This article is written by Aayush Akar and Yash Chhikara from National Law University, Odisha. The following article deals with the Migrant crisis relating to their livelihood during Lockdown.
The effect of the COVID-19 crisis on low-skilled foreign employees and casual workers has been catastrophic. Work deprivation, lack of social care, and being stuck in a foreign city or state would be problems that the nation would have to contend with well outside the post-COVID-19 era. Article 22 of the Universal Declaration of Human Rights guarantees that every member of the community has a right to social security. The basic values and norms of the International Labour Organisation (ILO) cover employees in diverse industries which include freedom of speech, fair compensation for equal jobs, healthy working practices, removal of slave labour and racial segregation, equality of education, social security policy, the safety of foreign employees, reduction of sexual abuse against woman employees and other similar things.
The 2018-2019 Economic Survey notes that 93% of jobs are in the informal economy, while NITI Aayog’s “Strategy for New India @75” in 2018 reports that “India’s informal sector employs around 85 per cent of all employees”. Although sources can vary on the exact figures, the vastness of informal jobs is an acknowledged and well-known fact. Such jobs contribute 50% of India’s national income and make up a significant part of the country’s human resource base. Given the vast percentage of the population stuck in the informal network, the establishment of legal and economic security would be a significant undertaking throughout this pandemic. Although India has a broad variety of social security programs in the fields of employment, health care, training, food protection and pensions most of these initiatives are restricted to the formal market.
The 2011 census migration data was analysed and published in the 2017 Economic Survey based on the Ministry of Railways’ rail passenger traffic flows and new methodologies such as the “Cohort Migration Metric (CMM)”. Estimates using the 2011 census and the 2007-08 National Survey Sample put the proportion of migrants in the workplace between 17 and 29 per cent. There was a gradual growth in the number of internal migrants yearly, between 2001 and 2011, inter-state labour movement reached 5-6 million citizens, thus the inter-state migrant community constitutes 60 million and inter-district migration is 80 million. External work-related migration figures for 2011-2016 indicate that nine million workers are moving between states.
Recent migration trends show that states such as Maharashtra, Delhi, Tamil Nadu and Gujarat attract large swaths of migrants from Uttar Pradesh, Bihar and Madhya Pradesh’s Hindi heartland. West Bengal is now drawing a huge number of refugees from Jharkhand, Uttar Pradesh, and Odisha neighbouring states. Because Maharashtra and West Bengal are the largest regional economies and regional magnets for migrants in the southern and western regions and the northern and eastern regions respectively, we are focusing in particular on how these two countries responded to the fear of coronavirus by protecting their migrants.
The pandemic has jarringly highlighted the gaps that remain in the regional discourse on safeguarding migrant labour rights. There is a glaring lack of focus on taking up an updated stock of the migrant population of states and providing them with social security based on labour standards. There are sparse disaggregated internal migration data in India- the official estimates of the number of migrant workers mainly originate from the census reports that identify a migrant as an individual who resides anywhere other than their birthplace or their last place of residence.
A concentrated push to collect state-of-the-art migrant data inside states is necessary to better gage the funds required to have sufficient access to the food supply, accommodation, sanitation, and financial services all factors that are currently difficult to access for migrant seasonal workers. Lack of granular data is a significant explanation why the country appears to have just risen to the migrant problem, no one understands the severity of the case and the evidence have come from simulations focused on results.
States will also ensure that, along with the growing increase in developing social insurance systems for informal industries, foreign employees are distinguished and compensated for additional issues such as the lack of evidence of identification and lack of collaboration with the country of origin. A roadmap should be drawn up for collaboration between states to alleviate the burden on interstate migrants without waiting for another pandemic to push its hand.
Even the Supreme Court has declined to order central government and state governments to ensure wage/minimum wage compensation for all migrant employees. However, it called on the government to take the requisite measures to address migrant workers’ problems.
The Court was hearing the petition seeking guidance from the federal government and the government of the state to collectively and severally ensure salary/minimum wage payments to all migrant employees within one week. Advocate Prashant Bhushan, who appeared for petitioner Harsh Mander, had claimed that thousands of employees still denied exposure to essential services, following government initiatives. He also claimed that surveys carried out by NGOs found that there are many places in which the assistance does not enter migrant workers.
On the other side, Solicitor General Tushar Mehta filed a status report and stated that there are numerous steps in progress to resolve the migrant worker’s problems. He further claimed that the helpline number was given to report on implementation problems at ground level and that, if any feedback is received, the authorities instantly seek to resolve the same. Satisfied with the government’s response, the Court resolved to take certain measures as it considered appropriate to address the issues posed in the petition with the government’s approval.
On April 13, the bench headed by CJI SA Bobde scheduled a PIL seeking urgent guidance to pay simple minimum wages to migrant employees, adversely impacted by the COVID-19 lockdown. The Court had asked the Bhushan to pass the affidavit meanwhile. Bhushan advised the court that more than four lakh migrant workers stay in shelters and create a joke of social isolation. “If they’re kept in the shelter homes, even if one person has coronavirus they will all get infected.” adding that many people will die by Monday, Bhushan said, “They should be allowed to go back to their own homes. Families need money for survival because they are dependent on wages.” Solicitor General Tushar Mehta said the central government is at the top of this situation and is looking into the grievances that have been issued. He added that a call centre had also been established to address and resolve issues. Mehta said the Home Affairs Minister controls the helpline every day. The PIL requested an urgent order from the Central Government to pay reasonable minimum wages to migrant workers and argued that the lock-up, enforced in an attempt to deter coronavirus spread throughout the world, discriminated against residents. Last month, the bench of L. Negeswara Rao and Deepak Gupta, sent a notice to the Central Government of a petition seeking urgent guidance for the payment of simple minimum wages to migrant employees, adversely impacted by the COVID-19 lockdown.
Reason of the Movement- Understanding the Reasons for the Core
- Migrant workers are among the citizens that are the key foundation of GDP production. They are like the nowhere men that are present everywhere, whether it is household jobs or factory work. These individuals are most impacted by this lockdown. And, because of the loss of some sort of work or money in hand, these citizens needed to re-migrate.
- The lockdown was declared on March 25 and it was clear that, in this pandemic, most domestic employees, industrial labourers would lose their employment. They were all going to get their wages for their respective month in the matter of the next few days. So most of them submitted their remittals on the first week of the month. As a result, they were stuck with the negligible income because they didn’t receive the corresponding month’s salary despite the provisions of the decree issued on 29 th March.
- Additionally, government-mandated to follow the lockdown directives. If these workers were spotted on the road, on the highways, they were brutally punished by the police. As a result, they preferred to move along the railway tracks and sleep on the respective platforms and, if they were not able to make it up to the station, they preferred to sleep on the tracks.
- The government’s pledge to build shelters. Those places are (as stated by these migrant workers) filthy places with no proper roof and rough ground. They are forced to stay in those unhygienic conditions. In UP alone, nearly three lakh migrant workers were quarantined in shelters with no sufficient food supply and unhygienic conditions. As a result, these helpless workers decided to move to their native place.
- It is not only the legal obligation on the part of the state to aid migrant workers, but it is their contractual requirement to provide them assistance to reach out to their home state. In Surat, angry workers were on the streets demanding the train to reach their destination, tear gas shells were fired at them. When they didn’t see any other way out, they were compelled to travel on foot to meet their target.
- With an inexorable lockout, where people think it easier to suffer from hunger than from corona, where people consider it safer to be disinclined to travel hundreds of miles than to stay in locked spaces, where people find it easier to sleep on the railroads than to be punished by the military. It depicts the great loss of trust of these millions of migrant workers towards the administration. The corollaries of this massive loss of trust are that they are forced to move to their home state.
Steps were taken by the States in the Pandemic
After the Janata Curfew, which was announced on March, 22nd, Centre has further pronounced a twenty-one-day lockdown on March, 24th. Till then many states had already invoked the Epidemic Diseases Act 1897, putting stringent restrictions on the movement of the people. Section 2 of the “Epidemic Diseases Act” delivers power to the state government to “take special measures and prescribe regulations as to dangerous epidemic disease.” Further on March 24, National Disaster Management Authority had released an order under which it exercises its power mentioned in section 6 (2)(i) of the “Disaster Management Act” to direct the state government to take effective steps to prevent the spread of Covid-19.
Later, on March 29, the Ministry of Home Affair had released an order stating the movement of migrant workers as a violation of the lockdown and the chairman of the National Executive Council implementing similar directions had directed the state authorities to ensure additional arrangements such as:
- To provide transitory housing, and supplies of food to the disadvantaged public which includes the migrant workers who are stranded due to the lockdown and to the ones who had moved out, but could not reach their home state, provided they are properly screened for a minimum period of fourteen days as per standard health protocol.
- All the employees whether it is in the commercial sector such as shops or the industrial sector such as labourers should be provided with the wages, without any subtraction for the time of closure during the lockdown.
- Landlords of the property could not demand the rent from the workers including from the migrants for one month. Any force to vacate their land will be held actionable in the act.
Further development came on 3rd April when on the direction of Prime Minister Narendra Modi, the home ministry had announced to provide the funds of rupees eleven thousand ninety-two crores to all the state governments.
Under which Maharashtra, Uttar Pradesh, Madhya Pradesh, Rajasthan, Bihar has received the maximum amount of rupees 1611, 966, 910, 740, 708 crores respectively. Also, according to the census of 2011, these states, which includes Uttar Pradesh, Madhya Pradesh, Rajasthan, Bihar accounts for more than 50 per cent of the interstate migrants. Whereas Delhi, Maharashtra, Haryana, Gujarat, Uttar Pradesh housed more than 50% of these migrants.
Though there is no recent data available as to how many migrant workers are stranded in various parts of the country. An RTI filed by the applicant Venkatesh asking the information about the data received from various districts of the states on the migrant workers, revealed that there was currently no data with labour’s commissioner office concerning the same. In this case, it becomes even more important for the states to take effective measures at the grass-root level to ensure that migrant workers who received the worst hit by the pandemic get the required support from the authorities.
Several state governments had come out with various guidelines and orders to support the stranded migrant workers. This article will focus on these steps taken by the state government.
Seeing the hue & cry of migrant workers from the various parts of the country, the Uttar Pradesh government decided to bring back the workers who were stranded on the border districts. To do so, on 28 March, the government arranged thousands of buses to facilitate these workers. The government also prepared an action plan for the return of the migrants and tried to map all the workers who were there in the relief camps.
The state government time and again had asked the stranded migrants to maintain patience and to be in touch with the respective state authorities. Government is of the view to bring the workers in different phases. It will be first bringing the workers who had completed their fourteen days quarantine in other states. The energy minister of the state Mr Shrikant Sharma said, The government is conscious of the challenges but is determined to convert them into opportunities. Government is of the view to generate employment opportunities for these workers so that they do not have to migrate again.
These measures taken by the state authority came after a long time. It took almost one month for the authorities to bring back these stranded migrants and still many are there in shelter homes or are on their way to reach their home state on foot. These lakhs of workers are forced to live on constrained resources and in an unsanitary condition in the shelter homes. This delay took a heavy toll on the lives of these stranded migrant workers. If these decisions would have been implemented earlier, these workers would have reached their state much before.
Following the lockdown, there were lakhs of daily wage migrant workers who were there on the streets of Delhi to reach their home state. Chief Minister, Arvind Kejriwal asked these workers to not to leave their homes and shanties and asserted that the government could feed all the Delhi workers. The government had converted government schools to shelter homes and had also started buses to avoid travelling of workers.
The state government had announced plans to provide grains to 7.2 million workers living in the state and also started an e-coupon service for the workers who are not covered under the public distribution scheme. It had also started an online application system for the movement of workers to their home state and appointed nodal officers and had addressed the police officials to restrain the unregulated movement of the workers.
Though the government tried to resolve the distress of these migrant workers through various schemes it had failed miserably to implement those. The Delhi ration registry works on the data of 2011 census but the situation has considerably changed in nine years. There would be many vulnerable families who will not be recognized under the said scheme. And the e-coupon scheme started by the government failed to recognize the fact that many of these poor migrant workers do not have the required mobile phones and the internet connection to register for the said scheme. The government needs to take some steps forward to execute the said scheme.
Reaching to migrant workers who are stuck at different places and wanted to reach their home state, and also to the workers who had migrated to Bihar for employment, the government had taken various steps to reduce the miseries of these workers. For the daily wage earners, the government said that it had distributed rupees 100 crores from the Chief Minister Relief Fund to be used for these workers by the disaster management department to provide shelters. Also, the government said that it had provided the disaster relief centres for those workers also who had migrated to the state for the projects which are underway in Bihar.
The Bihar government had transferred the amount of rupees 1000 each to the bank accounts of 284000 workers and migrant labourers. The government had also appointed nodal officers and directed the police department for the easy movement of the workers. Tejashwi Yadav who heads the opposition party in Bihar had also offered the fair of 50 trains carrying migrant workers to Bihar.
The help which the state government tried to provide could not reach the significant number of migrant labourers. There are lakhs of these migrant labourers and the help provided by the government is limited. The government too did not have resources to help the workers. The total budget of the Bihar government towards the public expenditure on health was rupees 8,788 crores which was just 4.1% of the total budget. The government needs to take support from the centre because the economy of Bihar at present is facing an unprecedented situation and without the financial support, it won’t be able to support a large number of migrant workers in the state.
In crises, the government of Maharashtra had tried to support migrants. It has established 262 relief camps across the state which is providing shelter to the 70,399, number of migrants. The Maharashtra government had assured the workers of the proper meal and also of employment once this lockdown ends. The government had reduced the rate of meal which was offered under “Shiv Bhojan Scheme ” so that a large number of workers could be benefitted from the above scheme.
According to a report from the “SWAN (Stranded Workers Action Network),” 96% of the migrants which reached out to the network are unable to access the government rations. Also, 69% runs out of rations in a day. Thousands of migrants find it difficult to reach their home state and the Maharashtra government is not able to stand on the expectations of the workers.
In Kerala as well there was a great uproar of migrant workers. The workers wanted to leave for their home state after the lockdown was announced. But the government dealt with the migrant workers in a more human approach. It had not only provided the workers with enough food, medicines, sanitizers and masks but also recharged their mobile phones so that they might not feel away from their family. It has also provided 24-hour control rooms where the queries of migrant workers are listened to and resolved. At present Kerala had 18,912 relief camps, which is the maximum number of relief camps for migrant workers in the country.
In Odisha, the government had primarily focused on the Panchayats to deal with the issue of stranded migrants. The panchayats have delegated the power of district collectors to smoothen the movement of all the migrant workers. Also, the government decided to have a registration facility working in each panchayat under which each migrant has to undergo a registration process which could be done by his friends or their family members. Each migrant had to undergo a 14-day quarantine during which food and shelter would be provided free and once the quarantine was completed, he would also be provided with 2000 rupees.
Whereas in Karnataka, after the uproar from migrant workers to allow them to move to their home state, the state government had altered its decision and finally allowed these workers to leave. Interested migrant workers had to register themselves via an online portal and then the application will be sorted state wise. All the migrant workers will be screened by the health authorities and then officials would identify the selected migrants and provide them with the ticket at a price decided by the railways.
Constitutional And International Obligations
The unprecedented lockdown on 25 March left the lakhs of workers in the varied places of the country stranded. The situation now is that there is a need to recognize and protect the rights of these workers. There is a continuous threat to their fundamental rights. These lakhs of workers in approximately two months had encountered threats on their livelihood, food, shelter, income, security and dignity. The government cannot turn a nelson’s eye on the plight of these workers and had to recognize and protect their rights.
The nationwide lockdown had questioned two important fundamental rights, Article 14, which is “equality before the law” and Article 21, which is “protection of life and personal liberty.” The result of lockdown had a disproportionate impact on the lives of the workers. The construction workers, domestic servants and all the daily wage earners are disproportionately affected by this lockdown. Their daily chores by nature could not be done from their home. This disproportionate impact resulted in the “socio-economic class” which is a valid ground under the right to equality as held by the apex court in the case of “State of Maharashtra v Indian Hotel and Restaurant Association.” The very disproportionate impact of the lockdown on one set of people is not based on any “intelligible differentia” and is per se discriminatory. This, as a result, leads to a “positive obligation” on the part of the government to mitigate this disproportionate impact of its decision.
The impact of the lockdown has also affected the right to livelihood, which is present in Article 21 of the Indian Constitution. Amidst the pandemic, it is difficult for these workers to perform their duty. The loss of livelihood, income resulted in these workers to leave their rented apartment. Consequences are that these workers had to starve because the government supplied food grains are unable to reach all the migrants. “Right to life” present in Article 21 is not limited to “bare animal existence” rather it consists of the “Right to live with dignity.” Hence it is the responsibility of the court to examine the impact of a government decision on the lives of the migrant worker.
In the time of this pandemic, it is not significant whether the intention of those in power is good or not, but rather, what is important is whether it infringes on the right of people. As in the case of ADM Jabalpur, justice Khanna pointed out “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent … [the] greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law.”
This lockdown has forced the government to take extraordinary measures but people who are in power must recognize and prevent any infringement of the rights of these workers. Measures taken by the authorities for the larger public good must not be at the cost of the rights of these people who had received the worst hit by the pandemic. Else the situation will get worse before it gets better and cure would be more dreadful than diseases.
Covid-19 which was earlier seen as a “pneumonia of unknown cause”, was first reported in China on 31 December 2019. In a matter of the next 30 days, it was declared as the Public Health Emergency. On 11th March 2020, it was also announced as the global pandemic. At the time of writing this article, there are 4.37 million cases worldwide. So, it is not hidden from us how threatening the coronavirus is. Hence, there are bound to be some international obligations over the nations.
Right to Health
“Right to health” is present in various “international human rights laws”. But the most noticeable of these is the “International Covenant on Economic, Social and Cultural Rights (ICESCR).” Article 12 of the said right provides “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” which includes steps for “the prevention, treatment and control of epidemic, endemic, occupational and other diseases.”
Also, as per the United Nation body which monitors the working of ICESCR has clearly stated the various duties of the nation. In its general comment 14, it mentioned the core obligations on the part of states to maintain “right to health”. As it states, “States have a special obligation to provide those who do not have sufficient means with the necessary health insurance and health-care facilities and to prevent any discrimination on internationally prohibited grounds in the provision of health care and health services, especially with respect to the core obligations of the right to health.” Also, the nation, under any position, would not excuse its resistance with its “core obligations” which are “non-derogable.”
In India, due to the lockdown, there were lakhs of migrant workers on the street. These people lack resources and the means to carry out their daily needs which as a consequence resulted in their mass gathering. It becomes the responsibility of the state to take the required steps to maintain their “right to health” else these people would be at the maximum risk of getting infected.
Right to Social Security
Several measures have been taken by nations all over the world, it includes measures such as isolations, travel bans, limitation on public gathering and so on. These measures had disproportionately affected a class of migrant workers. These people left with insecure employment and low wages. These workers do not receive adequate social security benefits like they do not have paid leave or the sick leave and also face difficulties when they are being infected. In this case it is the responsibility on the part of the state to ensure that these workers get access to “social securities” such as sick pay, health care and parental leaves.
Preventing Stigma and Discrimination
The result of the spread of coronavirus was that there were reports of discrimination and stigma against the migrant workers at their home state. There was the general misconception that these people were spreading the coronavirus. These workers were as a result subjected to various atrocities. According to CESCR general comment 20, Health status is a prohibited ground for discrimination and state should ensure that these workers do not receive any social outrage and should not be discriminated. Any kind of discrimination would undermine their ability to enjoy their human rights. This discrimination would also lead to people hiding their symptoms and utilising the health care facilities, and also discourage people from adopting healthy behaviour.
Hence states should take substantial and directed measures to resolve discrimination and atrocities on the workers. It should come up with strategies, policies and plans to protect the workers from outrage and mistreatment.
International Labour Organisation Recommendations
International labour organisations in Employment and decent work for peace and resilience Recommendations, 2017 had mentioned the response of the state in a situation of crisis. It says that the state should seek to ensure basic income security, specifically to the people who had lost their livelihood as a result of the crisis and also take essential health care measures for the people who have been made vulnerable by the crisis. ILO had also warned India and mentioned that there are about 40 crore workers in the informal economy who are at the risk of falling deeper into poverty due to the corona crisis.
Though India has controlled the COVID-19 pandemic quite efficiently with respect to European and many Western countries. But effective measures need to be taken by the government with proper compliance with both constitutional and international obligations to ensure that the rights of deprived are equally protected.
The COVID-19 pandemic is now known by corona, surveillance, thermal screening, isolation, vaccination and, most prominently, “stranded migrant workers.” At periodic intervals, we saw many tired labourers walking slowly along roads and such migrant workers added to the country’s growth through the sheer sweat of their foreheads, their labour, so that India could push towards the goal of being a trillion-dollar economy. The catastrophe of nature is that since these very same state-builders needed the support of the world to reach their modest residences, we denied them access to food, shelter and transport.
The media outlets have done nothing beyond just placed the focus on their frightening journeys. These are people who were decimated, mowed down, and fated to die of fatigue actually from starvation. This is a disgrace to humanity and an indignity to a country. The eye-catching disparity between two Indians has profoundly come to light. On the one hand, these workers suddenly lost their livelihood. Their hard-earned money was otherwise transferred to their households to satisfy the family needs, and their means of livelihood for themselves was immediately wiped out. Today, shorn of all, by selling their family valuables, these migrants have increased the cost of their travelling home. The lockdown forced them to speak differently about immigrants, whether they were educated or unskilled, blue or white-collar workers. Every migrant is confronted with trouble. Across these regions, therefore, appropriate facilities should be developed to solve their issues. Their skills are needed to balance demand and supply, and employers need to be flexible enough to build the facilities they need. Laws and regulations are thus needed to resolve any difficulties that migrants may comprehensively face in the future.
The ongoing situation also makes us worry to have a separate Ministry of Immigration, concerned exclusively with domestic migrants. The UPA government was innovative enough to set up the “Ministry of Overseas Indian Affairs” to give sufficient consideration to the numerous issues facing Indian expatriates. To some extent, it has helped to boost conditions for Indians living overseas. We have to also pay attention to domestic migrant workers. The dedicated Ministry of Migrant Affairs will provide the full database of the migrants-their place of birth, the location to which they have travelled, the skills they possess, etc. To ensure transparency and helping to arrange their housing, transport and food in times of crisis, this will help to build adequate employment. The Ministry must engage with the respective States on the issue of migrants. Migrants across the globe prefer to migrate in search of new opportunities.
The police and other officials should consider the anxieties and concerns of migrants. As ordered by the “Union of India”, migrants should be treated humanely. Because of the situation, we are of the view that the Governments of the “states/union territories” should endeavour to involve volunteers with the authorities to oversee the welfare activities of migrants. The government of India adopted four labour codes to try to revamp the labour and industrial law environment. Among them, the draft “Social Security and Social Welfare Labour Code 2018” called for the convergence of schemes and benefits in the world, respecting workers’ rights to receive benefits all over the country. However, the word “welfare” has fallen and certain provisions concerning the social welfare of workers have been diluted or omitted. Regarding how migrant workers have special safeguards, the new Social Security bill 2019 remains silent. The Bill covers essential areas such as work disability compensation and the allocation of funds for workers. The Government is taking measures but concrete measures are required to deal with such a pandemic in future.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: