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2020 (10) TMI 1293
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....rom the outbreak of COVID -19. A trade union with a state-wide presence and another with a national presence are before this Court in a petition Under Article 32 of the Constitution to challenge the validity of the state's notifications dated 17 April 2020 and 20 July 2020. A The Notifications 2. A nationwide lockdown was declared by the Central Government from 24 March 2020 to prevent the spread of the COVID-19 pandemic. Economic activity came to a grinding halt. The lockdown was extended on several occasions, among them for the second time on 14 April 2020. On 17 April 2020, the Labour and Employment Department of the State of Gujarat issued a notification Under Section 5 of the Factories Act to exempt all factories registered under the Act "from various provisions relating to weekly hours, daily hours, intervals for rest etc. for adult workers" Under Sections 51, 54, 55 and 56. The stated aim of the notification was to provide "certain relaxations for industrial and commercial activities" from 20 April 2020 till 19 July 2020. The notification in its relevant part is extracted below: ...NOW, THEREFORE, in exercise of the powers conferred by Section 5 of the Fac....
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....pplying the interpretative principle of noscitur a sociis, the expression 'internal disturbance' will have a meaning which derives content from 'war' and 'external aggression' which endangers the security of India and would not include a pandemic or a lockdown; (iii) Though both Section 5 and the provisions of Article 352 of the Constitution (prior to its amendment in 1978) contain a reference to the expression 'internal disturbance', there is a crucial difference. Article 352 was premised on the satisfaction of the President while the power Under Section 5 can be exercised only upon the objective existence of the conditions prescribed; (iv) Even if a threat to the security of India were to exist as an objective fact, the notifications must, to be valid, ameliorate the threat; (v) Factories were open from 21 April 2020, which was the very next day after the first notification came into force. The purported justification of an economic chaos is a smokescreen to extract more work from the workers without paying them their overtime wages in onerous working conditions; (vi) Section 5 contemplates an exemption only to a....
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....owdown in economic activities, leading to an 'internal disturbance' in the State within the meaning of Section 5. The State temporarily exempted factories and establishments from the operation of labour laws such as the Factories Act to overcome the financial crisis and to protect factories and establishments; (iv) The notifications do not violate Section 59 of the Factories Act as they impose the condition of payment of wages for overtime work in proportion to the existing wages; (v) Section 5 of the Factories Act confers the power of exemption to the State Government to exempt any factory or class of factories from its provisions. The State Government has the prerogative to determine whether all or only a class or description of factories were to be exempted. Listing of all classes of factories would have been an unnecessary exercise; (vi) The notifications have not been issued Under Section 65(2) of the Factories Act, which can only be invoked to deal with an exceptional pressure of work; (vii) The notifications have been issued Under Section 5 of the Factories Act to ensure the maintenance of minimum production levels in factories. No....
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....ich the exemption may operate; and (vi) the manner in which the exemption has to be notified. An exemption can be granted "in any case of public emergency". The existence of a public emergency is a pre-requisite to the exercise of the power. Whether there exists a public emergency is not left to the subjective satisfaction of the state government. The absence of the expression "subjective satisfaction" in Section 5 is crucial. The existence of a public emergency must hence be demonstrated as an objective fact, when its existence is questioned in a challenge to the exercise of the power. Left to itself, the expression 'public emergency' may have a wide and, as we say in law, an elastic meaning. But the statute as it stands does not leave the expression 'public emergency' undefined. The explanation to Section 5 was introduced by the Factories (Amendment) Act of 1976 - Amending Act 94 of 1976 - with effect from 26 October 1976. Interestingly, it was an amendment which was brought in during the internal emergency declared in June 1975 purportedly on account of "internal disturbances". The effect of the explanation is to circumscribe the ambit of what constitutes a publi....
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....y' in Section 5 of the Factories Act are similar to those which Article 352 of the Constitution embodied, prior to its amendment by the Constitution (Forty-fourth Amendment) Act, 1978. Articles 352 to 360 of the Constitution contain emergency provisions. Article 352 of the Constitution, prior to its amendment, read as follows: 352. Proclamation of Emergency: (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect. (emphasis supplied) 11. The powers Under Article 352 have been invoked thrice by the President to declare an emergency. An emergency was declared for the first time in 1962 due to the Chinese aggression on Indian territory. The emergency was revoked in 1968. In 1971, when hostilities broke out with Pakistan, an emergency was proclaimed by the President on the ground that the security of India was threatened by external aggression. While this proclamation was in force, another proclamation was issued by the President on 25 June 1975 declaring ....
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....State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation-- (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State:.. 14. The interpretation of Articles 352, 355 and 356 was discussed by a seven-judge bench of this Court in S.R. Bommai v. Union of India [1994] 2 S.C.R. 644. Justice Sawant, writing for himself and Justice Kuldip Singh, observed that: ... Article 355 ... is not an independent source of power for interference with the functioning of the State Government but is in the n....
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....ebellion. Analysing the impact of the Forty-fourth amendment which substituted the expression "armed rebellion" for "internal disturbance', the Court held that: 66. The impact of the above substitution of words was the subject-matter of consideration by a Constitution Bench of this Court in Naga People's Movement of Human Rights v. Union of India. It was held therein that though an internal disturbance is a cause for concern, it does not threaten the security of the country or a part thereof unlike an armed rebellion which could pose a threat to the security of the country or a part thereof. Since the impact of a Proclamation of Emergency Under Article 352 of the Constitution is rather serious, its invocation is limited to situations of a threat to the security of the country or a part thereof either through a war or an external aggression or an armed rebellion, but not an internal disturbance. [...] 170. The conclusion therefore is that in the event of a war, external aggression or an armed rebellion that threatens the security of the country or a part thereof, it is the duty of the Union Government to protect the States and depending on the gravity of th....
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....nitude, such as flood, cyclone, earth-quake, epidemic, etc. may paralyse the government of the State and put its security in jeopardy. [...] 6.3.13 It is important to distinguish 'internal disturbance' from ordinary problems relating to law and order. Maintenance of public order, excepting where it requires the use of the armed forces of the Union, is a responsibility of the States (Entry 1, List II). That being the case, 'internal disturbance' within the contemplation of Article 355 cannot be equated with mere breaches of public peace. In terms of gravity and magnitude, it is intended to connote a far more serious situation. The difference between a situation of public disorder and 'internal disturbance' is not only one of degree but also of kind. While the latter is an aggravated form of public disorder which endangers the security of the State, the former involves relatively minor breaches of the peace of purely local significance. When does a situation of public disorder aggravate into an "internal disturbance' justifying Union intervention, is a matter that has been left by the Constitution to the judgment and good sense of the Uni....
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....overnment making the order or an officer thereof mentioned in the order: Provided that the press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this Sub-section.] A textual comparison shows that the definition of 'public emergency' in Section 5(2) of the Telegraph Act, 1885 is broader than under the Factories Act. Section 5(2) of the Telegraph Act, 1885 covers situations pertaining to "sovereignty and integrity of India", "friendly relations with foreign states", "public order" and "preventing incitement to the commission of an offence" which do not find place in the statutorily defined ambit of a 'public emergency' in Section 5 of the Factories Act. Be that as it may, para 101 of the decision in Anuradha Bhasin contains an observation that-".."public emergency" is required to be of serious nature, and needs to be determined on a case-to-case basis." [No other aspect of Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 has been the subject matter of the debate in the present case] 19. The power Und....
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.... internal disturbance". These provisions recognise that disturbance of public peace or tranquillity may assume such grave proportions as to threaten the security of the State. 8. As Stephen in his Criminal Law of England observes: "Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it". Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in Article 19(1), has placed in a distinct categ....
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....ain provisions of the Act due to the occurrence of a public emergency. The explanation speaks of a grave emergency where the security of India is threatened by war, external aggression or internal disturbance. The power conferred by the provision by its very nature, must be used only where there is a grave emergency implicating an actual threat to the security of the state. The purpose of exercising emergency powers is to avert the threat posed by war, external aggression or internal disturbance and such powers must not be used for any other purpose. 23. The question before the Court in this petition is whether the COVID-19 pandemic and the ensuing lockdown imposed by the Central Government to contain the spread of the pandemic, have created a public emergency as defined by the explanation to Section 5 of the Factories Act. 24. The global pandemic caused by COVID-19 is an unprecedented situation with which countries all over the world are grappling. In India, the Central Government imposed a nationwide lockdown on 24 March 2020 for an initial period of 21 days to take effective measures to contain the spread of COVID-19, including, maintenance of essential supplies and servic....
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....y the factory owner. The case was a private dispute and did not concern the exercise of emergency powers by the State under the Factories Act. The Court merely noted that the dispute had arisen during the time of a national emergency imposed by the President in 1962 and there was a need to gear up the industrial production to meet the needs of the nation. In the present situation, the Respondent has in its written submissions admitted that the purpose of the notifications is not to cope with an overwhelming pressure of work, but only to meet the minimum targets. 28. Even if we were to accept the Respondent's argument at its highest, that the pandemic has resulted in an internal disturbance, we find that the economic slowdown created by the COVID-19 pandemic does not qualify as an internal disturbance threatening the security of the state. The pandemic has put a severe burden on existing, particularly public health, infrastructure and has led to a sharp decline in economic activities. The Union Government has taken recourse to the provisions of the Disaster Management Act, 2005 [Ministry of Home Affairs, Order No. 40-3/2020-DM-I(A) dated 24 March 2020]. However, it has not af....
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....icate the same, a Commission was appointed in 1875 to investigate the conditions of labour in factories and on the basis of its recommendations, the first Factories Bill, 1880 was introduced in the legislature, subsequently however, the Bill was adopted as an Act. No sooner however, the Act was passed, agitation started afresh in Bombay and other places and on the basis of the report of a Committee, the Indian Factories (Amendment) Act of 1891 was passed. The provisions of the amended Act were also inadequate and a somewhat revised Bill was subsequently introduced in 1909 and the same was passed as a statute in 1911. Though the Factories Act, 1911 was amended from time to time but it could not meet the required growing activities in the country, especially after the Second World War by reason whereof, the Factories Act, 1948 was engrafted in the statute-book where emphasis had been on the welfare of the workers. Factory Inspectors have been placed with very heavy responsibility on them and provisions have been made in the statute empowering the State Governments to make and frame Rules for the purposes of meeting the local exigencies of situation. 30. The Factories Act, as it cu....
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....n order and for the reasons specified therein, exempt any factory from the provisions of Sub-section (1) so however that the total number of hours worked by a worker without an interval does not exceed six. 56. Spreadover--The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest Under Section 55, they shall not spreadover more than ten and a half hours in any day: Provided that the Chief Inspector may, for reasons to be specified in writing, increase the spreadover up to twelve hours. 32. The two notifications, while providing for an exemption from the above provisions, prescribe the following conditions of work: (1) No adult worker shall be allowed or required to work in a factory for more than twelve hours in any day and Seventy-two hours in any week. (2) The period of work of adult workers in a factory each day shall be so fixed that no period shall exceed six hours and that no worker shall work for more than six hours before he has had an interval for rest of at least half an hour. (3) No Female workers shall be allowed or required to work in a factory between 7:00 PM to 6:0....
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....icient measures to safeguard the said factories and establishments in carrying out essential activities". 36. We are unable to find force in the arguments of the learned Counsel for the Respondent. The impugned notifications do not serve any purpose, apart from reducing the overhead costs of all factories in the State, without regard to the nature of their manufactured products. It would be fathomable, and within the realm of reasonable possibility during a pandemic, if the factories producing medical equipment such as life-saving drugs, personal protective equipment or sanitisers, would be exempted by way of Section 65(2), while justly compensating the workers for supplying their valuable labour in a time of urgent need. However, a blanket notification of exemption to all factories, irrespective of the manufactured product, while denying overtime to the workers, is indicative of the intention to capitalize on the pandemic to force an already worn-down class of society, into the chains of servitude. G Social and Economic Value of 'Overtime' 37. The Indian Constitution is born from a transformative vision which aims to achieve social and economic democracy. Labour w....
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....e security of the State against the gravest of threats. 39. The provisions embodied in Chapter VI of the Factories Act reflect hard-won victories of masses of workers to ensure working conditions that uphold their dignity. In Y.A. Mamarde v. Authority under the Minimum Wages Act, (1972) 2 SCC 108 ("Mamarde") this Court in the context of a contemporary legislation, the Minimum Wages Act, 1948, interpreted the concept of overtime pay at double the rate of the ordinary wage, as a minimum endeavour of just compensation for the significant additional labour that is utilized by a worker, after having toiled in the ordinary course of the day. The Court, through a three judge Bench, held: 13. Let us first deal with this question. The Act [Minimum Wages Act] which was enacted in 1948 has its roots in the recommendation adopted by the International Labour Conference in 1928. The object of the Act as stated in the preamble is to provide for fixing minimum rates of wages in certain employments and this seems to us to be clearly directed against exploitation of the ignorant, less organised and less privileged members of the society by the capitalist class. This anxiety on the part o....
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....ved by the workmen as a fact. [...] (emphasis supplied) 40. The rationale behind fixing of double the rate of wages for overtime in Mamarde was separately noted by the Punjab and Haryana High Court, in interpreting overtime for the purpose of the Factories Act, in I.T.C. Ltd. v. Regional Provident Fund Commissioner ILR (1988) 1 P & H 73, where the Court held: 27. It cannot be lost sight of that in the present case interpretation of a social and labour legislation is involved. The social and labour legislations were enacted in order to safeguard the rights and interests of the working class and these are the result of a prolonged struggle of the working class. It is a matter of common knowledge that at the advent of the industrialisation in the country, there were no such social legislations as the Minimum Wages Act, Industrial Disputes Act, the payment of Wages Act and the Workmen Compensation Act etc. Then no working hours were fixed, no minimum wages were fixed; there were no safeguards against the retrenchment of the workmen, their wrongful dismissals, termination of service, wrongful reduction in rank etc. It was only after the workers organised themselves into t....
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....nteer to work beyond the prescribed hours. If the employer was given permission to contract out of the provisions of 1948 Act, the whole object with which these provisions have been enacted will be frustrated. [...] 9. [...] The employer has clearly taken advantage of its superior bargaining position vis-a-vis the workmen by making them to work for more than 50 hours of overtime work. It cannot now claim that despite the fact that workmen have rendered service for more than 50 hours of overtime wages should be denied to them because the workmen became a party to the violation of that embargo. Having taken advantage by violating the provisions of law, the employer cannot now plead that the workmen should be denied benefit of their extra work. (emphasis supplied) H Constitutional vision of social and economic democracy 42. The Constitution is a charter which solemnized the transfer of power. But the constitutional vision of swarajya transcends the devolution of political power. The Fundamental Rights and Directive Principles of State Policy present a coherent vision of a welfare state that envisages justice-social, economic and political. Granville Austin, ....
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...., social, economic and political, shall inform all the institutions of the national life. (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations"] 39,[ 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; that children are given opportunities and facilities to....
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....sure their welfare. 44. In an economy where the State is not the dominant employer of workers, the COVID-19 pandemic opens up unforeseen challenges in securing true equality and dignity to them. Workers in the organized and unorganized sectors of the economy face basic questions about survival and security. The unprecedented nature of these challenges is matched only by the unanticipated nature of the pandemic. The challenges will need to be addressed with ingenuity and commitment. The framers of the Constitution did not envisage one model of economic democracy. Dr B R Ambedkar, as the architect of the Constitution, incorporated a vision which endows the succeeding generations of elected governments with the discretion to design responses in tune with the changing nature of social and economic structures [Dr B R Ambedkar, Constituent Assembly Debates, Volume 7 on November 19, 1948]. In the Constituent Assembly on 19 November 1948, he stated [ibid]: ..While we have established political democracy, it is also the desire that we should lay down as our ideal economic democracy ...The question is: Have we got any fixed idea as to how we should bring about economic democracy?....
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....ute is the least that this Court can ensure them. Justice Patanjali Sastry immortalized that phrase of this Court as the sentinel on the qui vive in our jurisprudence by recognizing it in State of Madras v. V.G. Row AIR 1952 SC 196. The phrase may have become weather-beaten in articles, seminars and now, in the profusion of webinars, amidst the changing times. Familiar as the phrase sounds, judges must constantly remind themselves of its value through their tenures, if the call of the constitutional conscience is to retain meaning. The 'right to life' guaranteed to every person Under Article 21, which includes a worker, would be devoid of an equal opportunity at social and economic freedom, in the absence of just and humane conditions of work. A workers' right to life cannot be deemed contingent on the mercy of their employer or the State. The notifications, in denying humane working conditions and overtime wages provided by law, are an affront to the workers' right to life and right against forced labour that are secured by Articles 21 and 23 of the Constitution. I Summation 45. This Court is cognizant that the Respondent aimed to ameliorate the financial exi....