# GUJARAT MAZDOOR SABHA & ANR v. THE STATE OF GUJARAT

- **Citation:** [2020] 13 S.C.R. 886
- **Court:** Supreme Court of India
- **Decided:** 2020-10-01
- **Bench:** Dr. Dhananjaya Y Chandrachud, Indu Malhotra, K.M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gujarat-mazdoor-sabha-anr-v-the-state-of-gujarat-34379
- **Pages:** 39

## Headnote

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
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,
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
- 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
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 - 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
from the mandate of the Factories Act - They (i) increase the daily
[2020] 13 S.C.R. 886
886
A
B
C
D
E
F
G
H
887
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 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
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
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
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
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
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

## Text

_Characters 0–39,845 of 90,808. This is a partial read: ask again with offset=39845 for what follows._

A
B
C
D
E
F
G
H
886
SUPREME COURT REPORTS
[2020] 13 S.C.R.
GUJARAT MAZDOOR SABHA & ANR.
v.
THE STATE OF GUJARAT
(Writ Petition (Civil) No. 708 of 2020)
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
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,
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
- 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
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 - 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
from the mandate of the Factories Act - They (i) increase the daily
[2020] 13 S.C.R. 886
886
A
B
C
D
E
F
G
H
887
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 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
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
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
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
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
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.
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT
A
B
C
D
E
F
G
H
888
SUPREME COURT REPORTS
[2020] 13 S.C.R.
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]
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,
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
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. [Para 28]
[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
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
A
B
C
D
E
F
G
H
889
definition, and yet embody similar roles within the establishments.
These permissible interpretations have been aligned with the
intention of the legislature which has a vital concern in preventing
exploitation of labour. [Para 30][912-D-F]
4. The notifications in question, besides specifically
exempting all factories from the applicability of Sections 51, 54,
55 and 56, effectively override Section 59 of the Factories Act.
The above provisions form a part of Chapter VI which prescribes
the 'Working Hours of Adults'. The Chapter, broadly concerned
with worker productivity and fair remuneration, prescribes
working hours, mandatory 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. [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
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
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,
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
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
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT
A
B
C
D
E
F
G
H
890
SUPREME COURT REPORTS
[2020] 13 S.C.R.
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,
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
halt in production which cut-off their meagre source of income.
The notifications in question legitimize the subjection of workers
to onerous working conditions at a time when their feeble
bargaining power stands whittled by the pandemic. Clothed with
exceptional powers under Section 5, the state cannot permit
workers to be exploited in a manner that renders the hard-won
protections of the Factories Act, 1948 illusory and the
constitutional promise of social and economic democracy into
paper-tigers. It is ironical that this result should ensue at a time
when the state must ensure their welfare. [Para 43][921-B-C;
922-A-B]
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
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. [Para 45][924-C-E]
A
B
C
D
E
F
G
H
891
K S Puttaswamy v. Union of India (2017) 10 SCC
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.
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
(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
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
(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
to.
Case Law Reference
[2017] 10 SCR 569
followed
Para 9
[1994] 2 SCR 644
followed
Para 14
[2016] 4 SCR 909
relied on
Para 15
(2020) 3 SCC 637
referred to
Para 18
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT
A
B
C
D
E
F
G
H
892
SUPREME COURT REPORTS
[2020] 13 S.C.R.
[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
[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
[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)
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.
Index
A
The Notifications
B
Grounds of challenge
C
The power under Section 5 of the Factories Act, 1962
D
Precedent on 'public emergency' and 'security of the state'
E
interpreting 'public emergency' in Section 5
F
Scheme and objects of the Factories Act, 1962
G
Social and economic value of 'overtime'
H
constitutional vision of social and economic democracy
I
summation
A
B
C
D
E
F
G
H
893
1.Invoking its powers under Section 5 of the Factories Act, 19481,
the State of Gujarat has exempted factories from observing some of the
obligations which employers have to fulfil towards the workmen employed
by them. The government justifies the action on the ground that industrial
employers are faced with financial stringency in the economic downturn
resulting from the outbreak of COVID -19. A trade union with a statewide presence and another with a national presence are before this court
in a petition under Article 32 of the Constitution to challenge the validity
of the state's notifications dated 17 April 2020 and 20 July 2020.
A The Notifications
2. A nationwide lockdown was declared by the Central Government
from 24 March 2020 to prevent the spread of the COVID-19 pandemic.
Economic activity came to a grinding halt. The lockdown was extended
on several occasions, among them for the second time on 14 April 2020.
On 17 April 2020, the Labour and Employment Department of the State
of Gujarat issued a notification under Section 5 of the Factories Act to
exempt all factories registered under the Act "from various provisions
relating to weekly hours, daily hours, intervals for rest etc. for adult
workers" under Sections 51, 54, 55 and 56. The stated aim of the
notification was to provide "certain relaxations for industrial and
commercial activities" from 20 April 2020 till 19 July 2020. The notification
in its relevant part is extracted below:
"...NOW, THEREFORE, in exercise of the powers conferred by
Section 5 of the Factories Act, 1948 (LXIII of 1948), the
Government of Gujarat hereby directs that all the factories
registered under the Factories Act, 1948 shall be exempted from
various provisions relating to weekly hours, daily hours, intervals
for rest etc. of adult workers under section 51, section 54, section
55 and section 56 with the following conditions from 20th April till
19th July 2020,-
(1)
No adult worker shall be allowed or required to work in a
factory for more than twelve hours in any day and Seventy
Two hours in any week.
(2)
The Periods of work of adult workers in a factory each day
shall be so fixed that no period shall exceed six hours and
1 "Factories Act"
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
894
SUPREME COURT REPORTS
[2020] 13 S.C.R.
that no worker shall work for more than six hours before he
has had an interval of rest of at least half an hour.
(3)
No Female workers shall be allowed or required to work in a
factory between 7:00 PM to 6:00 AM.
(4)
Wages shall be in a proportion of the existing wages (e.g. If
wages for eight hours are 80 Rupees, then proportionate
wages for twelve hours will be 120 Rupees)."
On its lapse by the efflux of time, the State government issued
another notification on 20 July 20202. Similar in content, the new
notification extended the exemption granted to factories from 20 July
2020 till 19 October 2020.
B Grounds of challenge
3. The first Petitioner is a trade union registered under the Trade
Unions Act, 1926 and represents about ten thousand workers employed
in factories and industrial establishments in the State of Gujarat. The
second Petitioner is a federation of registered trade unions and represents
a hundred thousand workmen in factories and establishments across India.
4. Leading the submissions of the petitioners, Mr Sanjay Singhvi,
learned Senior Counsel, along with Ms Aparna Bhat, learned Counsel
submits that:
(i)
Section 5 of the Factories Act enables government to exempt
any factory, or a class of factories, from its provisions only
when a 'public emergency' exists;
(ii)
The explanation to Section 5 defines the expression 'public
emergency' as a "grave emergency" which threatens the
security of India or of any part of the territory by war, external
aggression or internal disturbance. Applying the interpretative
principle of noscitur a sociis, the expression 'internal
disturbance' will have a meaning which derives content from
'war' and 'external aggression' which endangers the security
of India and would not include a pandemic or a lockdown;
(iii)
Though both Section 5 and the provisions of Article 352 of
the Constitution (prior to its amendment in 1978) contain a
2 Both the notifications dated 17 April 2020 and 20 July 2020 were issued by the Labour
and Employment Department of the State of Gujarat
A
B
C
D
E
F
G
H
895
reference to the expression 'internal disturbance', there is a
crucial difference. Art 352 was premised on the satisfaction
of the President while the power under Section 5 can be
exercised only upon the objective existence of the conditions
prescribed;
(iv)
Even if a threat to the security of India were to exist as an
objective fact, the notifications must, to be valid, ameliorate
the threat;
(v)
Factories were open from 21 April 2020, which was the very
next day after the first notification came into force. The
purported justification of an economic chaos is a smokescreen
to extract more work from the workers without paying them
their overtime wages in onerous working conditions;
(vi)
Section 5 contemplates an exemption only to an individual
factory or to a class of factories, and not a blanket exemption
that extends to all factories;
(vii) Section 65(2), and not Section 5, of the Factories Act enables
suspension of Sections 51, 52, 54 and 56 to a class of factories
owing to 'exceptional pressure of work';
(viii) Even if Section 65(2) were to apply to account for the
exceptional pressure of work, a host of conditions under
Section 65(3) are attracted in order to ensure labour welfare
including a limit on weekly overtime and intervals between
work which the notifications fail to adopt;
(ix)
The notifications do not specifically exempt the application
of Section 59 of the Factories Act which mandates payment
of double the wages for overtime. Yet they make overtime
wages proportionate to the existing wages, which also violates
the spirit of the Minimum Wages Act, 1948 and amounts to
forced labour violating the workers' fundamental rights under
Article 23, 21 and 14; and
(x)
Three industrial accidents are reported to have occurred on
7 May 2020 at Vishakapatnam, Chattisgarh and Neyveli in
hazardous industries which reopened after the lockdown with
a skeletal workforce. The notifications in question will lead
to similar disasters.
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
896
SUPREME COURT REPORTS
[2020] 13 S.C.R.
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:
(i)
The State has issued the notifications by invoking its powers
under Section 5 of the Factories Act, under which it may
exempt any factory or class of factories from all or any
provisions of the Act in a public emergency;
(ii)
The COVID-19 pandemic is a 'public emergency' as defined
in Section 5 of the Factories Act. It has disturbed the "social
order of the country" and has threatened the even tempo of
life in the State of Gujarat as well. As a result of the outbreak,
emergency measures were required to be adopted to protect
the existence and integrity of the State of Gujarat;
(iii)
The COVID-19 pandemic has caused "extreme financial
exigencies" in the State. The lockdown caused a slowdown
in economic activities, leading to an 'internal disturbance' in
the State within the meaning of Section 5. The State
temporarily exempted factories and establishments from the
operation of labour laws such as the Factories Act to
overcome the financial crisis and to protect factories and
establishments;
(iv)
The notifications do not violate Section 59 of the Factories
Act as they impose the condition of payment of wages for
overtime work in proportion to the existing wages;
(v)
Section 5 of the Factories Act confers the power of exemption
to the State Government to exempt any factory or class of
factories from its provisions. The State Government has the
prerogative to determine whether all or only a class or
description of factories were to be exempted. Listing of all
classes of factories would have been an unnecessary
exercise;
(vi)
The notifications have not been issued under Section 65(2)
of the Factories Act, which can only be invoked to deal with
an exceptional pressure of work;
A
B
C
D
E
F
G
H
897
(vii) The notifications have been issued under Section 5 of the
Factories Act to ensure the maintenance of minimum
production levels in factories. No targets for production have
been fixed. Hence, there is no exceptional pressure of work
within the meaning of Section 65(2). The purpose of the
notifications is to deal with the COVID-19 pandemic and to
ensure that the core functions of the economy continue to
operate;
(viii) Under the notifications, workers are only allowed to work
for three additional hours than the normal work day. Factories
have also been directed to compensate the workers
proportionately for the extra working hours. There is no
exploitation of labour and factories are also able to sustain
themselves; and
(ix)
The notifications are not in violation of Articles 14, 21 and 23
of the Constitution.
C The power under Section 5 of the Factories Act, 1962
6. The issue for analysis is whether the notifications fall within the
ambit of the power conferred by Section 5 of the Factories Act. The
validity of the notifications depends on whether the COVID-19 pandemic
and the nationwide lockdown qualify as a 'public emergency' as defined
in Section 5. The statute provides both the language and the dictionary to
interpret it.
7. Section 5 of the Factories Act provides that in a public
emergency, the State Government can exempt any factory or class
or description of factories from all or any of the provisions of the
Act, except Section 67. Section 5 is extracted below:
"5. Power to exempt during public emergency.-In any case of
public emergency the State Government may, by notification in
the Official Gazette, exempt any factory or class or description of
factories from all or any of the provisions of this Act except section
67 for such period and subject to such conditions as it may think
fit:
Provided that no such notification shall be made for a period
exceeding three months at a time.
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
898
SUPREME COURT REPORTS
[2020] 13 S.C.R.
Explanation.-For the purposes of this section "public
emergency" means a grave emergency whereby the security
of India or of any part of the territory thereof is threatened,
whether by war or external aggression or internal
disturbance."
(emphasis supplied)
8. Section 5 specifies (i) when an exemption can be granted; (ii)
who can exercise the power to grant an exemption; (iii) who can be
exempted; (iv) the conditions subject to which an exemption can be
granted; (iv) the provisions from which an exemption can be allowed; (v)
the period of time over which the exemption may operate; and (vi) the
manner in which the exemption has to be notified. An exemption can be
granted "in any case of public emergency". The existence of a public
emergency is a pre-requisite to the exercise of the power. Whether there
exists a public emergency is not left to the subjective satisfaction of the
state government. The absence of the expression "subjective satisfaction"
in Section 5 is crucial. The existence of a public emergency must hence
be demonstrated as an objective fact, when its existence is questioned in
a challenge to the exercise of the power. Left to itself, the expression
'public emergency' may have a wide and, as we say in law, an elastic
meaning. But the statute as it stands does not leave the expression 'public
emergency' undefined. The explanation to Section 5 was introduced by
the Factories (Amendment) Act of 1976 - Amending Act 94 of 1976 -
with effect from 26 October 1976. Interestingly, it was an amendment
which was brought in during the internal emergency declared in June
1975 purportedly on account of "internal disturbances". The effect of
the explanation is to circumscribe the ambit of what constitutes a public
emergency. The explanation constricts the expression in two ways: first,
by confining it to specific causes; and second, by requiring that a
consequence must have emanated from those causes before the power
can be exercised. Under Section 5 a situation can qualify as a 'public
emergency', only if the following elements are satisfied: (i) there must
exist a "grave emergency"; (ii) the security of India or of any part of its
territory must be "threatened" by such an emergency; and (iii) the cause
of the threat must be war, external aggression or internal disturbance.
The existence of the situation must be demonstrated as an objective
fact. The co-relationship between the cause and effect must exist.
Implicitly therefore, the statutory provision incorporates the principle of
proportionality.
A
B
C
D
E
F
G
H
899
9. The principle of proportionality has been recognized in a slew
of cases by this Court, most notably in the seven-judge bench decision in
K S Puttaswamy vs. Union of India.3 The principle of proportionality
envisages an analysis of the following conditions in order to determine
the validity of state action that could impinge on fundamental rights:
(i)
A law interfering with fundamental rights must be in
pursuance of a legitimate state aim;
(ii)
The justification for rights-infringing measures that interfere
with or limit the exercise of fundamental rights and liberties
must be based on the existence of a rational connection
between those measures, the situation in fact and the object
sought to be achieved;
(iii)
The measures must be necessary to achieve the object and
must not infringe rights to an extent greater than is necessary
to fulfil the aim;
(iv)
Restrictions must not only serve legitimate purposes; they
must also be necessary to protect them; and
(v)
The State should provide sufficient safeguards against the
abuse of such interference.
However before adverting to an analysis on the proportionality of
the Respondent's action in issuing the notifications, it would be important
to determine, at the threshold, whether the notifications have been validly
issued, in conformity with the scope of power envisaged under Section 5
of the Factories Act.
D Precedent on 'public emergency' and 'security of the
state'
10. The originating causes of a 'public emergency' in Section 5 of
the Factories Act are similar to those which Article 352 of the Constitution
embodied, prior to its amendment by the Constitution (Forty-fourth
Amendment) Act, 1978. Articles 352 to 360 of the Constitution contain
emergency provisions. Article 352 of the Constitution, prior to its
amendment, read as follows:
"352. Proclamation of Emergency: (1) If the President is satisfied
that a grave emergency exists whereby the security of India
3 (2017) 10 SCC 1, para 325
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
900
SUPREME COURT REPORTS
[2020] 13 S.C.R.
or of any part of the territory thereof is threatened, whether
by war or external aggression or internal disturbance, he
may, by Proclamation, make a declaration to that effect."
(emphasis supplied)
11. The powers under Article 352 have been invoked thrice by the
President to declare an emergency. An emergency was declared for the
first time in 1962 due to the Chinese aggression on Indian territory. The
emergency was revoked in 1968. In 1971, when hostilities broke out with
Pakistan, an emergency was proclaimed by the President on the ground
that the security of India was threatened by external aggression. While
this proclamation was in force, another proclamation was issued by the
President on 25 June 1975 declaring that a "grave emergency exists
whereby the security of India is threatened by 'internal disturbance'."
Both these proclamations were revoked in March 1977. The Forty- fourth
amendment to the Constitution sought to limit recourse to emergency
powers under Article 352 to prevent their abuse. Pursuant to this
amendment, the expression "internal disturbance" was replaced with
"armed rebellion". Thus, a proclamation of emergency now cannot be
issued on a mere internal disturbance and must reach the threshold of an
armed rebellion threatening the security of India. The Parliamentary
amendments to Article 352 are the product of experience: experiences
gained from the excesses of the emergency, experiences about the
violation of human rights and above all, experiential learning that the
amalgam of uncontrolled power and unbridled discretion provide fertile
conditions for the destruction of liberty. The sobering lessons learnt from
our not-too-distant history should warn us against endowing a statute
with similar terms of a content which is susceptible of grave misuse.
12. The expression 'internal disturbance' finds place in Article
355 of the Constitution, as well. Article 355 of the Constitution provides:
"355. Duty of the Union to protect States against external aggression
and internal disturbance: It shall be the duty of the Union to protect
every State against external aggression and internal disturbance
and to ensure that the Government of every State is carried on in
accordance with the provisions of this Constitution."
Article 355 does not contemplate the proclamation of an
emergency or interference in the functioning of elected state governments.
It casts a duty on the Union Government to ensure the protection of the
A
B
C
D
E
F
G
H
901
states against external aggression and internal disturbance and to ensure
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:
"356. Provisions in case of failure of constitutional machinery in
States: (1) If the President, on receipt of a report from the Governor
of a State or otherwise, is satisfied that a situation has arisen in
which the Government of the State cannot be carried on in
accordance with the provisions of this Constitution, the President
may by Proclamation-
(a) assume to himself all or any of the functions of the Government
of the State and all or any of the powers vested in or exercisable
by the Governor or any body or authority in the State other than
the Legislature of the State;
(b) declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear
to the President to be necessary or desirable for giving effect to
the objects of the Proclamation, including provisions for suspending
in whole or in part the operation of any provisions of this Constitution
relating to any body or authority in the State:.."
14. The interpretation of Articles 352, 355 and 356 was discussed
by a seven- judge bench of this Court in S R Bommai vs. Union of
India4. Justice Sawant, writing for himself and Justice Kuldip Singh,
observed that:
"... Article 355 ... is not an independent source of power for
interference with the functioning of the State Government but is in
the nature of justification for the measures to be adopted under
Articles 356 and 357. What is however, necessary to
remember in this connection is that while Article 355
refers to three situations, viz., (i) external aggression,
(ii) internal disturbance, and (iii) non-carrying on of the
4 [1994] 2 S.C.R 644
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
902
SUPREME COURT REPORTS
[2020] 13 S.C.R.
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
or armed rebellion. The expression "internal disturbance"
is certainly of larger connotation than "armed rebellion"
and includes situations arising out of "armed rebellion" as
well. In other words, while a Proclamation of emergency
can be made for internal disturbance only if it is created by
armed rebellion, neither such Proclamation can be made
for internal disturbance caused by any other situation nor a
Proclamation can be issued under Article 356 unless the
internal disturbance gives rise to a situation in which the
Government of the State cannot be carried on in accordance
with the provisions of the Constitution. A mere internal
disturbance short of armed rebellion cannot justify a
Proclamation of emergency under Article 352 nor such
disturbance can justify issuance of Proclamation under
Article 356(1), unless it disables or prevents carrying on of
the Government of the State in accordance with the
provisions of the Constitution. [...]
The common thread running through all these Articles in Part XVIII
relating to emergency provisions is that the said provisions can
be invoked only when there is an emergency and the
emergency is of the nature described therein and not of any
other kind. The Proclamation of emergency under Articles 352,
356 and 360 is further dependent on the satisfaction of the President
with regard to the existence of the relevant conditions precedent.
The duty cast on the Union under Article 355 also arises in the
twin conditions stated therein.
(emphasis supplied)
15. In Extra-Judicial Execution Victim Families Association
vs. Union of India5, this Court considered whether the situation in Manipur
was of public order, internal disturbance or an armed rebellion. Analysing
5 (2016) 14 SCC 578 2
A
B
C
D
E
F
G
H
903
the impact of the Forty-fourth amendment which substituted the expression
"armed rebellion" for "internal disturbance', the Court held that:
"66. The impact of the above substitution of words was the subjectmatter of consideration by a Constitution Bench of this Court in
Naga People's Movement of Human Rights v. Union of India.
It was held therein that though an internal disturbance is a
cause for concern, it does not threaten the security of the
country or a part thereof unlike an armed rebellion which
could pose a threat to the security of the country or a part
thereof. Since the impact of a Proclamation of Emergency
under Article 352 of the Constitution is rather serious, its
invocation is limited to situations of a threat to the security
of the country or a part thereof either through a war or an
external aggression or an armed rebellion, but not an
internal disturbance. [...]
170. The conclusion therefore is that in the event of a war, external
aggression or an armed rebellion that threatens the security of the
country or a part thereof, it is the duty of the Union Government to
protect the States and depending on the gravity of the situation,
the President might also issue a Proclamation of Emergency. That
apart, the Union Government also has a duty to protect the States
from an internal disturbance. However the President cannot, in
the event of the latter situation, issue a Proclamation of Emergency
except by using the drastic power under Article 356 of the
Constitution which has in-built checks and balances."
(emphasis supplied)
16. The expression 'internal disturbance' must be interpreted in
the context in which it is used. Under Article 352, an internal disturbance
must be of the order of an armed rebellion threatening the security of
India to proclaim an emergency. Similarly, in order to sustain a valid
exercise of power under Article 356 on the ground of an internal
disturbance, it must be of such a nature as to disrupt the functioning of
the constitutional order of the State; in other words, it must be of such a
nature that the government of a state cannot be carried on in accordance
with the Constitution.
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:
GUJARAT MAZDOOR SABHA & ANR. v. THE STATE OF GUJARAT
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
904
SUPREME COURT REPORTS
[2020] 13 S.C.R.
"6.3.04 It is difficult to define precisely the concept of 'internal
disturbance'. Similar provisions, however, occur in the Constitutions
of other countries. Article 16 of the Federal Constitution of
Switzerland uses the expression "internal disorder". The
Constitutions of the United States of America and Australia use
the expression 'domestic violence'. The framers of the Indian
Constitution have, in place of this term, used the expression 'internal
disturbance'. Obviously, they have done so as they intended to
cover not only domestic violence, but something more. The scope
of the term 'internal disturbance' is wider than 'domestic violence'.
It conveys the sense of 'domestic chaos', which takes the
colour of a security threat from its associate expression,
'external aggression'. Such a chaos could be due to various
causes.