Supreme Court of India
GUJARAT MAZDOOR SABHA & ANR.versusTHE STATE OF GUJARAT
- Citation
- 2020 INSC 572
- Decided
- 1 October 2020
- Disposal
- Appeal(s) allowed
- Bench
- D Y CHANDRACHUD
Holding
A notification issued under Section 5 of the Factories Act is invalid unless the situation constitutes a grave internal disturbance threatening the security of India, which the COVID‑19 pandemic does not, rendering the Gujarat notifications ultra vires.
Summary
The Gujarat Mazdoor Sabha and a national trade union challenged two Gujarat State notifications issued under Section 5 of the Factories Act, 1948 that exempted all factories from provisions on working hours, rest intervals and overtime pay during the COVID‑19 pandemic. The petitioners argued that the pandemic did not constitute a "public emergency" as defined in the Act because it was not an internal disturbance threatening the security of India. The Court examined the statutory definition of public emergency, the constitutional provisions on emergency powers, and the purpose of the Factories Act to protect workers' health and wages. It held that the economic slowdown caused by COVID‑19 did not meet the threshold of a grave internal disturbance and therefore the State could not invoke Section 5 to override the Act’s protections. Consequently, the notifications were declared ultra vires and quashed, and the State was directed to pay overtime wages at double the ordinary rate under Section 59. The writ petition was allowed.
Issues considered
- The meaning of "public emergency" under Section 5 of the Factories Act, 1948.
- Whether the COVID‑19 pandemic and the resulting economic slowdown qualify as an internal disturbance threatening the security of India.
- Whether the State may issue a blanket exemption for all factories from Sections 51, 54, 55, 56 and 59 of the Factories Act.
- Whether the notifications violate constitutional rights under Articles 21, 23 and the Directive Principles.
Legislation cited
- Disaster Management Act, 2005
- Factories Act, 1948s. 5, s. 51, s. 54, s. 55, s. 56, s. 59, s. 64, s. 65
- Indian Telegraph Act, 1885s. 5
- Minimum Wages Act, 1948
Subjects
Factories Actpublic emergencyinternal disturbanceovertime wageslabour rightsCOVID‑19 pandemicArticle 21Article 23Directive Principlesconstitutional law
Judgment
886 [2020]REPORTS
SUPREME COURT 13 S.C.R. 886 [2020] 13 S.C.R.
A GUJARAT MAZDOOR SABHA & ANR.
v.
THE STATE OF GUJARAT
(Writ Petition (Civil) No. 708 of 2020)
B OCTOBER 01, 2020
[DR. DHANANJAYA Y CHANDRACHUD,
INDU MALHOTRA AND K.M. JOSEPH, JJ.]
Factories Act, 1948 – ss.5, 51, 54, 55 and 56 – Constitution
of India – Arts. 352, 355 and 356 – A trade union with a state-wide
C
presence and another with a national presence u/Art.32 of the
Constitution challenged the validity of the State’s notifications dated
17.04.2020 and 20.07.2020 – The notification dated 17.04.2020
issued u/s.5 of the Factories Act exempted all registered factories
‘from various provisions relating to weekly hours, daily hours,
D intervals for rest etc. for adult workers’ u/ss. 51, 54, 55 and 56 –
The State Government issued another notification on 20.07.2020
and extended the exemption granted to factories from 20.07.2020
till 19.10.2020 – The State 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
E
– It was further contended that the COVID-19 pandemic is a ‘public
emergency’ as defined in s.5 of the Factories Act – Held: The power
u/s.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
F 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
which precede it – They are indicative of the gravity of the cause
G
which threatens the security of India or a part of its territory – An
internal disturbance must be of a similar gravity – In the instant
case, the economic slowdown created by COVID-19 pandemic does
not qualify as an internal disturbance threatening the security of
the State – The notifications in question make significant departures
H from the mandate of the Factories Act – They (i) increase the daily
886
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 887
limit of working hours from 9 hours to 12 hours; (ii) increase the A
weekly work limit from 48 hours to 72 hours, which translates into
12 hours 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
B
rate proportionate to the ordinary rate of wages, instead of overtime
wages at the rate of double the ordinary rate of wages as provided
u/s.59 – The notifications legitimize the subjection of workers to
onerous working condiditions at a time when their feeble bargaining
power stands whittled by the pandemic – Clothed with exceptional
powers u/s.5, the State cannot permit workers to be exploited in a C
manner that renders the hard-won protections of the Factories Act
illusory – Therefore, the notifications dated 17.04.2020 and
20.07.2020 are quashed and the overtime wages of all the eligible
workers are directed to be paid, in accordance with the provisions
of s.59 of the Factories Act who were working since the issuance of
D
the notifications.
The Factories Act, 1948 – Scheme and objects – discussed.
Labour Law – Labour welfare – Social and Economic Value
of ‘Overtime’ – discussed.
Labour Law – Constitution of India – Constitution vision of E
social and economic democracy – discussed.
Allowing the Writ Petition, the Court
HELD: 1. The power under Section 5 of the Factories Act
can be exercised in a “public emergency”. The explanation states F
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 G
context, or be read in a manner divorced from the other two
expressions 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.
H
888 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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. [Para 19][906-C-E]
B 2. Even if this Court accepts the Respondent’s argument at
its highest, that the pandemic has resulted in an internal
disturbance, this Court finds 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,
C 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. 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
D 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
E 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. [Para 28]
F [910-F-H; 911-A-B]
3. 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
G 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
H
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 889
definition, and yet embody similar roles within the establishments. A
These permissible interpretations have been aligned with the
intention of the legislature which has a vital concern in preventing
exploitation of labour. [Para 30][912-D-F]
4. The notifications in question, besides specifically
exempting all factories from the applicability of Sections 51, 54, B
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 days of rest, intervals between
stretches of work and adequate compensation for overtime. The C
notifications, putatively, are a response to the COVID-19
pandemic and exempt all factories from the provisions of Sections
51, 54, 55 and 56. [Para 31][912-F-H]
5. The notifications make significant departures from the
mandate of the Factories Act. They (i) increase the daily limit of D
working hours from 9 hours to 12 hours; (ii) increase the weekly
work limit from 48 hours to 72 hours, 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 E
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. [Para 33][914-B-D]
6. The impugned notifications do not serve any purpose, F
apart from reducing the overhead costs of all factories in the State,
without regard to the nature of their manufactured products. It
would be fathomable, and within the realm of reasonable possibility
during a pandemic, if the factories producing medical equipment
such as life-saving drugs, personal protective equipment or
sanitisers, would be exempted by way of Section 65(2), while justly G
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
H
890 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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. [Para
36][915-A-C]
7. The expression ‘worker’ as defined in the Factories Act,
B is broad enough to include persons who are indirectly employed
as contract labour and contribute to the manufacturing process at
the establishment. 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
C 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
D 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. [Para 43][921-B-C;
922-A-B]
E
8. 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
F 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’
G 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. [Para 45][924-C-E]
H
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 891
K S Puttaswamy v. Union of India (2017) 10 SCC A
1 : [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.
B
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 SC
740 : [1966] SCR 709 ; S M Datta v. State of Gujarat
(2001) 7 SCC 659 : [2001] 2 Suppl. SCR 140 ; Y A
Mamarde v. Authority under the Minimum Wages Act C
(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 1963
SC 1103 : [1963] Suppl. SCR 627 ; National Thermal
Power Co-operation v. Karri Pothuraju (2003) 7 SCC D
384 : [2003] 2 Suppl. SCR 426 ; Barat Fritz Werner
Ltd. v. State of Karnataka, (2001) 4 SCC 498 : [2001]
1 SCR 835 ; State of Madras v. V G Row AIR 1952 SC
196 : [1952] SCR 597 – referred to.
I.T.C. Ltd. v. Regional Provident Fund Commissioner ILR E
(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 Assembly
Debates, Volume 7 on November 19, 1948 – referred F
to.
Case Law Reference
[2017] 10 SCR 569 followed Para 9
[1994] 2 SCR 644 followed Para 14 G
[2016] 4 SCR 909 relied on Para 15
(2020) 3 SCC 637 referred to Para 18
H
892 SUPREME COURT REPORTS [2020] 13 S.C.R.
A [1950] 1 SCR 594 followed Para 20
[1966] SCR 709 relied on Para 21
[1963] Suppl. SCR 627 referred to Para 26
[2001] 2 Suppl. SCR 140 relied on Para 29
B [1964] SCR 860 followed Para 37
[1973] 1 SCR 161 relied on Para 39
[2003] 2 Suppl. SCR 426 referred to Para 43
[2001] 1 SCR 835 referred to Para 43
C
[1952] SCR 597 referred to Para 44
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
708 of 2020
(Under Article 32 of the Constitution of India)
D Tushar Mehta, SG, Sanjay Singhvi, Sr. Adv., Ms. Aparna Bhat,
Ms. Karishma Maria, Ms. Deepanwita Priyanka, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
E
Index
A The Notifications
B Grounds of challenge
F 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
G
G Social and economic value of ‘overtime’
H constitutional vision of social and economic democracy
I summation
H
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 893
[DR. DHANANJAYA Y CHANDRACHUD, J.]
1.Invoking its powers under Section 5 of the Factories Act, 19481, A
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-
B
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 C
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 D
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: E
“…NOW, THEREFORE, in exercise of the powers conferred by
Section 5 of the Factories Act, 1948 (LXIII of 1948), the
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 F
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 G
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
1
“Factories Act” H
894 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B 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
C 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
D 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.
4. Leading the submissions of the petitioners, Mr Sanjay Singhvi,
learned Senior Counsel, along with Ms Aparna Bhat, learned Counsel
submits that:
E
(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
F 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
G 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
2
Both the notifications dated 17 April 2020 and 20 July 2020 were issued by the Labour
H and Employment Department of the State of Gujarat
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 895
[DR. DHANANJAYA Y CHANDRACHUD, J.]
reference to the expression ‘internal disturbance’, there is a 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 B
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 C
to extract more work from the workers without paying them
their overtime wages in onerous working conditions;
(vi) Section 5 contemplates an exemption only to an individual
factory or to a class of factories, and not a blanket exemption
that extends to all factories; D
(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 E
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 F
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
G
(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.
H
896 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 5. Opposing these submissions, Ms Deepanwita Priyanka, learned
Counsel appearing on behalf of the State of Gujarat, has made an earnest
effort to 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:
B
(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;
C (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;
D
(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
E 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
F overtime work in proportion to the existing wages;
(v) Section 5 of the Factories Act confers the power of exemption
to the State Government to exempt any factory or class of
factories from its provisions. The State Government has the
prerogative to determine whether all or only a class or
G 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
H an exceptional pressure of work;
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 897
[DR. DHANANJAYA Y CHANDRACHUD, J.]
(vii) The notifications have been issued under Section 5 of the A
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
B
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
C
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.
D
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 E
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 F
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 G
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.
H
898 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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.”
B (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)
C the period of time over which the exemption may operate; and (vi) the
manner in which the exemption has to be notified. An exemption can be
granted “in any case of public emergency”. The existence of a public
emergency is a pre-requisite to the exercise of the power. Whether there
exists a public emergency is not left to the subjective satisfaction of the
state government. The absence of the expression “subjective satisfaction”
D 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
E
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
F 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
G 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.
Implicitly therefore, the statutory provision incorporates the principle of
H proportionality.
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 899
[DR. DHANANJAYA Y CHANDRACHUD, J.]
9. The principle of proportionality has been recognized in a slew A
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 B
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 C
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 D
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
E
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 conformity with the scope of power envisaged under Section 5
of the Factories Act.
D Precedent on ‘public emergency’ and ‘security of the
F
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 G
amendment, read as follows:
“352. Proclamation of Emergency: (1) If the President is satisfied
that a grave emergency exists whereby the security of India
3
(2017) 10 SCC 1, para 325 H
900 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B 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
C 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
powers under Article 352 to prevent their abuse. Pursuant to this
D 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
E 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.
F
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
G 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
H
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 901
[DR. DHANANJAYA Y CHANDRACHUD, J.]
states against external aggression and internal disturbance and to ensure A
their functioning in accordance with the Constitution.
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: B
“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 C
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; D
(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 E
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, F
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 G
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
4
[1994] 2 S.C.R 644 H
902 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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 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
B
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
C 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
D
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
E 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
F 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.
G (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
5
H (2016) 14 SCC 578 2
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 903
[DR. DHANANJAYA Y CHANDRACHUD, J.]
the impact of the Forty-fourth amendment which substituted the expression A
“armed rebellion” for “internal disturbance’, the Court held that:
“66. The impact of the above substitution of words was the subject-
matter of consideration by a Constitution Bench of this Court in
Naga People’s Movement of Human Rights v. Union of India.
It was held therein that though an internal disturbance is a B
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 C
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 D
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
E
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 F
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 G
nature that the government of a state cannot be carried on in accordance
with the Constitution.
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: H
904 SUPREME COURT REPORTS [2020] 13 S.C.R.
A “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
B 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
C 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
D 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
E 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.
F 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
G 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.
H […]
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 905
[DR. DHANANJAYA Y CHANDRACHUD, J.]
6.4.11 The following are some instances of physical break- down: A
[…]
(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 B
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 C
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.” D
(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 E
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 F
the 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 order
interception of messages.— (1) * * * G
(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
H
906 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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.
B
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
C 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
D from its context, or be read in a manner divorced from the other two
expressions 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’.
E 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
F
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
G 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.
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
H Article 19(2)]
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 907
[DR. DHANANJAYA Y CHANDRACHUD, J.]
that of ‘public order’. Justice Patanjali Sastry, speaking for the court A
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 B
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 C
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 D
of public peace or tranquillity may assume such grave
proportions as to threaten the security of the State.
8. As Stephen in his Criminal Law of England observes: “Unlawful
assemblies, riots, insurrections, rebellions, levying of war, are
offences which run into each other and are not capable of being
E
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 F
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 G
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 H
908 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B
(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
C 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
D 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)
21. The difference between law and order, public order and security
E 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
F 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
G 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)
10
H AIR 1966 SC 740
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 909
[DR. DHANANJAYA Y CHANDRACHUD, J.]
E Interpreting ‘public emergency’ in Section 5 of the A
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 B
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. C
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. D
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
E
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. F
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. G
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 exercise of powers under Section 5 of the Factories
Act is challenged as ultra vires the Factories Act. H
910 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B
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
C 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.
D 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 to gear up the industrial
E 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
F 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
G 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
11
AIR 1963 SC 1103
H 12
Ministry of Home Affairs, Order No. 40-3/2020-DM-I(A) dated 24 March 2020
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 911
[DR. DHANANJAYA Y CHANDRACHUD, J.]
by COVID–19 certainly pose unprecedented challenges to governance. A
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
B
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.
F Scheme and Objects of the Factories Act, 1962
C
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 D
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 E
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 F
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 G
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
13
(2001) 7 SCC 659 H
912 SUPREME COURT REPORTS [2020] 13 S.C.R.
A the legislature, subsequently however, the Bill was adopted as an
Act. No sooner however, the Act was passed, agitation started
afresh in Bombay and other places and on the basis of the report
of a Committee, the Indian Factories (Amendment) Act of 1891
was passed. The provisions of the amended Act were also
inadequate and a somewhat revised Bill was subsequently
B
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
C 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.”
D 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
E 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
F 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
G Chapter, broadly concerned with worker productivity and fair
remuneration, prescribes working hours, mandatory 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:
H
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 913
[DR. DHANANJAYA Y CHANDRACHUD, J.]
“51. Weekly hours — No adult worker shall be required or A
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: B
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 C
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 D
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 E
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.”
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. G
(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.
H
914 SUPREME COURT REPORTS [2020] 13 S.C.R.
A (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).”
B 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 hours, which translates into 12 hour work-days on 6 days of
the week; (iii) negate the spread over of time at work including rest
C 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.
D 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, with its attendant shortages,
bottlenecks and, in India, famine as well. Section 64(2) of the Factories
E 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
F 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.
G
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
H and take sufficient measures to safeguard the said factories and
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 915
[DR. DHANANJAYA Y CHANDRACHUD, J.]
establishments in carrying out essential activities”. A
36. We are unable to find force in the arguments of the learned
counsel for the Respondent. The impugned notifications do not serve
any purpose, apart from reducing the overhead costs of all factories in
the State, without regard to the nature of their manufactured products. It
would be fathomable, and within the realm of reasonable possibility during B
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 C
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 D
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:
E
“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 F
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, G
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 restrictions for the benefit of workers who in the
14
AIR 1963 SC 1591 H
916 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B
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.( e m p h a s i s
supplied)
38. The need for protecting labour welfare on one hand and
C 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
D 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
E 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 significant additional
labour that is utilized by a worker, after having toiled in the ordinary
F 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
G 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
H 15
(1972) 2 SCC 108
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 917
[DR. DHANANJAYA Y CHANDRACHUD, J.]
favoured members appears to be in supersession of the old principle A
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 B
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 C
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 D
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 E
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 F
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 industrial
legislation in the country in the background of the Directive
Principles contained in our Constitution the minimum rates G
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) H
918 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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:
B “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
C 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,
D 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
E 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
F 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
remuneration are fixed for work being done during the
additional hours and overtime hours. While remuneration
G 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
16
H ILR (1988) 1 P&H 73
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 919
[DR. DHANANJAYA Y CHANDRACHUD, J.]
hours is not considered as an overtime allowance and two A
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) B
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 C
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 D
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 E
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 F
superior bargaining position vis-a-vis the workmen by
making them to work for more than 50 hours of overtime
work. It cannot now claim that despite the fact that workmen
have rendered service for more than 50 hours of overtime wages
should be denied to them because the workmen became a party to
the violation of that embargo. Having taken advantage by violating G
the provisions of law, the employer cannot now plead that the
workmen should be denied benefit of their extra work.”
(emphasis supplied)
17
(1994) 1 LLN 256 H
920 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B 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
C 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
D 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 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
E compelling than in the study of directive principles 20…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
F 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
18
Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University
G Press, 1966) at page 63
19
Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University
Press, 1966) at pages 74- 77
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
H ibid at pages 366-367
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 921
[DR. DHANANJAYA Y CHANDRACHUD, J.]
seeks to uphold Articles 38,22 39,23 42,24 and 4325 of the Constitution. It A
does so by attempting to neutralize the excesses in the skewed power
dynamics between the managements of factories and their workmen by
ensuring decent 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
B
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 C
employed or contracted with factories) were forced to abandon their
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 D
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 E
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; F
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,
G
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.”
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 H
922 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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
B
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
C securing true equality and dignity to them. Workers in the organized and
unorganized sectors of the economy face basic questions about survival
and security. The unprecedented nature of these challenges is matched
only by the unanticipated nature of the pandemic. The challenges will
need to be addressed with ingenuity and commitment. The framers of
D 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:
E
“..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
F 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
G 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
27
Dr B R Ambedkar, Constituent Assembly Debates, Volume 7 on November 19, 1948
28
H ibid
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT 923
[DR. DHANANJAYA Y CHANDRACHUD, J.]
ways of thinking, with regard to the reaching of the ideal of A
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 B
models of economic democracy would not in the vision of the Framers
allow a disregard of 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 C
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’. D
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) E
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
F
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 G
as the phrase sounds, judges must constantly remind themselves of its
value through their tenures, if the call of the constitutional conscience is
to retain meaning. The ‘right to life’ guaranteed to every person under
Article 21, which includes a worker, would be devoid of an equal
29
AIR 1952 SC 196 H
924 SUPREME COURT REPORTS [2020] 13 S.C.R.
A 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.
B
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
C 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
D 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
E 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 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
F 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.
G
Ankit Gyan Writ Petition allowed.
H
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