“This is the ratio”[1]! and the spectre of ex post facto EC lingers

The May 2025 Judgment in Vanashakti v. Union of India & Ors was too good to be true; the illegalisation of an inherently perverse circumvention came as a shot in the arm considering the legal regression in environmental protection spearheaded by the executive in connivance with a complacent legislature.  The subject at hand- ex post facto environmental clearance (hereafter, ‘ex post facto EC’) as conceptualised by primarily two instruments- a Gazette notification and an Office Memorandum[2]- issued under the 2006 EIA notification- had been hotly contested in high courts and under the appellate jurisdiction of the supreme court previously, on varying facts, issues, and notification itself (one judgment- Alembic Pharmaceuticals- was on the 1994 EIA notification). Vanashakti was filed as a writ petition directly challenging the legality of ex post facto EC, given that the Central Government had been normalising a pattern of impunity by extending the deadlines within which a non-compliant project proponent could apply for the EC.  In a nutshell, the 2006 EIA notification, issued by the Central Government under section 3 of the Environment Protection Act, 1984, inter alia, requires that all project proponents undertaking identified activities as per the notification, apply for and acquire a prior environmental clearance (the existence of ‘prior’ is significant, when compared to its absence in the 1994 notification). The 2017 Notification was the first executive order to allow ex post facto EC if filed within 6 months from date of notification. This was extended for 30 days in Puducherry Environment Protection Association v. Union of India (Madras HC), on the recorded submission of the Central Government that it would be a one-time measure.[3] Then the 2021 OM was introduced, that was supposed to lay down SoP for 2017 notification, in compliance with Tanaji B. Gambhire v. Chief Secretary, Government of Maharashtra and Others (NGT, Principal bench).[4] Vanashakti identified the SoP as an implicit continuation of the ex post facto EC regime, even after the expiration of the 2017 OM,[5] thereby contrary to the submission made in the Madras HC; it was not an innocuous SoP but a surreptitious license to violate environmental norms initially, get an ex post facto EC, pay penalties and continue. Only certain cases of enormous improbability of compliance with environmental norms were to be directed for demolition.[6]

However, it would be incorrect to pin the perversity in the allowance of ex post facto EC even after the 2017 notification; more fundamentally, and rightly so, the malaise existed in its allowance in the first place. Vanashakti sought to contend with this derogation of the EIA notification’s requirement of ‘prior’ EC on the basis of the scope of executive action allowed by EPA and 2006 EIA Notification (section 3 of the Act grants Central Government to take positive action to protect the environment[7]; how could the same be construed to allow endangerment, through executive orders, that was the essential purport of ex post facto EC?) and a principles-based discourse that sought to visiblise the discomfort of situating ex post facto EC in the regime of environmental protection in the first place, that borrowed strength from two prior judgments of the SC, namely Alembic Pharmaceuticals and Common Cause.[8] In the latter prong of contention, glaringly, it was evident that the concept was at direct odds with the objective of the EPA,

Para 19. “The object of the 2017 notification appears to be to protect the industries and entities which violated the EIA notification.”

Vanashakti emphasised the impunity and artificial portrayal of ignorance with which project proponents, despite knowing that a ‘prior’ EC is required as per 2006 EIA notification, carried on without obtaining one, and sought legalisation of their projects through the two notification and OM later. This exercise, on the face of it, displayed trivialisation of obtaining an EC in the catena of various approvals a project proponent is required to obtain BEFORE legally beginning with the project itself. Moreover, the multiple extensions played the role of making an exception the norm, despite a specific undertaking by the Central Government of the ex post facto EC under 2017 notification being a “one-time measure”. Does the ignorance of this recorded undertaking by Pahwa Plastics[9] and now in CREDAI (the judgment dated November 18, 2025 that has allowed review of Vanashakti)[10], mean that submissions recorded before the court can be derogated from inconsequentially, merely because judicial pronouncements are to be interpreted differently than statutes?[11] Another line of questioning inevitably also arises in cases of environmental law: whether the court would have treated this undertaking with more seriousness had it been a more “serious” matter, perhaps in the realm of taxation? Especially when the State is supposed to act as a steward of the environment under the Public Trust Doctrine, can its undertakings be ignored or accepted summarily, without any critical appraisal? Ideally, no.

Vanashakti, while prohibiting the Central Government to issue any further notifications in the semblance of the two struck down notification and OM, allowed the ex post facto ECs granted till the date of the judgment i.e., May 16, 2025, to operate. This accommodation, rooted in equity, was not enough for the petitioners in CREDAI, who have sought for challenging the entire judgment instead of an expansion of accommodation in Vanashakti itself, a course of action potentially explorable as per the dissenting judge (and original co-adjudicator in Vanashakti) in CREDAI. This review petition, therefore, has undertones of retaining the impunity and illegality prevalent before Vanashakti, spearheaded by Big Corporate (and suspiciously, not by the Central Government directly), relying on principles of judicial discipline, stare decisis and judicial predictability. But, very arguably, the principles have been moulded to the extent of blatant misapplication, that necessitated the dissenting judge to take a crash course on all these principles in his 93-page dissent.

Two sets of judgments have existed on ex post facto EC. Alembic and Common Cause had unequivocal ratios stating that ex post facto EC is an anathema to EPA and 2006 EIA, and the larger scheme of environmental jurisprudence. Just with respect to fact application, they relied on equity and proportionality principles, to allow the prevalence of granted ex post facto ECs after paying penalties, a direction originating in the court’s power under Article 142 of the Constitution. The other set, comprising Pahwa Plastics, Electrosteel[12], and D. Swamy[13], accepted the argument of exceptional cases that could allow perfectly legal ex post facto ECs. In CREDAI, the fact applications of Alembic and Common Cause have been identified as a part of the ratio of those respective judgments. Buttressing the observation of the majority was the portrayal of petitioners as helpless project proponents (who proceeded relying on the 2021 OM to not obtain a ‘prior’ EC, as required by the EIA notification, that has a superior statutory character), the fact of near completion of obtaining ex post facto ECs, nature of projects (sewage treatment plant, AIIMS hospital and an airport), and the lingering fear of demolition as a penalty. The CREDAI judgment, that was supposed to only find grounds of review, did not stop at finding those grounds, but has made an emotive case for the petitioners to the detriment of the respondents.

Finding that the demolition will cause immense loss to the public exchequer, the majority judgment made the following observations with respect to a sewage treatment plant that could be demolished for lack of a legal EC:

“para 111. (…) The question is whether demolition of such effluent treatment plants, constructed using huge public exchequer, would be conducive to the protection of environment or against it?

para 112. I, therefore, ask a question to myself as to whether it would be in the public interest to demolish all such projects and permit the money spent from the pocket of public exchequer to go in the dustbin?”

Cherrypicking the sewage treatment plant is reflective of the peculiar conundrum seen in M.K. Ranjitsinh[14]; however, the list of projects that could be demolished also includes a greenfield airport in Karnataka- would it not be doubly endangering for the environment given the lack of an EC to begin with, and then the pursuant emissions that will ratchet up? Moreover, the question of public interest again brings to fore the fundamental development v. environment dichotomy which has always provided room for judicial manoeuvring based on convenience in environmental cases. Can the cases of all project proponents be situated in the realm of public interest? Is there really no private interest at play here, with the public interest actually lying in the long-term goal of recognition and enforcement of procedural fairness and propriety in environmental protection? Can the primacy of money, albeit important for a developing country like India, always trump environmental protection that has often struggled in making a space for itself monetarily? The pronouncement in Vanashakti that denied regularisation of the projects defiant of 2006 EIA notification, even after payment of penalties under section 15 of the EPA, sought to prevent overutilisation of an ex post facto polluter pays principle that did little for ecological restoration by just levying monetary damages which could most of the times be a better option than compliance (as explored widely in ecological economics).

The other set of cases, for instance, Pahwa Plastics for our purposes, was not mentioned in Vanashakti, the reasoning of which, as per the dissenting judge in CREDAI, laid in the per incuriam nature of those judgments vis-à-vis Alembic and Common Cause.[15] But the majority construed this as an ignorance necessitating a review of the judgment. It can be argued that this was not an error apparent on the face of the record; the arguments of the respondent in Vanashakti, namely Union of India, did argue, even if implicitly, on the basis of huge costs of construction and its wastage if ex post facto ECs were not approved.[16] The issue of proportionality was an act of equity and exception (which can be contested from the vantage point of environmental compromises) that even Vanashakti upheld by allowing the granted ex post facto ECs the same stature as ‘prior’ ECs. It was not as rigorously ignorant of exception as CREDAI made it out to be; the form was emphasised to the detriment of substance which was present in Vanashakti. The CREDAI judgment appeared to be an exercise of appellate jurisdiction, a contention raised by the respondents in the beginning. Merely because two views are possible in ex post facto EC, one allowing on the basis of exception that runs contrary to the very substance of EPA and EIA, and one disallowing on the basis of statutory guidance and authoritative environmental protection principles, the review seeks to sabotage the exceptional nature of review jurisdiction itself. Even if the review on merits remains to begin, the CREDAI judgment has set a tone too hostile and ungenerous to Vanashakti, by trumping the cause of development and potential monetary loss, with environmental protection having no comparable monetary leverage.

[P.S.: A factual correction has been made since this blogpost was posted, namely, it was the 2017 "notification" and not an "office memorandum"; despite that it was rightly ruled as illegal by Vanashakti, in the face of the parent 2006 EIA notification.]

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[1] Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti & Anr, Review Petition in WP (C) 1394//2023, para 20 (Bhuyan J.).

[2] The 2017 notification and 2021 OM; 2017 notification issued by MoEFCC on 14.03.2017, S.O. 804(E), and published in the Gazette.

[3] Vanashakti v. Union of India, WP(C) No. 1394/2023, para 8.

[4] Appeal No.34/2020 (WZ)

[5] Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti & Anr, Review Petition in WP (C) 1394//2023, para 36 (Bhuyan J.). (hereafter, “CREDAI”)

[6] Vanashakti, supra note 3, para 29. “The Court must come down very heavily on the attempt of the Central Government to do something which is completely prohibited under the law. Cleverly, the words ex post facto have not been used, but without using those words, there is a provision to effectively grant ex post facto EC.”

[7]  Vanashakti, supra note 3, para 13.

[8] Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., Civil Appeal No. 1526 of 2016; Common Cause v. Union of India & Ors, 2017 (9) SCC 499.

[9] M/s Pahwa Plastics Pvt. Ltd. & Anr. v. Dastak NGO, Civil Appeal No. 4795 of 2021.

[10] Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti & Anr, Review Petition in WP (C) 1394//2023.

[11] ibid, para 47.

[12] Electrosteel Steels Limited Vs. Union of India, 2023 (6) SCC 615.

[13] D. Swamy Vs. Karnataka State Pollution Control Board, 2023 (20) SCC 469.

[14] M.K. Ranjitsinh & Ors. v. Union of India & Ors., WP(C) No. 838/2019.

[15] Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti & Anr, Review Petition in WP (C) 1394//2023, para 44 (Bhuyan J.).

[16] Vanashakti, supra note 3, para 25.

Plastic Negotiations and Crude Capitalism

Criminally intense lobbying by the fossil fuel industry in the drafting of a “Paris Agreement” for the Plastic Crisis should not come as a surprise, but as an alarm of consolidation of abusive power in treaty negotiations with potential consequence of replicating the Paris Agreement’s innumerable semantics-based instances of inefficacy and inertia. By basing itself at the centre of the negotiations, and outnumbering indigenous peoples and well-intentioned, radical environmental action groups, the plastics-cum-oil industry lobbyists is repeating its modus operandi of preserving its financial and extractive interests perniciously, and politically, the surrounding circumstances could not have exceeded their expectations- with the godfather enthusing the Big Oil with his “drill, baby, drill” declaration smoothening the terrain for the latter to project and document skyrocketing oil production levels. It is also not a surprise that these big fossil fuel giants have reneged on their already contestable “sustainability” and “net-zero” commitments, with now clearly investing more in fracking, drilling and extracting crude from the Shadow Lands- both onshore and offshore.

Interrogating the pervasiveness of plastic as an indispensable material commodity will unsurprisingly lead to a refined version of extractivism- Crude Capitalism as borrowed from the theorisation by Adam Hanieh. Unsurprisingly, plastic, derived as a by-product of crude oil refinement processes, is an expansion of the Big Oil’s stranglehold on the global industrial basics market- while oil and gas provide energy, plastic “creates” and conceptualises new commodities, defined by its diabolical versatility. Hanieh tracks the evolution of the petrochemical industry in Crude Capitalism, and centres militarism of World War II along with a subsequent takeover by US-based Oil giants of a predominantly German invention in the geopolitical story of plastic and other synthetic polymers including rubber.

“By de-coupling commodity production from nature, there was a radical reduction in the time taken to produce commodities, and an end to any limits on the quantity and diversity of goods produced. This qualitative transformation in the substance of commodity production came with far reaching ecological implications. As synthetic materials began to accumulate in ever-increasing quantities throughout the environment, their disruptive toxic effects soon became apparent – yet another manifestation of the Great Acceleration enabled by the transition to oil.”

- Crude Capitalism

One should take cognisance of the fact that this is not the first time that corporate interests have hijacked international discussion on legal mechanisms for ecological protection. Lobbyists from Big Oil, Big Agriculture and Big Corporate have captured CoPs of the UNFCCC constantly, and even increasingly, with the host countries themselves being dependent on crude economy-derived royalties, such as Egypt, UAE and Azerbaijan. Their overshadowing interests lead to advocacy for “market-based solutions” such as the massive failure called carbon credit system, transition from coal to oil (based on the fake claim of oil being a “clean energy source”) and maintaining oil dependency for perpetuity, inter alia, rather than system overhaul and questioning of the neoliberal-industrial-oil complex paradigm. The fact that our environmental treaties are soft agreements should not be normalised; there is a set of non-legal reasons for that. These treaties, due to lobbying helped by the principles of international law and a frail enforcement/judicial mechanism, are also situated in a world where power is condensed in a few private entities, aided by the governments that are supposed to fulfil democratic mandate through preserving “public trust” and “precaution”. And, predominantly, this power emanates from control over Crude, Coal and derivatively, Plastic. While Busan failed, what happens in Geneva, unfortunately, comes with a foreboding.

[PS.- be sceptical of the term “sustainability”. In all likelihood, it is used by Big Corporate to fool you.]

Heat Stress: ‘Sweatshop Effect’ in Vulnerable Employment

(This post expands the scope of this blog, where the climate crisis and law's multi-sectoral responsive dexterity will be investigated.)

       Introduction: Heat Stress as an Occupational Safety Hazard

In IPCC’s Sixth Assessment Report on Impacts of Climate Change, Heat Stress as an Occupational Safety Hazard (‘OSH’) has emerged as a “non-economic cost” to workers’ livelihoods vulnerable to heat waves.[1] ILO’s 2024 report titled “Heat at Work: Implications for safety and health” documents a spectrum of physiological impacts due to high temperatures at workplace, from heat fatigue and heat syncope (dizziness), to serious and fatal conditions of heatstroke, kidney/cardiovascular/respiratory illnesses.[2] Workers directly or indirectly exposed to threatening levels of heat are increasing across the world, especially impacting vulnerable groups such as migrant, informal, women and old-age workers in outdoor employment.[3] Sectoral vulnerability to Heat Stress as an OSH exists in workplaces that are constituted of manual workers, such as manufacturing units, construction, transportation and agriculture, termed as “vulnerable employment” as distinct from air-conditioned workplaces harbouring white collared workers.[4]

In India, extent of this impact is affected by a labour force composition comprising majority of the workers employed in informal, vulnerable employment demanding physical labour.[5] Relative recentness of Heat Stress as an OSH has brought into question the effectiveness of extant labour law framework, that has developed the concept of “safety” parochially. Moreover, a larger caveat here lies also in the fact that labour law’s applicability is restricted by definition of “worker” in respective statutes, that are most likely to exclude unorganised and irregular employees. This legislative vacuum calls for an examination of the readiness of Indian labour law framework to address heat stress, and explore how other jurisdictions have dealt with it.

In this article, I begin by referring to some Indian workers’ safety legislations to see whether they have requisite provisions to cover heat stress as an OSH. Thereafter, I outline some interesting legislative actions in other jurisdictions that have recognised and introduced safeguards to protect workers in vulnerable employment. Thereafter, I posit a rudimentary roadmap for a legislative intervention in India.

        Heat Stress as OSH in India

Beginning with the legal framework of workers’ safety in legally covered employment is prudent to unravel a bleaker state of affairs in unorganised, outdoor employment. The Factories Act, 1948 governs the safety conditions of workers employed in factories, where a factory[6] is not restricted to buildings, and can extend to outdoor employment, as long as the fundamental manufacturing process takes place.[7] Regarding workers covered by the Act, there are no restrictions in terms of the mode of recruitment or the requirement of remuneration, but they should be involved in manufacturing processes as defined u/s 2(k) carried out in the factory. Thus, workers in non-manufacturing vulnerable employment are excluded.

While the general duties of employer emphasise maintenance of safety and risk-free conditions at the factory, both specific to machinery and in general,[8] the workers also have a right to demand adherence to these statutory standards.[9] Regarding medical emergencies, the Act requires a certifying surgeon who is obligated to examine employees and discern impacts of working conditions on their health. For Third Schedule diseases, a requirements to disseminate requisite information to the authorities and investigate their causes exist.[10] Although Section 13 provides for maintenance of suitable ventilation and temperature controlling in the premises for workers’ comfort, it assumes the employer’s ability to modulate temperature levels that may not be possible in instances of heatwaves. Therefore, in light of non-viability of mitigatory strategies, adaptative mechanisms become important. In this context, the Act has provisions on prevention of overcrowding at the place of work, availability of drinking water, facilities for sitting, cool and well-ventilated shelters/rest rooms and resting intervals.^[11] These facilities are aided by free-of-cost availability to not deprive workers based on their affordability.[12]

However, certain inhibitory factors may limit accomplishment of heatwave-resilient workplaces covered by the Act. Variation in employer’s duties on the basis of number of workers employed make workers of small yet identically affected workplaces vulnerable to heat stress. For instance, the provision for “cool” drinking water during hot weather is limited to factories with more than 250 workers.[13] A threshold of at least 150 workers exists for the provision on rest rooms/shelters.[14] While it secures the employers from investment overburden, it leads to worker vulnerability.  Moreover, provisions for sitting facilities and shelter rooms are not complemented by separate paid sitting intervals of sufficient duration. This should be in addition to the resting intervals that authorise a half an hour break for every five hours, due to glaring disparity between working hours and duration of authorised interval, especially when workers working under heat stress are considered.[15]

In terms of specific sectoral legislations, the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 covers “building workers” (employed both contractually or directly) involved in construction work not covered by the Factories Act.[16] This Act provides for general welfare measures such as drinking water, urinals, first-aid facilities, accommodation near the work site, and intervals under the discretion of employer.[17] Interestingly, employer’s obligation in terms of health and safety hazards is almost exclusively connected to the nature of hazards that may arise from the peculiar nature of construction work and thus, does not cover heat stress induced by non-employment factors.[18] As an aberration, Rule 232 of the Act’s Central Rules obligates an employer to provide for emergency care services for conditions including “dehydration caused due to any cause” and sunstroke to building workers.[19] This recognition is not hampered by a threshold for minimum workers and is more progressive than the Factories Act that restricts its approach to injuries arising out of dangerous/ hazardous processes from manufacturing.[20]

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, covers migrant workers employed by contractors in an establishment in another state on an agreement.[21] The only provision that deals with welfare measures provides for suitable accommodation, working conditions, free medical facilities and reporting mechanism in case of accidents.[22] However, the Central Rules elaborate on these measures which require contractors to provide funding for medical treatments for ailments arising due to employment.[23] Maintenance of first aid boxes, well-ventilated and spacious rest rooms in case the employment is of at least three months, and washing facilities are other duties of contractors which need to be fulfilled by the principal employer in case of former’s failure.[24]

For agricultural workers, there have been repeated efforts to introduce a welfare legislation, most recently being the Agricultural Workers (Welfare and Protection) Bill, 2022. The Bill provides for daily rest intervals and fixed hours of work,[25] but provisions on medical protection and availability of water, recreation, etc. are contingent upon a Fund created through contributions by the State and Central governments.[26] Thus, there are no specific obligations of the employers, and effectiveness of the Fund remains dubious due to foreseeable corruptive tendencies of middlepersons.  

In the Occupational Safety, Health and Working Conditions Code, 2020, (hereinafter, ‘the Code’) that forms a part of overhaul in labour law framework but is yet to be notified, both the ambit of sectors covered and types of rights differ variably. The Code streamlines definition of “employees” with that seen in the Industrial Disputes Act, by mentioning categories of work done for wages such as manual, unskilled, skilled, among others, with implied or express employment terms.[27] This is complemented by an equally inclusive definition of “employer” that expressly identifies principal and contractual employers.[28] An equal regard needs to be given to a liberal definition of “establishment” used for OSH provisions in the Code. Establishments encompass workplaces (with ten or more employees) carrying out an industry, trade, business, manufacturing or occupation, and sector-wise, it specifically includes motor transport undertakings, construction sites and plantations.[29]

A general requirement to maintain hazard-free workplace is accompanied by a provision on free, annual health examinations of employees of specified classes.[30] Particularly for factories, mines, construction and plantation as workplaces, the Code emphasises health and safety supervision.[31] Employees have an equal right to seek these facilities by approaching the employer or the Safety Committee[32], and also keeping the Inspector-cum-Facilitator informed about the grievance.[33] While maintaining basic safety standards of the Factories Act, the Code envisages to establish OSH standards that will account for hazards affecting the working life of employees to avert “material impairment” of health and include provisions for safety audits, medical examination, standardising precautionary measures, inter alia.[34]

While the Code has scope to broaden the coverage of security to a spectrum of workers, given the liberal definitions of employee and employer, the sufficiency of remedies that are specific to heat stress and heatwave-induced physiological conditions in different and vulnerable categories of workers remains speculative. The Code has failed to take a precautionary approach to the established hazard of heat stress.

In terms of relevant judicial pronouncements, in Occupational Health and Safety Association v. Union of India, the issue surrounded inadequacy of OSH combative measures for workers of coal-fired thermal power plants. Here, the workers suffered from pulmonary, lung and neurological conditions, similar to workers affected by heat stress.[35] The petitioners suggested adoption of measures including medical check-ups, free medical treatments, compensation under Workmen’s Compensation Act, measures to control heat/radiation/noise, inter alia.[36] Observing that employees working in risky and dangerous occupations have a right to live with dignity, the Court emphasised State’s obligation to constantly supervise and mitigate detrimental health impacts on workers.[37] Another relevant finding noted effects of high level of heat that can cause heat exhaustion, albeit in an indoor and modulative setting as a thermal power plant.[38] However, the court delegated the matter to High Courts for better implementation of guidelines.[39]

While the Courts may be proactive in protecting workers’ health by relying on constitutional rights, this is dependent on OSH types that are already statutorily recognised but lack effective implementation.[40] Thus, recognition of a recently emerged OSH as heat stress and suitable measures to combat it should ideally originate in legislative intervention.

         Comparative Law analysis 

A glance at other jurisdictions in terms of legislative development in this regard exhibits a pattern of progressive development. For instance, in California, the California OSH Act, 1973 and California Code of Regulations provide for general OSH protection to workers in outdoor employment including agricultural workers that includes potable water requirement and first aid, albeit without a specific recognition of heat stress.[41] As a reaction to occurrence of several heat-stress related casualties in outdoor employment, the Maria Isabel Vasquez Jimenez heat illness standard was added to the Code.[42] It covers vulnerable employment in agriculture, construction and heavy load transportation of agricultural/ construction materials, without a minimum threshold for workers employed.[43] It also recognises individual workers’ susceptibility (personal risk factors for heat illness) to heat stress apart from environmental risk factors.[44]

The provision requires cool, fresh potable water to be provided near the areas where employees work with adequate reminders. Additionally, when the temperatures exceed 26 degree Celsius, shade with cooling, ventilation and enough space should be provided for employees’ rest and recovery periods.[45] Importantly, employees are allowed to take “preventative cool-down rest” in the shade without coercing them to work despite symptoms of heat stress.[46] “High heat procedures” focus on supervising and identifying cases of heat stress through mechanisms such as buddy system, observation and regular communication.[47] Emergency response procedures require monitoring and calling emergency medical services.[48] For specific days of heat wave (above 26 degree Celsius inter alia), proper acclimatisation of workers is required, and a general training of employees about set procedures and precautions to be taken is also mandated.[49]’

In terms of a nationwide legislation in the US, the Asuncion Valdivia Heat Illness and Fatality Prevention Bill, 2019 was introduced that sought to mandate OSHA[50] to bring requisite heat illness related provisions in its regulations.[51] The OSHA regulations have followed a similar trajectory as India where employers have a general obligation to maintain a “recognised” hazard free working environment. This non-specific standard has been criticised on the ground that it creates liability on the part of employer as a reactionary measure, when the heat illness has already caused death or severe physiological changes to the employees.[52]

The Arab States such as Bahrain, Qatar and Oman have the concept of “midday work ban” as an adaptive measure where workers in outdoor employment are not allowed to work during peak hours of heat in the summer season (June/July-August).[53] While the EU does not have a binding regulation on OSH, it aids the member countries in developing standards. Heat-shield is one of EU’s research ventures that has laid out certain standards including assessment of risk based on individual workers’ attributes, provision of extra breaks, reorganisation of work day (where peak heat hours are avoided) and creation of “cooling oases” (similar to the shade concept in the California regulation) for preventative breaks.[54] Similar standard-setting rather than binding obligations have been created by the UK’s Health and Safety Executive.[55] This has led to calls for legally recognising workable temperature windows rather than subsuming it within the employers’ self-regulatory domain under general obligations that exist under the Health and Safety at Work etc. Act, 1974.[56]

        The (Maybe) Way Forward

Danger to workers’ health amidst rising temperatures behoves lawmakers to formulate an adaptation strategy to protect their life and livelihood. The strategy should account for workers in vulnerable employment irrespective of their employment relation due to the objective of protecting workers from heat stress that does not differentiate between permanent and contractual workers. Similar to the EU’s Heatshield standards, such a strategy should also account for identifying vulnerable worker groups such as women, old-aged and persons with disabilities for risk assessment, and allocate relatively higher priority to them. The yardstick of minimum threshold of workers to make an employer liable to provide for adaptative measures should be substituted by a co-responsibility of the appropriate government and individual employers to amalgamate smaller vulnerable workplaces and provide for common facilities. This will reduce the investment burden on the employers while not compromising on employees’ health amidst raging heatwaves.

The Code is a suitable legislation to incorporate this strategy due to its all-encompassing nature and unfragmented approach. New provisions specifically focussing on the intersection of informal and outdoor vulnerable employment such as agriculture, construction and transportation on a priority basis must be introduced. Since worker welfare is a Concurrent List subject, states particularly affected by intense heatwaves in the Indo-Gangetic plains should introduce outlined legislative interventions if the Code remains stalled or comes into force with inadequate measures for heat stress.[57] However, if the Code does not come into force soon and states fail to introduce suitable legislations, a separate Central legislation on heat stress as an OSH is required. This should ideally be similar to the Maria Isabel Vasquez Jimenez heat illness standard, with a broad coverage due to disproportionately fatal consequences for labour force in vulnerable employment, lest all workplaces become deadly “sweatshops”.

        Epilogue

Legislative action in the realm of heat-stress related worker safeguards should seek to protect the most endangered worker group in India- informal sector workers who support almost half of the country’s GDP yet are betrayed when their safety is concerned.[58] An inclusive legislation that takes an unfragmented approach towards all employees in vulnerable employment, and provides for customised preventative and protective mechanisms should be on agenda in the national and state legislatures before the summer of 2026 breaks yet another record of being the hottest summer ever recorded. Yardsticks established by the California Labour Code, Arabian embargo on work standard and EU’s heatshield guide are detailed, specific and targeted that must be referred to while developing an Indian response to heat stress as an OSH. However, a self-regulatory approach should be averted given that India has observed instances of non-compliance even in statutorily recognised health hazards.

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[1] Joern Birkmann et al., Poverty, Livelihoods and Sustainable Development, in Climate Change 2022: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change 1207 (2022).

[2] Andreas Flouris et al., Heat at Work: Implications for Safety and Health. A Global Review of the Science, Policy and Practice ILO 9-10 (2024).

[3] Id. at 13-16.

[4] Id. at 7.

[5] Anirudh Krishnan, Heat Stress, Labour Well-being, and Productivity amidst Heat Waves, 5-7 (2022), https://sprf.in/wp-content/uploads/2022/08/SPRF-2022_DP_Heat-Waves.pdf.

[6] Section 2(m), The Factories Act, 1948.

[7] Ardeshir H. Bhiwandiwala v. State of Bombay, 1961 SCC OnLine SC 53, ¶ 6.

[8] Section 7A, The Factories Act, 1948.

[9] Section 11A, The Factories Act, 1948.

[10] Section 89 and 90, The Factories Act, 1948.

[11] Section 16, 18, 44, 47 & 55, The Factories Act, 1948.

[12] Section 114, The Factories Act, 1948.

[13] Section 18(3), The Factories Act, 1948.

[14] Section 47, The Factories Act, 1948.

[15] Section 55, The Factories Act, 1948.

[16] Section 2(d), (e), (g) & (i), the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act,1996.

[17] Sections 28, 32, 33, 34 & 36, Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.

[18] Section 40 r/w Part III of the Building and other Construction Workers’ (Regulation of Employment and Conditions of Service) Central Rules, 1998.

While Rule 165 mentions “working temperature”, it is the employer’s obligation to control temperature in tunnelling and excavation processes, thereby defined by its narrow understanding of modulative temperature and process-specific heat stress.

[19] Rule 232(a)(vi) & (xii), Building and other Construction Workers’ (Regulation of Employment and Conditions of Service) Central Rules, 1998.

[20] Section 41C, The Factories Act, 1948.

[21] Section 2(e), Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979.

As per section 1(4), establishments as defined under section 2(d) should have at least 5 inter-state migrants for the Act’s applicability. Notably, the definition of establishment is wide to cover vulnerable employment.

[22] Section 16, Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979.

[23] Rule 37, Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Central Rules, 1979.

[24] Rule 37, 40, 43 & 46, Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Central Rules, 1979.

[25] Sections 11 & 12, Agricultural Workers (Welfare and Protection) Bill, 2022.

[26] Section 7 & 10, Agricultural Workers (Welfare and Protection) Bill, 2022.

[27] Section 2(t), Occupational Safety, Health and Working Conditions Code, 2020.

[28] Section 2(u), Occupational Safety, Health and Working Conditions Code, 2020

[29] Section 2(v), Occupational Safety, Health and Working Conditions Code, 2020.

Notably, Plantations are different from normal agriculture as the former covers specific cash crop plantations such as tea, coffee, inter alia. (Section 2(f), The Plantations Labour Act, 1951).

[30] Section 6(1), Occupational Safety, Health and Working Conditions Code, 2020.

[31] Section 6(2), Occupational Safety, Health and Working Conditions Code, 2020.

[32] Section 22, Occupational Safety, Health and Working Conditions Code, 2020.

[33] Section 14, Occupational Safety, Health and Working Conditions Code, 2020.

[34] Section 18, Occupational Safety, Health and Working Conditions Code, 2020.

[35] Occupational Health and Safety Association v. Union of India, (2014) 3 SCC 547, ¶ 3.

[36] Id. at ¶ 3.

[37] Id. at ¶ 10.

[38] Id. at ¶ 14.

[39] Id. at ¶ 18.

[40] For instance, in Peoples Rights and Social Research Centre (PRASAR) v. Union of India, [2024 SCC OnLine SC 1895] the Supreme Court was occupied with a contention about vulnerability of workers in stone quarries and construction sites to “silicosis”, a disease that is ironically a scheduled disease under the Act and the Code to set in motion enquiry and notice procedures to the appropriate authorities. Despite its statutory recognition, the petitioners contended that workers continued to be affected by it without sufficient medical care, compensation and rehabilitation. The Court directed the National Green Tribunal to mitigate the environmental aspect of these polluting enterprises and the NHRC to coordinate disbursal of adequate compensation to the affected workers.

[41] Heather Ward, Extreme Weather Events and Heat-Related Illness in Outdoor Employment, 17 SAN JOAQUIN AGRIC. L. REV. 326 (2007-2008); Section 3457, Title 8, California Code of Regulations.

[42] Section 3395, Title 8, California Code of Regulations.

[43] Section 3395(a)(2), Title 8, California Code of Regulations.

[44] Section 3395((b), Title 8, California Code of Regulations.

[45] Section 3395(d), Title 8, California Code of Regulations.

[46] Section 3395(d), Title 8, California Code of Regulations.

[47] Section 3395(e), Title 8, California Code of Regulations.

[48] Section 3395(f), Title 8, California Code of Regulations.

[49] Section 3395(g) & (h), Title 8, California Code of Regulations.

[50] Occupational Safety and Health Administration.

[51] Stephanie Milner, Hot Topic Getting Hotter: Employer Heat Injury Liability Mitigation in the Age of Climate Change 36(1) ABA Journal of Labour & Employment Law 181 (2022).

[52] Id. at 185-186.

[53] Flouris, supra note 2, at 34.

[54] Heat Shield, A Heat-Defense Plan for Keeping Workers Safe and Productive in the Heat: A guide for employers and enterprises, (May 25, 2020) https://www.heat-shield.eu/_files/ugd/441f54_0317e9a577054df9b4d17c9acb352d8b.pdf.

[55] HSE, Heat stress in the workplace: A brief guide (2013) https://www.hse.gov.uk/pubns/indg451.pdf.  

[56] BBC, ‘Too hot to work’ law urged (July 18, 2022) https://www.bbc.com/news/business-62197921.

[57] Items 23 and 24, List III (Concurrent List), Constitution of India, 1950.

[58] Preksha Sharma and Janet Orlene, Heat stress: how soaring temperatures are taking their toll on migrant workers in India’s garden city, The Guardian (May 22, 2024) https://www.theguardian.com/global-development/article/2024/may/22/india-bengaluru-heatwaves-climate-inequalities-cities-planning-informal-workers.