During this entire period of back-to back 3 lockdowns and 4th version coming
soon, if there is someone who has suffered the most, they are the migrant
labourers. When the lockdown was announced at a very short notice and all
transportation was immediately halted, these inter-State migrant workers became
victims of this pandemic in a different manner when 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 conveniently asked the States and the Union
Territories to take care of the fact that the migrant labourers do not have to
walk on the tracks or the roads.
Undoubtedly, the role of the State and Governments, both Union and of respective
states, is no less than of a sentinel in qui vive however, the abdication of
duties by the governments has raised some important constitutional questions:
- Are these people from marginalised section of our society children of a
- Don't they have the similar fundamental rights as enjoyed by the urban
The collective failure of the governments which could be termed as
awry-centric approach has raised pertinent questions of governance which could
not have any hindsight of the looming crisis.
Adding serous insult to injury to which labourers and workers have been
inflicted for no fault of theirs, some state governments, for the want of
foreign investments, proceeded to suspend labour laws. When the Industrial
Relations Code is itself pending before the Parliament of India, such moves by
some state governments 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 labourers.
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, 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 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 labour and sex-based discrimination, employment protection,
provision of social security, protection of migrant workers, elimination of
sexual harassment of women workers and others.
Labour laws in India comprise of 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 labour 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 owe the responsibility
of maintaining 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, a huge failure is seen with regards to such implementation of
the Act and this seems to have disturbed a lot of calculations which had the
probability of putting things in place as 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 condition for the
migrated workers and then announce a lockdown. Considering the fact that a
lockdown was necessary, such a chaos was precedented for as it is a dark reality
that a lot of employers and contractors would have definitely avoided
registration of the labourers so as to escape from the liabilities imposed upon
A Glance at the 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 due to sustenance issues. Millions of migrant labourers have had to
walk unimaginable distances and spend all their money in mobile recharges so
that they can remain connected with their family members.
It should also be taken into consideration that they are not that educated 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 labourers stranded in these economic centres have created
volcanic situations that can create a serious law and order problem in the
Recently, the Government, although much late, showed a positive inclination
towards resuming the sale of essential goods and sale of liquor was included. 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 labour 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 it is existing 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 labour laws and scrape out few legislations to avoid
repetition. This above-mentioned 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 labourers 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'
. Direct loss of
migrants earnings for their bare survival has taken a severe hit due the
lockdown, while lockdown itself is a policy decision which is meant for the
larger good however, who would take responsibility of snatching the means of
survival from these poor people.
- Can they be just left on their own fate?
- Are they not entitled, within meaning of Article 21 of our constitution,
for a life with dignity?
While we also appreciate the move of Union government for
bringing stranded Indians to India through Vande Bharat project however, we are
at loss to understand that why such project was not launched for these people:
- who need it the most. Just because they have no voice?
- Just because they are poor?
- Just because they are destined for their own fate?
The gargantuan failure
of State in protecting our own fellow Indians would have no parallels in
history. The Supreme Court which is the guarantor of our constitution and which
must act as sentinel on qui vive for zealously and aggressively protecting the
rights of the citizens has also disappointed many Indians. The apex court opted
to adopt almost all version as put by the counsels representing the union of
India and proceeded to abdicate its responsibility to the executive.
situation, when only executive seems to be working as parliament is not in
session and justice has been put in ICU, we don't know how and when these
repeated sufferings would stop. The supreme court is the only institution which
has the true potential of reinforcing 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?
Dr Farrukh Khan
is an Advocate and Managing Partner of Law Firm- Diwan
Advocates. Somya Mishra is an Advocate, working with Diwan Advocates