During this entire period of three back-to-back lockdowns with a fourth coming soon, if there is a group who has suffered the most, it is the migrant laborers. When the lockdown was announced at very short notice and all transportation was immediately halted, these inter-State migrant workers became victims of this pandemic in a different manner: they had to walk long distances just to reach their home. Recently around 16 migrant workers were found dead on the railway tracks. It is very unfortunate that the Centre asked the States and the Union Territories to address the fact that migrant laborers do not have to walk on the tracks or the roads. Undoubtedly, the role of the Governments, both Union and of respective States, is no less than of a sentinel on qui vive however, the abdication of duties by the governments has raised some important constitutional questions. Are these people from marginalized sections of our society children of a lesser god? Don’t they have similar fundamental rights as enjoyed by the urban elite class? The collective failure of the governments which could be termed as an awry-centric approach has raised pertinent questions of governance which previously could not have any hindsight of the looming crisis.
Adding serous insult to injury to which laborers and workers have been inflicted through no fault of theirs, some state governments, for want of foreign investments, proceeded to suspend labor laws. When the Industrial Relations Code is itself pending before the Parliament of India, such moves by some state governments are tantamount to contempt of democracy.
Before trying to become judgmental about the reality, let us take a look at the available legal provisions regarding migrant laborers.
The Existing Legal Provisions
According to the Fundamental Rights and Directive Principles of State Policy of the Indian Constitution, it is the responsibility of the State to grant the citizens, both men and women, the right to adequate means of livelihood, equal pay for equal work, protection against abuse and exploitation of workers, economic necessity, protection of their health and strength, to secure for children opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and protect children and a youth against exploitation and moral and material abandonment.
The International Labour Organisation (ILO) provides for a tripartite arrangement between employers, workers and the state to legislate and execute the international labour standards in the member countries. The international labour standards lay down protection for workers in several sectors which are inclusive of freedom of association, equal pay for equal work, safe working conditions, abolition of forced labor and sex-based discrimination, employment protection, provision of social security, protection of migrant workers, elimination of sexual harassment of women workers and others.
Labor laws in India comprise various statutes such as Trade Union Act 1926, The Minimum Wages Act 1948, Employees State Insurance Act 1948, Industrial Disputes Act 1949, Industrial Disputes Decision Act 1955, Payment of Bonus Act 1955, Personal Injuries, (compensation insurance) Act 1963, Maternity Benefits Act 1967, Contract Labour (Regulation and Abolition) Act 1970, Bonded labour Systems (Abolition)Act 1976, Equal Remuneration Act 1976, Interstate Migrant Workmen (Regulation of Employment) Conditions of Service Act 1979, The Child Labour (prohibition and Regulation )Act 1986 etc. However, these labor laws and policies are applicable for workers in the organized sector only.
What Could Have Been Done?
As per the requirements of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, all the inter-State migrant workers are required to be registered with the Government. According to Section 23 of the Act, the principal employer and the contractors have a responsibility to maintain registers with details of the workers. The full and proper implementation of this law would have meant that state governments had complete details of inter-state migrant workmen coming through contractors within their states. This would been helpful to a great extent for the State to make adequate preparations accordingly. On the contrary, the implementation of the Act has experienced a huge failure and this seems to have disturbed a lot of calculations. This completely defies the entire object of the Act.
According to Item No. 81 of the Union List, Inter-State migration falls within the purview of the Union. Hence, it can be correctly stated that it was the responsibility of the Union government to ensure proper conditions for migrated workers and before announcing a lockdown. Considering the fact that a lockdown was necessary, such chaos was to be expected because it is an unfortunately dare reality that a lot of employers and contractors would avoid registration of their laborers so as to escape from the liabilities imposed upon them.
A Glance of Reality
The initial phase of lockdown resulted in a huge loss of economy and the migrant workers, having no source of income, were compelled to get back to their villages to resolve sustenance issues. Millions of migrant laborers have had to walk unimaginable distances and spend all their money in mobile phone recharges so that they can remain connected with their family members. It should also be taken into consideration that they are not necessarily educated enough to understand the severity of COVID-19. They are people who struggle with all sorts of ailments just to earn their daily wages. The understandable angry outbursts of millions of migrant laborers stranded in these economic centres have created volcanic situations that can create a serious law and order problem in the country.
Recently although much too late, the Government showed a positive inclination towards resuming the sale of essential goods including the sale of liquor. At the same time, trains and buses from various places were started to bring the stranded migrant workers back to their villages. All this created so much havoc that it completely defeated the whole purpose of social nay physical distancing behind the lockdown. Amidst all these problems, a massive flaw is clearly visible that in all the labor laws that we have, there is not a single provision which talks about such a situation. It is understood that this is a novel incident and might not have been foreseeable. However, now that the problem has arisen and been in existence for the past two months, the Government should have taken some initiative to have their legal rights protected. A bill named Occupational Safety, Health and Working Conditions Code, 2019 was introduced in the Parliament last year which aimed at consolidating certain labor laws and eliminating a few pieces of repetitive legislation. This Bill has not yet been passed and hence the laws remain as archaic as they were and thus, fail to answer to all the problems being faced by the migrant laborers at this point of time.
We have to understand that right to life as enshrined under Article 21 of our constitution doesn’t discriminate between “have” and “have nots.” The Lockdown has led to a severe hit in the form of a direct loss of migrants’ earnings necessary for their bare survival. While lockdown itself is a policy decision which is meant for the greater good, who will take responsibility for snatching the means of survival from these poor people? Can they be just left to their own fate? Are they not entitled, within the meaning of Article 21 of our constitution, to a life with dignity? While we also appreciate the move of the Union Government to bring stranded Indians to India through the Vande Bharat project, we are at loss to understand why such a project was not launched for these people who need it the most. Is it just because they have no voice? Just because they are poor? Just because they are destined for their own fate? The gargantuan failure of the State in protecting our own fellow Indians has no parallels in history. The Supreme Court which is the guarantor of our constitution and which must act as sentinel on qui vive to zealously and aggressively protect the rights of the citizens has also disappointed many Indians. The apex court opted to adopt almost all versions as put forth by the counsels representing the Union of India and proceeded to abdicate its responsibility to the executive. Given the situation when only executive seems to be working as parliament is not in session and justice has been put in the ICU, we don’t know how and when these repeated sufferings will stop. The Supreme Court is the only institution which has the true potential to reinforce our trust in an egalitarian society nay democracy however, the moot question that needs to be answered is – will the Supreme Court intervene before it is too late?
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Dr. Farrukh Khan is an advocate and Managing Partner of the New Delhi law firm, Diwan Advocates.
Somya Mishra is an advocate, working with Diwan Advocates.
Suggested citation: Farrukh Khan and Somya Mishra, Collective Failure in Protecting the Fundamental Rights of Migrant Laborers, JURIST – Professional Commentary, May 25, 2020, https://www.jurist.org/commentary/2020/05/khan-mishra-migrant-workers-covid19/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
