Case BriefsSupreme Court

“To provide food security to impoverished persons is the bounden duty of all States and Governments.”

Supreme Court: The bench of Ashok Bhushan* and MR Shah, JJ has issued extensive directions to ensure the welfare of the migrant labourers who have been severely affected due to the outbreak of the COVID-19 pandemic.

Both, in the first and the second wave of the pandemic, migrant workers had been exposed to financial and other forms of hardships due to their limited access and claim to the welfare resources offered by the States/Union Territories. The migrant labourers are particularly vulnerable to the economic regression.

The Court, hence, noticed that,

“Our Constitution enjoins that the ownership and control of the material resources of the community are for promoting welfare of the people by securing social and economic justice to the weaker section so as to sub-serve the common good to minimize inequalities in income and endeavour to eliminate inequality in status.”

Hence, in order to ensure the unorganised/migrant labourers have access to at-least bare necessities of life, the Court issued the following directions:

(i) Portal for for registration of the unorganized labourers/migrant workers

    • The Central Government to develop the Portal in consultation with National Informatics Centre (NIC) for registration of the unorganized labourers/migrant workers.
    • The Central Government as well as the respective States and the Union Territories to complete the process of Portal for registration under National Data Base for Unorganised Workers (NDUW Project) as well as implement the same, which by all means may commence not later than 31.07.2021.
    • The process of registration of the unorganized labourers/migrant workers is completed at the earliest, but not later than 31.12.2021.
    • All the concerned States/Union Territories and the Licence Holders/Contractors and others to cooperate with the Central Government to complete the process of registration of migrant workers and unorganized labourers so that the benefits of the welfare schemes declared by the Central Government/State Governments/ Union Territories be available to migrant workers and unorganized labourers for whose benefits the welfare schemes are declared.

(ii) The Central Government having undertaken to distribute additional quantity of foodgrains as demanded by the States/Union Territories for distribution to migrant labourers under some Scheme framed by the States, we direct the Central Government, Department of Food and Public Distribution (Ministry of Consumer Affairs, Food and Public Distribution) to allocate and distribute foodgrains as per demand of additional food-grains from the States for disbursement of dry foodgrains to migran labourers.

(iii) States to bring in place an appropriate scheme for distribution of dry ration to migrant labourers for which it shall be open for States to ask for allocation of additional foodgrains from the Central Government, which, as directed above, shall provide the additional foodgrains to the State. The State shall consider and bring an appropriate Scheme, which may be implemented on or before 31.07.2021. Such scheme may be continued and operated till the current pandemic (Covid-19) continues.

(iv) The States, who have not yet implemented “One Nation One Ration Card” scheme are directed to implement the same by not later than 31.07.2021.

(v) The Central Government may undertake exercise under Section 9 of the National Food Security Act, 2013 to re-determine the total number of persons to be covered under the Rural and Urban areas of the State.

(vi) All the States/Union Territories to register all establishments and license all contractors under the Act, 1979 and ensure that statutory duty imposed on the contractors to give particulars of migrant workers is fully complied with.

(vii) The State/Union Territories are directed to run community kitchens at prominent places where large number of migrant labourers are found for feeding those migrant labourers who does not have sufficient means to procure two meals a day. The running of the community kitchen should be continued at-least till pandemic (Covid-19) continues.

[IN RE: PROBLEMS AND MISERIES OF MIGRANT LABOURERS, 2021 SCC OnLine SC 441, decided on 29.06.2021]


*Judgment by: Justice Ashok Bhushan

Appearances before the Court:

Tushar Mehta, Solicitor General for India, Dushyant Dave and Colin Gonsalves, senior counsel

Case BriefsCOVID 19Supreme Court

“A worker’s right to life cannot be deemed contingent on the mercy of their employer or the State.”

Supreme Court: The 3-judge bench of Dr. DY Chandrachud. Indu Malhora and KM Joseph, JJ quashed the Notification dated July 20, 2020 issued by the Labour and Employment Department of State of Gujarat under Section 5 of the Factories Act to exempt all factories registered under the Act “from various provisions relating to weekly hours, daily hours, intervals for rest etc. for adult workers” under Sections 51, 54, 55 and 56 till October 19, 2020.

“This Court is cognizant that the State of Gujarat 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.”

The Court, hence, directed 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.


NOTIFICATION

On 17 April 2020, the Labour and Employment Department of the State of Gujarat issued a notification with the aim to provide “certain relaxations for industrial and commercial activities” from 20 April 2020 till 19 July 2020. On its lapse by the efflux of time, the State government issued another notification on 20 July 2020 . Similar in content, the new notification extended the exemption granted to factories from 20 July 2020 till 19 October 2020.


POWER UNDER SECTION 5 OF THE FACTORIES ACT, 1962 AND THE PRE-REQUISITE OF ‘PUBLIC EMERGENCY’

NOTE: Section 5 of the Factories Act provides that in a public emergency, the State Government can exempt any factory or class or description of factories from all or any of the provisions of the Act, except Section 67.

The Court noticed that the existence of a public emergency is a pre-requisite to the exercise of the power. Whether there exists a public emergency is not left to the subjective satisfaction of the state government. The absence of the expression “subjective satisfaction” in Section 5 is crucial.

“The existence of a public emergency must hence be demonstrated as an objective fact, when its existence is questioned in a challenge to the exercise of the power. Left to itself, the expression ‘public emergency’ may have a wide and, as we say in law, an elastic meaning.”

Under Section 5 a situation can qualify as a public emergency’, only if the following elements are satisfied:

  • there must exist a “grave emergency”;
  • the security of India or of any part of its territory must be “threatened” by such an emergency; and
  • the cause of the threat must be war, external aggression or internal disturbance.

It was, hence, noticed,

“The co-relationship between the cause and effect must exist. Implicitly therefore, the statutory provision incorporates the principle of proportionality.”


PRECEDENT ON ‘PUBLIC EMERGENCY’ AND ‘SECURITY OF THE STATE’

The power under Section 5 of the Factories Act can be exercised in a “public emergency”. The explanation states that to constitute a public emergency, there must be a grave emergency. The emergency must be of such a nature as to threaten the security of India or a part of its territory. The threat to the security of India or a part of the territory must be caused by war, external aggression or an internal disturbance. The expression ‘internal disturbance’ cannot be divorced from its context or be read in a manner divorced from the other two expressions 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.

“… 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.”


IS COVID-19 A ‘PUBLIC EMERGENCY’IN TERMS OF SECTION 5 OF THE FACTORIES ACT, 1962?

“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 Court noticed that global pandemic caused by COVID-19 is an unprecedented situation with which countries all over the world are grappling. In India, when the Central Government imposed a nationwide lockdown to take effective measures to contain the spread of COVID-19, there was a widespread migration of labour from the cities, where all avenues for work had closed. There was an unprecedented human migration, countless of the marginalized on foot, to rural areas in search of the bare necessities to sustain life. There has been a loss of incomes and livelihood.

“The 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.”

The Court said that even if it accepted the argument of the State that the pandemic has resulted in an internal disturbance, it cannot be said that the economic slowdown created by the COVID-19 pandemic would qualify as an internal disturbance threatening the security of the state.

“The pandemic has put a severe burden on existing, particularly public health, infrastructure and has led to a sharp decline in economic activities. The Union Government has taken recourse to the provisions of the Disaster Management Act, 2005.12 However, it has not affected the security of India, or of a part of its territory in a manner that disturbs the peace and integrity of the country.”

The economic hardships caused by COVID–19 certainly pose unprecedented challenges to governance. However, such challenges are to be resolved by the State Governments within the domain of their functioning under the law, in coordination with the Central Government. Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are to be used sparingly under the law.

“Recourse can be taken to them only when the conditions requisite for a valid exercise of statutory power exist under Section 5. That is absent in the present case.”

It was further noticed that the impugned notifications do not serve any purpose, apart from reducing the overhead costs of all factories in the State, without regard to the nature of their manufactured products. It would be fathomable, and within the realm of reasonable possibility during a pandemic, if the factories producing medical equipment such as life-saving drugs, personal protective equipment or sanitisers, would be exempted by way of Section 65(2) of the Factories Act, while justly compensating the workers for supplying their valuable labour in a time of urgent need.

“A blanket notification of exemption to all factories, irrespective of the manufactured product, while denying overtime to the workers, is indicative of the intention to capitalize on the pandemic to force an already worn-down class of society, into the chains of servitude.”


SOCIAL AND ECONOMIC VALUE OF ‘OVERTIME’

The Indian Constitution is born from a transformative vision which aims to achieve social and economic democracy. Labour welfare is an integral element of that vision.The need for protecting labour welfare on one hand and combating a public health crisis occasioned by the pandemic on the other may require careful balances. But these balances must accord with the rule of law. A statutory provision which conditions the grant of an exemption on stipulated conditions must be scrupulously observed.

“It cannot be interpreted to provide a free reign for the State to eliminate provisions promoting dignity and equity in the workplace in the face of novel challenges to the state administration, unless they bear an immediate nexus to ensuring the security of the State against the gravest of threats.”

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.


CONSTITUTIONAL VISION OF SOCIAL AND ECONOMIC DEMOCRACY

“Ideas of ‘freedom’ and ‘liberty’ in the Fundamental Rights recognized by the Constitution are but hollow aspirations if the aspiration for a dignified life can be thwarted by the immensity of economic coercion.”

The Factories Act is an integral element of the vision of state policy which seeks to uphold Articles 38,22 39,23,24 and 25 of the Constitution. It does so by attempting to neutralize the excesses in the skewed power dynamics between the managements of factories and their workmen by ensuring decent working conditions, dignity at work and a living wage.

The Court said that the Constitution allows for economic experiments. Judicial review is justifiably held off in matters of policy, particularly economic policy. But the Directive Principles of State Policy cannot be reduced to oblivion by a sleight of interpretation.

“To a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that this Court can ensure them.”

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.


CONCLUSION

The Court quashed the Notifications and said that Section 5 of the Factories Act could not have been invoked to issue a blanket notification that exempted all factories from complying with humane working conditions and adequate compensation for overtime, as a response to a pandemic that did not result in an ‘internal disturbance’ of a nature that posed a ‘grave emergency’ whereby the security of India is threatened. In any event, no factory/ classes of factories could have been exempted from compliance with provisions of the Factories Act, unless an ‘internal disturbance’ causes a grave emergency that threatens the security of the state, so as to constitute a ‘public emergency’ within the meaning of Section 5 of the Factories Act.

The notifications in question legitimize the subjection of workers to onerous working conditions at a time when their feeble bargaining power stands whittled by the pandemic.

“Clothed with exceptional powers under Section 5, the state cannot permit workers to be exploited in a manner that renders the hard-won protections of the Factories Act, 1948 illusory and the constitutional promise of social and economic democracy into paper-tigers. It is ironical that this result should ensue at a time when the state must ensure their welfare.”

[Gujarat Mazdoor Sabha v. State of Gujarat, 2020 SCC OnLine SC 798, decided on 01.10.2020]

Case BriefsCOVID 19High Courts

Gujarat High Court: Paresh Upadhyay, J., while addressing a matter with regard to granting bail to the migrant workers who were locked in jails, stated that,

“instead of sending these labourers back to their hometown when they wished to go back due to no money, work and food, they were locked in jails.”

“These migrants are more the victims certainly not criminals.”

Present application was filed for regular bail. He was punishable for the offences under Sections 143, 144, 147, 148, 149, 186, 332, 333, 336, 337, 427 and 188 of Penal Code, 1860 and Section 135(1) of the Gujarat Police Act, Section 3 of Epidemic Act, 1897, Section 51(b) of the Disaster Management Act and Section 3(1) and 3(2)(e) of the Prevention of Damage to Public Property Act.

Advocates on behalf of the applicants submitted that  of the total 33 applicants, 32 are from the State of Jharkhand and one is from the State of West Bengal.

The stated applicants were migrant workers and in the new lockdown they were all without any work, money and food, thus under the said circumstances they wished to go back to their home which led to an untoward incident.

Since 18-05-2020, applicants are in jail.

“…fit case to exercise the discretion to release the applicants on bail, in exercise of powers under Section 439 of the Code of Criminal Procedure, 1973.”

-High Court

Court noted that instead of sending the above-stated labourers back to their home towns when they were out of money, food and work, they were locked up in the jails.

In view of the above, bench said that,

Applicants are more the victims, certainly not the criminals. Thus, the said applicants immediately needs to be set free on furnishing person bond without any conditions.

Thus, the application has been allowed. [Ravi v. State of Gujarat, 2020 SCC OnLine Guj 930, decided on 23-06-2020]

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ Ramesh Sinha, J. while issuing notice to the State of Uttar Pradesh called upon the State to provide the rehabilitation scheme for migrant workers, policy and norms for providing medical facilities to them and complete layout to reduce migration of the natives of Uttar Pradesh to other parts of the country.

Advocates for the petitioner, Gaurav Tripathi and Ritesh Srivastava by the instant petition have agitated the cause of “Migrant Labourers” who in their opinion are travelling on foot from their working place to hometown.

Neither the Central nor the State Governments, where the labourers were working made adequate arrangements for their movement and their families.

It is also reported that even at Railway Stations no food is available, hence, the people travelling in the trains known as “Shramik Special” are facing starvation.

They asserted that there is no term like “Migrant Labourer” or “Migrant Workmen”. Statute prescribes only the labourer or workmen hence, it was States responsibility where the workmen were working to provide necessities during the lockdown.

Present circumstances, as per the petitioners, is nothing but to put lakhs of workmen in a condition close to death without any fault on their part.

Petitioners stated that due to non- availability of basic infrastructure for employment in the State of Uttar Pradesh, lakhs of people use to migrate to the other States to earn their livelihood.

Present attitude of the State Governments where these people were working is contrary to the spirit of union and federal structure, therefore, it is more necessary for the State of Uttar Pradesh to strengthen its edifice for local employment.

Bench

Court with regard to the issue of transportation and providing food for so called ‘Migrant Labourers’ stated that Supreme Court taking suo moto cognizance on the said issue had already dealt with the same.

Further, Court deemed it appropriate to call upon the State to explain on the policy and norms for providing medical facilities and treatment to migrant workmen and their families alongwith the scheme for rehabilitation of migrant workmen and their families in the State of Uttar Pradesh.

State also directed to give a complete layout to reduce migration of the natives of Uttar Pradesh to other parts of the country to earn minimum livelihood.

Thus in view of the above Court issued notice to State of U.P. [Ritesh Srivastava v. State of U.P., 2020 SCC OnLine All 633 , decided on 26-05-2020]

Case BriefsCOVID 19Supreme Court

“We expect those concerned to appreciate the trepidation of the poor men, women and children and treat them with kindness.”

Supreme Court: The Central government has filed a status report in the Supreme Court on a petition seeking directions to provide basic amenities like food, water and shelter to the migrant workers across the country in the wake to coronavirus lockdown.

Yesterday, the bench of S A Bobde, CJ and L Nageswara Rao, J had sought a status report from the Centre on the measures taken in view of the large-scale migration of labourers from cities to their native villages amid the coronavirus outbreak and the consequent lockdown across the country. The Court is hearing the petition filed by advocate Alakh Alok Srivastava through video conferencing.

The report filed by Solicitor General Tushar Mehta stated that various measures have been taken by the Central Government in dealing with the needs of the lower strata of the society by providing basic amenities viz., food, clean drinking water, medicines, etc. SG submitted that that

SG also mentioned that the exodus of migrant labourers was triggered due to panic created by some fake/misleading news and social media. The labourers who are unemployed due to lock down were apprehensive about their survival. Panic was created by some fake news that the lock down would last for more than three months. The Centre, hence, sought direction to prevent fake and inaccurate reporting whether intended or not, either by electronic print or social medial which will cause panic in the society.

In order to ensure that the migrant labourers are being shifted to nearby shelters/relief camps from place they were found to be walking and basic amenities being provided to them, the Union of India has sought a direction to the State Governments and the Union Territories to implement the directions issued by the Central Government.

After considering the submissions and the status report, the Court said that it was satisfied with the steps taken by the Union of India for preventing the spread of Corona Virus [COVID 19] at this stage, however, it was not possible for it to overlook the menace of fake news either by electronic, print or social media which has caused untold suffering to those who believed and acted on such news. In fact, some have lost their lives in the process.

Asking Media to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated, the Court said,

“We do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments.”

A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people is to be made active within a period of 24 hours.

Gist of the Status Report filed by the Centre:

  • circular issued by the Ministry of Home Affairs on 29.03.2020 has been implemented by the various State Governments/Union Territories.
  • mass migration has stopped according.
  • All the migrant labourers who were on the road have been shifted to relief camps/shelter homes which are set up at various points in each State/Union Territory.
  • 6,66,291 persons have been provided shelters and 22,88,279 persons have been provided food
  • 21,064 relief camps have been set up by various State Governments/Union Territories where the migrant labourers have been shifted and they are being provided with basic amenities like food, medicines, drinking water, etc.
  • Directions are being complied with by the concerned District Collectors/Magistrates.
  • a daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people to be made active within a period of 24 hours.
  • within 24 hours the Central Government will ensure that trained counsellors and/or community group leaders belonging to all faiths will visit the relief camps/shelter homes and deal with any consternation that the migrants might be going through. This shall be done in all the relief camps/shelter homes wherever they are located in the country.

[Alakh Alok Srivastava v. Union of India, 2020 SCC OnLine SC 345, order dated 31.03.2020]

COVID 19Hot Off The PressNews

Supreme Court:  A bench of Chief Justice S A Bobde and Justice L Nageswara Rao has sought a status report from the Centre by Tuesday on the measures taken in view of the large-scale migration of labourers from cities to their native villages amid the coronavirus outbreak and the consequent lockdown across the country.

The court observed that the migration of labourers out of panic and fear is becoming a bigger problem than the coronavirus. It said the court would not create more confusion by issuing directions on measures that the government is already taking to deal with the issue.

The bench took up two separate PILs filed by advocates Alakh Alok Srivastava and Rashmi Bansal on the issue of migration of labourers through video-conferencing and said that before passing any direction, it would like to wait for the status report from the Centre.

Solicitor General Tushar Mehta, appearing for the Centre, said the migration of labourers needs to be stopped to prevent the spread of the virus and the Centre as well as the states concerned have taken the requisite steps to deal with it.

The bench posted the matters for hearing on Tuesday.

(Source: PTI)

Case BriefsCOVID 19High Courts

Orissa High Court: B. Rath, ACJ. addressed an issued placed before the Court with regard to movement of labourers/working class  from neighbouring States with no system being established to check if they are affected by the ‘Corona Virus (COVID-19)’.

Court Registry moved an issue with regard to appropriate direction to Odisha Government relating to prevention of COVID-19 pertaining of transportation of migrant workers from different state to State of Odisha.

Further it has been noted that, movement of labourers/working class from neighbouring states is a very serious problem. No system has been placed to check if any of these migrants have been affected by ‘Corona’. This would result in spread of the pandemic.

Court in the above view took this issue under PIL jurisdiction and directed the State Government to give direction to all bordering district Collectors and Superintendent of Police to make arrangement of stay, food and sanitation arrangement including medical check up of all such persons in the bordering districts itself.

It has also been suggested that the space of colleges and schools can also be occupied for the stated purpose. [Bijaya Kumar Ragada v. State of Odisha,  2020 SCC OnLine Ori 70, decided on 29-03-2020]