'Govt Owes Crores As Advertisement Dues; No Relief Packages Announced For Media' : INS & NBA Tell SC In Plea By Journalists Against Wage Cuts

Both INS and NBA contend that a writ cannot be issued against them since they are private bodies who do not come within the ambit of the 'State'. A writ against private bodies towards the enforcement of alleged Fundamental Rights is not maintainable at the outset. The petitioners have impleaded the Central government just to bring the matter within the scope of Article 32, but sought relief only from private bodies, not the Government, they argue.

The NBA goes on to submit that the Petitioners have an alternate and efficacious remedy available is under the Industrial Disputes Act 1947 (ID Act), while enforcement of alleged contractual rights between employer and employee is governed under the Indian Contract Act. In this light, a plea under Article 32 is impermissible.

Reflecting the same view in its affidavit, INS asserts that "there is no averment in the Petition of any facts which would justify the invoking of such an extraordinary remedy when alternate remedies are available to the Petitioners."

INS has further apprised the Court that a prayer for the blanket ban on salary cuts, termination and closure of all newspaper establishments, does not take into consideration that all such establishments are not equal and various aspects must be factored in.

It has been argued that there are three categories of industrial establishments according to the ID Act, but the petitioners have wrongly presumed that all newspaper establishments employ over 100 workmen and thus come under one category. Industrial establishments which are not defined as factories under the Factories Act 1948, comprising of two categories where less than 100 workmen are employed, "have the liberty as per the Act to enforce retrenchments, closures and lay-offs without seeking the government's prior permission", argues INS.

The NBA has also denied the locus of the 3 journalist bodies in the matter as neither represent the journalists of the country and are merely trying to safeguard their own interests, which disqualifies the present plea from being a PIL.

INS goes on to highlight the financial constraints being faced by the media industry since the onset of the lockdown, due to which several prominent newspapers have had to 'drastically' reduce the number of pages while many have been forced to shut down the physical editions of the newspapers as vendors refused to deliver. Furthermore, several Resident Welfare Associations (RWAs) have banned the entry of any outsiders into colonies and buildings, due to which newspapers are not reaching homes in bigger cities, and in turn advertising revenues have taken a big hit.

Monetary sustenance of the print media and entertainment sector is largely dependent on advertisement expenditure of industries such as FMCG, e-commerce, finance and automobile informs INS. However, this expenditure has been scaled back since being hit by the economic slowdown.

"On average, the newsprint cost of a newspaper establishment is about 40-60% of its expenses while wages are about 20-30% of the expense. The net circulation revenue which is the cover price of a newspaper covers only a small portion of the total cost. Hence the lifeblood of a newspaper is revenue from advertisements", informs INS.

"With advertisement revenues now hitting rock bottom due to COVID-19 and online platforms gaining hype, the key sources of revenues for the print media are on the verge of depletion."

Throwing further light on the problems regarding resources being faced by the media industry, especially print media, INS has flagged off its concerns regarding realizing its dues from the Central and State Governments' advertising agencies.

"As per various industry estimates, Directorate of Advertising and Visual Publicity (DAVP) owes between Rs 1,500 and Rs 1,800 crore to various media companies. A large chunk of this i.e. Rs 800-900 crore is owed to the print industry alone. Such amounts have been outstanding for several months and there is little prospect of realising the same any time soon.

There has been a drop of approximately 80-85 per cent in government advertisements and a drop of approximately 90 per cent in other advertising due to the nationwide lockdown."

Referring to the situation as 'unprecedented', the NBA has also raised concerns regarding the industry, which was already facing deep financial constraints, being severely affected due to the lockdown. Expressing its anguish at businesses collapsing, NBA further states that the Government has not come to the aid of the media and no packages or measures have been announced despite the grim situation.

"There have been no packages or measures announced for news broadcasters by the Government, even as their business has collapsed. This despite, news broadcasters continuing to provide responsible and credible real-time information every day to the country by keeping all operations open during this lengthy period"

"The lack of business due to the lockdown, the impact on business due to COVID – 19 and the continued payment of salaries and wages could potentially drive the private establishments into insolvency, unless suitable economic policies and financial measures are brought in by the Government to safeguard the industry and economy", said NBA.

Both NBA and INS have proceeded to contend that advisory issued by the Labour and Employment Ministry on March 20 and the notification issued by Ministry of Home Affairs on March 29, both relied on by the petitioners, are not binding on employers and therefore, bad in law.

The NBA argues against its implementation as follows:-

"The advisory dated 20^th March, 2020 is in the nature of a request and issued as an advisory. It is neither law under Article 13(3) of the Constitution of India, and is in any case not binding on employers.

Further as far as Notification dated 29.03.2020 is concerned, without prejudice to the contention that it is not binding or legal, it is submitted that it is clear that the direction is with respect to payment of 'Wages' to the 'workers' at the 'workplace' by the Employers. It is not applicable to Journalists engaged by RespondentNo.3 (NBA)."

The INS has called the orders arbitrary, which excessively invade the right of an employer. It has further been contended that:-

"The notifications of the Ministry of Home Affairs and Ministry of Labour and Employment and various state governments as cited by the petitioners are vague, arbitrary, illegal, unconstitutional and violative of Article 14 of the Constitution of India and are also ultra vires the Acts under which they have been promulgated.

At best, the advisories of the government can be considered as a moral or humanitarian obligation cast upon private establishments during lockdown. However, it is a settled principle of law that a moral obligation cannot be converted into a legal obligation."

These counter affidavits come in a plea jointly filed by the National Alliance of Journalists, the Delhi Union of Journalists and the Brihan Mumbai Union of Journalists against all media organizations who laid off employees or forced them to take remuneration kickbacks in wake of the nationwide lockdown.

Accusing employers in newspapers and the media sector of meting out inhuman and illegal treatment towards their employees, the petition had sought immediate suspension of all termination notices, wage reductions, resignations received pursuant to oral or written requests from the employers, and directions to go on unpaid leave which took place after the announcement of the lockdown.

Having taken note of these submissions, the Apex Court, through a Bench headed by Justice NV Ramana, had issued notice to the Centre as well as NBA and INS in the matter.

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