This article is written by Ronika Tater, from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses various notifications issued by the government in the name of the pandemic which is against basic labour rights through the support of this case and various other provisions.


“A worker’s right to life cannot be deemed contingent on the mercy of their employer or the State”. The three-judge bench of the Supreme Court consisting of Justice D Y Chandrachud, Justice Indu Malhotra and Justice K M Joseph in 2020, passed an impacting judgment in Gujarat Mazdoor Sabha v. State of Gujarat, (2020). In this case, the Court quashed two notifications of 17th April 2020 and 20th July 2020 which were issued under Section 5 of the Factories Act, 1948 (hereinafter referred to as the “Act”). The Court also examined the definition of ‘public emergency’ as mentioned in the Factories Act and held that the pandemic and economic loss caused during the lockdown times do not constitute a public emergency. Hence, these notifications issued by the government in the name of the pandemic are ultra vires and against the fundamental rights of labour. 

Key points stated in the notification 

Due to the COVID-19, the employers had to face several financial stringencies hence the State Government of Gujarat while invoking its power under Section 5 of the Act, exempted factories from the following obligations which the employers have to fulfil with regard to the workmen employed by them. The notifications exempted all factories registered under the Act from various relevant provisions with regard to weekly hours, daily hours, intervals for rest, etc. for adult workers under the said Act. The notification stated as follows:

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  • No adult worker should be allowed to work in a factory for more than twelve-hour any day and seventy-two hours a week.
  • No adult worker should work in a factory for more than six hours as prescribed.
  • No adult worker should work in a factory for more than six hours before an interval of rest of at least half an hour.
  • No female workers should be allowed to work in a factory between 7:00 PM to 6:00 AM.
  • Wages should be allowed in a proportion of the existing wages.

What do we understand by the term ‘labour rights’

Labour welfare is an integral element of the transformative vision of the Constitution with the aims to achieve social and economic democracy. In Bhikusa Yamasa Kshatriya v. Union of India, (1972), the Supreme Court stated that the state plays an essential role in preventing the exploitation of labour and ensuring proper safeguards for the health and safety of the workers. In the present situation, there is a need to maintain a nexus between protecting labour welfare and taking immediate preventive measures to combat health crises. Consequently, the state government needs to maintain a careful balance and only eliminate provisions unless there is an extreme situation of the grave nature of the threat. The Factories Act is established in consonance with the Directive Principles of the State Policy (DPSP) and keeps a balance between the management of the factories and their workers thereby ensuring decent working conditions, dignity at the workplace, and livelihood.

During the COVID-19 pandemic in India, there was a rush of migrant worker crises where the workers were forced to leave the workplace. In such circumstances, the notification passed by the state government in the blanket of exceptional power under Section 5 is against labour Fundamental Rights. Article 21 of the Constitution of India states the right to life and liberty to every person which includes a worker and it also states that no person should be devoid of an equal opportunity at social, economical, and financial freedom in the absence of fair and humane conditions of work. Hence, a worker’s right to life cannot be violated in the hands of the employers or the state. The notification in this regard denies just and humane conditions of work that are against the right to life of the worker and the principles stated in Article 23 of the Constitution of India.

What constitutes the meaning of public emergency?

Section 5 of the Act states the power to exempt during a public emergency and states that the state government has the power to exempt any provision. Public emergency as per the Act means a grave emergency where the security of the country or any part of it is threatened by war, external aggression, or internal disturbance. While understanding the meaning of public emergency, the rule of construction of noscitur a sociis should be applied which states that the meaning of an unclear or ambiguous word should be determined by looking around the word or words associated in the context. In this instant case, the expression ‘internal disturbance’ comes from the expression ‘war’ and ‘external aggression’ which endangers the security of the country. Neither the pandemic nor the lockdown would encompass these definitions.

Provision of emergency in the Constitution

The provision of public emergency as defined in Section 5 of the Act is similar to the emergency provisions mentioned in the Constitution of India. Article 352 of the Constitution states a proclamation of emergency in the case where the president is satisfied that there exists a grave emergency thereby threatening the security of the country or any part of it, external aggression or internal disturbance. Hence, the intent of this provision is gained from the experiences consisting of violation of human rights, uncontrolled power and discretion leading to the destruction of liberty. 

Article 355 envisages a duty on the Union Government to protect the states against external aggression, internal disturbance, and to ensure their functioning as per the provisions mentioned in the Constitution. Article 356 states that if the president receives any report from the governor of the state or himself receives any information that the constitutional machinery of the state is not functioning as per the Constitution, the president in such circumstances may exercise all the power of the state government or may suspend any part of the constitutional provisions stating the power of the state government.

Case laws

In S.R Bommai v. Union of India, (1994), the Supreme Court discussed the interpretation of Articles 352, 355 and 356 of the Constitution. It stated that there is a common thread connecting the provision of emergency and it can only be invoked in the case of emergency as stated in the provisions and not of any other kind. It also stated that the proclamation of emergency is dependent on the prior satisfaction of the president after considering the relevant conditions precedent mentioned in the Constitution. In a similar incident, the report of the Sarkaria Commission on Centre-State Relations, (1988) states an important distinction of internal disturbance from public law and order. The former is an aggravated form of public disorder and law threatening the security of the State while the latter consists of minor violation of public peace in the local area. It also stated that some instances of natural calamity causing severity or failure of the administration causing mere financial exigencies of a State do not come under the amount of internal disturbance.

In the recent case of Anuradha Bhasin v. Union of India, (2020), the Supreme Court stated that the definition of public emergency in Section 5(2) of the Telegraph Act, 1885 is broader than the definition mentioned in Section 5 of the Factories Act. The Telegraph Act defines public emergency and covers situations threatening or affecting the sovereignty and integrity of India, friendly relations with foreign states, public order and incitement to the commission of an offence. Lastly, the Court stated in order to establish a case under public emergency, it is required to be of serious nature and it is determined on a case to case basis.

Case analysis of the Gujarat Mazdoor Sabha


During COVID-19, the government imposed a nationwide lockdown to stop the spread of the COVID-19 and to ensure effective measures including maintenance of essential goods and services and proper healthcare facilities. During the lockdown, all the areas of work were closed down leading to the slowdown of the economic activity in the whole country. Consequently, there was a loss of income and livelihood leading to the migration of labour from cities to rural areas for the survival of bare necessities to sustain life. Deprived of social security, the government had no option but to issue the stated notification naming the pandemic to be under the ambit of public emergency as per Act and also to maintain industrial and commercial activities. Grieved by the impugned notification, a trade union filed a petition before the Supreme Court under Article 32 of the Constitution of India challenging the validity of the government action during the lockdown.

Issues involved

  1. Whether the COVID-19 pandemic and lockdown fall within the ambit of ‘public emergency’ as mentioned under Section 5?
  2. Whether the notifications violate the fundamental rights mentioned under Article 23, Article 21 and Article 14 of labour?

Arguments advanced by the parties

Petitioner arguments

  • In the instance case, the respondent had not provided a valid reason for the existence of the threat and the power exercised by the government under Section 5 is ultra vires.
  • Relying on the definition of public emergency, it does not include pandemic or a lockdown.
  • Section 5 states an exemption only to an individual factory or to a class of factories and it does not extend to all factories.
  • Even if the exemption were to be applied, it could only be applied as per Section 65 for the exceptional pressure of work in order to ensure labour welfare.

The notification provides overtime wages proportionate to the existing wages thereby violating the objective of the Minimum Wages Act, 1948 and also amounts to forced labour violating the fundamental rights of the labour.

Respondent arguments

  • In the instant case, the respondent claims that the present situation consisting of lockdown and pandemic threatens the security of India or a part of its territory and hence, it comes under the ambit of public emergency and is in consonance with the Act. 
  • The respondent relied on the report of Sarkaria Commission and stated that COVID-19 led to financial chaos and disturbance in the administration of the state functions. Hence, it is a natural calamity that encompasses the definition of internal disturbance.
  • While referring to the case of Pfizer Pvt. Ltd. Bombay v. Workmen (1963), the Supreme Court held that in times of national emergency, the employer must ensure to enhance the industrial production with the requirement of the nation. It also states that it should be done with the cooperation of the employees on reasonable terms. Keeping this in mind, the notification was published with the purpose to meet the minimum target of work. 


The Supreme Court rejected the claims submitted by the respondent and stated that the present situation does not affect the security of India or any part of its territory and violates the fundamental rights of labour, barring the overhead costs of all factories in the state. It also stated that COVID-19 leads to unprecedented challenges faced by every avenue and the state government must deal with such challenges and take valid requisites only as per the statutory power after satisfying the relevant conditions under Section 5. Hence, the Apex Court in the interest of doing complete justice as per Article 142 directed the government to pay all eligible workers overtime wages since the issuance of the notifications.


Granville Austin stated that “the conscience of the Constitution that connects India’s future, present, and the past is by giving strength to the pursuit of social revolution in India”. In the instant case, the labour plays an essential role to achieve the aims and the objectives of the constitutional framers. The constitutional framers drafted the Constitution by including the Fundamental Rights and DPSP in order to achieve the vision of a welfare state which comprises justice, social, economic, and political. In the present case, the Supreme Court, while upholding the constitutional values and morality rightfully, held that the labourers are the backbone of the economy and no financial losses can be put on their shoulders during such unprecedented times.


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