Migrant Crisis during Covid-19
According to the World Bank, Migrant Crisis during Covid-19 has impacted the livelihood of 40 million internal migrants in India. Their plight has been heart-wrenching for the viewers and knowers all around the world. Migrants are the backbone of our economy, they say but today they are in distress for something, which is clearly not their fault. In… Read More »
According to the World Bank, Migrant Crisis during Covid-19 has impacted the livelihood of 40 million internal migrants in India. Their plight has been heart-wrenching for the viewers and knowers all around the world. Migrants are the backbone of our economy, they say but today they are in distress for something, which is clearly not their fault.
In my research, I have focused on the current scenario of migrant distress and researched what our Constitution has for them. Along with that, I would like to focus on the constitutionality of the ban of labour laws.
Introduction
Coronavirus, one of the worst pandemics the world has ever seen, has brought about unexpected challenges for each one of us, but beyond that, it has enormously impacted the migrant labourers of our country. We have witnessed disturbing visuals of them walking thousands of kilometres in scorching heat, being run over by trains and trucks, eating dead animals in order to feed themselves, or at the extreme committing suicide.
Loss of income, food, shelter, and inhuman behaviour on part of some, made migrants leave their hoods and move towards their hometowns.
According to the government, arrangements have been made for them by providing them with basic ration and other necessities, which to a great extent is a good initiative.
However, the sudden lockdown has led to a humanitarian crisis of one of its kind. The mismanagement and lack of carefully planned strategies are evident on part of the government. It was only after there were reports from all around the country that the government arranged for their transportation, which came with a lot of confusion and chaos. With all political advantages at its gear, the central government after much criticism clarified an 80-20 breakup between the state and the centre and promised a 20 lack crore package for the worst-hit Sections in the country.
After much speculation and chaos, trains have been arranged but workers are still struggling. Some of them are having difficulties getting approval from the authorities, some have got lucky enough that train fairs were paid by some local MLAs, employers, NGOs but a large number of them have to pay for their tickets on their own.
As a result of the lockdown, the ever-sinking economy has sunk even more.
To bring back the industry on its pace, many states have decided to halt the existing Labour laws, which is another blow on the back of these already distressed sections of our country. It makes them even more vulnerable to exploitation. As a result of this, many key laws will not apply such as the Minimum Wages Act, Payment of Wages Act, etc., will not apply in the states, specifically Uttar Pradesh.
This research paper strives to bring light upon the vulnerabilities experienced by migrant labourers during the pandemic by carefully analyzing the constitutionality of suspension of Labour laws, socio-economic rights of migrants, and what central government, as well as state governments, are obliged to perform during this difficult time.
To be specific, the research paper deals with Articles 19, 21, 23, 39, 41, 213, and 254 of the Indian constitution. Other regulations, which are included are the Minimum Wages Act, 1948, Industrial Disputes Act, 1947, etc.
Literature Review
The repercussions of Coronavirus-induced lockdown have been devastating for the marginalized. However, in the wake of pandemics, we have got mirrored our true development. Unlike Arthur Lewis’s economic theories on cheap labor and their migration, in the post-liberated India, the migration has been incentivized due to lack of livelihood in the east instead of work-hunt.
As per the reports of economic survey of 2018-2019, 93% of the workers belong to the informal economy, while NITI Ayog’s 2018 report states that around 85% of laborers fall under the informal economy. The numbers may vary, but it is a settled stance that they contribute towards 50% of India’s national income and they work without any social and employment security.[1] To sum up, providing legal and economic protection to this population is a massive undertaking for the government.
The government of India has already considered 11,000 crores for them. According to 2011, migration data places the share of migrants in the workforce between 17 to 19% of the population. There has been an increase in the number of internal migrants to 60 million as inter-state migrants and 80 million as district migrants.[2]
The trends are submissive that the majority of these sections get attracted towards the metropolitan cities and states like Delhi, Maharashtra, Tamil Nadu, West Bengal, and Gujarat. The majority of these migrants belong to Uttar Pradesh, Bihar, Jharkhand, Orissa, and Madhya Pradesh. The majority of them survive on wages and work as per demand in sectors such as construction etc., which makes them more vulnerable to hardships.[3]
The share of profits in the manufacturing sector has tripled over the years from 20% to 60% whereas the Labour share has fallen in the same proportion. Contract Labour has been on the rise through the subcontracting system.[4]
The pandemic has resulted in economic slow-down and to revive that many states have relaxed Labour laws including those that protect them from being exploited. UP, for that matter, has passed an ordinance to relax the majority of the Labour laws for 1000 days (3 years). Many other states like Gujarat, Madhya Pradesh have followed its footsteps.[5]
The logic and view behind this step are rather fallacious, which has portrayed a confused government, ignorant of the principles of constitutionalism. Ignorant of what their duty calls for and what they must abide by and govern the country. An increase in working hours, the flexibility of hiring and firing will place this already vulnerable section in hands of private capital, where the government has willingly ceased to come ahead. The steps taken will, in no way, get the natural relationship between Labour and Capital back in the sphere.
Analysis
The total number of workers in India had reached 487 million in the year 2012 and is the second largest after China in the world.[6] India has many pro-Labour laws that aim to protect the Labour class from being exploited by the private capitals.
During Coronavirus, we’ve seen the worst migrant crisis in India’s post-independence history to have ever taken place and during the same lines, we have seen state governments striving to get back the natural relationship between labourers and private capitals in order to balance out the demand and supply.
In a desperate need, the Uttar Pradesh government passed an ordinance Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance 2020, suspending most of the Labour laws in the state except four laws as an exception to the ordinance such as Building and Construction Labour Act 1996, Workmen’s compensation Act 1906, Bondage Labour Abolition Act 1976 and section 5 of payments and wages Act 1936, provisions related to safety and security under Factories Act and Labour Laws related to the employment of women and children, etc., which continue to be in force.
Some statutes like The payments of wages Act 1936, Industrial Dispute Act 1947, The Minimum Wages Act 1948, The Payment of Bonus Act 1965, etc., Equal Remuneration Act that has been passed by the parliament will not be in the role of the state. Suspension of the Industrial Dispute Act will lead to absolute disorder as it safeguards the labourers and allows them to raise disputes against the employer as now employers will decide the termination of labourers, terms, and conditions of the employment.
Lock-outs, strikes, etc. will not safeguard their interests. Such abolition violated Article 14 (Right to Equality) and 21 (Right to life and personal liberty) of the Constitution of India. Provisions regarding health and sanitization have also been done away with despite the upsurge of a deadly pandemic.
If we consider the Minimum Wages Act, which mandates payment minimum standard wage for their survival. Even though the ordinance mandates payment of minimum wages and says nothing but “as decided by the government”. In that perspective and in the absence of factors to arrive at the minimum standard, the state is free to modify/ alter the factors while deciding so.
If the government fails to provide a minimum living standard, it will violate Article 21 and 23 of the constitution as it was also held in PUDR v. Union of India,[7] that any kind of forced Labour under which a person is compelled to work irrespective of receiving any remuneration violates of Article 23 as it is against the basic human rights and human dignity. The word ‘force’ does not only mean physical or legal force, it also means the economic circumstances, which leaves no other alternative.
Similarly in Sanjit Roy v. the State of Rajasthan,[8] it was held that payment of wages less than minimum standard to a person employed in Famine Relief Work violates Article 23 and states cannot take advantage of their helplessness.
In spite of exempting The Bondage Labour Act from the purview of the ordnance, the government has created such an environment where it is impossible for labourers to claim minimum standard wages from the employer.[9]
Suspension of the Equal Remuneration Act and Minimum wages Act together will lead to exploitation of women labourers as they will be paid even less than the men and the minimum standard wages and will lead to violation of their fundamental rights as refusal to pay equal remuneration violates Article 14 of the Indian Constitution.[10]
The suspension of the trade union Act affects the collective bargaining for wages, decent working conditions, etc., which makes them more vulnerable and subject to cruelty.
Another blow has been the suspension of the Factories Act, which ensured basic facilities like hygiene, electricity, canteen, water, etc., which altogether provided a safe and secure environment for the labourers. In Consumer Education and Research vs. Union of India,[11] it was held that the employer is duty-bound to provide safe and secure working conditions to the labourers, as it is a part of living the life with dignity ensured under Article 21.[12]
The exemption of the Building and Construction Workers Act, enables the government to collect taxes from labourers for education, pension, social security, etc. As under normal circumstances, it was hard to even get to see the money so collected for labourers due to poor implementation on the part of the government.
In people’s Union for Democratic v. Union of India and Others,[13] Justice Chandrachud held that “suspension of Labour laws will be a major violation of fundamental rights and Directive Principle of the State Policy”.
Relaxation in work timings for labourers under the Factories Act by the government of Punjab, Gujarat, and Himachal Pradesh have been imposed as a response to the public emergency which can only be provided for 3 months at once. A conjoin reading of Articles 213 and 254(2) of the constitution gives power to the state government to walk over the central laws with the president’s assent.
Bypassing this ordinance, the government has undermined the federal structure of India, especially at a time when the central government is passing union laws to overcome disparities and other related issues following universal wages standards.
The suspension of laws has clearly shown disregard and stands in contradiction to the Direct Principles of State Policy, which strives to overcome the differences between classes, societies, economy, and polity through legal political ways. Though due to its nature, they cannot be taken to a court, it is an effective tool of transforming a nation according to the needs. Article 38 directs that the policies should be made in such a way that it secures social and economic justice, Article 39 aims at providing equal pay for equal work and is a constitutional goal and is capable of being enforced through constitutional remedies under Article 32.[14]
Article 40 duty bounds the states to ensure wages and satisfactory working conditions for the workers.
Not only does this step violate various aspects of our constitution but also of many international ethnic Labour standards directed by the International Labour Organization. To be specific, the UP ordinance violates ILO’s convention no. 144 Tripartite Consultation (International Labour Standards) Convention, 1976.
Considering that India is a signatory to the convention and states are bound by the ratification. From this aspect, the suspension has also violated Article 51(c) of the Constitution, which requires the states to respect and follow international law and treaties.
Conclusion
The suspension of labour laws by the states is like an empty vessel, which makes the most noise, but is of no benefit to the industries. Relaxing the cumbersome procedures and compliances can boost investments.
It is extremely important to understand that investments should not be promoted at the expense of the basic rights of the labourers. If the higher authorities do not refuse these suspensions, it will take the labour community back to fighting for their basic rights including their dignity and this might become a post corona “New Normal”.
[1] Aditi Ratho and Soumya Bhowmick, April 2020, East to West: India’s migrant crisis looms large during COVID-19, ORF, Available here
[2] Ibid
[3] Nitin Sinha, May 2020, Perception, Legality and Politics of the Migrant Worker Crisis in Lockdown, The WIRE
[4] Sai Balakrishnan, May 2020, India’s brutally uneven development patterns are mapped in routes migrant workers are taking home, Scroll. in
[5] Ibid
[6] Nitin Sinha, May 2020, Perception, Legality and Politics of the Migrant Worker Crisis in Lockdown, The WIRE
[7] AIR 1982 SC 1943
[8] AIR 1983 SC 328
[9] Bandhua Mukti Morcha vs. Union of India, AIR 1984 SC 802.
[10] Randhir Singh v. Union of India, 1997 SC 3014.
[11] 1995 AIR 922.
[12] Olga Tellis and Others v. Bombay Municipal Corporation and others, 1986 AIR 180.
[13] 1982 AIR 1473
[14] Randhir Singh v. Union of India, 1997 SC 3014.