THE SHOCK DOCTRINE

She argues that national disasters of crisis are used by governments to push through pro
big business neoliberal policies, especially policies that could meet with a lot of resistance
during a normal time. So it becomes an opportunity for the state to push through policies
that may be anti-people, but without much protest from the people themselves. 

It has become very clear in the last two months that the biggest impact of the lockdown has been
on the poor, In 2005, the National Disaster Management Act was passed in order to show
compliance with the Hyogo Framework for Action which was adopted by the United Nations in
2005 for disaster risk reduction worldwide. Subsequently in 2015, when the Sendai Framework
for Disaster Risk Reduction (2015-2030) was adopted by the United Nations calling upon states
to take further action---a National Disaster Management Plan was adopted by India in 2016.
Under the Act, disaster management includes relief, rescue and rehabilitation. It is the
responsibility of the Central Government to allocate funds for mitigation, etc.

But let us proceed on the assumption that the lockdown, quarantine, etc. are legally permissible.

and directed the principal employer to ensure that the contractor pays full wages, save and except
food allowance and conveyance allowance, to the employees for the months of March, April and
May, 2020.

This is important, because under Section 10(2)(l) of the Disaster Management Act 2005, the
NEC of the NDMA has the power to issue directions to Central/State/UT governments for
dealing with a ‘disaster’ – in this case, the notified COVID-19 crisis. The NEC also has the
power to coordinate the nation’s response in the event of any threatening disaster situation.
Failure to comply with such directions by government departments and government
officers is a punishable offence under Sections 55 and 56 of the Act. In case a department
has failed to implement the directions it needs to, the head of the department can be
prosecuted under the law

As this is a direction from the NEC under the Disaster Management Act, refusal to comply with
it would be a criminal offence under Section 51 of the Act, punishable with up to one year’s
imprisonment, as well as a fine. When a company commits the offence, every person responsible
for running its business – CEO, board of directors, MD, whoever – is liable.

So on the face of it, yes, private sector employers are compelled to follow these directions. The
Supreme Court order also says that it is ‘expected’ that citizens should comply with the Centre’s
directions.

Amidst Covid 19 pandemic, one of the widely discussed topics is the legal validity of the
order1 dated March 29, 2020 ("Order") issued by the Ministry of Home Affairs ("MHA"). It is
pertinent to note that the MHA has issued the Order vide its powers conferred under Section
10(2)(1) of the Disaster Management Act, 2005 ("DMA") mandating the employers to pay
wages to their workers on due date without any deduction for the period of lockdown

Doctrine of Necessity? Is there an argument at all?

Even in the Internet Ban case, one can argue that the SCI has acknowledged the Necessity
principle. It is pertinent to note the following paras in the SCI's order:

"75. The Respondent-State has vehemently opposed selective access to internet services based on
lack of technology to do the same. If such a contention is accepted, then the Government would
have a free pass to put a complete internet blockage every time. Such complete
blocking/prohibition perpetually cannot be accepted by this Court.

76. However, there is ample merit in the contention of the Government that the internet could be
used to propagate terrorism thereby challenging the sovereignty and integrity of India. This
Court would only observe that achievement of peace and tranquillity within the erstwhile State
of Jammu and Kashmir requires a multifaceted approach without excessively burdening the
freedom of speech. In this regard, the Government is required to consider various options Under
Article 19(2) of the Constitution, so that the brunt of exigencies is decimated in a manner which
burdens freedom of speech in a minimalist manner.

The Court, however, went on to hold that an order suspending the rights can be for a temporary
period provided it should pass the Test of Proportionality.

"c) An order suspending internet services indefinitely is impermissible. Suspension can be

utilized for temporary duration only d) Any order suspending rights must adhere to the
principle of proportionality and must not extend beyond necessary duration"

Section 10(2)(l) of the DMA empowers the NEC to “lay down guidelines for, or give directions
to, the concerned Ministries or Departments of the Government of India, the State Governments
and the State Authorities regarding measures to be taken by them in response to any threatening
disaster situation or disaster”

State governments relax labor and employment laws

Through a spate of Ordinances and Executive Orders, a number of state governments have
recently allowed significant flexibility with respect to labor law compliances in a bid to attract
new industrial and economic activity. Some of these announcements are as follows:

 The Government of Uttar Pradesh has decided to exempt businesses for period of 3 years
from all Labor & Employment laws, except Building and Other Construction Workers Act,
1996, Workmen’s Compensation Act, 1923, Bonded Labor System (Abolition) Act, 1976,
Section 5 of the Payment of Wages Act, 1936. However, laws related to employment of
women and children shall continue to apply.
 Along similar lines, the Governments of Gujarat and Madhya Pradesh are in process of
coming out with their respective Ordinances. Gujarat reportedly seeks to exempt
businesses and establishments from the purview of all labor laws except Minimum Wages
Act, 1948, Employees’ Compensation Act, 1923 and certain Industrial Safety rules.
Whereas Madhya Pradesh, has announced plans to allow need-based hiring and
 significantly reduced/waived norms relating to registration and inspection of industries. It
has already passed an Ordinance to exclude establishments having less than 100
employees from the purview of the state’s Standing Orders Act.
 States of Odisha, Goa and Karnataka have also announced similar measures, including an
increased limit on daily work hours to 12-14 hours.

It must be noted that such Ordinances can be kept in force only up to 6 months, prior to which
these shall have to be enacted. As established by Supreme Court of India in Dr. D.C. Wadhwa &
Ors. v. State of Bihar & Ors.,[1] an Ordinance cannot be re- promulgated. While the Directive
Principles of State Policy enshrined in Part IV of Indian Constitution espouse India as a welfare
state, these efforts by state governments have been widely critiqued for being ‘overtly
capitalistic’ and will, almost certainly, have to undergo the test of judicial review.[2]

A single Judge Bench of the Bombay High Court’s Aurangabad Bench declined to agree with the
principle of ‘no work no wages’ in case Rashtriya Shramik Aghadi v. State of Maharashtra, and
held that contract laborers who have been unable to work in the wake of the pandemic, are to be
paid full wages till the month of May 2020. Though, the Court also took notice of the inability of
the principal employer to allot any work to the workers offering their services, however, it
observed that these are extraordinary circumstances where the principle of ‘no work-no wages,
cannot be applied.

In the case of Align Components Pvt Ltd & Anr. v. Union of India & Ors, the Bombay High
Court declined to interfere in the plea challenging the MHA notification of March 29, 2020 that
required employers to pay salaries to their employees during the period of the Covid-19
lockdown. 

At first we have to see the Constitutional validity of the Disaster Management Act.

Article 14 Equality before the law

Meaning of equal protection
Equal protection means the right to equal treatment in similar circumstances both in the
privileges conferred and in the liabilities imposed.

Article 19(l)(g)
Both employer and employee have a fundamental rights to carry on any occupation, trade or
business.

Article 21 Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure
established by law.

The lockdown ordered under Disaster Management Act (DMA) and the mandatory directions for
payment of wages are inseparable within the limit of article 14 and Article 21 of the
Constitution.

If Employer accepted the lock down order under DMA then the undertakings are obligatory to
obey the mandate of payment of Wages which is also inseparable.

In the present scenario we have to go the black and white definition of Employer & Employee

Employer meaning in the Cambridge Dictionary a person, company, or organization that pays
people to work for them

Employee meaning in the Cambridge Dictionary someone who is paid to work for someone
else
Here is the nexus between Employer and employee the question arises without
contributing/work how any worker can claim wages?

It is the social and moral responsibility of the employer to ensure full payment of wages during
the lock down so that their livelihood may not hamper during the period.

The advisory says that if any worker takes a leave, they should be deemed to be on duty without
any deduction in wages. Doing so, the government has warned, would deepen the crisis.

“The termination of an employee from the job or reduction in wages in this scenario would
further deepen the crises and will not only weaken the financial condition of the employee but
also hamper their morale to combat their fight with this epidemic,” Samariya’s letter reads.

“In view of this, you are requested to issue necessary advisory to the employers/owners of all the
establishments in the state.”

The ambit of the Disaster Management Act is very wide.

Though the DM Act does not specifically confer or vest any power with the Central or the State
Government /Authorities appointed under the Act to direct the payment of wages/salaries by
private establishments, this direction is clearly covered by various provisions of the Act. It may
be argued that the Orders are issued pursuant to Section 35 (l) and 38 (l) of the DM Act which
provide the Central and State Government to take ‘such other matters as it deems necessary or
expedient for the purpose of securing effective implementation of the provisions of this DM
Act’, as also sections 10(1); 10(2)(d) & 10(2)(q).

The MHA order dated 29/03/2020 was issued by the Home Secretary, the Ministry of Home
Affairs and the Government of India, in exercise of the power conferred under Section10(2)(1)
of the Disaster Management Act, 2015. This Order is binding upon all the concerned parties. The
Section 10(2) (1) of the Disaster Management Act, 2015, empowers the National Executive
Committee to lay down direction to the Ministries or departments of the government of India and
State authorities, for preparing disaster management plans. Section 51 off the Disaster
Management Act describes the punishment for any obstruction or non-compliance of any such
directions passed under the Disaster Management Act, 2005. As Stated earlier, Section 72 of the
Disaster Management Act creates an overriding effect, regardless of anything contained in any
other law that may be inconsistent with the orders under the Disaster Management Act for the
time being in force. The said order under the Disaster Management Act, 2015 shall not be set
aside until any High Court of any State or the Supreme Court modifies it or sets it aside.

On the basis of the Orders and Advisories issued by Central Government and certain State
Governments, wages must be paid to regular, casual & contractual workers. Even though, this is
not detailed in the Order dated 29/03/2020 under the DMA, all workers shall be covered.
“Workman” as defined under the Industrial Disputes Act 1947  broadly includes any person
(including an apprentice) employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or reward, whether the terms of
employment be express or implied, but excludes those employed mainly in a managerial or
administrative capacity. It excludes those workers who are employed in a supervisory capacity &
those who draw wages exceeding Rs 10,000 per mensem

The Order of 29/03/2020 directing the payment of wages during the Pandemic has been issued
under the provisions of the Disaster Management Act, 2005.  Section 72 of the Disaster
Management Act is a non-obstante clause giving overriding powers to the Government in the
time of a disaster, and specifying that “The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any other law for the time being in
force or in any instrument having effect by virtue of any law other than this Act”.   It will thus
override the sections of the Industrial Disputes Act, 1947, which allows an employer to lay-off
and pay only 50% of wages (including on the grounds of “natural calamity” – Sec. 25C & 25M –
see below).

The governance framework adopted by India to address the Covid-19 Pandemic is an Emergency
framework in everything but its name. The Disaster Management Act 2005 [“DMA”] entrusts
very broad powers upon the Executive in a bid to counter a crisis. Unfortunately, it does not
clearly determine when such devolutions of power might be required, or for how long, and does
not enable any review or oversight of how the executive exercises its broad powers. This has
meant a model of governance led by technocrats, empowered to issue life-changing policies with
no risk of being held accountable by the people.

* Constituent Assembly Debates, Vol. IX, Speech of H.V. Kamath, 536(August 20, 1949). This
remark came as a critique of excluding judicial review during an Emergency. The full quote
goes: “We trust the executive implicitly. God grant that our trust be justified. But if our executive
demands our trust, why should not the executive trust the judiciary, why should it not repose
confidence in Parliament? Is our judiciary, bereft of all wisdom, integrity and conscience that the
executive should snap their fingers at them? This is a most disgraceful state of affairs. I do not
see how we can build up an egalitarian or democratic State on such a foundation.”

The Centre is committed to restarting industries and reviving the economy

The directive had been intended to alleviate human suffering and will not come in the way of
employers and employees negotiating the payment terms,

“The humanitarian grounds on which this order was issued should be considered. People were
migrating in crores. They would have stayed put only if they were paid”, he said in defence of
the government notification.

Senior counsel Indira Jaising, who appeared for Angmenhanti Kashtakari Sangarsh Samiti, an
umbrella coalition of informal workers, also supported the government directive, arguing that it
was intended to protect workers who had been prevented from going to work by the authorities
because of the pandemic.

“If an authority prevents me from going to work, then that authority should ensure that I am
protected. We have honoured the lockdown”

Intention of the Government

 Some grounds raised by the UoI and intervenors / employees’ unions:

 The right to wages is a pre-existing right flowing from labour laws and Articles 14 and 21
of the Constitution;
 The power to issue the MHA Circular could be traced to Section 10(1) of the Act;
 ;
 MHA Circular was a temporary measure to mitigate the financial hardship of labourers
and employees;
 As the MHA Circular was only in force from 29 March till 18 May, adjudication would
be an academic exercise;
 The Act is self-contained and does not depend on other statutes, and in fact overrides
other enactments (as per Section 72 of the Act);