Supreme Court Justices D.Y. Chandrachud, Indu Malhotra and K.M. Joseph may well constitute the trio who are trying to recover the image of the Supreme Court, as the sentinel on the qui vive, which suffered a dent because of the criticism that it has not performed its role as it should have during the past few years. The court’s role in the immediate aftermath of the announcement of a national lockdown following the fear of coronavirus spread came in for intense scrutiny, with analysts admonishing the court’s abdication of its responsibility to mitigate the sufferings of migrant workers.On Thursday, the bench comprising the three judges showed how the court can be expected to render justice to those marginalised people, who suffered at the hands of the state’s discriminatory policies pursued in the wake of the pandemic, only because they were voiceless.In Gujarat Mazdoor Sabha v The State of Gujarat, the bench quashed two notifications issued by the Gujarat government on April 17 and July 20. 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, the bench held.The Gujarat government, invoking its powers under Section 5 of the Factories Act, 1948, exempted factories from observing some of the obligations which employers have to fulfil towards the workers employed by them. The state government justified its action on the ground that industrial employers are faced with financial stringency in the economic downturn resulting from the outbreak of COVID-19. Two trade unions challenged the validity of the notifications, which enabled the relaxation of the Act’s requirements under Section 5, before the Supreme Court. The Labour and Employment Department of the state government issued these notifications.The first notification issued on April 17 exempted 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 of the Act. The notification ostensibly aimed to provide certain relaxations for industrial and commercial activities from April 20 to July 19. On its lapse by the efflux of time, the state government issued another notification on July 20, extending the exemption till October 19. Had the Supreme Court not intervened in time, there could have been another extension after October 19.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. The explanation to Section 5 defines the expression ‘public emergency’ as a “grave emergency” which threatens the security of India or of any part of the territory by war, external aggression or internal disturbance. Applying the interpretative principle of noscitur a sociis, the expression ‘internal disturbance’ will have a meaning which derives content from ‘war’ and ‘external aggression’ which endangers the security of India and would not include a pandemic or a lockdown, the counsel for the petitioners contended.Though both Section 5 and the provisions of Article 352 of the Constitution (prior to its amendment in 1978) contain a reference to the expression ‘internal disturbance’, the bench noticed a crucial difference between them. Article 352 was premised on the satisfaction of the president while the power under Section 5 can be exercised only upon the objective existence of the conditions prescribed, the counsel noted.Also read: ‘We Have Been Sitting Idle’: Without Work, Migrants From Odisha Return to Surat MillsEven if a threat to the security of India were to exist as an objective fact, the notifications must, to be valid, ameliorate the threat, the counsel told the bench.The counsel argued that the purported justification of an economic chaos is a smokescreen to extract more work from the workers without paying them their overtime wages in onerous working conditions. They also told the bench that 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.The notifications did not specifically exempt the application of Section 59 of the Act which mandates payment of double the wages for overtime. Yet, they made overtime wages proportionate to the existing wages, which also violated the spirit of the Minimum Wages Act, 1948 and amounted to forced labour violating the workers’ fundamental rights under Articles 23, 21 and 14, the counsel told the bench.In particular, the counsel drew the bench’s attention to three man-made disasters that occurred on May 7 at Vishakapatnam, Chattisgarh and Neyveli in hazardous industries which reopened after the lockdown with a skeletal workforce. The notifications in question would have led to similar disasters, if not quashed.The bench, after interpreting Section 5, observed: “The brunt of the pandemic and 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 Gujarat government argued that the COVID-19 pandemic was leading to financial chaos and the situation was on the brink of internal disturbance. The state also urged that the economic slowdown caused by the pandemic constituted a “public emergency”, as mentioned in Section 5.A file photo of Supreme Court of India. Photo: PTIThe bench, however, disagreed, and found that the economic slowdown resulting from the pandemic does not qualify as an internal disturbance threatening the security of the state in a manner that disturbs the peace and integrity of the country. “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, the bench noted.The bench found that the notifications, besides specifically exempting all factories from the applicability of Sections 51, 54, 55 and 56, effectively overrode Section 59 of the 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.Thus under Section 51, no adult worker shall be required or allowed to work in a factory for more than 48 hours in any week. Section 54 mandates that 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 with a proviso permitting excess working hours to facilitate the change of shifts. Section 55 mandates half an hour rest after a period of five hours of work of adult workers. In any case, the length of the period of work without an interval cannot exceed six hours, under Section 55(2). Under Section 56, the total working hours including intervals cannot exceed 10 and a half hours in any day, though for reasons to be specified in writing, the spread over can be increased to 12 hours.Also read: Migrant, Mobility and the Missing VoteThe bench noted that the notifications made significant departures from the mandate of the Act. They increased the daily limit of working hours from nine hours to 12 hours; increased the weekly work limit from 48 hours to 72 hours, which translated into 12-hour work-days on six days of the week. They negated the spread over of time at work including rest hours, which is typically fixed at 10.5 hours and enabled an interval of rest every six hours, as opposed to five hours. Besides, they mandated 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.The bench concluded that the impugned notifications did 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. The bench thus asked why the factories producing medical equipment such as life-saving drugs, personal protective equipment or sanitisers could not have been exempted by way of Section 65(2), while justly compensating the workers for supplying their valuable labour in a time of urgent need. “However, a blanket notification of exemption to all factories, irrespective of the manufactured product, while denying overtime to the workers, is indicative of the intention to capitalise on the pandemic to force an already worn-down class of society, into the chains of servitude,” the bench observed.Referring to the transformative vision of the Indian Constitution, the bench emphasised the need for protecting labour welfare on one hand, and combating a public health crisis occasioned by the pandemic on the other with careful balancing, with due regard for the rule of law. A statutory provision which conditions the grant of an exemption on stipulated conditions must be scrupulously observed and 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 bench cautioned.The notifications in question legitimise the subjection of workers to onerous working conditions at a time when their feeble bargaining power stands whittled by the pandemic, the bench lamented. 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, the bench was categorical.The bench alerted the governments that the COVID-19 pandemic opens up unforeseen challenges in securing true equality and dignity to workers, who face basic questions about survival and security. Flexibility for succeeding generations to develop their models of economic democracy would not in the vision of the framers allow a disregard of socio-economic welfare, the bench held.Recalling Dr. Ambedkar’s defence of the word “strive” in Article 38 of the constitution, the bench emphasised the need for the governments to seek the fulfilment of the directive principles even in the midst of circumstances, “hard and unpropitious” which stand in the way of giving effect to them.Also read: COVID-19 Has Pushed the Indian Economy Into a Tailspin. But There’s a Way Out.To a worker who has faced the brunt of the pandemic and is currently labouring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that the Supreme Court can ensure them, the bench reasoned.Nudging other judges of the Supreme Court and high courts to constantly remind themselves of the value of the phrase “sentinel on the qui vive” in our jurisprudence, through their tenures, the bench underlined its relevance to ensure that the “call of the constitutional conscience” retains its meaning. 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.The bench, invoking its power under Article 142 of the Constitution, 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.Whether the state government and the factories comply with the judgment in letter and spirit is to be seen.