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The recent COVID-19 pandemic highlighted an aspect to society that we once took for granted; migrants. Migrants in India often are those who leave their original homes in search of newer, greener pastures. Most migrants are unskilled labourers who leave their agrarian village with little in search of opportunities in the city, making them vulnerable in places such as these.
In April, amidst the lockdown, the government permitted these stranded migrants to return home, but did not have adequate resources to facilitate that movement through transport methods, leaving the stranded with no option to make the journey on foot or other unconventional means.
In this process, numerous migrants died of exhaustion, accidents or other complications that arose in the course of their journey, which happened to be a reality check for the judiciary, who then decided to take cognizance of the issue when a plea was made in the Supreme Court to protect the rights of vulnerable migrants, which was, to dismay, rejected.
The background for this plea can be understood by the three distinct elements that entail the reason.
Politically, migrants are an asset during times of normalcy, as they aid the economy through their activities. However, during the lockdown, no government wanted to look after the migrants; for the home state, they were a threat of spread, for the base state they were a liability. Moreover, the pass and registration process followed by many states made crossing once porous borders a tangle of bureaucratic Red Tapism. In this turmoil, the migrants were the rope that facilitated a tug-of-war game that both teams wanted to lose.
Legally, there were numerous laws and provisions were violated with respect to the basic rights of these migrants, including human rights and the emergency guidelines put forth by the states and the Central Governments.
Practically, it is almost impossible to facilitate smooth movement for 268 million intra-state migrants amidst a lockdown, keeping social distancing norms that prevail at times like these as well as the lack of infrastructure that the government can provide. It is also necessary to note that the lack of work has drained the savings of most migrants, who are now unable to pay for the services that are offered by the government as well.
The issue was highlighted when 16 migrants going to their villages were run over by a train in Maharashtra while resting on the tracks.
Keeping all these factors in mind, the cacophony caused by the migrant crisis was taken to the supreme court in order to amicably resolve the issue at hand.
However, the Supreme Court, taking the volume of the issue at hand, rejected the plea stating ‘we can neither monitor, nor restrict their movement on roads’.
The main arguments were put forth by Advocate Alakh Alok Srivastava on part of the petitioner and the Solicitor General of India, Tushar Mehta on part of the Respondents.
The Petitioners in this plea sought to extend relief to stranded migrants through the District Magistrate’s office, where the District Magistrate would Identify, shelter and facilitate Inter-State Transportation of migrant labourers, arguing that these migrants were helpless and required the aid of State agencies to ensure they reach their destination.
These was also a call for parity between citizens of the country as all efforts were being made to repatriate migrants residing in foreign countries, yet no adequate measure was being made to repatriate those living within the country. It was argued that travelling to London was easier than travelling to Uttar Pradesh, even if the distance was a fifth.
The Central Government argued that the jurisdiction as to who is permitted to enter a state and who is not lies with individual state governments, who decided who enters and when they enter.
However, the Respondents (The Central Government), taking cognizance of the volume of migrants moving, responded that facilities for free transportation between states was being arranged for and every person would get a chance to travel, however this would require some time and those stranded need to remain patient.
In this situation, the Government argues that using force would be counter-productive as it would simply create unrest among the migrant community specifically and the nation at large.
Furthermore, the Government argued that simply filing a plea would not address the issue at hand practically. ‘It is impossible to keep track of everyone on the street and their movement’ they argued. The Government could only request citizens to keep off the roads, but could not completely restrict them from doing so.
Finally, the Government argued on lines of other statutory provisions such as The Railways Act, stating that illegally crossing or intervening with railway land is punishable with imprisonment, as prescribed under Section 147 of the Act.
Relevant legal provisions
- Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act,1979:
Before the current crisis, very few Indians were aware of the Inter-State Migrant Workmen Act of 1979.
This act came about in a time when labour contractors recruited large number of migrants from the rural heartlands to work in the cities. These labourers were often ill-treated, lived in sub-human conditions and were often denied pay as well.
Taking cognizance of this issue, the government formulated this act to protect the labourers, who were often employed in the unorganized sector, with little or no literacy. The government mandated the requirement of the contractor to obtain a licence from the origin state as well as the receiving state.
Moreover, this act stipulates that the employer of these labourers must obtain a certificate of eligibility, which stipulates their remuneration as well as role.
The act also stipulates adequate accommodation, medical facilities and protective clothing must be provided to migrants.
- Occupational Safety, Health and Working Conditions Code, 2019:
This code was introduced in the Lok Sabha in 2019 and aims to do away with 13 labour codes in the country in order to strengthen protection for labourers.
The code mandates that if a contractor is yet to obtain a licence, all labourers contracted by him/her are directly employed by the principal employer. The code also reiterates the prevalence of the displacement allowance equal to 50% of the wage to facilitate any emergency that arises.
The bill was subject to review by a committee in February 2020, where they agreed to provide a chapter solely on the protection of Migrant Labourers and unanimously agreed to implement the provisions of the bill.
These two statutory provisions protect the interest of migrant labourers after considering their economic plight and vulnerability.
The plea to protect migrant workers was made in good faith and with the required legal backing. However, it is essential to understand that implementation of these laws practically is a daunting task, often impossible to complete.
With thousands of labourers and migrants travelling through the country, it is a herculean task to keep a mob that large from doing so without resorting to violence. Applying violence would fix the issue on an immediate basis, but would create a sense of distrust and fear among labourers, who may not co-operate with authorities completely.
The clandestine nature of these labourers, given their frequent movement to seek work also makes it difficult to trace and identify these individual as they carry little or no identity proof, making it very hard to trace them.
Moreover, the fact that these migrants have little or no awareness of the law makes them vulnerable to exploitation as they are unaware of the benefits and securities that they are entitled to.
The fact that state governments are allowed to decide on the matter of the movement of migrant labourers creates great confusion for those who wish to travel to their homes as it often involves routes that traverse multiple states, each with their own set of rules and regulations, making it an epicentre of bureaucratic entanglement. A person moving from Mumbai to Varanasi would have to travel through Maharashtra, Madhya Pradesh and Uttar Pradesh, each with a requirement of travel passes and medical certification, making it a hassle for labourers to arrange for all the paperwork.
The conditions in labour camps and shelters in many parts of the country also stand to be inhumane, with labourers not being paid or suppled with necessities. This simply furthers the frustration of the migrant class to move back to their hometowns by any means available.
The government lacks adequate infrastructure to facilitate the movement of all the labourers swiftly. Although Trains and buses ply, they are limited, both in terms of capacity and destinations, owing to social distancing norms, limiting the number of travellers who can travel at a time on such modes of transport, which makes the process of moving back a time-consuming one.
One viable alternative for the government to protect these labourers would be to set up shelter spots along the routes these migrants walk across. These shelters could be Schools, government buildings or large tents which provide food, water and shelter to those in need. It must comply with social distancing norms and also provide medical aid to those who require it as heatstroke and other similar incidents are common in precarious situations such as these.
The driving factor constituting the mass movement of labourers on highways can largely be attributed to the trust deficit among the labourers as they don’t trust the government’s intentions or are in denial of losing their livelihood.
The government must not resort to empty words to gain the trust of migrant labourers, rather they must do so by showing actual commitment with food programmes or actual cash transfer.
Although numerous solutions have been propounded by different stakeholders, they are required to pass a test of practicality. One cannot simply cross jurisdictions or pay for programmes without having the capital to do so.
The fact that tracking labourers is a herculean task also makes the transfer process a daunting one. Although money transfers have been promised, only registered workers receive the benefits. This can be resolved by ensuring the government provides the funds to contractors, who then distribute the benefits to the labourers, as they have better knowledge of the same.
Lastly, it is essential to acknowledge migrants as an asset of a state as they bridge the labour deficit of a particular state. It is important to ensure their safety and needs to help them overcome their vulnerabilities so as to prevent restlessness and resentment to the loss of livelihood.
Author: Kshitij Kasi Viswanath from KPMSOL, NMIMS.
Editor: Priyanshu Grover from Symbiosis Law School, NOIDA, Uttar Pradesh.