GUJARAT MAZDOOR SABHA & ANR. versus THE STATE OF GUJARAT on 1 October 2020

SUPREME COURT REPORTS

[2020] 13 S.C.R.

AGUJARAT MAZDOOR SABHA & ANR.

v.

THE STATE OF GUJARAT

(Writ Petition (Civil) No. 708 of 2020)

BOCTOBER 01, 2020

[DR. DHANANJAYA Y CHANDRACHUD,INDU MALHOTRA AND K.M. JOSEPH, JJ.]

Factories Act, 1948 – ss.5, 51, 54, 55 and 56 – Constitutionof India – Arts. 352, 355 and 356 – A trade union with a state-wideCpresence and another with a national presence u/Art.32 of theConstitution challenged the validity of the State’s notifications dated17.04.2020 and 20.07.2020 – The notification dated 17.04.2020issued u/s.5 of the Factories Act exempted all registered factories‘from various provisions relating to weekly hours, daily hours,Dintervals for rest etc. for adult workers’ u/ss. 51, 54, 55 and 56 –The State Government issued another notification on 20.07.2020and extended the exemption granted to factories from 20.07.2020till 19.10.2020 – The State government justifies the action on theground that industrial employers are faced with financial stringencyin the economic downturn resulting from the outbreak of COVID-19E– It was further contended that the COVID-19 pandemic is a ‘publicemergency’ as defined in s.5 of the Factories Act – Held: The poweru/s.5 of the Factories Act can be exercised in a ‘public emergency’ –The explanation states that to constitute a public emergency, theremust be a grave emergency – The emergency must be of such a natureFas to threaten the security of India or a part of its territory – Thethreat to the security of India or a part of the territory must be causedby war, external aggression or an internal disturbance – Theexpression ‘internal disturbance’ cannot be divorced from its context,or be read in a manner divorced from the other two expressionswhich precede it – They are indicative of the gravity of the causeGwhich threatens the security of India or a part of its territory – Aninternal disturbance must be of a similar gravity – In the instantcase, the economic slowdown created by COVID-19 pandemic doesnot qualify as an internal disturbance threatening the security ofthe State – The notifications in question make significant departuresHfrom the mandate of the Factories Act – They (i) increase the daily limit of working hours from 9 hours to 12 hours; (ii) increase theweekly work limit from 48 hours to 72 hours, which translates into12 hours work-days on 6 days of the week; (iii) negate the spreadover of time at work including rest hours, which is typically fixed at10.5 hours; (iv) enable an interval of rest every 6 hours, as opposedto 5 hours; and (iv) mandate the payment of overtime wages at arate proportionate to the ordinary rate of wages, instead of overtimewages at the rate of double the ordinary rate of wages as providedu/s.59 – The notifications legitimize the subjection of workers toonerous working condiditions at a time when their feeble bargainingpower stands whittled by the pandemic – Clothed with exceptionalpowers u/s.5, the State cannot permit workers to be exploited in amanner that renders the hard-won protections of the Factories Actillusory – Therefore, the notifications dated 17.04.2020 and20.07.2020 are quashed and the overtime wages of all the eligibleworkers are directed to be paid, in accordance with the provisionsof s.59 of the Factories Act who were working since the issuance ofthe notifications.

The Factories Act, 1948 – Scheme and objects – discussed.

Labour Law – Labour welfare – Social and Economic Valueof ‘Overtime’ – discussed.

Labour Law – Constitution of India – Constitution vision ofsocial and economic democracy – discussed.

Allowing the Writ Petition, the Court

Conclusion

HELD: 1. The power under Section 5 of the Factories Actcan be exercised in a “public emergency”. The explanation statesthat to constitute a public emergency, there must be a graveemergency. The emergency must be of such a nature as tothreaten the security of India or a part of its territory. The threatto the security of India or a part of the territory must be causedby war, external aggression or an internal disturbance. Theexpression ‘internal disturbance’ cannot be divorced from itscontext, or be read in a manner divorced from the other twoexpressions which precede it. They are indicative of the gravityof the cause which threatens the security of India or a part of itsterritory. An internal disturbance must be of a similar gravity.

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AFurther, it is necessary to evaluate whether a situation of internaldisturbance threatens the security of India, or a part of its territoryto qualify as a ‘public emergency’. In the absence of any one ormore of the constituent elements, the conditions requisite forthe exercise of statutory power will not exist. [Para 19][906-C-E]

B2. Even if this Court accepts the Respondent’s argument atits highest, that the pandemic has resulted in an internaldisturbance, this Court finds that the economic slowdown createdby the COVID-19 pandemic does not qualify as an internaldisturbance threatening the security of the state. The pandemichas put a severe burden on existing, particularly public health,Cinfrastructure and has led to a sharp decline in economic activities.

The Union Government has taken recourse to the provisions ofthe Disaster Management Act, 2005. However, it has not affectedthe security of India, or of a part of its territory in a manner thatdisturbs the peace and integrity of the country. The economicDhardships caused by COVID–19 certainly pose unprecedentedchallenges to governance. However, such challenges are to beresolved by the State Governments within the domain of theirfunctioning under the law, in coordination with the CentralGovernment. Unless the threshold of an economic hardship is soextreme that it leads to disruption of public order and threatensEthe security of India or of a part of its territory, recourse cannotbe taken to such emergency powers which are to be used sparinglyunder the law. Recourse can be taken to them only when theconditions requisite for a valid exercise of statutory power existunder Section 5. That is absent in the present case. [Para 28]F[910-F-H; 911-A-B]

3. The Factories Act, as it currently stands, was enacted toguarantee occupational health and safety. It ensures the materialand physical well-being of workers by fastening responsibilitiesand liabilities on ‘occupiers’ of factories. As a legislativeGrecognition of the inequality in the material bargaining powerbetween workers and their employers, the Act is meant to serveas a bulwark against harsh and oppressive working conditions.The Act, primarily applies to establishments employing more than10 persons. It has been purposively and expansively applied toworkers, who may not strictly fall within the purview of theH

definition, and yet embody similar roles within the establishments.These permissible interpretations have been aligned with theintention of the legislature which has a vital concern in preventingexploitation of labour. [Para 30][912-D-F]

4. The notifications in question, besides specificallyexempting all factories from the applicability of Sections 51, 54,55 and 56, effectively override Section 59 of the Factories Act.The above provisions form a part of Chapter VI which prescribesthe ‘Working Hours of Adults’. The Chapter, broadly concernedwith worker productivity and fair remuneration, prescribesworking hours, mandatory days of rest, intervals betweenstretches of work and adequate compensation for overtime. Thenotifications, putatively, are a response to the COVID-19pandemic and exempt all factories from the provisions of Sections51, 54, 55 and 56. [Para 31][912-F-H]

5. The notifications make significant departures from themandate of the Factories Act. They (i) increase the daily limit ofworking hours from 9 hours to 12 hours; (ii) increase the weeklywork limit from 48 hours to 72 hours, which translates into 12hour work-days on 6 days of the week; (iii) negate the spreadover of time at work including rest hours, which is typically fixedat 10.5 hours; (iv) enable an interval of rest every 6 hours, asopposed to 5 hours; and (iv) mandate the payment of overtimewages at a rate proportionate to the ordinary rate of wages, insteadof overtime wages at the rate of double the ordinary rate of wagesas provided under Section 59. [Para 33][914-B-D]

6. 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. Itwould be fathomable, and within the realm of reasonable possibilityduring a pandemic, if the factories producing medical equipmentsuch as life-saving drugs, personal protective equipment orsanitisers, would be exempted by way of Section 65(2), while justlycompensating the workers for supplying their valuable labour ina time of urgent need. However, a blanket notification ofexemption to all factories, irrespective of the manufactured A

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Aproduct, while denying overtime to the workers, is indicative ofthe intention to capitalize on the pandemic to force an alreadyworn-down class of society, into the chains of servitude. [Para36][915-A-C]

7. The expression ‘worker’ as defined in the Factories Act,Bis broad enough to include persons who are indirectly employedas contract labour and contribute to the manufacturing process atthe establishment. The COVID-19 pandemic in India, wasaccompanied with an immense migrant worker crisis, whereseveral workers (including workers employed or contracted withfactories) were forced to abandon their cities of work due to theChalt in production which cut-off their meagre source of income.The notifications in question legitimize the subjection of workersto onerous working conditions at a time when their feeblebargaining power stands whittled by the pandemic. Clothed withexceptional powers under Section 5, the state cannot permit Dworkers to be exploited in a manner that renders the hard-wonprotections of the Factories Act, 1948 illusory and theconstitutional promise of social and economic democracy intopaper-tigers. It is ironical that this result should ensue at a timewhen the state must ensure their welfare. [Para 43][921-B-C;922-A-B]E

8. This Court is cognizant that the Respondent aimed toameliorate the financial exigencies that were caused due to thepandemic and the subsequent lockdown. However, financial lossescannot be offset on the weary shoulders of the laboring worker,who provides the backbone of the economy. Section 5 of theFFactories Act could not have been invoked to issue a blanketnotification that exempted all factories from complying withhumane working conditions and adequate compensation forovertime, as a response to a pandemic that did not result in an‘internal disturbance’ of a nature that posed a ‘grave emergency’Gwhereby the security of India is threatened. In any event, nofactory/ classes of factories could have been exempted fromcompliance with provisions of the Factories Act, unless an ‘internaldisturbance’ causes a grave emergency that threatens thesecurity of the state, so as to constitute a ‘public emergency’ withinthe meaning of Section 5 of the Factories Act. [Para 45][924-C-E]H

K S Puttaswamy v. Union of India (2017) 10 SCC1 : [2017]10 SCR 569 ; S R Bommai v. Union of India[1994] 2 SCR 644; Romesh Thapar v. State of Madras[1950] 1 SCR 594; Bhikusa Yamasa Kshatriya (P) Ltd.v. Union of India AIR 1963 SC 1591:[1964] SCR 860– followed.

Extra-Judicial Execution Victim Families Association v.Union of India (2016) 14 SCC 578 : [2016] 4 SCR 909;Ram Manohar Lohia v. State of Bihar AIR 1966 SC740 : [1966] SCR 709 ; S M Datta v. State of Gujarat(2001) 7 SCC 659 : [2001] 2 Suppl. SCR 140 ; Y AMamarde v. Authority under the Minimum Wages Act(1972) 2 SCC 108: [1973] 1 SCR 161 – relied on.

Anuradha Bhasin v. Union of India (2020) 3 SCC 637;Pfizer Private Limited, Bombay v. Workmen AIR 1963SC 1103 : [1963] Suppl. SCR 627 ; National ThermalPower Co-operation v. Karri Pothuraju (2003) 7 SCC384 : [2003] 2 Suppl. SCR 426 ; Barat Fritz WernerLtd. v. State of Karnataka, (2001) 4 SCC 498 : [2001]1 SCR 835 ; State of Madras v. V G Row AIR 1952 SC196 : [1952] SCR 597 – referred to.

I.T.C. Ltd. v. Regional Provident Fund Commissioner ILR(1988) 1 P&H 73; Hindustan Machine Tools Ltd. v.Labour Court (1994) 1 LLN 256 – referred to.

Sarkaria Commission on Centre-State Relations(January 1988); Dr B R Ambedkar, Constituent AssemblyDebates, Volume 7 on November 19, 1948 – referredto.

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CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.708 of 2020

(Under Article 32 of the Constitution of India)

DTushar Mehta, SG, Sanjay Singhvi, Sr. Adv., Ms. Aparna Bhat,Ms. Karishma Maria, Ms. Deepanwita Priyanka, Advs. for the appearingparties.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.E

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1. Invoking its powers under Section 5 of the Factories Act, 1948[1],the State of Gujarat has exempted factories from observing some of theobligations which employers have to fulfil towards the workmen employedby them. The government justifies the action on the ground that industrialemployers are faced with financial stringency in the economic downturnresulting from the outbreak of COVID -19. A trade union with a state-wide presence and another with a national presence are before this courtin a petition under Article 32 of the Constitution to challenge the validityof the state’s notifications dated 17 April 2020 and 20 July 2020.

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A The Notifications

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A The Notifications

2. A nationwide lockdown was declared by the Central Governmentfrom 24 March 2020 to prevent the spread of the COVID-19 pandemic.Economic activity came to a grinding halt. The lockdown was extendedon several occasions, among them for the second time on 14 April 2020.On 17 April 2020, the Labour and Employment Department of the Stateof Gujarat issued a notification under Section 5 of the Factories Act toexempt all factories registered under the Act “from various provisionsrelating to weekly hours, daily hours, intervals for rest etc. for adultworkers” under Sections 51, 54, 55 and 56. The stated aim of thenotification was to provide “certain relaxations for industrial andcommercial activities” from 20 April 2020 till 19 July 2020. The notificationin its relevant part is extracted below:

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“…NOW, THEREFORE, in exercise of the powers conferred bySection 5 of the Factories Act, 1948 (LXIII of 1948), theGovernment of Gujarat hereby directs that all the factoriesregistered under the Factories Act, 1948 shall be exempted fromvarious provisions relating to weekly hours, daily hours, intervalsfor rest etc. of adult workers under section 51, section 54, section55 and section 56 with the following conditions from 20th April till19th July 2020,- F

(1) No adult worker shall be allowed or required to work in afactory for more than twelve hours in any day and SeventyGTwo hours in any week.

(2) The Periods of work of adult workers in a factory each dayshall be so fixed that no period shall exceed six hours and H

Athat no worker shall work for more than six hours before hehas had an interval of rest of at least half an hour.

(3) No Female workers shall be allowed or required to work in afactory between 7:00 PM to 6:00 AM.

(4) Wages shall be in a proportion of the existing wages (e.g. IfBwages for eight hours are 80 Rupees, then proportionatewages for twelve hours will be 120 Rupees).”

On its lapse by the efflux of time, the State government issuedanother notification on 20 July 2020[2]. Similar in content, the newnotification extended the exemption granted to factories from 20 JulyC2020 till 19 October 2020.

B Grounds of challenge

3. The first Petitioner is a trade union registered under the TradeUnions Act, 1926 and represents about ten thousand workers employedDin factories and industrial establishments in the State of Gujarat. Thesecond Petitioner is a federation of registered trade unions and representsa hundred thousand workmen in factories and establishments across India.

4. Leading the submissions of the petitioners, Mr Sanjay Singhvi,learned Senior Counsel, along with Ms Aparna Bhat, learned Counselsubmits that:E

(i) Section 5 of the Factories Act enables government to exemptany factory, or a class of factories, from its provisions onlywhen a ‘public emergency’ exists;

(ii) The explanation to Section 5 defines the expression ‘publicFemergency’ as a “grave emergency” which threatens thesecurity of India or of any part of the territory by war, externalaggression or internal disturbance. Applying the interpretativeprinciple of noscitur a sociis, the expression ‘internaldisturbance’ will have a meaning which derives content from‘war’ and ‘external aggression’ which endangers the securityGof India and would not include a pandemic or a lockdown;

(iii) Though both Section 5 and the provisions of Article 352 ofthe Constitution (prior to its amendment in 1978) contain a 2 Both the notifications dated 17 April 2020 and 20 July 2020 were issued by the LabourHand Employment Department of the State of Gujarat reference to the expression ‘internal disturbance’, there is acrucial difference. Art 352 was premised on the satisfactionof the President while the power under Section 5 can beexercised only upon the objective existence of the conditionsprescribed;

(iv) Even if a threat to the security of India were to exist as anobjective fact, the notifications must, to be valid, amelioratethe threat;

(v) Factories were open from 21 April 2020, which was the verynext day after the first notification came into force. Thepurported justification of an economic chaos is a smokescreento extract more work from the workers without paying themtheir overtime wages in onerous working conditions;

(vi) Section 5 contemplates an exemption only to an individualfactory or to a class of factories, and not a blanket exemptionthat extends to all factories;

(vii) Section 65(2), and not Section 5, of the Factories Act enablessuspension of Sections 51, 52, 54 and 56 to a class of factoriesowing to ‘exceptional pressure of work’;

(viii) Even if Section 65(2) were to apply to account for theexceptional pressure of work, a host of conditions underSection 65(3) are attracted in order to ensure labour welfareincluding a limit on weekly overtime and intervals betweenwork which the notifications fail to adopt;

(ix) The notifications do not specifically exempt the applicationof Section 59 of the Factories Act which mandates paymentof double the wages for overtime. Yet they make overtimewages proportionate to the existing wages, which also violatesthe spirit of the Minimum Wages Act, 1948 and amounts toforced labour violating the workers’ fundamental rights underArticle 23, 21 and 14; and

(x) Three industrial accidents are reported to have occurred on7 May 2020 at Vishakapatnam, Chattisgarh and Neyveli inhazardous industries which reopened after the lockdown witha skeletal workforce. The notifications in question will leadto similar disasters.

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A5. Opposing these submissions, Ms Deepanwita Priyanka, learnedCounsel appearing on behalf of the State of Gujarat, has made an earnesteffort to persuade this Court to hold that the notifications are not ultravires the Factories Act or unconstitutional. The submissions of Ms.Priyanka have been supported by Mr Tushar Mehta, Solicitor General ofIndia. The submissions are summarized below:B

(i) The State has issued the notifications by invoking its powersunder Section 5 of the Factories Act, under which it mayexempt any factory or class of factories from all or anyprovisions of the Act in a public emergency; C(ii)The COVID-19 pandemic is a ‘public emergency’ as definedin Section 5 of the Factories Act. It has disturbed the “socialorder of the country” and has threatened the even tempo oflife in the State of Gujarat as well. As a result of the outbreak,emergency measures were required to be adopted to protectthe existence and integrity of the State of Gujarat;D

(iii) The COVID-19 pandemic has caused “extreme financialexigencies” in the State. The lockdown caused a slowdownin economic activities, leading to an ‘internal disturbance’ inthe State within the meaning of Section 5. The Statetemporarily exempted factories and establishments from theEoperation of labour laws such as the Factories Act toovercome the financial crisis and to protect factories andestablishments;

(iv) The notifications do not violate Section 59 of the FactoriesAct as they impose the condition of payment of wages forFovertime work in proportion to the existing wages;

(v) Section 5 of the Factories Act confers the power of exemptionto the State Government to exempt any factory or class offactories from its provisions. The State Government has theprerogative to determine whether all or only a class orGdescription of factories were to be exempted. Listing of allclasses of factories would have been an unnecessaryexercise;

(vi) The notifications have not been issued under Section 65(2)of the Factories Act, which can only be invoked to deal withHan exceptional pressure of work; A

(vii) The notifications have been issued under Section 5 of theAFactories Act to ensure the maintenance of minimumproduction levels in factories. No targets for production havebeen fixed. Hence, there is no exceptional pressure of workwithin the meaning of Section 65(2). The purpose of thenotifications is to deal with the COVID-19 pandemic and toBensure that the core functions of the economy continue tooperate;

(viii) Under the notifications, workers are only allowed to workfor three additional hours than the normal work day. Factorieshave also been directed to compensate the workersCproportionately for the extra working hours. There is noexploitation of labour and factories are also able to sustainthemselves; and

(ix) The notifications are not in violation of Articles 14, 21 and 23of the Constitution.

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C The power under Section 5 of the Factories Act, 1962

6. The issue for analysis is whether the notifications fall within theambit of the power conferred by Section 5 of the Factories Act. Thevalidity of the notifications depends on whether the COVID-19 pandemicand the nationwide lockdown qualify as a ‘public emergency’ as definedin Section 5. The statute provides both the language and the dictionary tointerpret it.

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7. Section 5 of the Factories Act provides that in a publicemergency, the State Government can exempt any factory or classor description of factories from all or any of the provisions of theAct, except Section 67. Section 5 is extracted below:

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“5. Power to exempt during public emergency.—In any case ofpublic emergency the State Government may, by notification inthe Official Gazette, exempt any factory or class or description offactories from all or any of the provisions of this Act except section67 for such period and subject to such conditions as it may thinkfit:

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Provided that no such notification shall be made for a periodexceeding three months at a time.

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AExplanation.—For the purposes of this section “publicemergency” means a grave emergency whereby the securityof India or of any part of the territory thereof is threatened,whether by war or external aggression or internaldisturbance.”

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8. Section 5 specifies (i) when an exemption can be granted; (ii)who can exercise the power to grant an exemption; (iii) who can beexempted; (iv) the conditions subject to which an exemption can begranted; (iv) the provisions from which an exemption can be allowed; (v)Cthe period of time over which the exemption may operate; and (vi) themanner in which the exemption has to be notified. An exemption can begranted “in any case of public emergency”. The existence of a publicemergency is a pre-requisite to the exercise of the power. Whether thereexists a public emergency is not left to the subjective satisfaction of thestate government. The absence of the expression “subjective satisfaction”Din Section 5 is crucial. The existence of a public emergency must hencebe demonstrated as an objective fact, when its existence is questioned ina 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 elasticmeaning. But the statute as it stands does not leave the expression ‘publicemergency’ undefined. The explanation to Section 5 was introduced byEthe Factories (Amendment) Act of 1976 - Amending Act 94 of 1976 -with effect from 26 October 1976. Interestingly, it was an amendmentwhich was brought in during the internal emergency declared in June1975 purportedly on account of “internal disturbances”. The effect ofthe explanation is to circumscribe the ambit of what constitutes a publicFemergency. The explanation constricts the expression in two ways: first,by confining it to specific causes; and second, by requiring that aconsequence must have emanated from those causes before the powercan be exercised. Under Section 5 a situation can qualify as a ‘publicemergency’, only if the following elements are satisfied: (i) there mustexist a “grave emergency”; (ii) the security of India or of any part of itsGterritory must be “threatened” by such an emergency; and (iii) the causeof the threat must be war, external aggression or internal disturbance.The existence of the situation must be demonstrated as an objectivefact. The co-relationship between the cause and effect must exist.Implicitly therefore, the statutory provision incorporates the principle ofHproportionality.

9. The principle of proportionality has been recognized in a slewof cases by this Court, most notably in the seven-judge bench decision inK S Puttaswamy vs. Union of India.[3] The principle of proportionalityenvisages an analysis of the following conditions in order to determinethe validity of state action that could impinge on fundamental rights:

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(i) A law interfering with fundamental rights must be inBpursuance of a legitimate state aim;

(ii) The justification for rights-infringing measures that interferewith or limit the exercise of fundamental rights and libertiesmust be based on the existence of a rational connectionbetween those measures, the situation in fact and the objectCsought to be achieved;

(iii) The measures must be necessary to achieve the object andmust not infringe rights to an extent greater than is necessaryto fulfil the aim; D

(iv) Restrictions must not only serve legitimate purposes; theymust also be necessary to protect them; and

(v) The State should provide sufficient safeguards against theabuse of such interference.

However before adverting to an analysis on the proportionality ofthe Respondent’s action in issuing the notifications, it would be importantto determine, at the threshold, whether the notifications have been validlyissued, in conformity with the scope of power envisaged under Section 5of the Factories Act.

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D Precedent on ‘public emergency’ and ‘security of thestate’

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10. The originating causes of a ‘public emergency’ in Section 5 ofthe Factories Act are similar to those which Article 352 of the Constitutionembodied, prior to its amendment by the Constitution (Forty-fourthAmendment) Act, 1978. Articles 352 to 360 of the Constitution containemergency provisions. Article 352 of the Constitution, prior to itsamendment, read as follows:

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“352. Proclamation of Emergency: (1) If the President is satisfiedthat a grave emergency exists whereby the security of India 3 (2017) 10 SCC 1, para 325

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Aor of any part of the territory thereof is threatened, whetherby war or external aggression or internal disturbance, hemay, by Proclamation, make a declaration to that effect.”

11. The powers under Article 352 have been invoked thrice by theBPresident to declare an emergency. An emergency was declared for thefirst time in 1962 due to the Chinese aggression on Indian territory. Theemergency was revoked in 1968. In 1971, when hostilities broke out withPakistan, an emergency was proclaimed by the President on the groundthat the security of India was threatened by external aggression. WhileCthis proclamation was in force, another proclamation was issued by thePresident on 25 June 1975 declaring that a “grave emergency existswhereby the security of India is threatened by ‘internal disturbance’.”Both these proclamations were revoked in March 1977. The Forty- fourthamendment to the Constitution sought to limit recourse to emergencypowers under Article 352 to prevent their abuse. Pursuant to thisDamendment, the expression “internal disturbance” was replaced with“armed rebellion”. Thus, a proclamation of emergency now cannot beissued on a mere internal disturbance and must reach the threshold of anarmed rebellion threatening the security of India. The Parliamentaryamendments to Article 352 are the product of experience: experiencesEgained from the excesses of the emergency, experiences about theviolation of human rights and above all, experiential learning that theamalgam of uncontrolled power and unbridled discretion provide fertileconditions for the destruction of liberty. The sobering lessons learnt fromour not-too-distant history should warn us against endowing a statutewith similar terms of a content which is susceptible of grave misuse.F12. The expression ‘internal disturbance’ finds place in Article355 of the Constitution, as well. Article 355 of the Constitution provides:

“355. Duty of the Union to protect States against external aggressionand internal disturbance: It shall be the duty of the Union to protectGevery State against external aggression and internal disturbanceand to ensure that the Government of every State is carried on inaccordance with the provisions of this Constitution.”

Article 355 does not contemplate the proclamation of anemergency or interference in the functioning of elected state governments.It casts a duty on the Union Government to ensure the protection of theH

states against external aggression and internal disturbance and to ensuretheir functioning in accordance with the Constitution.

13. Article 356 of the Constitution provides for the failure ofconstitutional machinery in a state in a situation where the functioning ofthe State Government cannot be carried out in accordance with theConstitution. Article 356 reads as follows:

“356. Provisions in case of failure of constitutional machinery inStates: (1) If the President, on receipt of a report from the Governorof a State or otherwise, is satisfied that a situation has arisen inwhich the Government of the State cannot be carried on inaccordance with the provisions of this Constitution, the Presidentmay by Proclamation—

(a) assume to himself all or any of the functions of the Governmentof the State and all or any of the powers vested in or exercisableby the Governor or any body or authority in the State other thanthe Legislature of the State; (b) declare that the powers of the Legislature of the State shall beexercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appearto the President to be necessary or desirable for giving effect tothe objects of the Proclamation, including provisions for suspendingin whole or in part the operation of any provisions of this Constitutionrelating to any body or authority in the State:..”

14. The interpretation of Articles 352, 355 and 356 was discussedby a seven- judge bench of this Court in S R Bommai vs. Union ofIndia[4]. Justice Sawant, writing for himself and Justice Kuldip Singh,observed that:

“… Article 355 … is not an independent source of power forinterference with the functioning of the State Government but is inthe nature of justification for the measures to be adopted underArticles 356 and 357. What is however, necessary toremember in this connection is that while Article 355refers to three situations, viz., (i) external aggression,

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AGovernment of the States, in accordance with the provisionsof the Constitution, Article 356 refers only to one situation,viz., the third one. As against this, Article 352 which providesfor Proclamation of emergency speaks of only one situation,viz., where the security of India or any part of the territorythereof, is threatened either by war or external aggressionBor armed rebellion. The expression “internal disturbance”is certainly of larger connotation than “armed rebellion”and includes situations arising out of “armed rebellion” aswell. In other words, while a Proclamation of emergencycan be made for internal disturbance only if it is created byCarmed rebellion, neither such Proclamation can be madefor internal disturbance caused by any other situation nor aProclamation can be issued under Article 356 unless theinternal disturbance gives rise to a situation in which theGovernment of the State cannot be carried on in accordancewith the provisions of the Constitution. A mere internalDdisturbance short of armed rebellion cannot justify aProclamation of emergency under Article 352 nor suchdisturbance can justify issuance of Proclamation underArticle 356(1), unless it disables or prevents carrying on ofthe Government of the State in accordance with theEprovisions of the Constitution. […]

The common thread running through all these Articles in Part XVIIIrelating to emergency provisions is that the said provisions canbe invoked only when there is an emergency and theemergency is of the nature described therein and not of anyFother kind. The Proclamation of emergency under Articles 352,356 and 360 is further dependent on the satisfaction of the Presidentwith regard to the existence of the relevant conditions precedent.The duty cast on the Union under Article 355 also arises in thetwin conditions stated therein.

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15. In Extra-Judicial Execution Victim Families Associationvs. Union of India[5], this Court considered whether the situation in Manipurwas of public order, internal disturbance or an armed rebellion. Analysing H5 (2016) 14 SCC 578 2

GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT[DR. DHANANJAYA Y CHANDRACHUD, J.]

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 inNaga People’s Movement of Human Rights v. Union of India.It was held therein that though an internal disturbance is acause for concern, it does not threaten the security of thecountry or a part thereof unlike an armed rebellion whichcould pose a threat to the security of the country or a partthereof. Since the impact of a Proclamation of Emergencyunder Article 352 of the Constitution is rather serious, itsinvocation is limited to situations of a threat to the securityof the country or a part thereof either through a war or anexternal aggression or an armed rebellion, but not aninternal disturbance. […]

170. The conclusion therefore is that in the event of a war, externalaggression or an armed rebellion that threatens the security of thecountry or a part thereof, it is the duty of the Union Government toprotect the States and depending on the gravity of the situation,the President might also issue a Proclamation of Emergency. Thatapart, the Union Government also has a duty to protect the Statesfrom an internal disturbance. However the President cannot, inthe event of the latter situation, issue a Proclamation of Emergencyexcept by using the drastic power under Article 356 of theConstitution which has in-built checks and balances.”

16. The expression ‘internal disturbance’ must be interpreted inthe context in which it is used. Under Article 352, an internal disturbancemust be of the order of an armed rebellion threatening the security ofIndia to proclaim an emergency. Similarly, in order to sustain a validexercise of power under Article 356 on the ground of an internaldisturbance, it must be of such a nature as to disrupt the functioning ofthe constitutional order of the State; in other words, it must be of such anature that the government of a state cannot be carried on in accordancewith the Constitution.

17. On the definition of ‘internal disturbance’ in the context ofArticle 355 of the Constitution, the Report of the Sarkaria Commissionon Centre-State Relations (January 1988) noted that:

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“6.3.04 It is difficult to define precisely the concept of ‘internaldisturbance’. Similar provisions, however, occur in the Constitutionsof other countries. Article 16 of the Federal Constitution ofSwitzerland uses the expression “internal disorder”. TheConstitutions of the United States of America and Australia usethe expression ‘domestic violence’. The framers of the IndianConstitution have, in place of this term, used the expression ‘internaldisturbance’. Obviously, they have done so as they intended tocover not only domestic violence, but something more. The scopeof the term ‘internal disturbance’ is wider than ‘domestic violence’.It conveys the sense of ‘domestic chaos’, which takes thecolour of a security threat from its associate expression,‘external aggression’. Such a chaos could be due to variouscauses. Large-scale public disorder which throws out of gear theeven tempo of administration and endangers the security of theState, is ordinarily, one such cause. Such an internal disturbance isnormally man-made. But it can be Nature- made, also. Naturalcalamities of unprecedented magnitude, such as flood,cyclone, earth-quake, epidemic, etc. may paralyse thegovernment of the State and put its security in jeopardy.

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6.3.13 It is important to distinguish ‘internal disturbance’ fromEordinary problems relating to law and order. Maintenance of publicorder, excepting where it requires the use of the armed forces ofthe Union, is a responsibility of the States (Entry 1, List II). Thatbeing the case, ‘internal disturbance’ within the contemplation ofArticle 355 cannot be equated with mere breaches of public peace.FIn terms of gravity and magnitude, it is intended to connote a farmore serious situation. The difference between a situation ofpublic disorder and ‘internal disturbance’ is not only one ofdegree but also of kind. While the latter is an aggravatedform of public disorder which endangers the security of theState, the former involves relatively minor breaches of theGpeace of purely local significance. When does a situation ofpublic disorder aggravate into an “internal disturbance’justifying Union intervention, is a matter that has been leftby the Constitution to the judgement and good sense of theUnion Government.

H[…]

6.4.11 The following are some instances of physical break- down:

[…]

(ii) Where a natural calamity such as an earthquake, cyclone,epidemic, flood, etc. of unprecedented magnitude andseverity, completely paralyses the administration andendangers the security of the State and the StateGovernment is unwilling or unable to exercise itsgovernmental power to relieve it.

[…]

6.5.01 […] Some examples are given below of situations in whichit may be improper, if not illegal, to invoke the provisions of Article356:

[…]

(ix) This power cannot be legitimately exercised on the soleground of stringent financial exigencies of the State.”

The Sarkaria Commission recognized that a range of situationsmay qualify to be internal disturbances. The instances of ‘internaldisturbance’ given by the Sarkaria Commission were in the context ofArticle 355 and Article 356, where the breakdown of the constitutionalmachinery of the State is in question. In any event, the SarkariaCommission clarified that mere financial exigencies of a State do notqualify as an internal disturbance.

18. In Anuradha Bhasin vs. Union of India[6], (“AnuradhaBhasin”) a three judge Bench of this Court considered the definition ofthe expression ‘public emergency’ in Section 5(2) of the Telegraph Act,1885.[7] A textual comparison shows that the definition of ‘public 6 (2020) 3 SCC 637

7 “5. Power for Government to take possession of licensed telegraphs and to orderinterception of messages.— (1) * * *

(2) On the occurrence of any public emergency, or in the interest of the public safety, theCentral Government or a State Government or any officer specially authorised in thisbehalf by the Central Government or a State Government may, if satisfied that it isnecessary or expedient so to do in the interests of the sovereignty and integrity of India,the security of the State, friendly relations with foreign States or public order or forpreventing incitement to the commission of an offence, for reasons to be recorded in A

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Aemergency’ in Section 5(2) of the Telegraph Act, 1885 is broader thanunder the Factories Act. Section 5(2) of the Telegraph Act, 1885 coverssituations pertaining to “sovereignty and integrity of India”, “friendlyrelations with foreign states”, “public order” and “preventing incitementto the commission of an offence” which do not find place in the statutorilydefined ambit of a ‘public emergency’ in Section 5 of the Factories Act.BBe that as it may, para 101 of the decision in Anuradha Bhasin containsan observation that- “..”public emergency” is required to be of seriousnature, and needs to be determined on a case-to-case basis.”[8]

19. The power under Section 5 of the Factories Act can beexercised in a “public emergency”. The explanation states that toCconstitute a public emergency, there must be a grave emergency. Theemergency must be of such a nature as to threaten the security of Indiaor a part of its territory. The threat to the security of India or a part of theterritory must be caused by war, external aggression or an internaldisturbance. The expression ‘internal disturbance’ cannot be divorcedDfrom its context, or be read in a manner divorced from the other twoexpressions which precede it. They are indicative of the gravity of thecause which threatens the security of India or a part of its territory. Aninternal disturbance must be of a similar gravity. Further, it is necessaryto evaluate whether a situation of internal disturbance threatens thesecurity of India, or a part of its territory to qualify as a ‘public emergency’.EIn the absence of any one or more of the constituent elements, theconditions requisite for the exercise of statutory power will not exist.

20. What is meant by the phrase “security of India”? In RomeshThapar vs. State of Madras[9], a Bench, comprising six judges of thisCourt observed that the concept of ‘security of State’ is narrower thanF

writing, by order, direct that any message or class of messages to or from any person orclass of persons, or relating to any particular subject, brought for transmission by ortransmitted or received by any telegraph, shall not be transmitted, or shall be interceptedor detained, or shall be disclosed to the Government making the order or an officer thereofmentioned in the order:Provided that the press messages intended to be published in India of correspondentsGaccredited to the Central Government or a State Government shall not be intercepted ordetained, unless their transmission has been prohibited under this sub-section.”8 No other aspect of Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 has been thesubject matter of the debate in the present case.9 (1950) 1 SCR 594 [The first amendment to the Constitution in 1951 expanded the areaof permissible regulation of the fundamental right under Article 19(1)a, by amendingHArticle 19(2)]

that of ‘public order’. Justice Patanjali Sastry, speaking for the courtheld that:

“7. The Government of India Act, 1935, nowhere used theexpression “security of the State” though it made provision underSection 57 for dealing with crimes of violence intended tooverthrow the Government. While the administration of law andorder including the maintenance of public order was placed incharge of a Minister elected by the people, the Governor wasentrusted with the responsibility of combating the operations ofpersons who “endangered the peace or tranquillity of the Province”by committing or attempting to commit “crimes of violence intendedto overthrow the Government”. Similarly, Article 352 of theConstitution empowers the President to make aproclamation of emergency when he is satisfied that the“security of India or any part of the territory thereof isthreatened by war or by external aggression or by internaldisturbance”. These provisions recognise that disturbanceof public peace or tranquillity may assume such graveproportions as to threaten the security of the State.

8. As Stephen in his Criminal Law of England observes: “Unlawfulassemblies, riots, insurrections, rebellions, levying of war, areoffences which run into each other and are not capable of beingmarked off by perfectly defined boundaries. All of them have incommon one feature, namely, that the normal tranquillity of acivilised society is in each of the cases mentioned disturbed eitherby actual force or at least by the show and threat of it”. Though allthese offences thus involve disturbances of public tranquillity andare in theory offences against public order, the difference betweenthem being only a difference of degree, yet for the purpose ofgrading the punishment to be inflicted in respect of them they maybe classified into different minor categories as has been done bythe Indian Penal Code. Similarly, the Constitution, informulating the varying criteria for permissible legislationimposing restrictions on the fundamental rights enumeratedin Article 19(1), has placed in a distinct category thoseoffences against public order which aim at undermining thesecurity of the State or overthrowing it, and made theirprevention the sole justification for legislative abridgementof freedom of speech and expression, that is to say, nothing AB

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Aless than endangering the foundations of the State orthreatening its overthrow could justify curtailment of therights to freedom of speech and expression, while the rightof peaceable assembly “sub-clause (b)” and the right ofassociation “sub-clause (c)” may be restricted under clauses(3) andB

(4) of Article 19 in the interests of “public order”, which inthose clauses includes the security of the State. Thedifferentiation is also noticeable in Entry 3 of List III (ConcurrentList) of the Seventh Schedule, which refers to the “security of aState” and “maintenance of public order” as distinct subjects ofClegislation. The Constitution thus requires a line to be drawnin the field of public order or tranquillity marking off, maybe, roughly, the boundary between those serious andaggravated forms of public disorder which are calculated toendanger the security of the State and the relatively minorDbreaches of the peace of a purely local significance, treatingfor this purpose differences in degree as if they weredifferences in kind.”

21. The difference between law and order, public order and securityEof the State was demarcated by this Court in Ram Manohar Lohia vs.State of Bihar[10]. In a celebrated passage, Justice M Hidayatullahobserved:

“55. […] It will thus appear that just as “public order” in the rulingsof this Court (earlier cited) was said to comprehend disorders ofFless gravity than those affecting “security of State”, “law and order”also comprehends disorders of less gravity than those affecting“public order”. One has to imagine three concentric circles.Law and order represents the largest circle within which isthe next circle representing public order and the smallestGcircle represents security of State. It is then easy to seethat an act may affect law and order but not public order justas an act may affect public order but not security of the State.[…]”(emphasis supplied)

E Interpreting ‘public emergency’ in Section 5 of theFactories Act, 1962

22. Section 5 of the Factories Act provides for the power ofexemption from certain provisions of the Act due to the occurrence of apublic emergency. The explanation speaks of a grave emergency wherethe security of India is threatened by war, external aggression or internaldisturbance. The power conferred by the provision by its very nature,must be used only where there is a grave emergency implicating anactual threat to the security of the state. The purpose of exercisingemergency powers is to avert the threat posed by war, external aggressionor internal disturbance and such powers must not be used for any otherpurpose.

23. The question before the Court in this petition is whether theCOVID-19 pandemic and the ensuing lockdown imposed by the CentralGovernment to contain the spread of the pandemic, have created a publicemergency as defined by the explanation to Section 5 of the FactoriesAct.

24. The global pandemic caused by COVID-19 is an unprecedentedsituation with which countries all over the world are grappling. In India,the Central Government imposed a nationwide lockdown on 24 March2020 for an initial period of 21 days to take effective measures to containthe spread of COVID-19, including, maintenance of essential suppliesand services and healthcare facilities. The lockdown was subsequentlyextended until 31 May 2020. During the lockdown, economic activity inthe country was brought to a standstill. There was a widespread migrationof labour from the cities, where all avenues for work had closed. Therewas an unprecedented human migration, countless of the marginalizedon foot, to rural areas in search of the bare necessities to sustain life.There has been a loss of incomes and livelihood. The brunt of the pandemicand of the lockdown has been borne by the working class and by thepoorest of the poor. Bereft of social security, they have no fall backoptions. The respondent has in exercise of its powers under Section 5 ofthe Factories Act issued the impugned notifications purportedly to providea fillip to industrial and commercial activities.

25. Before this Court, the Petitioners have submitted that the presentsituation does not threaten the security of India or a part of its territory.According to them the Respondent has failed to demonstrate the existenceof such a threat. The exercise of powers under Section 5 of the FactoriesAct is challenged as ultra vires the Factories Act.

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A26. In response, the Respondent, on one occasion in their writtensubmissions, has argued that the COVID-19 pandemic was leading tofinancial chaos and the situation was on “the brink of internal disturbance”.In other places, the Respondent has urged that the economic slowdowncaused by the pandemic constitutes a public emergency, warranting theneed to issue the impugned notifications curtailing the applicability ofBcertain provisions of the Factories Act. In their submissions, theRespondent has placed reliance on instances of internal disturbance citedby the Sarkaria Commission (as quoted above), which include a naturalcalamity such as an epidemic, which paralyses the administration andthe security of the State. In the context of the Factories Act, theCRespondent has relied on the decision of this court in Pfizer PrivateLimited, Bombay vs. Workmen[11] (“Pfizer”) to urge that during timesof a national emergency, all necessary efforts must be made to enhancethe industrial production of the nation.

27. We do not find any merit in the submissions of the respondents.DIn Pfizer, the dispute between the employer and workmen concernedthe imposition of onerous working conditions by the factory owner. Thecase was a private dispute and did not concern the exercise of emergencypowers by the State under the Factories Act. The Court merely notedthat the dispute had arisen during the time of a national emergency imposedby the President in 1962 and there was a need to gear up the industrialEproduction to meet the needs of the nation. In the present situation, theRespondent has in its written submissions admitted that the purpose ofthe 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 itsFhighest, that the pandemic has resulted in an internal disturbance, wefind that the economic slowdown created by the COVID-19 pandemicdoes not qualify as an internal disturbance threatening the security ofthe state. The pandemic has put a severe burden on existing, particularlypublic health, infrastructure and has led to a sharp decline in economicGactivities. The Union Government has taken recourse to the provisionsof the Disaster Management Act, 2005.[12] However, it has not affectedthe security of India, or of a part of its territory in a manner that disturbsthe peace and integrity of the country. The economic hardships caused 11 AIR 1963 SC 1103H12 Ministry of Home Affairs, Order No. 40-3/2020-DM-I(A) dated 24 March 2020

by COVID–19 certainly pose unprecedented challenges to governance.However, such challenges are to be resolved by the State Governmentswithin the domain of their functioning under the law, in coordination withthe Central Government. Unless the threshold of an economic hardshipis so extreme that it leads to disruption of public order and threatens thesecurity of India or of a part of its territory, recourse cannot be taken tosuch emergency powers which are to be used sparingly under the law.Recourse can be taken to them only when the conditions requisite for avalid exercise of statutory power exist under Section 5. That is absent inthe present case.

F Scheme and Objects of the Factories Act, 1962

F Scheme and Objects of the Factories Act, 1962

29. The Respondent’s purpose in invoking the emergency powersunder the Factories Act is to counter the effects of the economicslowdown caused by the lockdown. In analyzing the scope and intent ofSection 5 of the Factories Act and the specific exemptions of Section 51,54, 55 and 56 envisaged by the impugned notifications, it is necessary toexamine the purpose of the Factories Act, in the backdrop of theconstitutional scheme of the Indian welfare State. The Factories Actwas enacted almost contemporaneous with the framing of the Constitution.The Factories Act is a product of history; of a long struggle of workerunions to secure the right to human dignity in workplaces that ensuretheir safety and well- being. The first Factories Act was introduced in1881 and was amended in 1891, 1911, 1934 and 1941. Justice Umesh CBanerjee, as a part of a two-judge bench of this Court, in S M Datta vs.State of Gujarat[13] succinctly traced these amendments in the context ofthe industrial revolution and British imperialism in India. The Court noted:

“14. …the establishment of cotton mills in Bombay in 1851 andthe jute mill at Rishra in Bengal marked the beginning of factorysystem in India and it is only thereafter that the factories grewsteadily both in Bombay and in Bengal but the conditions prevailingin these factories were inhuman, both as regards working hours,welfare measures and wages. Availability of labour was plentyand as such became rather cheap and in order to eradicate thesame, a Commission was appointed in 1875 to investigate theconditions of labour in factories and on the basis of itsrecommendations, the first Factories Bill, 1880 was introduced in AB

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Athe legislature, subsequently however, the Bill was adopted as anAct. No sooner however, the Act was passed, agitation startedafresh in Bombay and other places and on the basis of the reportof a Committee, the Indian Factories (Amendment) Act of 1891was passed. The provisions of the amended Act were alsoinadequate and a somewhat revised Bill was subsequentlyBintroduced in 1909 and the same was passed as a statute in 1911.Though the Factories Act, 1911 was amended from time to timebut it could not meet the required growing activities in the country,especially after the Second World War by reason whereof, theFactories Act, 1948 was engrafted in the statute-book whereCemphasis had been on the welfare of the workers. FactoryInspectors have been placed with very heavy responsibility onthem and provisions have been made in the statute empoweringthe State Governments to make and frame rules for the purposesof meeting the local exigencies of situation.”D30. The Factories Act, as it currently stands, was enacted toguarantee occupational health and safety. It ensures the material andphysical well-being of workers by fastening responsibilities and liabilitieson ‘occupiers’ of factories. As a legislative recognition of the inequalityin the material bargaining power between workers and their employers,the Act is meant to serve as a bulwark against harsh and oppressiveEworking conditions. The Act, primarily applies to establishments employingmore than 10 persons. It has been purposively and expansively applied toworkers, who may not strictly fall within the purview of the definition,and yet embody similar roles within the establishments. These permissibleinterpretations have been aligned with the intention of the legislature whichFhas a vital concern in preventing exploitation of labour.

31. The notifications in question, besides specifically exempting allfactories from the applicability of Sections 51, 54, 55 and 56, effectivelyoverride Section 59 of the Factories Act. The above provisions form apart of Chapter VI which prescribes the ‘Working Hours of Adults’. TheGChapter, broadly concerned with worker productivity and fairremuneration, prescribes working hours, mandatory days of rest, intervalsbetween stretches of work and adequate compensation for overtime.The notifications, putatively, are a response to the COVID-19 pandemicand exempt all factories from the provisions of Sections 51, 54, 55 and56 which are extracted below:H

“51. Weekly hours — No adult worker shall be required orallowed to work in a factory for more than forty-eight hours in anyweek.

54. Daily hours —Subject to the provisions of Section 51, noadult worker shall be required or allowed to work in a factory formore than nine hours in any day:

Provided that, subject to the previous approval of the ChiefInspector, the daily maximum hours specified in this section maybe exceeded in order to facilitate the change of shifts.

55. Intervals for rest- (1) The periods of work of adult workersin a factory each day shall be so fixed that no period shall exceedfive hours and that no worker shall work for more than five hoursbefore he has had an interval for rest of at least half an hour.

(2) The State Government or, subject to the control of the StateGovernment, the Chief Inspector, may, by written order and forthe reasons specified therein, exempt any factory from theprovisions of sub-section (1) so however that the total number ofhours worked by a worker without an interval does not exceedsix.

56. Spreadover—The periods of work of an adult worker in afactory shall be so arranged that inclusive of his intervals for restunder Section 55, they shall not spreadover more than ten and ahalf hours in any day:

Provided that the Chief Inspector may, for reasons to be specifiedin writing, increase the spreadover up to twelve hours.”

32. The two notifications, while providing for an exemption fromthe above provisions, prescribe the following conditions of work:

“(1) No adult worker shall be allowed or required to work in afactory for more than twelve hours in any day and Seventy- twohours in any week.

(2) The period of work of adult workers in a factory each dayshall be so fixed that no period shall exceed six hours and that noworker shall work for more than six hours before he has had aninterval for rest of at least half an hour.

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[2020] 13 S.C.R.

A(3) No Female workers shall be allowed or required to work in afactory between 7:00 PM to 6:00AM.

(4) Wages shall be in a proportion of the existing wages (e.g. ifwages for eight hours are 80 Rupees, the proportionate wages fortwelve hours will be 120 Rupees).”

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33. The notifications make significant departures from the mandateof the Factories Act. They (i) increase the daily limit of working hoursfrom 9 hours to 12 hours; (ii) increase the weekly work limit from 48hours to 72 hours, which translates into 12 hour work-days on 6 days ofthe week; (iii) negate the spread over of time at work including restChours, which is typically fixed at 10.5 hours; (iv) enable an interval ofrest every 6 hours, as opposed to 5 hours; and (iv) mandate the paymentof overtime wages at a rate proportionate to the ordinary rate of wages,instead of overtime wages at the rate of double the ordinary rate ofwages as provided under Section 59.

D34. While enacting the Factories Act, Parliament was cognizantof the occasional surge of the demand for, or requirement of, themanufacture of certain goods which would demand acceleratedproduction. The law – makers were aware of the exigencies of the wareffort of the colonial regime in World War II, with its attendant shortages,bottlenecks and, in India, famine as well. Section 64(2) of the FactoriesEAct envisages exemption from certain provisions relating to working hoursin Chapter VI, for instances such as urgent repairs, supplying articles ofprime necessity or technical work, which necessarily must be carried oncontinuously. Section 65(2) enables classes of factories to be exemptfrom similar provisions in order to enable them to cope with an exceptionalFpressure of work. However, these exemptions are circumscribed bySection 64(4) and 65(3) respectively, at limits that are significantly lessonerous than those prescribed by the notifications in question. Despitethese concessions, these provisions do not enable an exemption of Section59 which prescribes mandatory payment of overtime wages to theworkers at double the ordinary rate of their wages.G

35. During the course of the hearings, the Respondent has submittedthat the exemption under the impugned notifications must be understoodin the context of the “extreme financial exigencies arising due to thespread of COVID-19 pandemic” and have been deployed as “a holisticapproach to maintain the production, adequately compensate workersHand take sufficient 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 learnedcounsel for the Respondent. The impugned notifications do not serveany purpose, apart from reducing the overhead costs of all factories inthe State, without regard to the nature of their manufactured products. Itwould be fathomable, and within the realm of reasonable possibility duringa pandemic, if the factories producing medical equipment such as life-saving drugs, personal protective equipment or sanitisers, would beexempted by way of Section 65(2), while justly compensating the workersfor supplying their valuable labour in a time of urgent need. However, ablanket notification of exemption to all factories, irrespective of themanufactured product, while denying overtime to the workers, is indicativeof 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 visionwhich aims to achieve social and economic democracy. Labour welfareis an integral element of that vision. That, indeed, is the philosophy whichundergirds the Directive Principles. Speaking for a Constitution Benchof this Court, in Bhikusa Yamasa Kshatriya (P) Ltd. vs. Union ofIndia[14], Justice J C Shah observed:

“9. […] Employment in a manufacturing process was at onetime regarded as a matter of contract between the employerand the employee and the State was not concerned to imposeany duties upon the employer. It is however now recognisedthat the State has a vital concern in preventing exploitationof labour and in insisting upon proper safeguards for thehealth and safety of the workers. The Factories Act undoubtedlyimposes numerous restrictions upon the employers to secure tothe workers adequate safeguards for their health and physical well-being. But imposition of such restrictions is not and cannot beregarded in the context of the modern outlook on industrial relations,as unreasonable. Extension of the benefits of the Factories Act topremises and workers not falling strictly within the purview of theAct, is intended to serve the same purpose. By authorisingimposition of restrictions for the benefit of workers who in the A

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Aview of the State stand in need of some or all the protectionsafforded by the Factories Act, but who are not governed by theAct, the legislature is merely seeking to effectu[a]te the object ofthe Act i.e. it authorises extension of the benefit of the Act topersons to whom the Act, to fully effectuate the object, shouldhave been, but has on account of administrative or other difficultiesBnot been extended. Provisions made for the benefit of “deemedworkers” cannot therefore be regarded as not unreasonable withinthe meaning of Article 19(1)(g) of the Constitution.( emphas issupplied)

38. The need for protecting labour welfare on one hand andCcombating a public health crisis occasioned by the pandemic on the othermay require careful balances. But these balances must accord with therule of law. A statutory provision which conditions the grant of anexemption on stipulated conditions must be scrupulously observed. Itcannot be interpreted to provide a free reign for the State to eliminateDprovisions promoting dignity and equity in the workplace in the face ofnovel challenges to the state administration, unless they bear an immediatenexus to ensuring the security of the State against the gravest of threats.

39. The provisions embodied in Chapter VI of the Factories Actreflect hard- won victories of masses of workers to ensure workingEconditions that uphold their dignity. In Y A Mamarde vs. Authority underthe Minimum Wages Act,[15] (“Mamarde”) this court in the context ofa contemporary legislation, the Minimum Wages Act, 1948, interpretedthe concept of overtime pay at double the rate of the ordinary wage, asa minimum endeavour of just compensation for the significant additionallabour that is utilized by a worker, after having toiled in the ordinaryFcourse of the day. The Court, through a three judge Bench, held:

“13. Let us first deal with this question. The Act [Minimum WagesAct] which was enacted in 1948 has its roots in therecommendation adopted by the International Labour Conferencein 1928. The object of the Act as stated in the preamble is toGprovide for fixing minimum rates of wages in certain employmentsand this seems to us to be clearly directed against exploitation ofthe ignorant, less organised and less privileged members of thesociety by the capitalist class. This anxiety on the part of the societyfor improving the general economic condition of some of its less

favoured members appears to be in supersession of the old principleof absolute freedom of contract and the doctrine of laissez faireand in recognition of the new principles of social welfare andcommon good. Prior to our Constitution this principle was advocatedby the movement for liberal employment in civilised countries andthe Act which is a pre-Constitution measure was the offspring ofthat movement. Under our present Constitution the State is nowexpressly directed to endeavour to secure to all workers (whetheragricultural, industrial or otherwise) not only bare physicalsubsistence but a living wage and conditions of work ensuring adecent standard of life and full enjoyment of leisure. This DirectivePrinciple of State Policy being conducive to the general interest ofthe public and, therefore, to the healthy progress of the nation as awhole, merely lays down the foundation for appropriate socialstructure in which the labour will find its place of dignity, legitimatelydue to it in lieu of its contribution to the progress of nationaleconomic prosperity. […]. We are, therefore, clearly of the viewthat Rule 25 contemplates for overtime work double the rateof wages which the worker actually receives, including thecasual requisites and other advantages mentioned in the explanation.This rate, in our opinion, is intended to be the minimumrate for wages for overtime work. The extra strain on thehealth of the worker for doing overtime work may well haveweighed with the rule-making authority to assure to theworker as minimum wages double the ordinary wagereceived by him so as to enable him to maintain properstandard of health and stamina. Nothing rational orconvincing was said at the bar while fixing the minimumwages for overtime work at double the rate of wages actuallyreceived by the workmen should be considered to be outsidethe purpose and object of the Act. Keeping in view theoverall purpose and object of the Act and viewing itharmoniously with the general scheme of industriallegislation in the country in the background of the DirectivePrinciples contained in our Constitution the minimum ratesof wages for overtime work need not as a matter of law beconfined to double the minimum wages fixed but may justlybe fixed at double the wages ordinarily received by theworkmen as a fact. […]

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A40. The rationale behind fixing of double the rate of wages forovertime in Mamarde was separately noted by the Punjab and HaryanaHigh Court, in interpreting overtime for the purpose of the Factories Act,in I.T.C. Ltd. vs. Regional Provident Fund Commissioner[16], wherethe Court held:

B“27. It cannot be lost sight of that in the present case interpretationof a social and labour legislation is involved. The social and labourlegislations were enacted in order to safeguard the rights andinterests of the working class and these are the result of a prolongedstruggle of the working class. It is a matter of common knowledgethat at the advent of the industrialisation in the country, there wereCno such social legislations as the Minimum Wages Act, IndustrialDisputes Act, the payment of Wages Act and the WorkmenCompensation Act etc. Then no working hours were fixed, nominimum wages were fixed; there were no safeguards againstthe retrenchment of the workmen, their wrongful dismissals,Dtermination of service, wrongful reduction in rank etc. It was onlyafter the workers organised themselves into trade unions that theseenactments were made by the Legislature. Before theseenactments, the workers were totally at the mercy of the employer.They used to work long hours right from morning till evening andeven during night sometime and no basic or minimum wages wereEfixed. In order to end this type of exploitation, these sociallegislations were made and even the benefits of these sociallegislations are sometimes denied by the employers and inthese days of high prices the workers are not able to maketheir both ends meet. In a civilized society, every person isFentitled to the basic needs of life such as lodging, boarding andclothing to keep his body and soul together. It is in this backgroundthat the expression ‘basic wages’ is to be interpreted as defined inthe Act. The last settlement itself shows that two types ofremuneration are fixed for work being done during theadditional hours and overtime hours. While remunerationGfor additional hours, i.e. beyond the normal hours, is fixedat one and a half times, the remuneration for overtime, i.e.beyond the statutory hours is fixed at double the normalhour rate. It clearly shows that remuneration for additional hours is not considered as an overtime allowance and tworates of payment are fixed, one for the additional hours whichcome within the normal statutory working hours and theother for the overtime hours which are beyond the normalstatutory working hours.”

41. The principle of paying for overtime work at double the rate ofwage is a bulwark against the severe inequity that may otherwise pervadea relationship between workers and the management. The RajasthanHigh Court, in Hindustan Machine Tools Ltd. vs. Labour Court[17]emphatically noted that the workers cannot contract out of receivingdouble the rate for overtime as a way of industrial settlement. The Courtheld:

“6. […] An interpretation which restricts or curtails benefitsadmissible to workers under the Factories Act has to be avoided.Since the provisions contained in the Factories Act, particularlythose contained in Chap. VI, are intended to protect the workmenagainst exploitation on account of his uneven position qua theemployer, employer cannot be permitted directly or indirectly toinfringe upon the rights of the workers. Likewise, the employeecannot be permitted to volunte[e]r to work beyond the prescribedhours. If the employer was given permission to contract outof the provisions of 1948 Act, the whole object with whichthese provisions have been enacted will be frustrated.

[…]

[…]

9. […] The employer has clearly taken advantage of itssuperior bargaining position vis-a-vis the workmen bymaking them to work for more than 50 hours of overtimework. It cannot now claim that despite the fact that workmenhave rendered service for more than 50 hours of overtime wagesshould be denied to them because the workmen became a party tothe violation of that embargo. Having taken advantage by violatingthe provisions of law, the employer cannot now plead that theworkmen should be denied benefit of their extra work.”

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AH Constitutional vision of social and economic democracy

42. The Constitution is a charter which solemnized the transfer ofpower. But the constitutional vision of swarajya transcends the devolutionof political power. The Fundamental Rights and Directive Principles ofState Policy present a coherent vision of a welfare state that envisagesBjustice- social, economic and political. Granville Austin, in his seminalwork on the Indian Constitution, has collectively described them as “theconscience of the Constitution which connects India’s future, present,and past by giving strength to the pursuit of social revolution inIndia”.[18] The colonial experience, and the poverty it sanctified as anincident of state policy, were the driving force in the ConstituentCAssembly’s goal to achieve economic equality and independence.[19]Although the Directive Principles were not intended to be capable ofbeing independently enforced before the courts to invalidate a legislation,they inform state policies; act as a guidepost for legislation and providesign posts for travelers engaged on the path of understanding theDcomplexities which the Constitution unravels. Eminent legal scholarUpendra Baxi, while reviewing Granville Austin’s work on the IndianConstitution had analysed the dichotomy of justiciability and non-justiciability of Fundamental Rights and Directive Principles. He hadnoted- “..In no other area of constitutional scholarship, the need toascend from the planet of platitudes to an analytic paradise is moreEcompelling than in the study of directive principles[20]…The fact thatthis distinction [in justiciability] is now a constitutional reality shouldnot be allowed to obscure the more important fact that the directiveprinciples and fundamental rights are both originally rooted in avision of a new India. And though many writers on constitutionalFlaw have been led to draw a radical and sharp distinction betweenrights and principles, it is heartening that judicial decision-makinghas not failed to maintain the awareness of their basic unity”.[21] TheFactories Act is an integral element of the vision of state policy which 18 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford UniversityGPress, 1966) at page 6319 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford UniversityPress, 1966) at pages 74- 7720 Upendra Baxi, “The Little Done, The Vast Undone”- Some Reflections on ReadingGranville Austin’s “The Indian Constitution”, Journal of the Indian Law Institute (1967)Vol.9 No.3, at page 360H21 ibid at pages 366-367

seeks to uphold Articles 38,[22] 39,[23] 42,[24] and 43[25] of the Constitution. Itdoes so by attempting to neutralize the excesses in the skewed powerdynamics between the managements of factories and their workmen byensuring decent working conditions, dignity at work and a living wage.Ideas of ‘freedom’ and ‘liberty’ in the Fundamental Rights recognized bythe Constitution are but hollow aspirations if the aspiration for a dignifiedlife can be thwarted by the immensity of economic coercion.

43. The expression ‘worker’ as defined in the Factories Act, isbroad enough to include persons who are indirectly employed as contractlabour and contribute to the manufacturing process at the establishment.[26]The COVID-19 pandemic in India, was accompanied with an immensemigrant worker crisis, where several workers (including workersemployed or contracted with factories) were forced to abandon their 22 Article 38- “(1)- “The State shall strive to promote the welfare of the people bysecuring and protecting as effectively as it may a social order in which justice, 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, andendeavour to eliminate inequalities in status, facilities and opportunities, not only amongstindividuals but also amongst groups of people residing in different areas or engaged indifferent vocations”

23 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 oflivelihood; (b) that the ownership and control of the material resources of the community are sodistributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration ofwealth 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 ofchildren are not abused and that citizens are not forced by economic necessity to enteravocations unsuited to their age or strength; that children are given opportunities and facilities to develop in a healthy manner and inconditions of freedom and dignity and that childhood and youth are protected againstexploitation and against moral and material abandonment.”

24 Article 42- “The State shall make provision for securing just and humane conditions ofwork and for maternity relief.”

25 Article 43- “The State shall endeavour to secure, by suitable legislation or economicorganisation or in any other way, to all workers, agricultural, industrial or otherwise,work, a living wage, conditions of work ensuring a decent standard of life standard of lifeand full enjoyment of leisure and social and cultural opportunities and, in particular, theState shall endeavour to promote cottage industries on an individual or co-operative basisin rural areas.”

26 National Thermal Power Co-operation v. Karri Pothuraju, (2003) 7 SCC 384; BaratFritz Werner Ltd. v. State of Karnataka, (2001) 4 SCC 498

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Acities of work due to the halt in production which cut-off their meagresource of income. The notifications in question legitimize the subjectionof workers to onerous working conditions at a time when their feeblebargaining power stands whittled by the pandemic. Clothed withexceptional powers under Section 5, the state cannot permit workers tobe exploited in a manner that renders the hard-won protections of theBFactories Act, 1948 illusory and the constitutional promise of social andeconomic democracy into paper-tigers. It is ironical that this result shouldensue at a time when the state must ensure their welfare.

44. In an economy where the State is not the dominant employerof workers, the COVID-19 pandemic opens up unforeseen challenges inCsecuring true equality and dignity to them. Workers in the organized andunorganized sectors of the economy face basic questions about survivaland security. The unprecedented nature of these challenges is matchedonly by the unanticipated nature of the pandemic. The challenges willneed to be addressed with ingenuity and commitment. The framers ofDthe Constitution did not envisage one model of economic democracy. DrB R Ambedkar, as the architect of the Constitution, incorporated a visionwhich endows the succeeding generations of elected governments withthe discretion to design responses in tune with the changing nature ofsocial and economic structures.[27] In the Constituent Assembly on 19November 1948, he stated[28]:E“..While we have established political democracy, it is also thedesire that we should lay down as our ideal economic democracy…The question is: Have we got any fixed idea as to how weshould bring about economic democracy ? There are various waysin which people believe that economic democracy can be broughtFabout; there are those who believe in individualism as the bestform of economic democracy; there are those who believe in havinga socialistic state as the best form of economic democracy; thereare those who believe in the communistic idea as the most perfectform of economic democracy. Now, having regard to the fact thatGthere are various ways by which economic democracy may bebrought about, we have deliberately introduced in the languagethat we have used, in the directive principles, something which isnot fixed or rigid. We have left enough room for people of different 27 Dr B R Ambedkar, Constituent Assembly Debates, Volume 7 on November 19, 1948H28 ibid ways of thinking, with regard to the reaching of the ideal ofeconomic democracy, to strive in their own way, to persuade theelectorate that it is the best way of reaching economic democracy,the fullest opportunity to act in the way in which they want toact.”

However, flexibility for succeeding generations to develop theirmodels of economic democracy would not in the vision of the Framersallow a disregard of socio-economic welfare. Dr Ambedkar, in defendingthe retention of the word ‘strive’ in Article 38 of the Directive Principlesemphatically noted:

“The word ‘strive’ which occurs in the Draft Constitution, injudgment, is very important. We have used it because our intentionis even when there are circumstances which prevent theGovernment, or which stand in the way of the Government givingeffect to these Directive Principles, they shall, even under hardand unpropitious circumstances, always strive in the fulfilment ofthese Directives. That is why we have used the word ‘strive’.Otherwise, it would be open for any Government to say thatthe circumstances are so bad, that the finances are soinadequate that we cannot even make an effort in thedirection in which the Constitution asks us to go.”

The Constitution allows for economic experiments. Judicial reviewis justifiably held off in matters of policy, particularly economic policy.But the Directive Principles of State Policy cannot be reduced to oblivionby a sleight of interpretation. To a worker who has faced the brunt of thepandemic and is currently laboring in a workplace without the luxury ofphysical distancing, economic dignity based on the rights available underthe statute is the least that this Court can ensure them. Justice PatanjaliSastry immortalized that phrase of this court as the sentinel on the quivive in our jurisprudence by recognizing it in State of Madras vs. V GRow[29]. The phrase may have become weather-beaten in articles, seminarsand now, in the profusion of webinars, amidst the changing times. Familiaras the phrase sounds, judges must constantly remind themselves of itsvalue through their tenures, if the call of the constitutional conscience isto retain meaning. The ‘right to life’ guaranteed to every person underArticle 21, which includes a worker, would be devoid of an equal A

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Aopportunity at social and economic freedom, in the absence of just andhumane conditions of work. A workers’ right to life cannot be deemedcontingent on the mercy of their employer or the State. The notifications,in denying humane working conditions and overtime wages provided bylaw, are an affront to the workers’ right to life and right against forcedlabour that are secured by Articles 21 and 23 of the Constitution.B

I Summation

45. This Court is cognizant that the Respondent aimed to amelioratethe financial exigencies that were caused due to the pandemic and thesubsequent lockdown. However, financial losses cannot be offset on theCweary shoulders of the laboring worker, who provides the backbone ofthe economy. Section 5 of the Factories Act could not have been invokedto issue a blanket notification that exempted all factories from complyingwith humane working conditions and adequate compensation for overtime,as a response to a pandemic that did not result in an ‘internal disturbance’of a nature that posed a ‘grave emergency’ whereby the security ofDIndia is threatened. In any event, no factory/ classes of factories couldhave been exempted from compliance with provisions of the FactoriesAct, unless an ‘internal disturbance’ causes a grave emergency thatthreatens the security of the state, so as to constitute a ‘public emergency’within the meaning of Section 5 of the Factories Act. We accordinglyEallow the writ petition and quash Notification No. GHR/ 2020/56/FAC/142020/346/M3 dated 17 April 2020 and Notification No. GHR/2020/92/FAC/142020/346/M3 dated 20 July 2020 issued by the Labour andEmployment Department of the Respondent State.

46. As a consequence of this judgment, and in the interest of doingFcomplete justice under Article 142 of the Constitution, we direct thatovertime wages shall be paid, in accordance with the provisions of Section59 of the Factories Act to all eligible workers who have been workingsince the issuance of the notifications.

47. Pending application(s), if any, are disposed of.

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Ankit Gyan

Writ Petition allowed.

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