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Gujarat Mazdoor Sabha vs The State Of Gujarat on 1 October, 2020

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Reportable

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

Writ Petition (Civil) No. 708 of 2020

Gujarat Mazdoor Sabha Anr. …Petitioners

Versus

The State of Gujarat …Respondent

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

Index

A The Notifications

B Grounds of challenge

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

D Precedent on ‘public emergency’ and ‘security of the state’

E Interpreting ‘public emergency’ in Section 5

F Scheme and objects of the Factories Act, 1962

Signature Not Verified
G Social and economic value of ‘overtime’
Digitally signed by
ARJUN BISHT
Date: 2020.10.01
15:08:09 IST
H Constitutional vision of social and economic democracy
Reason:

I Summation

1
PART A

1 Invoking its powers under Section 5 of the Factories Act, 19481, the State

of Gujarat has exempted factories from observing some of the obligations which

employers have to fulfil towards the workmen employed by them. The

government justifies the action on the ground that industrial employers are faced

with financial stringency in the economic downturn resulting from 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 Factories Act, 1948 (LXIII of 1948), the

1
Factories Act”

2
PART B

Government of Gujarat hereby directs that all the factories
registered under the
Factories Act, 1948 shall be exempted
from various provisions relating to weekly hours, daily hours,
intervals for rest etc. of adult workers under
section 51,
section 54, section 55 and section 56 with the following
conditions from 20th April till 19th July 2020,-

(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 Periods 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 of 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 6:00 AM.

(4) Wages shall be in a proportion of the existing wages (e.g.

If wages for eight hours are 80 Rupees, then
proportionate wages for twelve hours will be 120
Rupees).”

On its lapse by the efflux of time, the State government issued another

notification on 20 July 20202. Similar in content, the new notification extended the

exemption granted to factories from 20 July 2020 till 19 October 2020.

B Grounds of challenge

3 The first Petitioner is a trade union registered under the Trade Unions Act,

1926 and represents about ten thousand workers employed in factories and

industrial establishments in the State of Gujarat. The second Petitioner is a

federation of registered trade unions and represents a hundred thousand

workmen in factories and establishments across India.

2
Both the notifications dated 17 April 2020 and 20 July 2020 were issued by the Labour and Employment
Department of the State of Gujarat

3
PART B

4 Leading the submissions of the petitioners, Mr Sanjay Singhvi, learned

Senior Counsel, along with Ms Aparna Bhat, learned Counsel submits that:

(i) Section 5 of the Factories Act enables government to exempt any

factory, or a class of factories, from its provisions only when a ‘public

emergency’ exists;

(ii) The explanation to Section 5 defines the expression ‘public emergency’

as a “grave emergency” which threatens the security of India or of any

part of the territory by war, external aggression or internal disturbance.

Applying 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. Art 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

4
PART B

conditions;

(vi) Section 5 contemplates an exemption only to an individual factory or to

a class of factories, and not a blanket exemption that extends to all

factories;

(vii) Section 65(2), and not Section 5, of the Factories Act enables

suspension of Sections 51, 52, 54 and 56 to a class of factories owing

to ‘exceptional pressure of work’;

(viii) Even if Section 65(2) were to apply to account for the exceptional

pressure of work, a host of conditions under Section 65(3) are attracted

in order to ensure labour welfare including a limit on weekly overtime

and intervals between work which the notifications fail to adopt;

(ix) The notifications do not specifically exempt the application of Section

59 of the Factories Act which mandates payment of double the wages

for overtime. Yet they make overtime wages proportionate to the

existing wages, which also violates the spirit of the Minimum Wages

Act, 1948 and amounts to forced labour violating the workers’

fundamental rights under Article 23, 21 and 14; and

(x) Three industrial accidents are reported to have occurred on 7 May

2020 at Vishakapatnam, Chattisgarh and Neyveli in hazardous

industries which reopened after the lockdown with a skeletal workforce.

The notifications in question will lead to similar disasters.

5 Opposing these submissions, Ms Deepanwita Priyanka, learned Counsel

appearing on behalf of the State of Gujarat, has made an earnest effort to

5
PART B

persuade this Court to hold that the notifications are not ultra vires the Factories

Act or unconstitutional. The submissions of Ms. Priyanka have been supported by

Mr Tushar Mehta, Solicitor General of India. The submissions are summarized

below:

(i) The State has issued the notifications by invoking its powers under

Section 5 of the Factories Act, under which it may exempt any factory

or class of factories from all or any provisions of the Act in a public

emergency;

(ii) The COVID-19 pandemic is a ‘public emergency’ as defined in Section

5 of the Factories Act. It has disturbed the “social order of the country”

and has threatened the even tempo of life in the State of Gujarat as

well. As a result of the outbreak, emergency measures were required

to be adopted to protect the existence and integrity of the State of

Gujarat;

(iii) The COVID-19 pandemic has caused “extreme financial exigencies” in

the State. The lockdown caused a slowdown 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;

6
PART B

(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 targets for production have been fixed. Hence, there is no

exceptional pressure of work within the meaning of Section 65(2). The

purpose of the notifications is to deal with the COVID-19 pandemic and

to ensure that the core functions of the economy continue to operate;

(viii) Under the notifications, workers are only allowed to work for three

additional hours than the normal work day. Factories have also been

directed to compensate the workers proportionately for the extra

working hours. There is no exploitation of labour and factories are also

able to sustain themselves; and

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

Constitution.

7
PART C

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

6 The issue for analysis is whether the notifications fall within the ambit of

the power conferred by Section 5 of the Factories Act. The validity of the

notifications depends on whether the COVID-19 pandemic and the nationwide

lockdown qualify as a ‘public emergency’ as defined in Section 5. The statute

provides both the language and the dictionary to interpret it.

7 Section 5 of the Factories Act provides that in a public emergency, the

State Government can exempt any factory or class or description of factories

from all or any of the provisions of the Act, except Section 67. Section 5 is

extracted below:

“5. Power to exempt during public emergency.—In any case
of public emergency the State Government may, by
notification in the Official Gazette, exempt any factory or class
or description of factories from all or any of the provisions of
this Act except
section 67 for such period and subject to such
conditions as it may think fit:

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

Explanation.—For the purposes of this section “public
emergency” means a grave emergency whereby the
security of India or of any part of the territory thereof is
threatened, whether by war or external aggression or
internal disturbance.”

(emphasis supplied)

8 Section 5 specifies (i) when an exemption can be granted; (ii) who can

exercise the power to grant an exemption; (iii) who can be exempted; (iv) the

conditions subject to which an exemption can be granted; (iv) the provisions from

which an exemption can be allowed; (v) the period of time over which the

8
PART C

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 public emergency. The explanation constricts the expression in two

ways: first, by confining it to specific causes; and second, by requiring that a

consequence must have emanated from those causes before the power can be

exercised. Under Section 5 a situation can qualify as a ‘public emergency’, only if

the following elements are satisfied: (i) there must exist a “grave emergency”; (ii)

the security of India or of any part of its territory must be “threatened” by such an

emergency; and (iii) the cause of the threat must be war, external aggression or

internal disturbance. The existence of the situation must be demonstrated as an

objective fact. The co-relationship between the cause and effect must exist.

9
PART C

Implicitly therefore, the statutory provision incorporates the principle of

proportionality.

9 The principle of proportionality has been recognized in a slew of cases by

this Court, most notably in the seven-judge bench decision in K S Puttaswamy

vs. Union of India.3 The principle of proportionality envisages an analysis of the

following conditions in order to determine the validity of state action that could

impinge on fundamental rights:

(i) A law interfering with fundamental rights must be in pursuance of a

legitimate state aim;

(ii) The justification for rights-infringing measures that interfere with or limit

the exercise of fundamental rights and liberties must be based on the

existence of a rational connection between those measures, the situation

in fact and the object sought to be achieved;

(iii) The measures must be necessary to achieve the object and must not

infringe rights to an extent greater than is necessary to fulfil the aim;

(iv) Restrictions must not only serve legitimate purposes; they must also be

necessary to protect them; and

(v) The State should provide sufficient safeguards against the abuse of such

interference.

However before adverting to an analysis on the proportionality of the

Respondent’s action in issuing the notifications, it would be important to

determine, at the threshold, whether the notifications have been validly issued, in

3
(2017) 10 SCC 1, para 325

10
PART D

conformity with the scope of power envisaged under Section 5 of the Factories

Act.

D Precedent on ‘public emergency’ and ‘security of the state’

10 The originating causes of a ‘public emergency’ 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 that a

“grave emergency exists whereby the security of India is threatened by ‘internal

disturbance’.” Both these proclamations were revoked in March 1977. The Forty-

fourth amendment to the Constitution sought to limit recourse to emergency

11
PART D

powers under Article 352 to prevent their abuse. Pursuant to this amendment, the

expression “internal disturbance” was replaced with “armed rebellion”. Thus, a

proclamation of emergency now cannot be issued on a mere internal disturbance

and must reach the threshold of an armed rebellion threatening the security of

India. The Parliamentary amendments to Article 352 are the product of

experience: experiences gained from the excesses of the emergency,

experiences about the violation of human rights and above all, experiential

learning that the amalgam of uncontrolled power and unbridled discretion provide

fertile conditions for the destruction of liberty. The sobering lessons learnt from

our not-too-distant history should warn us against endowing a statute with similar

terms of a content which is susceptible of grave misuse.

12 The expression ‘internal disturbance’ finds place in Article 355 of the

Constitution, as well. Article 355 of the Constitution provides:

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

Article 355 does not contemplate the proclamation of an emergency or

interference in the functioning of elected state governments. It casts a duty on

the Union Government to ensure the protection of the states against external

aggression and internal disturbance and to ensure their functioning in accordance

with the Constitution.

12

PART D

13 Article 356 of the Constitution provides for the failure of constitutional

machinery in a state in a situation where the functioning of the State Government

cannot be carried out in accordance with the Constitution. Article 356 reads as

follows:

“356. Provisions in case of failure of constitutional machinery
in States: (1) If the President, on receipt of a report from the
Governor of a State or otherwise, is satisfied that a situation
has arisen in which the Government of the 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 any body 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 any body 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 vs. Union of India4. 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 nature of justification for the measures to be adopted
under Articles 356 and 357. What is however, necessary to
remember in this connection is that while
Article
355 refers to three situations, viz., (i) external aggression,

(ii) internal disturbance, and (iii) non-carrying on of the
Government of the States, in accordance with the
provisions of the Constitution,
Article 356 refers only to
one situation, viz., the third one. As against this,
Article

4
[1994] 2 S.C.R 644

13
PART D

352 which provides for Proclamation of emergency
speaks of only one situation, viz., where the security of
India or any part of the territory thereof, is threatened
either by war or external aggression or armed rebellion.
The expression “internal disturbance” is certainly of
larger connotation than “armed rebellion” and includes
situations arising out of “armed rebellion” as well. In
other words, while a Proclamation of emergency can be
made for internal disturbance only if it is created by
armed rebellion, neither such Proclamation can be made
for internal disturbance caused by any other situation
nor a Proclamation can be issued under
Article
356 unless the internal disturbance gives rise to a
situation in which the Government of the State cannot be
carried on in accordance with the provisions of the
Constitution. A mere internal disturbance short of armed
rebellion cannot justify a Proclamation of emergency
under
Article 352 nor such disturbance can justify
issuance of Proclamation under
Article 356(1), unless it
disables or prevents carrying on of the Government of
the State in accordance with the provisions of the
Constitution. […]

The common thread running through all these Articles in Part
XVIII relating to emergency provisions is that the said
provisions can be invoked only when there is an
emergency and the emergency is of the nature described
therein and not of any other kind. The Proclamation of
emergency under Articles 352, 356 and 360 is further
dependent on the satisfaction of the President with regard to
the existence of the relevant conditions precedent. The duty
cast on the Union under
Article 355 also arises in the twin
conditions stated therein.

(emphasis supplied)

15 In Extra-Judicial Execution Victim Families Association vs. Union of

India5, this Court considered whether the situation in Manipur was of public

order, internal disturbance or an armed rebellion. Analysing the impact of the

Forty-fourth amendment which substituted the expression “armed rebellion” for

“internal disturbance’, the Court held that:

5

(2016) 14 SCC 578 2

14
PART D

“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 the situation, the President might also issue a
Proclamation of Emergency. That apart, the Union
Government also has a duty to protect the States from an
internal disturbance. However the President cannot, in the
event of the latter situation, issue a Proclamation of
Emergency except by using the drastic power under
Article
356 of the Constitution which has in-built checks and
balances.”

(emphasis supplied)

16 The expression ‘internal disturbance’ must be interpreted in the context in

which it is used. Under Article 352, an internal disturbance must be of the order of

an armed rebellion threatening the security of India to proclaim an emergency.

Similarly, in order to sustain a valid exercise of power under Article 356 on the

ground of an internal disturbance, it must be of such a nature as to disrupt the

functioning of the constitutional order of the State; in other words, it must be of

such a nature that the government of a state cannot be carried on in accordance

with the Constitution.

15
PART D

17 On the definition of ‘internal disturbance’ in the context of Article 355 of the

Constitution, the Report of the Sarkaria Commission on Centre-State

Relations (January 1988) noted that:

“6.3.04 It is difficult to define precisely the concept of ‘internal
disturbance’. Similar provisions, however, occur in the
Constitutions of other countries.
Article 16 of the Federal
Constitution of Switzerland uses the expression “internal
disorder”. The Constitutions of the United States of America
and Australia use the expression ‘domestic violence’. The
framers of the Indian Constitution have, in place of this term,
used the expression ‘internal disturbance’. Obviously, they
have done so as they intended to cover not only domestic
violence, but something more. The scope of the term ‘internal
disturbance’ is wider than ‘domestic violence’. It conveys the
sense of ‘domestic chaos’, which takes the colour of a
security threat from its associate expression, ‘external
aggression’. Such a chaos could be due to various
causes. Large-scale public disorder which throws out of gear
the even tempo of administration and endangers the security
of the State, is ordinarily, one such cause. Such an internal
disturbance is normally man-made. But it can be Nature-
made, also. Natural calamities of unprecedented
magnitude, 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 judgement and good sense
of the Union Government.

16

PART D

[…]

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 and severity, completely paralyses the
administration and endangers the security of the State
and the State Government is unwilling or unable to
exercise its governmental power to relieve it.

[…]

6.5.01 […] Some examples are given below of situations in
which it may be improper, if not illegal, to invoke the
provisions of
Article 356:

[…]

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

(emphasis supplied)

The Sarkaria Commission recognized that a range of situations may qualify to be

internal disturbances. The instances of ‘internal disturbance’ given by the

Sarkaria Commission were in the context of Article 355 and Article 356, where

the breakdown of the constitutional machinery of the State is in question. In any

event, the Sarkaria Commission clarified that mere financial exigencies of a State

do not qualify as an internal disturbance.

18 In Anuradha Bhasin vs. Union of India6, (“Anuradha Bhasin”) a three

judge Bench of this Court considered the definition of the expression ‘public

6
(2020) 3 SCC 637

17
PART D

emergency’ in Section 5(2) of the Telegraph Act, 1885.7 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.”8

19 The power under Section 5 of the Factories Act can be exercised in a

“public emergency”. The explanation states that to constitute a public emergency,

there must be a grave emergency. The emergency must be of such a nature as

to threaten the security of India or a part of its territory. The threat to the security

of India or a part of the territory must be caused by war, external aggression or

an internal disturbance. The expression ‘internal disturbance’ cannot be divorced

from its context, or be read in a manner divorced from the other two expressions

7
“5. Power for Government to take possession of licensed telegraphs and to order interception of messages.—
(1) * * *
(2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or
a State Government or any officer specially authorised in this behalf by the Central Government or a State
Government may, if satisfied that it is necessary 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 for preventing
incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any
message or class of messages to or from any person or class of persons, or relating to any particular subject,
brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be
intercepted or detained, or shall be disclosed to the Government 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.”
8
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

18
PART D

which precede it. They are indicative of the gravity of the cause which threatens

the security of India or a part of its territory. An internal disturbance must be of a

similar gravity. Further, it is necessary to evaluate whether a situation of internal

disturbance threatens the security of India, or a part of its territory to qualify as a

‘public emergency’. In the absence of any one or more of the constituent

elements, the conditions requisite for the exercise of statutory power will not

exist.

20 What is meant by the phrase “security of India”? In Romesh Thapar vs.

State of Madras9, a Bench, comprising six judges of this Court observed that the

concept of ‘security of State’ is narrower than that of ‘public order’. Justice

Patanjali Sastry, speaking for the court held that:

“7. The Government of India Act, 1935, nowhere used the
expression “security of the State” though it made provision
under
Section 57 for dealing with crimes of violence intended
to overthrow the Government. While the administration of law
and order including the maintenance of public order was
placed in charge of a Minister elected by the people, the
Governor was entrusted with the responsibility of combating
the operations of persons who “endangered the peace or
tranquillity of the Province” by committing or attempting to
commit “crimes of violence intended to overthrow the
Government”. Similarly,
Article 352 of the Constitution
empowers the President to make a proclamation of
emergency when he is satisfied that the “security of India
or any part of the territory thereof is threatened by war or
by external aggression or by internal disturbance”. These
provisions recognise that disturbance of public peace or

9
(1950) 1 SCR 594 [The first amendment to the Constitution in 1951 expanded the area
of permissible regulation of the fundamental right under
Article 19(1)a, by amending
Article 19(2) ]

19
PART D

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
category those offences against public order which aim
at undermining the security of the State or overthrowing
it, and made their prevention the sole justification for
legislative abridgement of freedom of speech and
expression, that is to say, nothing less than endangering
the foundations of the State or threatening its overthrow
could justify curtailment of the rights to freedom of
speech and expression, while the right of peaceable
assembly “sub-clause (b)” and the right of association
“sub-clause (c)” may be restricted under clauses (3) and
(4) of
Article 19 in the interests of “public order”, which
in those clauses includes the security of the State. The
differentiation is also noticeable in Entry 3 of List III
(Concurrent List) of the Seventh Schedule, which refers to the
“security of a State” and “maintenance of public order” as
distinct subjects of legislation. The Constitution thus
requires a line to be drawn in the field of public order or
tranquillity marking off, may be, roughly, the boundary
between those serious and aggravated forms of public
disorder which are calculated to endanger the security of
the State and the relatively minor breaches of the peace
of a purely local significance, treating for this purpose
differences in degree as if they were differences in kind.”

(emphasis supplied)

20
PART E

21 The difference between law and order, public order and security of the

State was demarcated by this Court in Ram Manohar Lohia vs. State of Bihar10.

In a celebrated passage, Justice M Hidayatullah observed:

“55. […] It will thus appear that just as “public order” in the
rulings of this Court (earlier cited) was said to comprehend
disorders of less 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 is the next
circle representing public order and the smallest circle
represents security of State. It is then easy to see that an
act may affect law and order but not public order just as
an act may affect public order but not security of the
State. […]” (emphasis supplied)

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

22 Section 5 of the Factories Act provides for the power of exemption from

certain 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.

10

AIR 1966 SC 740

21
PART E

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 services and healthcare

facilities. The lockdown was subsequently extended until 31 May 2020. During

the lockdown, economic activity in the country was brought to a standstill. There

was a widespread migration of labour from the cities, where all avenues for work

had closed. There was an unprecedented human migration, countless of the

marginalized on 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 pandemic

and of the lockdown has been borne by the working class and by the poorest of

the poor. Bereft of social security, they have no fall back options. The respondent

has in exercise of its powers under Section 5 of the Factories Act issued the

impugned notifications purportedly to provide a fillip to industrial and commercial

activities.

25 Before this Court, the Petitioners have submitted that the present situation

does not threaten the security of India or a part of its territory. According to them

the Respondent has failed to demonstrate the existence of such a threat. The

22
PART E

exercise of powers under Section 5 of the Factories Act is challenged as ultra

vires the Factories Act.

26 In response, the Respondent, on one occasion in their written

submissions, has argued that the COVID-19 pandemic was leading to financial

chaos and the situation was on “the brink of internal disturbance”. In other places,

the Respondent has urged that the economic slowdown caused by the pandemic

constitutes a public emergency, warranting the need to issue the impugned

notifications curtailing the applicability of certain provisions of the Factories Act.

In their submissions, the Respondent has placed reliance on instances of internal

disturbance cited by the Sarkaria Commission (as quoted above), which include a

natural calamity such as an epidemic, which paralyses the administration and the

security of the State. In the context of the Factories Act, the Respondent has

relied on the decision of this court in Pfizer Private Limited, Bombay vs.

Workmen11 (“Pfizer”) to urge that during times of a national emergency, all

necessary efforts must be made to enhance the industrial production of the

nation.

27 We do not find any merit in the submissions of the respondents. In Pfizer,

the dispute between the employer and workmen concerned the imposition of

onerous working conditions by 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

11
AIR 1963 SC 1103

23
PART E

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, 2005.12 However, it

has not affected the security of India, or of a part of its territory in a manner that

disturbs the peace and integrity of the country. The economic hardships caused

by COVID–19 certainly pose unprecedented challenges to governance. However,

such challenges are to be resolved by the State Governments within the domain

of their functioning under the law, in coordination with the Central Government.

Unless the threshold of an economic hardship is so extreme that it leads to

disruption of public order and threatens the security of India or of a part of its

territory, recourse cannot be taken to such emergency powers which are to be

used sparingly under the law. Recourse can be taken to them only when the

conditions requisite for a valid exercise of statutory power exist under Section 5.

That is absent in the present case.

12

Ministry of Home Affairs, Order No. 40-3/2020-DM-I(A) dated 24 March 2020

24
PART F

F Scheme and Objects of the Factories Act, 1962

29 The Respondent’s purpose in invoking the emergency powers under the

Factories Act is to counter the effects of the economic slowdown caused by the

lockdown. In analyzing the scope and intent of Section 5 of the Factories Act and

the specific exemptions of Section 51, 54, 55 and 56 envisaged by the impugned

notifications, it is necessary to examine the purpose of the Factories Act, in the

backdrop of the constitutional scheme of the Indian welfare State. The Factories

Act was enacted almost contemporaneous with the framing of the Constitution.

The Factories Act is a product of history; of a long struggle of worker unions to

secure the right to human dignity in workplaces that ensure their safety and well-

being. The first Factories Act was introduced in 1881 and was amended in 1891,

1911, 1934 and 1941. Justice Umesh C Banerjee, as a part of a two-judge bench

of this Court, in S M Datta vs. State of Gujarat13 succinctly traced these

amendments in the context of the industrial revolution and British imperialism in

India. The Court noted:

“14. …the establishment of cotton mills in Bombay in 1851
and the jute mill at Rishra in Bengal marked the beginning of
factory system in India and it is only thereafter that the
factories grew steadily both in Bombay and in Bengal but the
conditions prevailing in these factories were inhuman, both as
regards working hours, welfare measures and wages.

Availability of labour was plenty and as such became rather
cheap and in order to eradicate 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

13
(2001) 7 SCC 659

25
PART F

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 currently stands, was enacted to guarantee

occupational health and safety. It ensures the material and physical well-being of

workers by fastening responsibilities and liabilities on ‘occupiers’ of factories. As

a legislative recognition of the inequality in the material bargaining power

between workers and their employers, the Act is meant to serve as a bulwark

against harsh and oppressive working conditions. The Act, primarily applies to

establishments employing more than 10 persons. It has been purposively and

expansively applied to workers, who may not strictly fall within the purview of the

definition, and yet embody similar roles within the establishments. These

permissible interpretations have been aligned with the intention of the legislature

which has a vital concern in preventing exploitation of labour.

31 The notifications in question, besides specifically exempting 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

prescribes the ‘Working Hours of Adults’. The Chapter, broadly concerned with

worker productivity and fair remuneration, prescribes working hours, mandatory

26
PART F

days of rest, intervals between stretches of work and adequate compensation for

overtime. The notifications, putatively, are a response to the COVID-19 pandemic

and exempt all factories from the provisions of Sections 51, 54, 55 and 56 which

are extracted below:

“51. Weekly hours — No adult worker shall be required or
allowed to work in a factory for more than forty-eight hours in
any week.

54. Daily hours —Subject to the provisions of Section 51, no
adult worker shall be required or allowed to work in a factory
for more than nine hours in any day:

Provided that, subject to the previous approval of the Chief
Inspector, the daily maximum hours specified in this section
may be exceeded in order to facilitate the change of shifts.

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

(2) The State Government or, subject to the control of the
State Government, the Chief Inspector, may, by written 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.”

27
PART F

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 6:00AM.

(4) Wages shall be in a proportion of the existing wages (e.g.

if wages for eight hours are 80 Rupees, the proportionate
wages for twelve hours will be 120 Rupees).”

33 The notifications make significant departures from the mandate of the

Factories Act. They (i) increase the daily limit of working hours from 9 hours to 12

hours; (ii) increase the weekly work limit from 48 hours to 72 years, which

translates into 12 hour work-days on 6 days of the week; (iii) negate the spread

over of time at work including rest hours, which is typically fixed at 10.5 hours; (iv)

enable an interval of rest every 6 hours, as opposed to 5 hours; and (iv) mandate

the payment of overtime wages at a rate proportionate to the ordinary rate of

wages, instead of overtime wages at the rate of double the ordinary rate of wages

as provided under Section 59.

34 While enacting the Factories Act, Parliament was cognizant of the

occasional surge of the demand for, or requirement of, the manufacture of certain

goods which would demand accelerated production. The law – makers were

aware of the exigencies of the war effort of the colonial regime in World War II,

28
PART F

with its attendant shortages, bottlenecks and, in India, famine as well. Section

64(2) of the Factories Act envisages exemption from certain provisions relating to

working hours in Chapter VI, for instances such as urgent repairs, supplying

articles of prime necessity or technical work, which necessarily must be carried

on continuously. Section 65(2) enables classes of factories to be exempt from

similar provisions in order to enable them to cope with an exceptional pressure of

work. However, these exemptions are circumscribed by Section 64(4) and 65(3)

respectively, at limits that are significantly less onerous than those prescribed by

the notifications in question. Despite these concessions, these provisions do not

enable an exemption of Section 59 which prescribes mandatory payment of

overtime wages to the workers at double the ordinary rate of their wages.

35 During the course of the hearings, the Respondent has submitted that the

exemption under the impugned notifications must be understood in the context of

the “extreme financial exigencies arising due to the spread of COVID-19

pandemic” and have been deployed as “a holistic approach to maintain the

production, adequately compensate workers and 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 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

29
PART G

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 welfare is an integral element of

that vision. That, indeed, is the philosophy which undergirds the Directive

Principles. Speaking for a Constitution Bench of this Court, in Bhikusa Yamasa

Kshatriya (P) Ltd. vs. Union of India14, Justice J C Shah observed:

“9. […] Employment in a manufacturing process was at
one time regarded as a matter of contract between the
employer and the employee and the State was not
concerned to impose any duties upon the employer. It is
however now recognised that the State has a vital
concern in preventing exploitation of labour and in
insisting upon proper safeguards for the health and
safety of the workers.
The Factories Act undoubtedly
imposes numerous restrictions upon the employers to secure
to the workers adequate safeguards for their health and
physical well-being. But imposition of such restrictions is not
and cannot be regarded in the context of the modern outlook
on industrial relations, as unreasonable. Extension of the
benefits of the
Factories Act to premises and workers not
falling strictly within the purview of the Act, is intended to
serve the same purpose. By authorising imposition of

14
AIR 1963 SC 1591

30
PART G

restrictions for the benefit of workers who in the view of the
State stand in need of some or all the protections afforded by
the
Factories Act, but who are not governed by the Act, the
legislature is merely seeking to effectu[a]te the object of the
Act i.e. it authorises extension of the benefit of the Act to
persons to whom the Act, to fully effectuate the object, should
have been, but has on account of administrative or other
difficulties not been extended. Provisions made for the benefit
of “deemed workers” cannot therefore be regarded as not
unreasonable within the meaning of
Article 19(1)(g) of the
Constitution. (emphasis supplied)

38 The need for protecting labour welfare on one hand and combating a

public health crisis occasioned by the pandemic on the other may require careful

balances. But these balances must accord with the rule of law. A statutory

provision which conditions the grant of an exemption on stipulated conditions

must be scrupulously observed. It cannot be interpreted to provide a free reign for

the State to eliminate provisions promoting dignity and equity in the workplace in

the face of novel challenges to the state administration, unless they bear an

immediate nexus to ensuring the 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 vs. Authority under the Minimum Wages Act,15

(“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

15
(1972) 2 SCC 108

31
PART G

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 of the society for improving the
general economic condition of some of its less favoured
members appears to be in supersession of the old principle of
absolute freedom of contract and the doctrine of laissez faire
and in recognition of the new principles of social welfare and
common good. Prior to our Constitution this principle was
advocated by the movement for liberal employment in
civilised countries and the Act which is a pre-Constitution
measure was the offspring of that movement. Under our
present Constitution the State is now expressly directed to
endeavour to secure to all workers (whether agricultural,
industrial or otherwise) not only bare physical subsistence but
a living wage and conditions of work ensuring a decent
standard of life and full enjoyment of leisure. This Directive
Principle of State Policy being conducive to the general
interest of the public and, therefore, to the healthy progress of
the nation as a whole, merely lays down the foundation for
appropriate social structure in which the labour will find its
place of dignity, legitimately due to it in lieu of its contribution
to the progress of national economic prosperity. […]. We are,
therefore, clearly of the view that Rule 25 contemplates for
overtime work double the rate of wages which the worker
actually receives, including the casual requisites and other
advantages mentioned in the explanation. This rate, in our
opinion, is intended to be the minimum rate for wages for
overtime work. The extra strain on the health of the
worker for doing overtime work may well have weighed
with the rule-making authority to assure to the worker as
minimum wages double the ordinary wage received by
him so as to enable him to maintain proper standard of
health and stamina. Nothing rational or convincing was
said at the bar while fixing the minimum wages for
overtime work at double the rate of wages actually
received by the workmen should be considered to be
outside the purpose and object of the Act. Keeping in
view the overall purpose and object of the Act and
viewing it harmoniously with the general scheme of

32
PART G

industrial legislation in the country in the background of
the Directive Principles contained in our Constitution the
minimum rates of wages for overtime work need not as a
matter of law be confined to double the minimum wages
fixed but may justly be fixed at double the wages
ordinarily received 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. vs.

Regional Provident Fund Commissioner16, 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
trade unions that these enactments were made by the
Legislature. Before these enactments, the workers were
totally at the mercy of the employer. They used to work long
hours right from morning till evening and even during night
sometime and no basic or minimum wages were fixed. In
order to end this type of exploitation, these social
legislations were made and even the benefits of these
social legislations are sometimes denied by the
employers and in these days of high prices the workers
are not able to make their both ends meet. In a civilized
society, every person is entitled to the basic needs of life
such as lodging, boarding and clothing to keep his body and
soul together. It is in this background that the expression
‘basic wages’ is to be interpreted as defined in the Act. The
last settlement itself shows that two types of

16
ILR (1988) 1 PH 73

33
PART G

remuneration are fixed for work being done during the
additional hours and overtime hours. While remuneration
for additional hours, i.e. beyond the normal hours, is
fixed at one and a half times, the remuneration for
overtime, i.e. beyond the statutory hours is fixed at
double the normal hour rate. It clearly shows that
remuneration for additional hours is not considered as
an overtime allowance and two rates of payment are
fixed, one for the additional hours which come within the
normal statutory working hours and the other for the
overtime hours which are beyond the normal statutory
working hours.”

(emphasis supplied)

41 The principle of paying for overtime work at double the rate of wage is a

bulwark against the severe inequity that may otherwise pervade a relationship

between workers and the management. The Rajasthan High Court, in Hindustan

Machine Tools Ltd. vs. Labour Court17 emphatically noted that the workers

cannot contract out of receiving double the rate for overtime as a way of industrial

settlement. The Court held:

“6. […] An interpretation which restricts or curtails benefits
admissible to workers under the
Factories Act has to be
avoided. Since the provisions contained in the
Factories Act,
particularly those contained in Chap. VI, are intended to
protect the workmen against exploitation on account of his
uneven position qua the employer, employer cannot be
permitted directly or indirectly to infringe upon the rights of the
workers. Likewise, the employee cannot be permitted to
volunte[e]r 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

17
(1994) 1 LLN 256

34
PART H

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, in his seminal work on the Indian Constitution, has

collectively described them as “the conscience of the Constitution which connects

India’s future, present, and past by giving strength to the pursuit of social

revolution in India”.18 The colonial experience, and the poverty it sanctified as an

incident of state policy, were the driving force in the Constituent Assembly’s goal

to achieve economic equality and independence.19 Although the Directive

Principles were not intended to be capable of being independently enforced

before the courts to invalidate a legislation, they inform state policies; act as a

guidepost for legislation and provide sign posts for travelers engaged on the path

of understanding the complexities which the Constitution unravels. Eminent legal

scholar Upendra Baxi, while reviewing Granville Austin’s work on the Indian

Constitution had analysed the dichotomy of justiciability and non-justiciability of
18
Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press, 1966) at page 63
19
Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press, 1966) at pages 74-
77

35
PART H

Fundamental Rights and Directive Principles. He had noted- “..In no other area of

constitutional scholarship, the need to ascend from the planet of platitudes to an

analytic paradise is more compelling than in the study of directive

principles20…The fact that this distinction [in justiciability] is now a constitutional

reality should not be allowed to obscure the more important fact that the directive

principles and fundamental rights are both originally rooted in a vision of a new

India. And though many writers on constitutional law have been led to draw a

radical and sharp distinction between rights and principles, it is heartening that

judicial decision-making has not failed to maintain the awareness of their basic

unity”.21 The Factories Act is an integral element of the vision of state policy

which seeks to uphold Articles 38,22 39,23 42,24 and 4325 of the Constitution. It

does so by attempting to neutralize the excesses in the skewed power dynamics

between the managements of factories and their workmen by ensuring decent

20
Upendra Baxi, “The Little Done, The Vast Undone”- Some Reflections on Reading Granville Austin’s “The
Indian Constitution”, Journal of the Indian Law Institute (1967) Vol.9 No.3, at page 360
21
ibid at pages 366-367
22
Article 38- “(1)- “The State shall strive to promote the welfare of the people by securing 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, 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”
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 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 develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected against exploitation and against moral and material
abandonment.”
24
Article 42- “The State shall make provision for securing just and humane conditions of work and for maternity
relief.”
25
Article 43- “The State shall endeavour to secure, by suitable legislation or economic organisation 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 life and full enjoyment of leisure and social and cultural opportunities and, in
particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural
areas.”

36
PART H

working conditions, dignity at work and a living wage. Ideas of ‘freedom’ and

‘liberty’ in the Fundamental Rights recognized by the Constitution are but hollow

aspirations if the aspiration for a dignified life can be thwarted by the immensity of

economic coercion.

43 The expression ‘worker’ as defined in the Factories Act, is broad enough to

include persons who are indirectly employed as contract labour and contribute to

the manufacturing process at the establishment.26 The COVID-19 pandemic in

India, was accompanied with an immense migrant worker crisis, where several

workers (including workers employed or contracted with factories) were forced to

abandon their cities of work due to the halt in production which cut-off their

meagre source of income. The notifications in question legitimize the subjection

of workers to onerous working conditions at a time when their feeble bargaining

power stands whittled by the pandemic. Clothed with exceptional powers under

Section 5, the state cannot permit workers to be exploited in a manner that

renders the hard-won protections of the Factories Act, 1948 illusory and the

constitutional promise of social and economic democracy into paper-tigers. It is

ironical that this result should ensue at a time when the state must ensure 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
26
National Thermal Power Co-operation v. Karri Pothuraju, (2003) 7 SCC 384;
Barat Fritz Werner Ltd. v. State of
Karnataka, (2001) 4 SCC 498

37
PART H

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.27 In the Constituent Assembly on 19

November 1948, he stated28:

“..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 ? There
are various ways in which people believe that economic
democracy can be brought about; there are those who
believe in individualism as the best form of economic
democracy; there are those who believe in having a
socialistic state as the best form of economic democracy;
there are those who believe in the communistic idea as the
most perfect form of economic democracy. Now, having
regard to the fact that there are various ways by which
economic democracy may be brought about, we have
deliberately introduced in the language that we have used, in
the directive principles, something which is not fixed or rigid.

We have left enough room for people of different ways of
thinking, with regard to the reaching of the ideal of economic
democracy, to strive in their own way, to persuade the
electorate that it is the best way of reaching economic
democracy, the fullest opportunity to act in the way in which
they want to act.”

However, flexibility for succeeding generations to develop their models of

economic democracy would not in the vision of the Framers allow a disregard of

27
Dr B R Ambedkar, Constituent Assembly Debates, Volume 7 on November 19, 1948
28
ibid

38
PART H

socio-economic welfare. Dr Ambedkar, in defending the retention of the word

‘strive’ in Article 38 of the Directive Principles emphatically noted:

“The word 'strive' which occurs in the Draft Constitution, in
judgment, is very important. We have used it because our
intention is even when there are circumstances which prevent
the Government, or which stand in the way of the
Government giving effect to these Directive Principles, they
shall, even under hard and unpropitious circumstances,
always strive in the fulfilment of these Directives. That is why
we have used the word 'strive'. Otherwise, it would be
open for any Government to say that the circumstances
are so bad, that the finances are so inadequate that we
cannot even make an effort in the direction in which the
Constitution asks us to go.”

(emphasis supplied)

The Constitution allows for economic experiments. Judicial review is justifiably

held off in matters of policy, particularly economic policy. But the Directive

Principles of State Policy cannot be reduced to oblivion by a sleight of

interpretation. To a worker who has faced the brunt of the pandemic and is

currently laboring in a workplace without the luxury of physical distancing,

economic dignity based on the rights available under the statute 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 vs. V G Row29. 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,

29
AIR 1952 SC 196

39
PART I

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 exigencies that were caused due to the pandemic and the subsequent

lockdown. However, financial losses cannot be offset on the weary shoulders of

the laboring worker, who provides the backbone of the economy. Section 5 of the

Factories Act could not have been invoked to issue a blanket notification that

exempted all factories from complying with 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 of India is threatened. In any event, no factory/ classes of

factories could have been exempted from compliance with provisions of the

Factories Act, unless an ‘internal disturbance’ causes a grave emergency that

threatens the security of the state, so as to constitute a ‘public emergency’ within

the meaning of Section 5 of the Factories Act. We accordingly allow 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

40
PART I

2020 issued by the Labour and Employment Department of the Respondent

State.

46 As a consequence of this judgment, and in the interest of doing complete

justice under Article 142 of the Constitution, we direct that overtime wages shall

be paid, in accordance with the provisions of Section 59 of the Factories Act to all

eligible workers who have been working since the issuance of the notifications.

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

…….………….…………………...........................J.
[Dr. Dhananjaya Y Chandrachud]

…….…………………………...............................J.
[Indu Malhotra]

…….…………………………...............................J.
[K M Joseph]

New Delhi;

October 01 , 2020.

41

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