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India’s Response to Covid-19: Appalling Apathy Towards Migrants Labourers

On March 24, 2020 India implemented a countrywide lockdown to flatten the curve against the spread of COVID-19. Migrant labourers have been one of the groups most severely affected by the implementation of a total lockdown. These migrants are the 'backbone of the National Economy, however, rarely any gratitude was revealed and seldom help was offered. Dependent on daily source of income, these migrants continue to fight hunger and displacement.

Governments have routinely glorified NRI's (Non-Resident Indian”) and the Vande Bharat program was true to its nature. Showing similar compassion for migrants was un-imaginable. While the legislature was busy buttering up the NRI's, the judiciary remained reluctant to come to their rescue.

The ideas envisioned in our Indian Constitution i.e. promoting and achieving socio- economic justice for the weaker segments of the society, are non-existent for migrant labourers in today's pandemic. Rather than acting as the sentinel of the Fundamental Rights, the Supreme Court fared poorly by accepting the Government's submissions mechanically and ignored the plight of migrant labourers

Who are Migrant Labours?

According to International Organization for Migration (IOM) Labour migrants are defined as those who move for the purpose of employment.

A migrant worker” is defined in the International Labour Organization (ILO) as a person who migrates from one country to another (or who has migrated from one country to another) with a view to being employed other than on his own account, and includes any person regularly admitted as a migrant for employment.

The United Nations Convention on the Protection of the Rights of all Migrant Workers and Members of their Families defines a migrant worker as a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a state of which he or she is not a citizen.

Determinants of Migration

The following are the important determinants:

  1. Generally, there are two basic factors of migration:
    1. Distance
    2. Duration.
       
  2. From the distance point of view, migration can be classified under four categories:
    1. Rural to Rural
    2. Rural to Urban
    3. Urban to Rural
    4. Urban to Urban.
       
  3. Besides, migration can be divided into following categories:
    1. Intra-district,
    2. Inter-district
    3. Intra-state
    4. Inter-state
    5. National and International.
       
  4. From the duration point of view migration can be studied under three categories:
    1. Casual-temporary
    2. Periodic- seasonal
    3. Permanent.


Causes of Migration:

  1. Better employment opportunities and higher wages in economically developed regions an non-availability of employment opportunities and consequent hardship in the under-developed regions.
  2. The economic necessity, inter-regional disparity in economic growth due to uneven development and disparity between socio-economic classes is the most important reason in view of National Commission on Rural Labour.
  3. Freedom of movement in any part of the territory of India and freedom to pursue any avocation of choice as guaranteed by Article 19 of the Constitution of India legally permit people to migrate for better job avenues and on account of these constitutional provisions migration cannot be prohibited,
  4. Despite hardship and exploitation the income of migrant labour may be generally higher than what they would have been able to earn without migration
    Labour Laws in India

Labor law is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations.

Labor legislations have also been shaped and influenced by the recommendations of the various National Committees and Commissions such as First National Commission on Labor (1969) under the Chairmanship of Justice Gajendragadkar, National Commission on Rural Labor (1991), Second National Commission on Labor (2002) under the Chairmanship of Shri Ravindra Varma etc.

Labour Laws & Indian Legislation Framework

Labour is a concurrent subject in the Constitution of India implying that both the Union and the state governments are competent to legislate on labour matters and administer the same. The bulk of important legislative acts have been enacted by the Parliament.

Union List
Concurrent List
Entry No. 55: Regulation of Labour
Entry No. 22: Trade Unions; Industrial and Labour Disputes
Entry No. 61: Industrial disputes concerning Union employees
Entry No. 23:Social Security and Insurance, Employment and Unemployment
Entry No. 65: Union agencies for vocational training
Entry No. 24:Welfare including provident fund, conditions of work, old age pension and maternity leaves

The legislations can be categorized as follows:

  1. Labour laws enacted by the Central Government, where the Central Government has the sole responsibility for enforcement
    1. The Employees State Insurance Act, 1948
    2. The Mines Act, 1952
    3. The Iron Ore Mines, Manganese Ore Mines and Chrome Ore Mines Labour Welfare (Cess) Act, 1976
    4. The Iron Ore Mines, Manganese Ore Mines and Chrome Ore Mines Labour Welfare Fund Act, 1976
    5. The Mica Mines Labour Welfare Fund Act, 1946
    6. The Beedi Workers Welfare Cess Act, 1976
       
  2. Labour laws enacted by Central Government and enforced both by Central and State Governments
    1. The Building and Other Constructions Workers' (Regulation of Employment and Conditions of Service) Act, 1996.
    2. The Equal Remuneration Act, 1976.
    3. The Industrial Disputes Act, 1947.
    4. The Maternity Benefit Act, 1961
    5. The Minimum Wages Act, 1948
    6. The Payment of Wages Act, 1936
    7. Unorganized Workers Social Security Act, 2008
       
  3. Labour laws enacted by Central Government and enforced by the State Governments
    1. The Factories Act, 1948
    2. The Trade Unions Act, 1926
    3. The Weekly Holidays Act, 1942

Constitutional Protection on Labour Laws

The following are the main Articles of our Indian Constitution which protects, supports and act as a guideline to various labour laws for their effective implementation and functioning.

These are:

  1. Article 14
    Article 14 of the Indian Constitution explains the concept of Equality before law. The concept of equality does not mean absolute equality among human beings which is physically not possible to achieve. Equal law should be applied to all in the same situation, and there should be no discrimination between one person and another.

    In Randhir Singh v. Union of India(1) the Supreme Court has held that although the principle of equal pay for equal work is not expressly declared by our Constitution to be a fundamental right, but it is certainly a constitutional goal under Articles 14, 16 and 39 (c) of the Constitution. This right can, therefore, be enforced in cases of unequal scales of pay based on irrational classification. The decision in Randhir Singh's case has been followed in a number of cases by the Supreme Court.

    In Daily Rated Casual Labour v. Union of India (2) it has been held that classification of employees into regular employees and casual employees for the purpose of payment of less than minimum pay is violative of Articles 14 and 16 of the Constitution. It is also opposed to the spirit of Article 7 of the International Covenant of Economic, Social and Cultural Rights 1966.
     
  2. Article 19(1)( c)
    Art 19 (1) (c) speaks about the Fundamental right of citizen to form an associations and unions. Under clause (4) of Article 19, however, the State may by law impose reasonable restrictions on this right in the interest of public order or morality or the sovereignty and integrity of India. The freedom to form association implies also the freedom to form or not to form, to join or not to join, an association or union.

    In Damayanti v. Union of India (3) the Supreme Court held that:
    The right to form an association, the Court said, necessarily 'implies that the person forming the association have also the right to continue to be associated with only those whom they voluntarily admit in the association. Any law by which members are introduced in the voluntary association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association.
     
  3. Article 21
    Our constitution safeguards very valuable right to life and personal liberty of the citizens of India including unorganized labourers. It says that no person shall be deprived of his life or personal liberty except according to procedure established by law. Hon'ble Supreme Court of India has widened the scope of Art. 21 and created new constitutional safeguards to unrecognized labourers.

    In Maneka Gandhi v. Union of India (4) the Court gave a new dimension to Article 21. It held that the right to 'live' is not merely confined to physical existence but it includes within its ambit the right to live with human dignity.

    Similarly the Court in Francis Coralie v. Union Territory of Delhi (5) said that the right to live is not restricted to mere animal existence. It means something more than just physical survival. The right to 'live' is not confined to the protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also includes the right to live with human dignity.

    In Olga Tellis v. Bombay Municipal Corporation (6) popularly known as the 'Pavement Dwellers Case' a five judge bench of the Court has finally ruled that the word 'life' in Article 21 includes the 'right to livelihood' also. The court said:
    An equally important facet of that right is the right to livelihood because no person can live without the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest ways of depriving a person of his right to life would be to deprive him of his means of livelihood.
     
  4. Article 23
    Article 23 of the Constitution prohibits traffic in human being and beggar and other similar forms of forced labour. The second part of this Article declares that any contravention of this provision shall be an offence punishable in accordance with law.

    In Peoples Union for Democratic Rights v. Union of India (7) the Supreme Court considered the scope and ambit of Article 23 in detail. The Court held that the scope of Article 23 is wide and unlimited and strikes at traffic in human beings and beggar and other forms of forced labour wherever they are found. It is not merely beggar which is prohibited by Article 23 but also all other forms of forced labour.

    In Sanjit Roy v. State of Rajasthan (8) has been held that the payment of wages lower than the minimum wages to the person employed on Famine Relief Work is violative of Art. 23. Whenever any labour or service is taken by the State from any person who is affected by drought and scarcity condition the State cannot pay him less wage than the minimum wage on the ground that it is given them to help to meet famine situation. The State cannot take advantage of their helplessness.

  5. Article 24
    Article 24 of the Constitution prohibits employment of children below 14 years of age in factories and hazardous employment. Children are assets of the nation. That is why Article 39 of the Constitution imposes upon the State an obligation to ensure that the health and strength of workers, men and women, and the tender age of the children are not abused and that citizens are not forced by economic necessary to enter avocations unsuited to their age or strength.

In M. C. Mehta v. State of Tamil Nadu (9) the Supreme Court has held that children below the age of 14 years cannot be employed in any hazardous industry. Exhaustive guidelines was laid down as to how State Authorities should protect economic, social and humanitarian rights of millions of children , working illegally in public and private sections.

Directive Principles of State Policy

Articles 38, 39, 39-A, 41, 42, 43, 43-A and 47 of the Constitution embody the Directive Principles of State Policy, though cannot be enforced through a court of law, but are nevertheless fundamental in the governance of the country, casting a duty on the State to apply those principles in making laws.

Article 39:
Article 39 specifically requires the State to direct its policy towards securing the following principles:

  1. Equal right of men and women to adequate means of livelihood.
  2. Distribution of ownership and control of the material resources of the community to the common good,
  3. To ensure that the economic system should not result in concentration of wealth and means of production to the common detriment.
  4. Equal pay for equal work for both men and women.
  5. To protect health and strength of workers and tender age of children and to ensure that they are not forced by economic necessity to enter avocations unsuited to their age or strength.
  6. That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.


The doctrine of equal pay for equal work is equally applicable to persons employed on a daily wage basis. They are also entitled to the same wages as other permanent employees in the department employed to do the identical work (10).

Article 41
Article 41 directs the State to ensure the people within the limit of its economic capacity and development: (a) employment, (b) education, and (c) public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want.

Machinery for enforcement of Fundamental Rights

If there is no remedy there is no right at all. It was, therefore, in the fitness of the things that our Constitution-makers having incorporated a long list of fundamental rights have also provided for an effective remedy for the enforcement of these rights under Article 32 of the Constitution.

Article 32 (1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights conferred by Part III of the Constitution. Clause (2) of Art. 32 confers power on the Supreme Court to issue appropriate directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the enforcement of any of the rights conferred by Part III of the Constitution.
.
Article 226 also empowers all the High Courts to issue the writs for the enforcement of fundamental rights.

A Judicial Novation to Protect the Rights of Migrant Labour
In recent times, there is a shift from analytical to functional jurisprudence and idealism to realism. The shift from status to contract in human relations has thus germinated a spirit of social welfare. The Courts too have not lagged behind in achieving a state of social welfare and as such keep on striving to serve the cause of poor and weaker sections of the society.

It has now been greed that Public Interest Litigation serves as a technique to secure the protection of rights of the labour. This class of the society contributes to the economic growth of the society in no way less than the other classes. Legislatively the labour class is bestowed with a number of rights. It has been a constant matter of dispute that this class of society is not only insufficiently paid, but there is continuous violation of their rights, claims and entitlements.

Peoples Union of Democratic Rights v Union of India- Asiad Case (11)
In this case a writ petition was moved in the Supreme Court of India by way of public interest litigation in order to ensure the observance of the provisions of various enactments of Labour Laws such as Employment of Children Act, 1938, Industrial Disputes Act, 1947, Minimum Wages Act, 1948 in relation to the workmen employed in the construction of various projects connected with Asian Games. Here a class of people, i.e. the construction workers were not paid their minimum wages. Some indecent device was adopted by which minimum wages of the workers were reduced.

The Central Government is, therefore, bound to ensure the observance of various social welfare and labour laws enacted by Parliament for the purpose of securing with the Directive Principles of State Policy.

Labourers working on Salal Hydro Electric Project v State of Jammu and Kashmir- Salal Project's case (12)
In this case a relief by way of Public Interest Litigation was sought for labourers employed by contractors and sub-contractors of government projects regarding implementation of labour welfare legislations for the benefit of these deprived persons.

The labourers were not provided with canteen and rest room facilities. There were no adequate washing facilities provided at the work-site, though there was a clear obligation on contractors and sub-contractors to do so.

Mr. Justice Bhagwati, while delivering the judgment, vigorously emphasised the necessity of complying with the provisions of Contract Labour Act. The learned Judge further reiterated that welfare amenities required to be provided under these statutes to be made available to the workmen employed on the project.

PUDR vs Union of India (13)
In this case the Supreme Court held that laws protecting contract labour and inter-state migrant workmen were intended to ensure basic human dignity; violating these laws would violate the right to life under Article 21. Further, the Court held that forced labour”, prohibited by Article 23, included not just physical force but also the threat of imprisonment or fine

Injustice by Supreme Court during such Pandemic

In 1952, when India's Supreme Court upheld the rights of citizens to assemble peacefully, it said the Constitution had assigned it the responsibility of guarding against violations of fundamental rights the way a sentinel protects a fort. Sixty eight years later, the sentinel seems to be letting its guard down. Across India, lakhs of migrant workers, their livelihoods devastated by the nationwide lockdown to slow the spread of Covid-19, are walking hundreds of kilometres in an attempt to get back to their home villages. Approximately 120 of them have died in accidents along the way.

On March 31, when a PIL came up seeking measures to help the migrant workers, Solicitor General Tushar Mehta said there were no migrant workers on the roads anymore as governments had ensured that they were being housed and fed. The court accepted this submission and another made by the Centre which said fake news had led to the workers' exodus.

If anything, the court seems to have a lack of understanding of the needs of workers. On April 7, responding to submissions that the Centre pay workers their wages, Chief Justice SA Bobde asked the lawyer why the workers need money when they are being fed – failing to acknowledge that people need more than just food to survive.

High Courts empathy
In the meantime, orders from two High Courts last week acknowledged the seriousness of the migrant worker crisis and were marked by empathy for their plight.

On Friday, the Madras High Court issued an order laced with emotion, something unusual for the courts. In a habeas corpus petition asking the government to produce 400 Tamil workers stuck in Maharashtra, a bench of Justices N Kirubakaran and R Hemalatha said that, 'One cannot control his/her tears after seeing the pathetic condition of migrant labourers shown in the media for the past one month. The heart breaking stories are reported in the print as well as visual media that millions of workers were compelled to start walking to their native States with their little children carrying all their belongings over their head, surviving on the food provided by good Samaritans, as no steps were taken by the Governments to help those migrant workers.'

Also on Friday, the Andhra Pradesh High Court cited disturbing news reports to order the state government to take specific measures under seven different heads, including medical, transportation and food.

In addition, the Karnataka High Court on May 12 directed the governments to decide on paying the transportation cost of workers going back to their villages and towns. It reminded the governments of the huge contribution the workers have made to the country's development, insisting that the executive should come forward to help them at a time when they have lost their livelihoods.

On the same day, the Gujarat High Court took up the workers' cause suo motu and sought the response of the governments

ILO And Indian Labour Laws

International Labour Organisation (ILO) was one of the first organisations to deal with labour issues. The International Labour Organization brings together governments, employers and workers to drive a human-centred approach to the future of work through employment creation, rights at work, social protection and social dialogue.

Ratifications of ILO Conventions by India

Out of 47 Conventions and 1 Protocol ratified by India, of which 39 are in force, 5 Conventions and 0 Protocol have been denounced; 4 instruments abrogated; none have been ratified in the past 12 months.

S.No Convention Date Status
1 C029 - Forced Labour Convention, 1930 (No. 29) 30 Nov 1954 In Force
2 C100 - Equal Remuneration Convention, 1951 (No. 100) 25 Sep 1958 In Force
3 C105 - Abolition of Forced Labour Convention, 1957 (No. 105) 18 May 2000 In Force
4 C111 - Discrimination (Employment and Occupation)
Convention, 1958 (No. 111)
03 Jun 1960 In Force



Governance

S.No Convention Date Status
1 C081 - Labour Inspection Convention, 1947 (No. 81) 07 Apr 1949 In Force
2 C122 - Employment Policy Convention, 1964 (No. 122) 17 Nov 1998 In Force
3 C144 - Tripartite Consultation (International Labour Standards)
Convention, 1976 (No. 144)
27 Feb 1978 In Force



Technical

S.No Convention Date Status
1 C001 - Hours of Work (Industry) Convention, 1919 (No. 1) 14 Jul 1921



2 C118 - Equality of Treatment (Social Security) Convention, 1962 19 Aug 1964
3 C123 - Minimum Age (Underground Work) Convention, 1965
(No. 123)
Minimum age specified: 18 years
20 Mar 1975
4 C141 - Rural Workers' Organisations Convention, 1975 (No. 141) 18 Aug 1977
5 MLC, 2006 - Maritime Labour Convention, 2006 (MLC, 2006)
In accordance with Standard A4.5 (2) and (10), the Government has
Specified the following branches of social security: maternity benefit; invalidity benefit and survivors' benefit.
09 Oct 2015



ILO Reports on Covid-19 and Its Impact on Indian Labourers

About 40 crore workers in India working in the informal economy are at risk of falling deeper into poverty during the COVID-19 pandemic crisis. The International Labour Organisation (ILO) said in a report today that the COVID-19 pandemic is affecting 2.7 billion workers globally due to lockdowns.

Without appropriate policy measures, workers face a high risk of falling into poverty and will experience greater challenges in regaining their livelihoods during the recovery period.
ILO noted that the COVID-19 pandemic has further accelerated in terms of intensity and expanded its global reach. Full or partial lockdown measures are now affecting almost 2.7 billion workers, representing around 81 per cent of the world's workforce.

Conclusion
Of course, no one is to blame for the pandemic. But can the same be said about the ensuing humanitarian crisis? It brought to the fore the pre-existing vulnerabilities of our labour workforce and the shortcoming of our labour laws. And for the migrant worker, it stole their dignity. Scores of civil society folks doing good work have shared stories that the migrants didn't want charity. They just wanted their due share but we as a society have collectively failed in giving them that.

For now, and understandably, these migrants have no faith in the system and are justified to look at us with doubt. In due course, and let us manage our expectations on the time-line, when their measly savings, if any, are exhausted, chances are the migrants will eventually be compelled to return to the same cities where their dreams turned to nightmares.
Therefore it is necessary to protect migrant and other workers in the unorganized sector on humanitarian, social, economic and political grounds.

End Notes:

  1. AIR 1997 SC 3014
  2. (1988) 1SCC 122
  3. 1971 SC 966
  4. 1978 AIR 597
  5. AIR 746, 1981 SCR (2) 516
  6. AIR 1986 SC 180.
  7. AIR 1982 SC 1943.
  8. AIR 1983 SC 328.
  9. (1991) 2 SCC 193
  10. Surindersing v. Engineer-in-Chief, C.P.W.D., AIR 1986 SC 534
  11. AIR 1982 SC 1473
  12. 1984 (3) SC 538
  13. AIR 1982 SC 1473

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