the Occupational Safety, Health and Working Conditions Bill, 2019 which subsumed the Working Journalists Act, has omitted these provisions. What was required was that the friendly provisions of the 1955 Act should have been extended to digital media. Instead the new Bill disregards these provisions.

A statement released by left groups highlighted, “Contrary to the government claims, these codes would enhance the process of exclusion of workers from the benefits they accrue from the existing laws, by simply raising the threshold level of number of workers for application of these laws.”

The trade unions affiliated to left groups have also alleged that while determining the minimum wage, there was no participation from left groups. “The wage code has denied the agreed formula of wage calculation as per 15th Indian Labour conference, and add on 25% as directed by Supreme Court judgment in the Raptakos case and which was repeatedly and unanimously accepted by 45th and 46th ILC. The Expert Committee appointed by the Central Government, which excluded any participation from the Trade Unions, to determine the methodology to determine the National Minimum Wage also went against those recommendations. But to top it all the Labour Minister, on 10.07.2019 unilaterally announced the National Minimum Wage as Rs. 4628/-pm, when even the 7th CPC recommends Rs.18000/-pm as the minimum wages w.e.f. 1.01.2016.”

The statement also said that the Code on Occupational Safety, Health and Working Conditions bill will exclude 90 percent of the workforce, especially from the unorganised and informal sector, outsourced on contract out of the purview of the code.

“By repealing all these Acts and selectively picking up the provisions advantageous to employers only from these Acts for incorporation of the Code Bill and grossly diluting and/or tampering all the provisions pertaining to rights and protection of the workers in general, the Govt. seeks to drastically curtail the workers’ rights, in their most obedient services of their corporate masters.”

In a labour market where there is a diverse workforce, with specific needs of each sector, this seems like a move intended to benefit the market more than the labourers themselves.

More rigorous debate and discussion needs to take place on public platforms around these issues.
 

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