Shashi Tharoor questions Sumitra Mahajan’s ‘discretion’ in allowing abuse of Lok Sabha Rules by Government

It was one of those surreal moments in Parliament. Outside more than two crore workers of the country were on an all-India strike. Inside the Lok Sabha, a bizarre Bill to amend the Trade Unions Act was being discussed to determine the criteria for recognition of a trade union.

The irony was highlighted by the fact that the government seemed determined to push through the TU amendment on the very last day of the winter session and that too just 100 days before its term would end and fresh elections are due.

Shashi Tharoor of the Congress raised three objections. First the Members of Parliament are supposed to be given copies of the Bill in advance before it is introduced. This Bill has been brought in a surreptitious manner as has been pointed out.

The Minister has to give a written notice of his intention to introduce a Bill. According to Speaker’s Direction 19B, no Bill shall be included for introduction in the List of Business for a day until after copies thereof have been made available for the use of Members for at least two days before the day on which the Bill is proposed to be introduced. The Bill has not complied with this requirement.

The Speaker intervened to say: I can give consent.

Tharoor: I know you can allow for an exception, but there the Minister is supposed to give special reasons in a memorandum which has to be shared with the House. Otherwise, it is a direct abuse of your Directions and the Lok Sabha Rules and Procedures. Madam, this objection is all the more important because just now, while we are sitting and listening to this, we have had copies of a new Bill given to us to amend the Constitution (on Reservations). Where is the two days’ notice? Where is the special reason to be given? This Government is flagrantly violating the rules, directives and procedures.

Tharoor’s second objection was that under the guise of providing recognition to trade unions by the Central Government or the State Government, the Bill is giving vast open-ended discretionary powers to the Government to determine which trade union should or should not be recognized. The Bill fails to lay down comprehensive objective standards for this determination.

He said: We all know that political parties in our country have affiliations to trade unions and political preferences. By providing such vast powers to the Government of the day with no objective criteria spelt out, no categories and no information, the Bill facilitates the subjective and arbitrary decision making. Such arbitrariness is the very antithesis of the Right to Equality guaranteed under article 14 of the Constitution.

His third point included a request. He said it was a matter of shame that the Government has decided to push ahead this Bill in this manner. Ten Central Trade Unions have written to the Minister opposing this Bill. The Minister should take steps to address their concerns. If the Government’s intention is genuine, why is it pushing this Bill in this fashion when all the stakeholders are opposing it? He added: A solution to the problem would be to actually refer this Bill to the Standing Committee.

When the Treasury refused to do so, some of the members staged a walkout. And the Bill was passed.

The Opposition parties pressed for the matter to be deferred till after a Standing Committee could go through the fine print of the Bill and evaluate the implications of the new norms for granting recognition to a trade union – which would have wider implications in the context of the rights of workers in the age of privatization and globalization.

The House had many other crucial items on the agenda of the last day – including the potentially historic constitutional amendment providing for 10 percent Reservations for economically weaker sections of upper castes. The controversial Citizenship Amendment Bill, as well as a new and little understood Bill to protect the privacy of citizens in regard to DNA samples for criminal investigations - yet the Lok Sabha all too quickly gave consent to the Trade Unions (Amendment) Bill, 2019, thanks to the overwhelming numbers in favour of the Treasury.

The brief debate did however enable parties across the aisle to articulate their views and flag certain relevant areas of concern. Independent member NK Premachandran was among those who put forward compelling arguments to oppose the introduction of the Bill.

He began by pointing out that the Bill was being presented on a day when the entire workforce in the country was on a two-day strike---for the sake of optics.

The sole purpose of the amendment to the Trade Unions Act is to determine the criteria for recognition of a trade union – at present trade unions are registered but there is no provision for recognition. So, the Government wants to give a statutory status for recognition of a trade union in a particular establishment.

He asked Labour Minister Santosh Gangwar the criteria and norms by which a trade union can be recognised- is it 10 per cent or 15 per cent or 20 per cent of the workforce? Nothing is mentioned in the Bill. According to him it was a “delegated legislation”, meaning Parliament is empowering the Government to make procedure and rules by which the criteria and norms can be fixed for the recognition of a trade union.

In other words, the Government is being empowered to make the call and in the process the entire legislative wisdom and the legislative power of Parliament is being entrusted with the Government. Parliament should know the specific criteria or norms by which a trade union in a particular establishment can be recognized, but the Bill does not spell it out.

Another member, Dr. A. Sampath pointed to the mysterious haste in which the Bill was being brought. He said on this cold morning of 8th January, quite surprisingly we got a copy of the Trade Unions (Amendment) Bill, 2019, Bill No. 2 of 2019 in the brown packet, which was circulated to us by the Lok Sabha Secretariat. Before 8:30 a.m. of today no such information or nothing was seen in the Business of the House.

The Bill itself he said was unconstitutional - because it is against the spirit of Article 19(1)(c) of the Constitution as well as Article 23 and Article 24. The provisions of Article 43 and Article 43(a) of the Constitution have also been violated, according to him. “The Minister may say that this is only a very simple Bill but this is going to cut the throats of the working class of this nation”.

He said the Modi government was in a hurry to introduce the Bill on the last day of Winter Session when 200 million working class of this nation is already on the streets. They are fighting against anti-people policy of this Government.

M. B. Rajesh of the CPI(M) agreed and called it a “big betrayal by the government on a day when the entire working class of our country, cutting across party affiliations, cutting across political lines, is on a general strike”.

He listed four grounds on which he objected to the Bill. Firstly, it has not incorporated the unanimously agreed formulation between Central Trade Unions and the Ministry of Labour and Employment regarding the definition of a Central Trade Union. With the non-incorporation of this unanimously agreed formulation, the Central Government is usurping wide discretionary powers regarding the definition of a Central Trade Union.

Secondly, in total departure from the mutually agreed procedure being followed from the very beginning, the Government is usurping wide discretionary powers in the matter of recognition of Central Trade Union. So, both in terms of definition and in terms of recognition, the Government is usurping discretionary powers.

Thirdly, this Bill has not addressed the issue of mandatory recognition of trade unions by the employers at the enterprise level. At the enterprise level, employers are not mandated to recognise a trade union.

Fourthly, this is part of this Government’s labour law reforms which is taking away the right of working class for collective bargaining, the right of working class to form trade unions. It is against the fundamental rights and that is why all the Central Trade Unions are against it.