The response of governments during the Covid-19 pandemic has proved particularly challenging for constitutional rights. In India, the rights to free speech, religion and liberty saw emerging threats during the period of the lockdown. In the context of an already troubled working class bearing the brunt of the economic crisis, several state governments including Uttar Pradesh, Madhya Pradesh, Gujarat and Punjab announced a series of labour law ‘reforms’ in their states.

I will focus on a particular right that these changes burden – the right to form associations. To begin, consider how trade unions are impacted due to the changes. In Madhya Pradesh, for example, several provisions of the Industrial Disputes Act, 1947 stand suspended by the state. These include prohibition on unfair labour practices on employers such as threatening workers with discharge if they join a trade union.

With the suspension, the prohibition on these practices cease thereby making trade union activists and members vulnerable to institutional exploitation. Uttar Pradesh has made the draconian move of suspending more than 30 labour legislations, with a few conditions. The Trade Unions Act, 1926 and the Industrial Disputes Act, 1947, which contain essential provisions for the protection and preservation of trade unions also will cease to apply.

With the suspension of the Trade Unions Act, the protection which these groups enjoyed for decades are taken away at a whim. Consider the political significance of unions as independent institutions. They operate as a mobilizing force for the working class, who earlier held less or no political power. These associations promise workers a sense of solidarity and self-respect. They increase the strength of collective bargaining and resist to a great extent exploitative working conditions imposed by the employers.

They continuously ascertain and acknowledge the principal position of labour in the larger economic system. In the beginning of the 1900s, pre-independent India saw the formation of workers unions on a smaller scale. In 1929, J.H. Whitley was appointed as the chair of the Royal Commission on Labour to study Indian labour conditions. The Commission thought that ‘nothing but a strong Trade Union movement will give Indian working class adequate protection.’

The Trade Unions Act, in vogue today, was enacted in 1926 to give legal recognition to trade unions. With this, the trade union movement took a historic turn. The legislation guaranteed rights to the unions and immunity from prosecution. Later, unions such as the Indian National Trade Union Congress and Centre of Indian Trade Unions began to mobilise and organize workers in various industries.

Since then, trade unions have played a crucial role in formulating economic and social policy. The freedom of association, in this case of trade unions is significant in any constitutional democracy. The Constitution through Article 19(1)(c) guarantees the right to form associations and unions. The right to form associations contains within its fold the right to organize and mobilise, extend membership, functional autonomy and representative rights.

Associations are also means of expression of opinions and a place for democratic engagement. The Constitution expressly says in Article 19(4) when the state can override the right to form associations and unions. The restrictions provided are interests of ‘sovereignty and integrity of India,’ ‘public order’ or ‘morality.’ It is unclear which of these grounds are purportedly relied on by the state governments to burden associational rights.

Even under the present circumstances, it is difficult to argue that national sovereignty is threatened in any way, either through external aggression or internal disturbance. Prima facie, a restriction on the right to form associations also does not pass the test of ‘public order’ or ‘morality.’ In Kameshwar Prasad v. State of Bihar (1962), the rule which prohibited government employees from participation in strikes was challenged before the Supreme Court as being violative of the rights under Article 19(1)(c).

The government argued that such a restriction was in place to preserve public order. The court responded: “The threat to public order should therefore arise from the nature of the demonstration prohibited. No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquility or which would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained.

The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration…” The rule was thus struck down as violative of the fundamental right. Therefore, it follows that blanket restrictions are especially vulnerable to constitutional scrutiny. If the state is unable to justify the rights violation on any of the permissible grounds, the action is liable to be struck down.

Taking away the protection to trade unions slowly erases the ability to exercise the right to association in the first place. They make it costly to take up membership or function. The right to association certainly does not end at the time of its formation, but extends to its continued sustenance and functioning since otherwise the “right would be meaningless,” as the Supreme Court said in Damyanti Naranga v. The Union of India (1971).

The suspension of labour laws by the state governments of Madhya Pradesh and Uttar Pradesh seem to put the fundamental right to form associations and unions at enormous risk. Phased restrictions on rights will gradually put Indian constitutionalism in peril. Restoration of labour protection will, however, require effective political mobilization and resistance.

(The writer is a lawyer at the Supreme Court and the Kerala High Court and an Equality Fellow at the Centre for Law & Policy Research, Bangalore)