Several Governments have attempted to differ payment of a part of the salaries of public servants during the pandemic. The author here discusses the Constitutional Validity of such orders.
GOVERNMENT Orders have been passed by the Andhra Pradesh, Kerala, Maharashtra and Odisha Governments deferring the payment of salaries to its employees citing financial crisis due to COVID-19. A similar order (GO (P) No. 46/2020/Fin) was issued by the Finance Department of the Kerala Government on April 23 which stated that all employees of government and government autonomous bodies with a gross salary of above ₹20,000 will be subjected to deferment of payment of salary to the extent of six days per month from April 2020.
The said order was challenged before the High Court of Kerala by various state government employees as violative of their Constitutional Right of Property under Article 300A of the Constitution.
In an interim order, the High Court stayed for two months this directive of the government. The court held that ‘property’ under Article 300A would include salary within its purview and would thus require the authority of law for its deprivation.
The Supreme Court in the significant judgement of Bishambhar Dayal Chandra Mohan v. the State of U.P. has held that:
“The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order.
The word “law” in the context of Article 300-A must mean an Act of Parliament or of a State legislature, a rule, or a statutory order, having the force of law, that is positive or State made law.”
In light of this judgement, the State of Kerala had to trace back the origin of this executive order to an act of the legislature, as an executive order under Article 162 couldn’t have stood the test of Article 300-A. However, the Advocate General failed to justify the order both under the Epidemic Diseases Act and the Disaster Management Act which ultimately resulted in court staying the order for two weeks.
It is my submission that in times of an executive driven crisis, this order of the HC comes as a breath of fresh air. I call it an executive driven crises as this whole emergency-like lockdown is created and sustained on a framework of executive orders under Disaster Management Act, 2005 along with the Epidemic Diseases Act, 1897 at the state level. Wide-ranging actions of the state governments – right from imposing a lockdown to isolating and quarantining individuals, have all been sustained on executive actions under S. 2A of the Epidemic Diseases Act. This provision of the act is so widely and vaguely worded that the court could have conveniently traced the power of issuing the impugned direction under this provision, especially in times when Courts have been highly preferential towards the State actions and have been taking their claims at its face value. However, the Kerala High Court’s strict construction of the language of S. 2A of the Epidemic Diseases Act to not include any and every executive order, along with its definition of ‘law’ to only include statutorily backed executive orders is overwhelming.
In these times, when judicial accountability is most wanted, we have seen how courts have played a minimalistic role in stepping up for the protection of the rights of the citizens. However, the Kerala HC – first in protecting the right to privacy and now right to property, has constantly played a prominent role in upholding the rule of law.
I take this issue a little further and argue that – even if this executive order had the authority of law under Article 300-A, it would still be violative of Article 21 & Article 14 of such government employees. My argument is two-pronged – firstly, that deference of payment at a time of crisis has grave implications on the livelihood of employees, particularly the low-income employees; and secondly, that financial difficulty cannot be a ground for infringing upon the fundamental right of citizens.
Article 21 provides that no person shall be deprived of his life or his liberty except according to a procedure established by law. We have seen how, over the years, the Courts have expanded the countors of Life under Article 21 to mean something more than survival or animal existence. It has come to mean Right to Live with human dignity. By now, it is a well-settled proposition that non-payment of salary/wages is certainly a violation of Article 21 – something that has also been propounded by numerous judgements. Taking this premise further, I argue, that non-payment of salary in normal circumstances has the same impact on livelihood as pay-cuts during abnormal conditions as that of a lockdown.
In a situation of lockdown, where travel is effectively forbidden, supply chains have disrupted, prices of essential commodities have shot up, non-receipt of howsoever a minute portion of salary have serious implications on fulfilment of basic essential needs of such employees. Moreover, even if not for price rise and movement restrictions, reduction in disposable income as against inevitable minimum expenditure will have a disturbing impact on families of such employees.
Furthermore, I argue that it also violates Article 14 of those employees who already have minimum income only to meet their basic needs. I argue so because it is not only when a law unreasonably categorises two classes that Article 14 is violated, but, it is violated also when a law disproportionately impacts two classes. In this situation, the deferment policy would disproportionately impact low-income group employees who already have salaries only for their family’s basic sustenance and are practically surviving on no or minimum savings.
At a time when representations are being made to the government for compensating low-income clusters of people for their loss of livelihood, such policies of the government, aimed at further worsening the conditions, cast serious doubts on having the concept of statehood in the first place.
The only argument in defence of this government order is the defence of financial difficulty. I will not delve deep into the counter-argument to this defence, as it has already been discussed and rebutted at length on this blog, during the discussion on free testing order.
Rights are no rights until they are placed in an environment wherein they become effective and enforceable. For instance, equality is only a formalistic ideal until the State creates an infrastructure, by way of affirmative action, that acknowledges and helps mitigate the structural and institutional barriers that have prevented an equitable distribution of opportunities. It is this infrastructure that infuses life into substantive rights and activates them to make effective. To live with dignity – thus, makes no sense until the State creates the required means, through developing the socio-economic infrastructure, to achieve those standards of dignity. Therefore, the failure of the government in creating such infrastructure on account of its financial difficulty cannot in itself be a ground for deprivation of life and livelihood of the citizens. The government’s plea of its inability to provide the employees with the economic means to survive through this lockdown is nothing but a failure of its duty to provide such infrastructure.
Worth mentioning at this point is a significant judgement of Justice Krishna Iyer – Municipal Council Ratlam v. Shri Vardichand, J. Iyer, while rejecting the plea of financial difficulty of the Municipal Council in effectively protecting the Right to Health of the citizens, had observed:
“Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile
A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights”
Of course, I agree that law is realistic and not idealistic. What cannot be performed under given circumstances cannot be prescribed as a norm to be carried out. From that angle, the progressive taxation system of the country gives enough powers to the government to make its revenue systems workable. However, in a Constitutional Democracy, it cannot be accepted that the financial difficulties of the government can override the rights of the citizens.
In a regime where strict judicial review over executive action is long lost, this order of the High Court emphatically reinforces the importance of rule of law in protecting and upholding the civil rights of the citizens. This would also set the stage right for quashing of similar orders passed by Andhra Pradesh, Maharashtra & Odisha governments. To conclude, worth quoting are the following lines from this order:
“All over the world, the efforts of the State Government are being lauded. Every nook and corner of the State is being taken care of the government. Several crores of rupees are being spent by the State.
However laudable and appreciable the acts of the state may be, when this court is called upon to decide a matter affecting the vested rights of the citizens, the Court cannot ignore the legal framework.
Note: This is an opinion piece, and the views expressed are the author’s own.