Plight of Migrant Workers and the Constitutional Safeguards- Mayank Sharma, 3rd Year

The ongoing nationwide lockdown announced on 24th March to contain the spread of the Coronavirus has turned out to be a nightmare for the migrant workers. These workers who survive on meagre wages were rendered jobless overnight without any money and food to survive. What followed was the mass exodus of workers triggered by panic, from cities to their villages. Thousands gathered at interstate borders and bus stops in hopes of reaching home. However, with no transport available they resorted to commuting on foot. Thousands of them trekked for hundreds of kilometers over several days evading the police checkpoints. The disturbing and heart-rending pictures even prompted the UN Human Rights to call for ‘domestic solidarity’ in India. An unprecedented crisis like this highlights the quotidian hardship faced by these migrant workers in absence of adequate social and economic security. This article shall highlight how the fundamental rights of these workers under Article 14 & Article 21 are getting affected amid the corona pandemic.

Article 14 provides for the right to equality. The traditional equality law demands for special treatment of one group of people, or disadvantageous treatment of others to be proved in order to establish the breach of equality. However the recent equality jurisprudence that has developed in recent years in India as well as around the world investigates into the impact of State action on people in order to determine the breach of equality clause. The nationwide lockdown has affected the lives of every one of us, however some are more affected than others. Migrant workers are one such group whose lives have been devastated due to the lockdown. Amid this pandemic, measures like lockdown and social distancing are indispensable however they must come with relief for those most affected by them. While work from home may be a solution for those employed in the formal sector, migrant workers have no option but to return home. And thus equality demands support of government for these migrant workers who are stranded at various places.

Article 21 guarantees to every person the right live with dignity with bare necessities of life and consequently casts a duty on the State to provide for the same. The Supreme Court has reiterated the same time and again. In Francis Coralie Mullin v. Union Territory of Delhi (1981) Hon’ble J. Bhagwati (as he then was) observed that….the right to life enshrined in Article 21 cannot be restricted to mere animal existence and it means something much more than just physical survival…the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter…

In Olga Tellis v. Bombay Municipal Corporation (1980) the Supreme Court observed that the right to life conferred by Article 21 is vast and far-reaching…. if the right to subsistence is not treated as part of the constitutional right to life, the easiest way to deprive a person of their right to life would be to deprive them of their means of subsistence to the point of repealing. Such deprivation would not only negate the life of its content and meaning but render life impossible.

India being a developing country has scattered pockets of developed, developing and under-developed areas. This disproportionate and imbalanced degree of development compels many to migrate from lesser developed to other thriving areas to seek employment. As per the 2011 Census, India has 41 million of migrant workers mostly from the states like Bihar, Jharkhand, Uttar Pradesh and Madhya Pradesh. Most of these migrant workers are employed by small and large establishments or are either self-employed as street hawkers, vendors, domestic help, and construction workers. These workers who are mostly employed in the informal and unorganized sector, live in slums, work for lower wages than the minimum wages and have no proper access to healthcare and sanitation. Amid a global pandemic, these workers have been rendered jobless and without any means of survival as a direct consequence of State action. While surviving in cities without work is not an option, they had to face inordinate police action while migrating back. Reports surfaced over the internet of returning migrant workers being sprayed with disinfectants which was a blatant violation of their right to life and dignity. The visuals doing rounds on social media obviously invited a lot of bashing from the activists against such an administrative action. Article 21 casts duty upon the State to make provisions for payment of minimum wages to these workers, humane treatment at the hands of police, access to healthcare, food and shelter at places where they are struck.

A number of steps have been taken by both, the Central and the State Governments, to provide relief to the migrant workers. The Central Government permitted State Governments to utilize the Disaster Response Fund to provide food and shelter to migrant workers. Directions were issued to provide these workers with wages without deductions. The State Governments arranged for transportation for some of those stranded at interstate borders and quarantine facilities for quarantining workers on their return. Still a large number of workers continue to be stranded at various places. The Home Ministry has now allowed migrant works to travel back to their native places which is a welcoming step.  

Two writ petitions were also filed in Supreme Court which sought report from the Centre in this regard. The Supreme Court express satisfaction over the initial steps taken by the government   The Court has passed the interim orders and the petitions are scheduled for further hearing.

In this regard we can learn a lot from an interim order of Supreme Court of Nepal which dealt with the rights of migrant workers amid the lockdown. Nepal also witnessed similar migrant workers crisis when it announced a nationwide lockdown on March 24 which has now been extended to May 7. Recently the Supreme Court of Nepal in one of its interim order in response to a PIL dealt with the rights of migrant workers to return to their native places. The Court observed that if there was a way to facilitate the commute of the people so willing to return to their native places, then the state should do everything at its disposal to facilitate their travel. The court also ordered a number of precautions to be observed keeping in view the ongoing pandemic such as testing of people willing to commute, disinfection of the buses,  medical and food supplies among others. The court also ordered the human and dignified treatment of workers and their reintegrated into society without any discrimination.

Crisis like these reflect the grim realities of workers in unorganized and informal sectors who continue to work for meagre sums of money and face exploitation. They are devoid of basic necessities of food, shelter and health. The Constitutional guarantees of life and dignity are still far out of their reach. A life of dignity and security is still a distant dream for them. 

*Mayank Sharma is a third year student at the Army Institute of Law, Mohali.


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