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India went into national lockdown on 25 March 2020 in order to control the spread of the coronavirus infection and to boost its medical preparedness to tackle the pandemic. The national lockdown was very strict and brought the economy to a screeching halt. According to a ‘Stringency Index’ developed by the University of Oxford, India had a score of 100 (highest) which meant that India had implemented wide measures to contain the spread of the virus.
Written by our legal expert in India: Sambhrant Krishna
The national lockdown order was issued by the Ministry of Home Affairs, Government of India (MHA, GoI) under the National Disaster Management Act, 2005. A number of orders were subsequently issued by the MHA under the Act to deal with the evolving situation. Of these, the order dated 29.03.2020 received maximum attention because, apart from other things, it made mandatory for all employers, be they in the industry or in the shops and commercial establishments, to pay full wages to workers for the period of lockdown. There were punitive consequences for failing to comply with the orders.
This specific requirement faced huge resistance from industries and commercial establishments. They claim that as they too are severely affected by the lockdown, they are not in a position to pay wages for the lockdown period. Others demand that the government at least share a part of the wage bill. One state government even wrote to the central government on behalf of the industries to reconsider the order regarding the payment of wages for the lockdown period. The order requiring mandatory payment of wages was subsequently withdrawn through another order dated 17.05.2020. The net effect of these two orders is that the workers are entitled to pay full wages for the first three phases of the lockdown, starting from 25 March to 17 May, 2020 (54 days).
The 29 March government order mandating payment of full wages to workers was legally challenged by industries either in their individual capacity or as associations in the Supreme Court of India on a number of grounds, including not being within the powers of the government under the Disaster Management Act and therefore being unconstitutional. Consequential orders of state governments were also challenged. Public interest litigation (PIL) and intervention applications, some on behalf of trade unions, were also filed. All these matters are being heard collectively.
The Supreme Court, while hearing out the parties in the said matters, gave an ad-interim relief to the employers by directing that no coercive actions should be taken against employers for failing to pay wages for the lockdown period. This interim protection was further extended on 26 May, 4 June and 12 June.
The Supreme Court had completed the hearing on the matter and had listed the matter for orders on 12.06.2020. It was therefore hoped that the matter would be decided either way on 12 June. However, the 12 June order of the Supreme Court, instead of making a decision on the matter, announced interim measures which centre around a negotiated settlement between employers and workers. The settlement shall, however, be without prejudice to the rights of employers and employees, which is pending adjudication in the writ petitions. The Supreme Court in its order further said that the issues raised by the petitioners and the respondents had to be decided together and piecemeal consideration was not warranted.
It is submitted that though the petitions raise a number of issues, the central legal question in all of them is the legal validity of the 29 March order. It is, therefore, difficult to make sense of the Supreme Court order. The primary legal question raised in these petitions should have been decided and declared on 12 June once the hearings were completed, as it fell within a narrow legal compass. Pushing the decision to the end of July, which is the next date given in the matter, is not going to throw any additional light on the question of legal validity of the 29 March order. This at a time when each day’s delay matters for people living on the margins is unconscionable. Further, industries and commercial establishments are not going to waste their energy and effort on negotiated settlement because they will still be subject to the final verdict of the Court.
It is also a settled principle of law that interim reliefs are governed by the three basic principles of prima facie case, balance of convenience and irreparable injury. In the above matters these principles are clearly tilted in favour of the workers because: a) there is a presumption in favour of the validity of government order, b) industries can be allowed financial compensation from the government if the matter is ultimately decided in their favour and c) there cannot be an irreparable injury greater than human suffering and loss of life, which remains a grim but real possibility for some of the workers. Therefore, the least the Supreme Court should have done was to modify the interim relief from ‘no coercive actions against the employers’ to payment of a part of due wages till the final disposal of the matter.
It failed to do so and the life of millions of workers continues to hang in balance.