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Analysis of the Migrant Labourers' Crisis in the context of Constitutional Law

Anjali Baskar, Student, School of Law, CHRIST (Deemed to be University)

Introduction

India has a large informal sector, the largest in the world, employing close to 90% of its working population and contributing more than 45% to its overall GDP.[1] This sector was hit by two consecutive shocks in a short span of time, from 2016 to 2019. Before COVID-19 came to India in 2020, demonetisation back in November 2016 affected the poor majorly, when 86% of the money in the economy became unusable overnight owing to a government decree, followed by the ineffective introduction of the Goods and Services Tax (GST) in 2017.[2] Even though demonetisation was a monetary blunder, it did not permanently dislodge demand and supply mechanisms but existed a temporary lack of payment methods.[3] Using the demonetisation situation as a precedent for COVID-19, we observed that people found workarounds in the forms of electronic payments, informal credit, converting black money into white and using old notes. However, unlike the previous situation, with Coronavirus, no supply or demand is created, and thus, no value or revenue is generated. This harsher situation becomes much more problematic. With the Covid-19 outbreak, the already struggling informal sector will be disproportionately affected.[4]

India’s primary job sector still lies in informal labour in total employment. The distribution or share, which includes those engaged in agricultural work, has declined at a marginal rate, from 94% in 2004-05 to 91% in 2017-18. Out of a total of 465 million workers, 422 million were informal workers in 2017-18.[5] Out of the total workers, the shares of self-employed, casual and regular workers respectively were 51.3%, 23.3%, and 23.4%. The majority of the self-employed and casual employees work in an informal capacity and consist of often unorganised labour. Daily wage labourers and other informal workers are predictably the ones who are facing the worst hit during the lockdown period and will continue to be adversely affected even when the lockdown is relaxed. With almost no economic activity, particularly in urban areas, the lockdown has led to large scale losses of jobs and incomes for these workers. The population of 40 to 50 million seasonal migrant workers in India help in the construction of urban buildings, roads, factory production and participate in several service activities.

Even after the lockdown is relaxed[6] (Unlock 1.0), it will take some time for the economy to pick up in the post-COVID-19 period and this will further aggravate the future uncertainty for informal workers generally, but specifically, migrant workers in particular. The formal sector is more flexible because firms do not close down and employees will mostly still have their jobs and receive their salaries, as they can work online. However, this luxury is not available to those who do physical labour.


Issues Raised

There is considerable uncertainty about how long this crisis will last and what damage it would do to the economy, livelihood of people and availability of essential healthcare services. Due to the virus’ size and ability to spread, the management of migrants under lockdown represents a massive logistic challenge, from a public policy and legal point of view. The author seeks to examine the constitutionality and legality of the issues.

· Whether Article 19 of the Indian Constitution applies to migrants in the COVID-19 lockdown? Whether physical and social distancing will be considered as a reasonable restriction to Article 19?

· Whether COVID-19 lockdown is considered as an emergency declared by the President? Can Fundamental Rights be taken away at this time?

· Whether the Directive Principles of State Policy can be taken as a guideline to lift up the position of the vulnerable migrants?


Recourse Available Within the Ambit of the Indian Constitution


(A) Definition of “Migrant” in the Constitutional Context


It is apposite to note that the usage of the term “migrant workers” has been trending in the international sphere with “The International Convention[7] on the Protection of the Rights of All Migrant Workers and Members of Their Families” since 1990. The Convention accurately differentiates between the origin State and the employment State in the political sphere depending upon the migration in different countries, the nature of work and the generation of employment for the workers.[8]

The Convention defines migrant workers as a person who has involvement- in past, present or future tense in activities with the provision of reimbursement where they do not possess the nationality of the State/place of work. It is unfortunate to highlight the fact that the Convention guarantees equality of treatment in the employment State, whereas the same is apparently refused to migrant workers working within India. The Central Government enacted “the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979”[9] aimed at preventing the exploitative tendency of the contractors to outsource the work- hire people from out-of-state to work in another state. Migrants are an asset from a political, legal and economic perspective.


(B) Fundamental Rights and Fundamental Duties


There is a significance placed on the definition ofmigrant’ in the exercise of the right to freedom. The combined reading of the rights to freedom under Articles 19(1)(d)(e) and (g) are not only the affirmation of the charter of liberties but also the catalyst to build a new nation ideally comprising of unity and no divide amongst the citizens. It appears that the word “migrant” adds another ground of the restriction, other than Clauses (5) and (6), where the decision to stay or to leave the migrated State is not voluntarily taken by the citizens, to the exercise of the right assured to every citizen in a situation.

The Directive Principles of State Policy intend to create principles and conditions of an economic and social nature under which the citizens can lead a good life and follow their duties.[10] The “minimum wage law” coupled with the provision on “living wage” under the directives was validated by the Indian Supreme Court. It also justified the limitations on the right to carry on trade under Article 19(1)(g) in the case of Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore[11].

Directive Principles include a set of provisions on the welfare of the workers. “Workers” are used in three directives. Article 39(e) states that the State has a binding authority to make a non-abusive policy on the health and strength of workers, regardless of sex. Article 43 guarantees living wages to all industrial or agriculture workers through legislative measures. Article 43-A, the directive added in 1976, suggested the participation of workers in any industry’s management and equal treatment between the workers of the migrated States and the migrant State.

Article 41 laid down directives for the right to social security and opens up a new charter of life to the exploited and underprivileged with the commitment to attain not only socio-economic democracy but also economic democracy. The scheme of Part IV does not suggest the entitlement based upon the profession/field chosen by the worker.


Conclusion and Policy Recommendations

India welcomed the declaration made by the ILO on the Fundamental Principles and Rights at Work in 1998. As of 5th June 2020, Supreme Court of India has taken up suo moto[12] cognisance hearing about assuaging the situation of the migrants, and interim[13] decisions are to be issued on 12th June 2020.[14] In this paper, the author intended to highlight the situation of migrants from not only a constitutional perspective but also socially and economically.

On 5th June 2020, Ministry of Labour & Employment extended the validity of licenses granted under the Contract Labour Act, 1970 and ISMW Act, 1979.[15] The author also condemns the Solicitor General Tushar Mehta’s elitist and insensitive views[16], who disapproves of citizens filing PILs[17] to ensure various court’s accountability towards the plight of migrants. Hopefully, this pressing issue finds a solution before COVID-19 is over. Even post- COVID, migrants should not be ignored, and more structured amendments must be made to prevent the crisis in the time of such disasters- whether natural or not, like done in Kerala. The author’s suggestion is to use the pandemic as a lesson for states across the sub-continent to follow Kerala and Orissa’s behaviour as model states in ensuring safety to migrant workers.

[1] India under COVID-19 lockdown, (395 ed. 2020), Elsevier Public Health Emergency Collection. [2] Kaushik Bhattacharya, Siddhartha Mitra, Sarmistha Pal & Bibhas Saha, Reviving the informal sector from the throes of demonetisation (2017), https://www.ideasforindia.in/topics/macroeconomics/reviving-the-informal-sector-from-the-throes-of-demonetisation.html. [3] Rajeswari Sengupta, A macro view of India’s currency ban (2016), https://www.ideasforindia.in/topics/macroeconomics/a-macro-view-of-india-s-currency-ban.html. [4] Ajay Shah, A monetary economics view of the demonetisation (2016), https://www.ideasforindia.in/topics/money-finance/a-monetary-economics-view-of-the-demonetisation.html. [5] S. Mahendra Dev & Rajeswari Sengupta, Covid-19: Impact on the Indian Economy (2020), Indira Gandhi Institute of Development Research, Mumbai April 2020. [6] Isabelle Ferreras, Julia Battilana & Dominique Méda, Life After COVID-19: Decommodify Work, Democratise the Workplace (2020), https://thewire.in/economy/covid-19-crisis-3000-researchers-600-universities-op-ed. [7] International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CMW.aspx. [8] Dr. Uday Shankar, Does the Constitution approve the labelling of ‘migrant workers’? (2020), https://www.scconline.com/blog/post/2020/05/28/does-the-constitution-approve-the-labeling-of-migrant-workers/. [9] National Informatics Centre (NIC), Inter-State Migrant Workmen Act, https://clc.gov.in/clc/acts-rules/inter-state-migrant-workmen. [10] G. B. Reddy, Constitution of India and Professional Ethics (2007). [11] Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore, (1969) 3 SCC 84. [12] LiveLaw News Network, NLSIU Alumni (Migrant Mazdoor Program) Seeks Intervention In Suo Moto Case Registered By The Supreme Court On Plight Of Migrants (2020), https://www.livelaw.in/top-stories/nls-alumni-migrant-mazdoor-program-seeks-intervention-in-suo-moto-case-registered-by-the-supreme-court-on-plight-of-migrants-157845. [13] Sanya Talwar, [Breaking] No Coercive Action Against Employers On MHA Order For Full Payment Of Wages : SC https://www.livelaw.in/top-stories/no-coercive-action-against-employers-on-mha-order-for-full-payment-of-wages-sc-157802 (2020), https://www.livelaw.in/top-stories/no-coercive-action-against-employers-on-mha-order-for-full-payment-of-wages-sc-157802. [14] Sanya Talwar, [LIVE UPDATES] Supreme Court Hearing On Plight Of Migrant Workers (Suo Motu) https://www.livelaw.in/top-stories/live-updates-supreme-court-hearing-on-plight-of-migrant-sup-motu-157846?infinitescroll=1 (2020), https://www.livelaw.in/top-stories/live-updates-supreme-court-hearing-on-plight-of-migrant-sup-motu-157846?infinitescroll=1. [15] Ministry of Labour & Employment extends validity of licenses granted under — Contract Labour (R&A) Act, 1970 and Inter State Migrant Workmen (RECS) Act, 1979, (2020), https://www.scconline.com/blog/post/2020/06/05/ministry-of-labour-employment-extends-validity-of-licenses-granted-under-contract-labour-ra-act-1970-and-inter-state-migrant-workmen-recs-act-1979/. [16] The Quint, Migrants Should Wait for Trains, Not Walk Home: Solicitor General (2020), https://www.thequint.com/news/law/solicitor-general-tushar-mehta-tells-sc-migrants-get-angry-start-walking-blames-for-not-waiting-for-trains. [17] Jagdeep S. Chhokar, Migrant Worker Crisis: The Supreme Court Has Abdicated All Responsibility (2020), https://thewire.in/law/supreme-court-migrant-workers-crisis-abdicate-responsibility

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