Author: Harshita Joshi, 3rd Year, B.A. LL.B (Hons), School of Law, Jagran Lakecity University, Bhopal
The pandemic has shaken the entire world monstrously. The Marginalized society is also at risk. When the first phase of lockdown was commenced, most of the migrant workers lost their job because the entire ongoing construction sites were pushed to call off the ongoing work and put all other projects on hold. Migrant workers didn’t get proper wages due to which they lost their livelihood and moreover didn’t have enough money for a meal due to inadequate resources. Due to nationwide lockdown, transport services were also suspended. Migrant workers were fired from the workplace and could not maintain their livelihood, as a result of which they started walking towards their homes on their own. But many restrictions were placed on the movement of migrant workers in order to control and monitor the dissemination of the deadly virus.
Moreover such instances have occurred where migrant workers were abused by the police force during their journey to home. They have been brutally beaten up, charged and got down to knees by the police officers. These actions of the Police officers are condemned remarkably. In the light of foregoing incidences, now is the time that we should examine the Human Rights violations of Migrant Workers.
Constitution makers had shrewdly procured the entire Constitution of India. They perceived that perhaps in future there might be such a condition where the rights of marginalized society will be at risk. Therefore, there are many such provisions in Part IV of the Constitution which safeguard the rights of these workers. These provisions are Article 39(a), 41(2) and Article 43(3) of the Constitution which ensures that citizens have adequate means of livelihood, equal pay for equal work for both men and women, economic necessity, protection of their health and strength. These provisions fall under the Directive Principles of State Policy which are considered to be fundamental in the governance of the country. But the present circumstances have acted as the biggest hurdle in the implementation of these rights.
UDHR on Human Rights
UDHR is an international convention, to which our country India is a signatory. Important provisions of UDHR which protect the rights of Marginalized society are Article 1 (the right to live with dignity), Article 2 (the treatment of every individual without any discrimination), and Article 3 (the right to life). India continued to adopt UDHR in order to promote and safeguard the human rights of Human beings guaranteed to them.
Human rights are the rights which are guaranteed to all Human Beings in order to live a dignified without any discrimination on the basis of race, colour, sex, nationality, status, etc. Now the question that arises is who will protect the Human Rights of most workers who are part of the unorganized sector? The answer to this question is given by Human Rights Treaties that primarily government is responsible for protecting these rights but UDHR stated it in a different way,
“ that every individual and every organ of society…..shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance”
Thus it can be concluded from the provisions of UDHR that it is not just the government but every individual is responsible for protecting each other’s right.
The constitution guarantees basic human rights
India is a signatory to UDHR and therefore part III of the Indian Constitution resembles UDHR and therefore gives protection to human rights.
Article 21 which provides for ‘right to life and personal liberty was badly hit during this pandemic. Emphasizing on the case of Olga Tellis v. Bombay Municipal in which the Court said that Article 21 guarantees to the citizens of India to earn a livelihood and state cannot oust a citizen of his livelihood except procedure established by law.
Adhering to the judgment of the aforementioned case the government endeavoured to compensate these migrant workers under section 10(2) (I) of the Disaster Management Act, by dispensing them with food and shelter but the same is not accessible to all. There were many such migrant workers who were unable to afford transport nor could they get government relief and they lost their lives hopelessly. Therefore the government is under obligation to frame policies for the welfare of these workers.
Whereas Maneka’s Gandhi case put forth a new dimension to Article 21, it stated that Right to live with dignity has been covered within the purview of Article 21 of the Constitution. Now here the question turns out whether these rights are accessible to them even though the same is available. The answer is No. Just by looking at the incidents which have happened during the lockdown in the name of Shramik Special Trains which were started to send the migrant workers safely to their homes. Instead the workers reached other destinations and not where they were supposed to. Some even died en route due to lack of availability of food, water and medical facilities. Therefore in the light of aforesaid instances the major concern that arises here is who will protect the rights of these migrant workers?
Many factory owners said that they will not be able to give minimum wages to these workers hence defeat the principle laid down in People’s Union for Democratic Rights v. Union of India in which it was held that Article 21 also includes the right to have minimum wages. Therefore if the ‘Supreme Law of the Land’ provides every citizen with basic Human Right then no one can take this right from them.
What is ‘Migrant’ in the exercise of the Right of Freedom?
Article 19 clause (d), (g), (e) provides the freedom to move freely, settle in any part of the territory of India and to practice any profession or to carry on any occupation, trade or business to all the citizens of India.
The makers of the constitution had injected these clauses so as to integrate the Indian culture and to provide an opportunity for every citizen to migrate to other cities in hunt of better livelihood.
Now the question emerged: why are these workers classified as migrants if the constitution does not categorically provide for the term ‘migrant’ as a prefix in the word workers? It seems like it is the government who and therefore due to the need for a time the term migrant is added which signifies another restriction under Article 19 i.e. the workers cannot voluntarily leave or stay at the particular place.
These workers do not have the capacity to put electoral pressure on the state government of their employment state, therefore these workers seek to return to their home state to seek some help from their state government. We can say that calling these workers as migrants contradicts the idea of nation building as formed by the constitution-makers
It also segmented the working class in migrant as well as non-migrant workers and therefore ultimately violates Article 14 of the constitution which provides for equality before law i.e. every individual should be represented equally before the law without any discrimination.
Labor Law violations
There were various labour law violations during the pandemic, focussing essentially on , states like Uttar Pradesh, Gujarat, Maharashtra that have increased the working hours of workers without paying them overtime violating Section 51 and Section 59 of the Factories Act. As per the provisions of the aforementioned sections, the employees are directed not to work more than 48 hours in a week and not more than 9 hours in a day. Similarly, many of them denied paying even minimum wages which is violative of Section 14 of the Minimum Wages Act.
Protection of Inter-State migrant workers in India
Even though laws like Regulation of Employment and Condition of Services Act, 1979 are prevailing to protect the Rights of the Workers then why is their condition miserable? This is because this act is not applicable to Migrant Workers i.e. The Workers working outside their own state.
Is the Act restricting the entry of Migrant Workers is legally legit or not?
Although the centre directs the state government to aid the migrant workers to return their home then also it seems like many states do not desire to allow these migrant workers and other travellers to enter their state to prevent the coronavirus from spreading.
Relying on Article 19 The Indian Constitution provides that every citizen has the right to move freely throughout the country but no rights are absolute accordingly it also inserted clause(5) and (6), which implies that the restriction can be done based on reasonableness and in the interest of the general public. But what is in the interest of the general public is very vague and is not outlined by the Hon’ble Supreme Court.
Also, states have the power to restrict the temporary movement of persons or class of persons to prevent any pandemic disease to spread under Section 2 of Epidemic Diseases Act, 1897
Although Senior Advocate Indira Jaising claimed that it is vital to maintain social distancing in order to stop this disease from spreading, therefore it is valid to apply restriction on contaminated areas and not the entire class of Migrant Workers.
Therefore we can conclude that states do have the power to restrict the temporary movement.
Supreme Court on Migrant worker’s issue
Soon after the lockdown, the petition was filed. In the case of Harsh Mander & Anjali Bhardwaj v. Union of India petitioners pleaded ‘Right to live with dignity’ under Article 21 of the constitution and requested to grant minimum wages to workers who are notably affected by this pandemic. The petition also mentioned some additional affidavits stating about police brutality, starving from food, etc. But the SC’s response to this completely caught the population off guard. The bench hearing the petition affirmed not to intervene in the government’s decision and because Migrant Workers are getting free food, shelter etc., then what is the need of minimum wages. Subsequently, the SC till 13 April ignored the plea thereafter at the final hearing the bench ascertained to hear the case to which petitioners presented a report by SWAN( Standard Workers Action Network) but SC stated that they cannot rely on the report by private body i.e. SWAN as the government’s story is completely different from what the report shows. And therefore they denied to hear the plea and decided to close the case.
Also, earlier in March Supreme Court refused to hear the Public Interest Litigation
(PIL) by Akash Alok Srivastava in a case registering the plight of migrant workers, but now SC has ordered centre and state to send migrant workers back to their homes in 15 days. The SC also ordered to withdraw cases against migrant workers for breaking the norms of lockdown.
Collective failure in protecting rights of Migrant workers
We have our Constitution of India as ‘the supreme law of the land’ which safeguard these rights but there are many incidences which revealed that the state had failed miserably to protect these rights as many people died of hunger in the train and on the road , they lost their livelihood etc. and these incidences completely defeated the intention of constitution makers.
Even though we have Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service)Act, 1979, but to get the benefits of the aforesaid act they have to be registered with the government and in Section 23 it has also been mandated that they have to register through the contractor but these contractors do not register these migrant workers so as to avoid their liability. The inter-state migrant issues are in the Union List of Indian Constitution, so the power is with the Union and therefore the Government should have seen before announcing the lockdown as to how many of these workers are registered so as to be protected under the Act but they failed to do so. Similarly, our Hon’ble SC in earlier petitions stated that they do not want to intervene in the matter of government decision however on 7th June they took positive measures in their order recommending centre and state government to prepare a list and send these workers back their home in 15 days.
- India in 2020 has witnessed the most devastating year and therefore to dodge such situation in future ,primarily there is a need to have a separate law for the workers of the Unorganized Sector
- In Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service)Act, 1979, the power to register the worker with the government is with the principal employer or contractor which is the major drawback, and this responsibility needs to be a shifted to some independent agency who could have a proper record of these Inter-State Migrant workers.
- Government should also focus on instituting a specific institution for Migrant Workers which could monitor these workers and resolve the problems related to inter-state migrant workers.
When our government was launching the mission VANDE MATARAM, how did they overlook migrant workers? Moreover a proper mechanism is a prerequisite ,which the government should ponder upon.
But during this pandemic a massive support has been received by NGOs who extend their helping hands to these migrant workers to reach their native places. So if such a situation occurs in future, then the government can reach the maximum number of people with the help of these NGOs.
Even in the foregoing years the migration will increase so as to tackle the problem there is need to set up a committee which could solely work on these existing issues of Migrant Workers and prepare a report as to what rights are to be protected as well as the mechanism of protecting these rights.
 INDIA CONST. ar.39(a)
 INDIA CONST. ar. 41(2)
 INDIA CONST. ar 43(3)
 Universal Declaration of Human Rights.
 Universal Declaration of Human Rights.
 INDIA CONST. art.21.
 Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545(India).
 Maneka Gandhi v. Union of India, (1978) 2 SCR 621 (India)
 People’s Union for Democratic Rights v. Union of India, (1982) SC 1473 (India)
 INDIA CONST art.19.
 INDIA CONST art.14.
 Factories Act , 1948, NO. 63, Acts of Parliament, 1948 (India)
 Factories Act , 1948, NO. 63, Acts of Parliament, 1948 (India)
 Minimum Wages Act,1948, NO. 11, Acts of Parliament, 1948 (India)
 Inter-State Migrant Workmen( Regulation of Employment and Condition of Service) Act, 1979, Acts of Parliament, 1979 (India)
 Supra note 9.
 Epidemic Disease Act, 1897, No. 3, Acts of Parliament, 1897 (India)
 Vakasha Sachdev, Can States legally stop the Entry of Migrant Workers?(May 26, 2020, 12:45 PM), https://www.thequint.com/news/india/can-states-legally-restrict-entry-return-of-migrants-article-19-constitution-freedom-of-movement-reasonable-restrictions
 Vashakha Sachdev, Don’t want to Meddle with Govt’s decision on Migrant Workers-SC(April 7 2020, 7:48 AM), https://www.thequint.com/news/law/sccoronavirus-lockdown-migrant-workers-petitions-mander-aruna-roy-mahua-moitra-no-interference-govt-decisions
20The Wire, SC Now Gives Centre, States 15 Days to Send Migrant Workers Back Home( August, 12 , 2020, 7:45 PM), https://thewire.in/law/supreme-court-migrant-workers-lockdown-home