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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:

(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;

(ix) The notifications do not specifically exempt the application of Section 59 of the Factories Act which mandates payment of double the wages for overtime. Yet they make overtime wages proportionate to the existing wages, which also violates the spirit of the Minimum Wages Act, 1948 and amounts to forced labour violating the workers’ fundamental rights under Article 23, 21 and 14; and

(x) Three industrial accidents are reported to have occurred on 7 May 2020 at Vishakapatnam, Chattisgarh and Neyveli in hazardous industries which reopened after the lockdown with a skeletal workforce. The notifications in question will lead to similar disasters. 5 Opposing these submissions, Ms Deepanwita Priyanka, learned Counsel appearing on behalf of the State of Gujarat, has made an earnest effort to  PART B persuade this Court to hold that the notifications are not ultra vires the Factories Act or unconstitutional. The submissions of Ms. Priyanka have been supported by Mr Tushar Mehta, Solicitor General of India. The submissions are summarized below:

AIR 1966 SC 740  PART E 23 The question before the Court in this petition is whether the COVID-19 pandemic and the ensuing lockdown imposed by the Central Government to contain the spread of the pandemic, have created a public emergency as defined by the explanation to Section 5 of the Factories Act.

24 The global pandemic caused by COVID-19 is an unprecedented situation with which countries all over the world are grappling. In India, the Central Government imposed a nationwide lockdown on 24 March 2020 for an initial period of 21 days to take effective measures to contain the spread of COVID-19, including, maintenance of essential supplies and services and healthcare facilities. The lockdown was subsequently extended until 31 May 2020. During the lockdown, economic activity in the country was brought to a standstill. There was a widespread migration of labour from the cities, where all avenues for work had closed. There was an unprecedented human migration, countless of the marginalized on foot, to rural areas in search of the bare necessities to sustain life. There has been a loss of incomes and livelihood. The brunt of the pandemic and of the lockdown has been borne by the working class and by the poorest of the poor. Bereft of social security, they have no fall back options. The respondent has in exercise of its powers under Section 5 of the Factories Act issued the impugned notifications purportedly to provide a fillip to industrial and commercial activities.