While the COVID-19 pandemic has a disastrous impact on global economies, a significant question that would eventually lead to the determination of the responsibility under the Disaster Management Act is now before the Supreme Court.
Upon the declaration of the COVID-19 outbreak as a pandemic by the World Health Organisation (WHO), the National Disaster Management Authority (NDMA) issued an order dated March 24 under Section 6(2)(i) of the Disaster Management Act, for taking effective measures to contain the spread of the virus.
By the said order, the NDMA directed the Ministries and Departments of the Central and state governments, as well as Union Territories, to take measures as directed. The said order states that necessary guidelines would be issued immediately under Section 10(2)(l) of the Act by the National Executive Committee (NEC) to take measures for social distancing so as to prevent the spread of COVID-19.
Pursuant to the said order of the NDMA, the Home Secretary, in his capacity as the Chairperson of the NEC, issued an order dated March 24, exercising his powers under Section 10(2)(l) of the Act. Through this order, guidelines for strict implementation of the ‘lockdown’ measures by the authorities were issued.
The initial 21-day lockdown caused unrest among migrant workers across the country, leading to largescale movement of migrant workers, despite the lockdown directions. Treating the said movement of migrant workers as a violation of the lockdown measures, the Chairperson of the NEC issued an order dated March 29, directing additional measures for effective implementation of the lockdown and for mitigation of the economic hardship caused to the migrant workers.
Item (iii) of the additional measures directed that all employers, be it industry or in the shops and commercial establishments, shall pay wages to their workers during the lockdown period. The order directed the governments to take necessary action under the Act in case of violation of the additional measures directed.
Although the preamble of the said order specifically refers to the migrant workers, item (iii) of the additional measures appears to be a sweeping direction to all employers to pay wages to their workers. Pursuant to such order, while some state governments have issued advisories to the industry not to terminate the employment or deduct wages of their employees, some have issued directions to all employers to pay wages to their employees.
Aggrieved by directions to pay full wages during the lockdown period, several employers have challenged the validity of the order before the Supreme Court and other High Courts. Without touching upon the various grounds on which those petitions may have been filed, this article confines itself to understanding the scheme of the Act and whether the direction to pay wages fits within the scheme.
The principal object of the Act is management of disasters, which it aims to achieve by a three-tier arrangement through Disaster Management Authorities created at the National, State and District levels. While the National and State Authorities lay down the broad policies and plans, the implementation is achieved through Executive Committees at the National and State levels, and through the District Authority at the district level.
That apart, the Act imposes responsibilities of taking measures for the disaster management on all the Ministries or Departments of the Central and state governments as well as the local authorities.
The scheme of the Act, as can made out by reading key provisions of the Act, indicates that the responsibility of implementation of the measures for disaster management, including steps for mitigation, is on the State and its instrumentalities. In the background of such scheme of the Act, the principal question that arises is - what exactly does the order dated March 29 intend to achieve by directing private employers to pay wages to their workers?
Section 10 of the Act deals with the functions and responsibilities of the NEC. Sub-section (2) lists out various responsibilities of the NEC. Undoubtedly, the Chairperson of the NEC has exercised powers under Section 10(2)(l) of the Act.
Clause (l) of sub-section (2) of Section 10 of the Act reads as follows:
(l) lay down guidelines for, or give directions to, the concerned Ministries or Departments of the Government of India, the State Governments or the State Authorities regarding measures to be taken by them in response to any threatening disaster situation or disaster;
The ingredients of clause (l) of sub-section (2) of Section 10 are as follows:
the NEC may give directions to the government/state authorities
regarding the measures to be taken by them
in response to any threatening disaster situation or disaster
Therefore, the power to give directions is to the state authorities, and not to private parties. Secondly, the ‘measure to be taken in response to the disaster situation’ is to ‘mitigate the risk of the disaster’, and as such, it falls within the meaning of “disaster management”, as defined in Sec. 2(e) of the Act.
By exercising powers under Section 10(2)(l) and by directing private parties to pay wages to their workers, the NEC has effectively directed such private parties to partake in the implementation of the disaster management, in the form of taking measures for mitigation of risk and consequences of the disaster.
Such a direction appears to run counter to the scheme of the Act, where the responsibility of implementation of the measures for disaster management is solely on the State authorities. By issuing a direction to private parties to pay wages to their workers, has the State shifted the responsibility of disaster management to private parties? Chapter IX of the Act, which deals with the finance, accounts and audit, would throw some light on the said question.
The provisions of Chapter IX of the Act specifically mandate the Central and the state governments, as well as and its Ministries and Departments, to allocate funds for disaster management measures, including for mitigation of risk and consequences of the disaster. As a matter of fact, the Act particularly mandates the Central and state governments to constitute funds called National Disaster Mitigation Fund and State Disaster Mitigation Fund, respectively, exclusively for the purpose of mitigation.
If the payment of wages to workers is a measure of mitigation of the consequences arising out of a disaster, should the State authorities reach out to the mitigation funds, rather than calling upon hapless employers, who themselves are facing the consequences of disaster situation, to pay the wages?
While the reality that stares at us is that the livelihood of workers of private employers are under risk, the difficult question that needs to be answered is who is responsible to mitigate that risk – the State or the private employers?
This, and a host of other questions that touch upon the fundamental rights of the employers, the object to the order issued by the Chairperson, NEC and the impossibility of compliance, inter alia, have now fallen for consideration of the Supreme Court.
Whether the Supreme Court adopts a strict interpretation of the scheme of the Act and holds the State and its instrumentalities alone responsible for the disaster management, or gives it a purposive interpretation upholding the power to direct private parties to mitigate the risk of the disaster situation, the ramifications of the decision would have far reaching effects.
The author is a Senior Advocate of the Karnataka High Court.