During this entire period of back-to back 3 lockdowns and 4th version coming soon, if there is someone who has suffered the most, they are the migrant labourers. When the lockdown was announced at a very short notice and all transportation was immediately halted, these inter-State migrant workers became victims of this pandemic in a different manner when they had to walk long distances just to reach their home.

Recently around 16 migrant workers were found dead on the railway tracks. It is very unfortunate that the Centre conveniently asked the States and the Union Territories to take care of the fact that the migrant labourers do not have to walk on the tracks or the roads.

Undoubtedly, the role of the State and Governments, both Union and of respective states, is no less than of a sentinel in qui vive however, the abdication of duties by the governments has raised some important constitutional questions:

• Are these people from marginalised section of our society children of a lesser god?
• Don't they have the similar fundamental rights as enjoyed by the urban elite class?

The collective failure of the governments which could be termed as awry-centric approach has raised pertinent questions of governance which could not have any hindsight of the looming crisis.

Adding serous insult to injury to which labourers and workers have been inflicted for no fault of theirs, some state governments, for the want of foreign investments, proceeded to suspend labour laws. When the Industrial Relations Code is itself pending before the Parliament of India, such moves by some state governments tantamount to contempt of democracy.

Before trying to become judgmental about the reality, let us take a look at the available legal provisions regarding migrant labourers.

The existing legal provisions:

According to the Fundamental Rights and Directive Principles of State Policy of the Indian Constitution, it is the responsibility of the State to grant the citizens ,both men and women, right to adequate means of livelihood, equal pay for equal work, protection against abuse and exploitation of workers, economic necessity, protection of their health and strength, to secure for children opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and protect children and a youth against exploitation and moral and material abandonment.

The International Labour Organisation (ILO) provides for a tripartite arrangement between employers, workers and state to legislate and execute the international labour standards in the member countries. The international labour standards lay down protection for workers in several sectors which are inclusive of freedom of association, equal pay for equal work, safe working conditions, abolition of forced labour and sex-based discrimination, employment protection, provision of social security, protection of migrant workers, elimination of sexual harassment of women workers and others.

Labour laws in India comprise of various statutes such as Trade Union Act 1926, The Minimum Wages Act 1948, Employees State Insurance Act 1948, Industrial Disputes Act 1949, Industrial Disputes Decision Act 1955, Payment of Bonus Act 1955, Personal Injuries, (compensation insurance ) Act 1963, Maternity Benefits Act 1967, Contract Labour (Regulation and Abolition ) Act 1970, Bonded labour Systems (Abolition )Act 1976, Equal Remuneration Act 1976, Interstate Migrant Workmen (Regulation of Employment) Conditions of Service Act 1979, The Child Labour (prohibition and Regulation )Act 1986 etc. However, these labour laws and policies are applicable for workers in the organized sector only.

What could have been done?

As per the requirements of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, all the inter-State migrant workers are required to be registered with the Government. According to Section 23 of the Act, the principal employer and the contractors owe the responsibility of maintaining registers with details of the workers.

The full and proper implementation of this law would have meant that state governments had complete details of inter-state migrant workmen coming through contractors within their states. This would been helpful to a great extent for the State to make adequate preparations accordingly.

On the contrary, a huge failure is seen with regards to such implementation of the Act and this seems to have disturbed a lot of calculations which had the probability of putting things in place as this completely defies the entire object of the Act.

According to Item No.81 of the Union List, Inter-State migration falls within the purview of the Union. Hence, it can be correctly stated that it was the responsibility of the Union government to ensure proper condition for the migrated workers and then announce a lockdown. Considering the fact that a lockdown was necessary, such a chaos was precedented for as it is a dark reality that a lot of employers and contractors would have definitely avoided registration of the labourers so as to escape from the liabilities imposed upon them.

A Glance at the Reality

The initial phase of lockdown resulted in a huge loss of economy and the migrant workers, having no source of income, were compelled to get back to their villages due to sustenance issues. Millions of migrant labourers have had to walk unimaginable distances and spend all their money in mobile recharges so that they can remain connected with their family members.

It should also be taken into consideration that they are not that educated to understand the severity of COVID-19. They are people who struggle with all sorts of ailments just to earn their daily wages. The understandable angry outbursts of millions of migrant labourers stranded in these economic centres have created volcanic situations that can create a serious law and order problem in the country.

Recently, the Government, although much late, showed a positive inclination towards resuming the sale of essential goods and sale of liquor was included. At the same time, trains and buses from various places were started to bring the stranded migrant workers back to their villages. All this created so much havoc that it completely defeated the whole purpose of social nay physical distancing behind the lockdown. Amidst all these problems, a massive flaw is clearly visible that in all the labour laws that we have, there is not a single provision which talks about such a situation. It is understood that this is a novel incident and might not have been foreseeable.

However, now that the problem has arisen and it is existing for the past two months, the Government should have taken some initiative to have their legal rights protected. A bill named Occupational Safety, Health and Working Conditions Code, 2019 was introduced in the Parliament last year which aimed at consolidating certain labour laws and scrape out few legislations to avoid repetition. This above-mentioned Bill has not yet been passed and hence the laws remain as archaic as they were and thus, fail to answer to all the problems being faced by the migrant labourers at this point of time.

We have to understand that right to life as enshrined under Article 21 of our constitution doesn't discriminate between ‘have and ‘have nots'. Direct loss of migrants earnings for their bare survival has taken a severe hit due the lockdown, while lockdown itself is a policy decision which is meant for the larger good however, who would take responsibility of snatching the means of survival from these poor people.

• Can they be just left on their own fate?
• Are they not entitled, within meaning of Article 21 of our constitution, for a life with dignity?

While we also appreciate the move of Union government for bringing stranded Indians to India through Vande Bharat project however, we are at loss to understand that why such project was not launched for these people:

• who need it the most. Just because they have no voice?
• Just because they are poor?
•  Just because they are destined for their own fate?

The gargantuan failure of State in protecting our own fellow Indians would have no parallels in history. The Supreme Court which is the guarantor of our constitution and which must act as sentinel on qui vive for zealously and aggressively protecting the rights of the citizens has also disappointed many Indians. The apex court opted to adopt almost all version as put by the counsels representing the union of India and proceeded to abdicate its responsibility to the executive.

Given the situation, when only executive seems to be working as parliament is not in session and justice has been put in ICU, we don't know how and when these repeated sufferings would stop. The supreme court is the only institution which has the true potential of reinforcing our trust in an egalitarian society nay democracy however, the moot question that needs to be answered is - will the supreme court intervene before it is too late?

Written By: Dr Farrukh Khan is an Advocate and Managing Partner of Law Firm- Diwan Advocates. Somya Mishra is an Advocate, working with Diwan Advocates