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Having failed to justify the COVID-19 Lockdown as a public emergency before the High Court, the Karnataka government had to withdraw the notification that exempted the registered factories in the state from adhering to Section 51 and Section 54 of the Factories Act, 1948 for three months. These provisions specify the maximum number of working hours that an adult worker in the factory is allowed to work for. The said notification intended to increase the maximum working hours from 8 to 10 per day and from 48 to 60 per week.
Significance of this development
Like Karnataka, various other States in India had also given out similar orders. And unlike Karnataka, states like Gujarat had exempted the industries from even overtime pay. Even a cursory glance at the notifications conveys that these were passed to make up for the lost profit during the lockdown days.
The way in which the High Court intended to stay the notification by the Karnataka government is significant because it upheld the original intent of Factories Act that is, Labor welfare. The Act never purported to handle the economic crisis caused by such a pandemic rather, it was enacted to “consolidate and amend the law regarding labor in the factories”, as stated by the preamble of the Factories Act, 1948.
Also, the withdrawal of the notification will make sure that a significant portion of the labor force is not rendered unemployed as it would have been if the industries had been allowed to extract more work from less number of employees.
What is public emergency under the Act?
Section 5 of the Factories Act, 1948 defines public emergency as 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”. Thus, the state government has been empowered to exempt any factory or class or description of factories from all or any of the provisions of this Act except Section 67 which prohibits employment of young children. The period of exemption must not exceed three months at a time.
It has been argued that the public health chaos posed by COVID-19 cannot be treated as a threat to the security of India. Also, the lockdown cannot be interpreted as an internal disturbance as the explanation to Section 5 clearly illustrates the situation of public emergency by citing war and external aggression as examples. And by the principle of ejusdem generis, the meaning of internal disturbance may only extend to a war like or a law and order situation thus, there exists no public emergency which shall exempt the factories from sticking to provisions aimed at labor welfare.
Meanwhile, the issue over the ambit of internal disturbance is again up for debates. Emphasis has been placed on how Sarkaria Commission explained internal disturbance in 1983. The Commission understood the term in a wider scope that extends to man-made as well as naturally caused domestic chaos which stalls the administration process and endangers the security of the state. Nature-made internal disturbance might be triggered by floods, cyclones or epidemics of unprecedented magnitudes. But the same argument can be turned down by accentuating the fact that the challenges posed by the strict lockdown guidelines does not come under the ambit of “internal disturbance” or even “domestic chaos” and no threat is being posed to the security of the states.
Legal Provisions regarding it
- In People’s Union for Democratic Rights v Union of India (AIR 1982 SC 1473), the Supreme Court had stated that force, which can compel someone to provide their labor or services, can be exerted in multiple forms. And a legal provision that deprives someone of their alternative and forces them to adopt a specific course of action must be regarded as force. Thus, increasing the work hour limit would constitute forced labor that Article 23 of the Indian Constitution prohibits.
- Article 24 of the Universal Declaration of Human Rights (UDHR) recognizes the right not to be over-worked due to the fact that putting in excessive hours of work might pose a threat to the health of the workers and their family. Thus, “everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay”.
- Exceeding the working hour limit per day contravenes Article 2 of the Hours of Work (Industry) Convention 1919, which India had ratified in 1921. This International Labor Organization Convention (ILO) mandates an 8 hour work day.
There is no denying the fact that a strict enforcement of the social distancing norms would require the industries to filter through the Labor Force. Thus, the actual workforce would have to work their fingers to the bone in order to make up for the lost labor. But exempting the industries from the provisions of the Labor welfare laws would have resulted in sheer exploitation of the working class. Those who own the means of production would again have wielded immense power over the downtrodden segment of the society especially at a time when lakhs of migrant workers are stranded on the national highways. And these workers are the key stakeholders in any policy reforms that are being brought about.
Moreover, there are states that have not withdrawn their notifications regarding the reforms in labor laws yet. Not to mention the fact that some of those notifications still lack legitimacy because they have not received presidential assent as they are required to for making changes to any subject, like labor, under the concurrent list.
Interpreting the existing provisions in a fashion that leads to profitable ventures for industries but exploitation of the working class is in clear contravention of the fundamental rights of the latter. A significant reduction in the produce because of the lockdown cannot be interpreted to mean a “Public Emergency” that justifies the dilution of labor welfare laws. We need a more holistic approach that does not necessitate the working class of our country to deal with the worst impact of COVID-19 alone.
Author: Karshin Malik from NALSAR University of Law, Hyderabad.
Editor: Silky Mittal, Junior Editor, Lexlife India.