THE CONSTITUTIONAL

FRAMEWORK OF LABOUR
LEGISLATION IN INDIA
NIDHI SHUKLA
XISS

India and ILO

The International Labour Organisation
(ILO) was set-up in 1919 by the
Versailles Peace Conference as an
autonomous body associated with the
League of Nations. It became the first
specialised agency of the United
Nations in 1946. India has been a
member of the ILO since its inception.

ILO
Declaration of Philadelphia (1944), which was

formally annexed to its Constitution in 1946.

The Declaration reiterates that the central aim of
national and international policy should be the
attainment of social justice.
The international labour standards take the form of
Conventions and Recommendations. The ILO
adopted a series of Conventions and
Recommendations
The ILO has adopted 183 Conventions and 180
Recommendations so far. Out of 183 Conventions,
India has ratified 39 Conventions. Conventions
ratified by India have been incorporated in the
existing legislation

Labour Legislation
Labour is in the concurrent list of the

Constitution on which both the Centre

as well as the States have the power to
make laws. Article 254 has been
enacted to clarify the position.
Normally, as laid down in Clause (1), in
case of any repugnancy between the
Union and the State legislation, the
legislation of the Union shall prevail.

The preamble
WE, THE PEOPLE OF INDIA, having solemnly resolved to
constitute India into a _1[SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC] and to secure to all
its citizens: JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and
worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and
the _2[unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day
of November, 1949, do HEREBY ADOPT, ENACT AND
GIVE TO OURSELVES THIS CONSTITUTION.
The word socialist inserted by the 42 nd amendment of
the constitution

Constitutional Status
Union List

Concurrent List
Entry no. 22: trade unions,

industrial and labour disputes

Entry no.55: regulation of Entry no.24: social security
and insurance, employment
safety in mines and oil
and unemployment.
fields
Entry no.24: welfare of labour
Entry no 61: Industrial
Disputes concerning Union including conditions of work,
provident funds, employers
employees
liability, workmens
Entry no. 65: union
compensation, invalidity and
agencies and institutions
old age pensions and
for vocational ...training..
maternity benefits

ENACTMENT OF LAWS
The Indian Parliament is competent to make laws on

matters enumerated in the Union List. State Legislatures

are competent to make laws on matters enumerated in
the State List. While both the Union and the States have
power to legislate on matters enumerated in the
Concurrent List, only Parliament has power to make laws
on matters not included in the State List or the
Concurrent List. In the event of repugnancy, laws made
by Parliament shall prevail over law made by State
Legislatures, to the extent of the repugnancy. The State
law shall be void unless it has received the assent of the
President, and in such case, shall prevail in that State.
APPLICABILITY OF LAWS
Laws made by Parliament may extend throughout or in
any part of the territory of India and those made by State
Legislatures may generally apply only within the terrirory
of the State concerned. Hence, variations are likely to
exist from State to State in provisions of law relating to
matters falling in the State and Concurrent Lists.

Fundamental Rights

The state cannot make any law by which it can

take away any of the rights guaranteed in Part

lll of the constitution.
The Constitution provides a long list of
Fundamental Rights which run from art.12 to 35
Fundamental Rights are justiciable i.e legally
enforceable as between citizen and citizen as
well as between citizen and state.
The Parliament is not only a legislative body
but also a constituent body when it acts by a
special majority(art.368) to amend any part of
the constitution including FR

Relevant Articles in
Part lll
Art. 12 : definition of State
Art. 13 : Laws inconsistent with or in derogation of the FR ( not to

apply to any amendment of the Const.)

Art. 14 : Equality before law ;
Art. 15 : Prohibition of discrimination on grounds of religion, race,
caste, sex, or place of birth
Art. 16 Equality of opportunity in matters of public employment.
Art. 19: protection of certain rights regarding Freedom of speech
Art. 20: protection in respect of conviction of offences
Art. 21: protection of life and personal liberty
Art. 21 A: Education for children
Art. 22: protection against arrest and detention in certain cases
Art. 23 : Prohibition of traffic in human beings and forced labour
Art. 24 : Prohibition of employment of children in factories, etc.
Art. 32: Right to Constitutional Remedies

Equality Before Law

Art.14
The State shall not deny to any person

equality before the law or the equal protection

of the laws within the territory of India.
Any person includes any company or
association. Protection extended to both
citizens and non citizens, natural as well as
legal person.
All laws do not have universal application.
All persons are not by nature, attainment or
circumstances in the same position
Reasonable classification is permitted

Gender Equality and Art. 14

Gender quality includes protection from sexual harassment and

right to work with dignity which are universally recognized as

human rights
PIL under art. 14, 19, 21 of the const. To enforce Gender
equality
Vishakha guidelines laid down by SC to prevent sexual
harassment at workplace(11 guidelines)( Vishakha V. State of
Rajasthan)
Equal pay for Equal work: not a FR but the equality clauses of
the const. Would mean nothing unless equal work means
equal pay .
While construing Arts. 14, 16 in the light of the preamble of the
const. And Art. 39(d) SC held that equal pay for equal work
may be properly applied to unequal scales of pay based on no
classification or irrational classification, though those drawing
the different scales do identical work under the same employer

Art. 16(4) and reservation policy

Indra Sawhney V. Union of India Mandal Case

(1993)
Opinion of SC- reservation can be made by
executive order; no reservation in promotions
Backward Class status not to be interpreted as
Economic, social and educational backwardness
Creamy layer to be excluded
Reservation not to exceed 50%
Amendments in 1995 and 2001 nullified the
decision of SC held in Mandal case (inserted clause
4A to Art.16)
81st Amendment in 2000; clause 4B inserted
permits backlog vacancy

Art 19 freedom of speech

1) Right- a. To freedom of expression

b. To assemble peaceably and without arms

c. To form association or unions
d. To move freely throughout the territory
of
India
e. To reside and settle freely in any part of
the territory of India
f. Repealed
g. To practice any profession , to carry on
any occupation, trade or business
Rights are not absolute reasonable and not arbitrary
restrictions may be imposed

Art. 19 and labour

legislation
19(1)(a) and (b) right to peaceful

demonstration
19(1) (c) right to form associations and unions
as a protected right which shall effectively
achieve the purpose for which it was formed.
( adherence to preservation of public order or
morality
19(1)(g): right to closure an integral part of the
fundamental right to carry on business but it
cannot be a fundamental right embedded in
the right to carry on any business guaranteed
under Art.19(1)(g)

Right to Constitutional Remedies

Art. 32 a Right without Remedy is

meaningless
1. Right to move SC
2. SC can issue direction, orders or writs
3. parliament may by law empower any other
court to exercise within the local limits of its
jurisdiction all or any of the powers
exercisable by the SC under clause 2.
4. Right not to be suspended except as
otherwise provided for by the Const.

Article 32 and the writs

Habeas Corpus: Latin term which means you may have the body;

unlawful detention whether in prison or private custody and also

protection from treatment inside the jails.
Mandamus : means the order; an order by the superior court
commanding a person or a public authority to do something in the
nature of public duty or in some cases of statutory duty.
prohibition: issued by a superior court to an inferior court to prevent it
from usurping a jurisdiction it is not vested with
Certiorari: issued by a superior court to an inferior court or body
exercising judicial or quasi-judicial functions before trial to prevent an
excess or abuse of jurisdiction or after trial to quash an order made
without jurisdiction or in violation of the principles of natural justice
Quo warranto: means what is your authority ; holder of an office is
called upon to show to the court under what authority he holds the
office ( valid entitlement)
Injunction: order of a competent court which forbids the commission of
a threatened wrong, or forbids the commission of a wrong already
begun or commands the restoration of status quo; it may be prohibitory
or mandatory

Directive Principles of State

Policy
Part lV of the const. Sets out the aims and

objectives to be taken up by the State in the

governance of the country
This feature is borrowed from the Const. Of
Ireland which had copied it from the Spanish
Const.
Sets standards of achievements before the
legislature and the executive.
They are non justiciable but the trend of the
judicial decisions is that DPs represent the
common background of the FRs

Relevant Articles
Art.
Art.
Art.
Art.

36: definition of State

37: Application of principles contained in this Part
39: certain ppls of policy to be followed by the State
41: Right to work, to education, and to public
assistance in certain cases
Art. 42: provision for just and humane conditions of work
and maternity relief
Art. 43: living wage , conditions of work ensuring a decent
standard of life and full enjoyment of leisure and social and
cultural opportunities
Art 43A: participation of workers in management of
industries
Art. 45: provision for free and compulsory education for
children
Art. 51: promotion of international peace and harmony

Article 39
The State shall, in particular, direct its policy towards securing
(a) that the citizens, men and women equally, have the right to an

adequate means of livelihood;

(b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common
good;
(c) that the operation of the economic system does not result in the
concentration of wealth and means of production to the common
detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and
the tender age of children are not abused and that citizens are not
forced by economic necessity to enter avocations unsuited to their
age or strength;
(f) that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against
moral and material abandonment.

Article 39 A
Equal justice and free legal aid.The
State shall secure that the operation of
the legal system promotes justice, on a
basis of equal opportunity, and shall, in
particular, provide free legal aid, by
suitable legislation or schemes or in any
other way, to ensure that opportunities
for securing justice are not denied to any
citizen by reason of economic or other
disabilities.

136.Special leave to appeal by

the Supreme Court.(
(1) Notwithstanding anything in this Chapter,

the Supreme Court may, in its discretion, grant

special leave to appeal from any judgment,
decree, determination, sentence or order in
any cause or matter passed or made by any
court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any
judgment, determination, sentence or order
passed or made by any court or tribunal
constituted by or under any law relating to the
Armed Forces.

141. Law declared by Supreme Court to

be binding on all courts. The law

declared by the Supreme Court shall be
binding on all courts within the territory of
India.

Article 226
Power of High Courts to issue certain writs.(1) Notwithstanding

anything in article 32 every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, or any of them,
for the enforcement of any of the rights conferred by Part III and for any other
purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to
any Government, authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of
action, wholly or in part, arises for the exercise of such power, notwithstanding
that the seat of such Government or authority or the residence of such person
is not within those territories.
(3) Where any party against whom an interim order, whether by way of
injunction or stay or in any other manner, is made on, or in any proceedings
relating to, a petition under clause (1), without
(a) furnishing to such party copies of such petition and all documents in
support of the plea for such interim order; and
(b) giving such party an opportunity of being heard,

Principles of Natural
Justice
Audi alteram partem- hear the other side; hear both sides
Nemo tenetur seipsum prodere- no man is bound to betray

himself
Nemo debet esse judexin propria causa- no man ought to
be adjudged in his own case
Nemo debet esse testis in sua propria causa- no one ought
to be a witness in his own case
Nemo potest esse simul actor et judex- no one can be at
once suitor and judge
Non refert quid notum sit judici, si noium non sit in forma
judicii- no judge should import his private knowledge of the
facts into the case
Actore incumbit onus propandi- the burden of proof lies on
the plaintiff or the complainant

Contd..
Nihil Habet forum ex Scena- The court has nothing to

do with what is not before it

Qui aliquid statuerit, parte, inaudita altera, aequum
licet dexerit, haud aequum facerit- jusdice must not
only be done, but manifestly and undoubtedly seen to be
done
Culpa poena par esto- let the punishment be
proportioned to the offence
Nemo bis punitur vexatur pro sodem delicto- no
man is punished twice for the same offence
Nemo debet bis vexari pro una et eadem causa- no
man ought to be twice vexed for one and the same cause

Principles of Natural
Justice
The two main rules are:
1. Nemo debet esse judex in propia causa : no one should be

judge in his own case.

2. Audi alterum partem : hear the other side
. A person is disqualified to act as a judge :
a. If he is a party to the dispute
b. If he has any interest whatsoever in the dispute before him
c. If he is interested in the result of the dispute
d. If he imparts his knowledge into the decision, i.e., he
cannot be judge and witness at the same time
e. If he does not act according to his own judgement or if he
acts at the dictation of others