Justice delayed: The mandatory wages payment case in India for the lockdown period

The Supreme Court on 12 June 2020 declined to pass final order in a number of connected petitions (Ficus Pax Private Limited & Ors vs. Union of India & Ors) that challenged a part of Ministry of Home Affairs, Government of India order dated 29 March 2020. The challenged part had made it compulsory for industries and business establishments to pay wages to workers for the period of lockdown.

Written by our legal expert in India: Sambhrant Krishna

The national lockdown was announced all of a sudden and no arrangement was made for workers to go back to their native place. It was believed that if workers went back and even if only a few of them were infected with the virus, the disease would spread in the countryside where the medical facilities were extremely poor. However, within days of lockdown it had become evident that the workers, in the absence of jobs and wages, wanted to reverse migrate. The primary motivation behind mandatory wage payment order was to provide succour to the people who were most severely affected by the lockdown- that is the workers. It was also believed that it would prevent the exodus of migrant workers from their place of work to their native town and villages. This was combined with other directives and advisories of the Government that requested landlords not to charge rent for the period of lockdown or to evict their tenants and employers to not terminate their workers.

The employers, however, did not bat an eyelid in challenging the constitutional validity of the abovementioned order and it was done rather promptly. A number of petitions were filed in the Supreme Court. Apart from challenging the constitutionality of the order, some of the petitions demanded that the Government share atleast a part of the wage burden.

In this matter before it, the first order that the Supreme Court passed was to protect employers from coercive action by the State for failure to pay the wages as per the Government order. It, after the completion of arguments in the matter on 4 June, had declared that it would pass final order/ judgement in the matter on 12 June. However, on 12 June the Supreme Court did not give final orders and instead said that it cannot take a piecemeal approach in the matter. It also made anodyne statements like the workers and industries needing each other and suggested mediated settlement. This was not justified because the petitions had raised a simple question on constitutionality and the Supreme Court should have mustered courage to pass an unequivocal judgement. How the conduct of the Supreme Court in the matter has left the workers in lurch is clear from the following:

  1. Supreme Court did not pass the final order and directed the matter to be listed in the end of July, after a long gap of 6 weeks. Meanwhile the protection to employers continued. The lack of urgency shown in the matter is disconcerting.
  2. Nothing substantial happened on 28 July when the matter was next listed. The next date of hearing is not clear as of now.
  3. The suggestion to workers’ unions and industries to sit across the table and negotiate a settlement shows a clear lack of appreciation of reality of formal sector where an overwhelming majority of industrial units do not have any kind of workers union. Further, the suggestion of mediated settlement covers only the formal sector whereas the majority of Indian labour force is in the informal sector.
  4. Trade unionists and labour rights activists say that only some companies have paid partial wages for the lockdown period and that too to workers that have returned and rejoined work. This had happened before the Supreme Court’s order. Even this payment is being recovered through overtime and extra work hours.

The above discussion does not mean that Supreme Court’s final order in this case will definitely uphold the constitutionality of the order and all that workers and labour activists need is a formal declaration. However, there are strong legal arguments in favour of the 29 March order. It must also be borne in mind that the said order was subsequently withdrawn so the payment needs to be made only for 54 days. Therefore the financial impact is not going to be too oppressive for the industries. In any case, there is no logical justification for keeping the matter in abeyance.

The conduct of the Supreme Court in some of the other matters emanating from Covid induced lockdown, especially those pertaining to the vulnerable and the marginalised, unfortunately fits this pattern. For example, in the first few public interest litigation (PIL) filed in the Supreme Court right after the nationwide lockdown requesting it to pass directions to ameliorate the condition of migrant workers, the Court chose to dismiss such petitions based on the oral submission of Government’s counsel. Only when the exodus became too visible and the plight too stark, Supreme Court now took suo-moto cognisance of it and passed directions. By then the Government had already allowed plying of special trains and busses so that the migrant workforce could return.

With all due respect, there is a feeling that the Supreme Court has abdicated its duty in matters where it should have been most active and considerate during the Covid induced hardships and has given priority to sundry matters. It is hoped that the Supreme Court would show urgency at least in this case and pass an order so that (presuming a verdict upholding the order) there is some relief to the workers. Else it will reduce to an academic exercise in futility so far as the workers are concerned.