The LAW Learners
HARDSHIPS OF MIGRANT WORKERS AND STATE’S RESPONSIBILITY DURING COVID-19 CRISIS
Akshay Bhandari, Student, Institute of Law, Nirma University, Ahmedabad.
Today the entire world community is facing an unparalleled health emergency because of the lethal novel Coronavirus or COVID-19. In lieu of the same Hon’ble Prime Minister on March 24, 2020 has declared lockdown in India which is extended from time to time to combat the virus. Although such lockdown is crucial in preventing the spread of the virus. Nevertheless, the poor migrant workers (both organized and unorganized) who were working in the big cities to earn their livelihood are the main sufferers in this crisis situation.
The unannounced order has created a country-wide panic and led to the immediate job loss and wages of millions of migrant workers working in establishments or self-employed as street vendors, rickshaw pullers, household helpers, small-scale job workers, etc.
The Ministry of Home Affairs has further escalated the problem of migrant workers by issuing an order on March 29, 2020 under Section 10(2) (1) of the Disaster Management Act, 2005 restricting the movement of migrants.Although in the said order the employers of establishments were obligated to provide for the payment of wages to their workers however it ignores the harsh realities that, due to the lock down various small establishments have been forced to permanently shut down and thus employers will not be able to provide them wages.
The migrant workers across India are in need of food, money, medical facilities, transportation and other facilities. The government both at centre and state level must put their best efforts in collecting data of all the migrant workers and help them with all the necessities. In these difficult times it is necessary that the migrant workers must be able to access information relating to packages, reliefs, transportation provided by the respective government.
STATE’S OBLIGATION UNDER CONSTITUTIONAL LAW
With no means of public transport to reach home the poor migrant workers and their families, including women, elderly people, small children and people with different abilities, are either walking on foot or left stranded in the utmost inhuman condition in different parts of the country. Most are deprived of basic housing, food or even drinking water, thus violating their Article 21 rights.
Article 21 of the Constitution of India guarantees every citizen a right to live with dignity and it obliges state to make necessary arrangements to provide access to basic requirements to live with dignity. Hon’ble Supreme Court in the case of M Nagraj v. Union of India,observed the following:
26. “State is not only responsible to protect individual’s right, liberty and freedom, but it should facilitate it. It is a duty of the State to protect the human dignity. Exact definition of human dignity does not exists. It is innate value of every person, which should be respected. It cannot be taken away. Every person has dignity by virtue of his existence...”
In such crisis it becomes the duty of government to provide those migrant workers, who are either stuck at some place with no basic necessities to survive or who are travelling barefoot to their villages, should be provided basic shelter, food and medical assistance. Further it is also not safe to allow these migrant worker who are travelling to their villages, as it would further escalate the spread of virus. Thus the local authorities across India should also be directed to identify the workers who are travelling or the ones who are stuck at different places with no food or water shall immediately be provided with such facilities and be kept under medical supervision at the nearest government shelters until they have been tested negative for the virus.
STATE’S OBLIGATION UNDER VARIOUS LABOUR LEGISLATIONS
A. Disaster Management Act, 2005
Since the lockdown order has taken the jobs of migrant workers and deprived them from daily wages it is the duty of central government and state government to take necessary steps in furtherance with National and State plans made under the Disaster Management Act, 2005 under the guidance of the advisory committee which the government was supposed to form to deal with such crisis.
The whole object of the Disaster Management Act, 2005 was that the government and the concerned authorities have to give reliefs to the people affected by national disasters. The same was also emphasized by the Hon’ble Supreme Court in the case of Swaraj Abhiyan v. Union of India.However the authorities at national, state and district level under the Disaster Management Act of 2005 are still in a process to place a comprehensive strategy to tackle the spread of the virus in consonance with the advice of experts and their power and duties as provided under the act.
B. Inter-State Migrant Workers (Regulation of employment and condition of services) Act, 1979
The government is obliged under Article 21 to provide food, shelter and healthcare and all other basic necessities to all these migrant workers. The government must ensure that the wages are being paid to these workers at the place where they are currently located.Section 4 of the Inter-State Migrant Workers (Regulation of employment and condition of services) Act, 1979 mandates the government to keep entire record of all the establishments who are employing migrant workers. It should therefore be possible for the government to track each migrant worker working under such establishment and to ensure that the wages are being paid to them. If the government fails to maintain such record under the statute, then it will have to put some mechanism for the workers to self-identify and self-attest so that the government can release the wages.
The government also has records of other self-employed workers such as street vendors, rickshaw pullers, etc. under different acts and regulations who must also be provided with minimum wages by the government during the lockdown. If the government fails to maintain such records of self-employed workers then it will have to put some mechanism for the workers to self-identify and self-attest so that the government can release the wages.
C. The Unorganized Worker’s Social Security Act, 2008
The Unorganized Worker’s Social Security Act was enacted with the object to ensure social security and welfare of unorganized workers and also to implement the national Security Social Scheme. Under this act Central Government formulates various schemes for unorganized labours however for enjoying the benefits of such schemes it is necessary for the labourers to get registered under the act. In such crisis, it is not possible to get these labourers registered, instead certain amendments can be made to allow such labourers to enjoy benefits of such schemes.
For example, recently a package of 1.75 lakh crore under Prime Minister Gareeb Kalyan scheme has been announced to resolve the problems faced by migrant workers in the present crisis. However the labourers who are not registered under the act will not be able to claim the benefit of such scheme.
Further the migrant workers who were employed in various establishments are also entitled to take the benefit of Rajeev Gandhi ShramikKalyanYojana passed under Empolyee State Insurance Act, 1948. The said scheme was introduced in April, 2005 with the intention to give benefits to the employees who got unemployed involuntarily.
However for enjoying the benefits under this scheme again it is necessary that the employee must have a three years of experience under the ESI Act. The central and state government may take steps to relax such requirements and help such employees to take the benefits under the scheme.
In such crisis situation where migrant workers have lost their jobs and are struggling for food and shelter, government is taking reasonable steps to combat this situation such as allocation of funds, providing food, shelter and medication facility to interstate migrant workers but it is necessary that government should strictly ensure the payment of wages to such workers irrespective of the fact that they are employed by establishment or self-employed. Further the central and state governmentsshould also prepare national and state disaster management plans in consultation with the National and State Advisory Committees of experts in the field of disaster management and public health.