Author: Vishakha Nagraj
DISCLAIMER – This article is a result of the author’s personal reflections, and does not reflect this blog’s position on any political, legal or social issue, whether sub judice or not.
Introduction
This article aims to highlight various issues faced by migrant labourers during the pendency of the nation-wide lockdown imposed by the Government of India to curb the spread of COVID-19. This article critically reviews measures (or the lack thereof) taken towards provision of PPEs and free testing, wage provision and relief schemes applicable to migrant workers and differing trends of state governance responses towards migrant labourers.
The article highlights lacunae in the Indian system such as the lack of redressal mechanisms or any alternate means of exercising the right to strike, in situations where mobilization and physical proximity is prohibited. The article also explores the systemic invisibility of wage labourers and examines alternative systemic approaches towards ensuring provision of a financial safety net in extenuating circumstances. The last section of this article will elucidate alternate legal mechanisms that may be introduced to overcome the above-mentioned lacunae.
At the outset, I’d like to mention that this article primarily relies on Court orders and media reports as its source of information for a critical analysis. This article has been written while the pandemic is ongoing[1] and the legal jurisprudence on the same has not yet been conclusively defined. This article critically examines the approaches adopted by the judiciary towards migrant concerns in an attempt to identify various legal aporias which must be tended to, especially in the light of the present circumstances.
Feels like we only go backwards: Migrant woes and the regulatory framework
As a response to the fatally contagious nature of COVID-19 in India, the Government of India announced a 21-day lockdown[2] (which has since been extended) to prevent the country from becoming the next global hotspot of the pandemic. The sudden announcement lacking any prior intimation has risen several concerns, especially for migrant workers. An analysis of various orders passed by different tiered courts shows that the Indian judiciary displays contradictory approaches towards the plight of migrant labourers. The Apex Court has displayed reluctance in relaying directions to the Central government. The same can be witnessed in various PILs concerning state responses against coronavirus.
With respect to free medical testing, the Supreme Court modified its initial position[3] in support of free testing for the entire population of the country and restricted it to only a certain class of citizens[4]. It further re-emphasized its stance[5] and based its decision on the binds imposed by separation of powers. One can only speculate that the modification to restrict free private testing only to people falling below the poverty line and registered under the Ayushman Bharat scheme was to ease the financial burden created by the pandemic. The initial order incorporated a disbursement mechanism to reimburse the private sector for the expenses occurred towards free testing for all. The Court’s shifty and restricted approach leaves a large section of migrant workers who may fall above poverty line yet are unable to continually sustain themselves, let alone afford the tests, and those who may not be enrolled under the Ayushman Bharat scheme, out of the scope of this benefit. The denial of free testing for all citizens implies that for a large section of vulnerable groups, including migrant workers, the tests costing upto Rs. 4500[6] are likely to be inaccessible.
Migrant workers have found themselves in extraordinary jeopardy during this pandemic and are one of the least privileged and severely affected classes. The loss of employment and consequent lack of wages amplifies their struggle of sustenance, especially in host states they migrate to for employment purposes. With a ban on movement, migrants are left stranded in the urban towns without a consistent or sufficient source of income. This peculiar situation highlights the absence of provisions on wage subsidies[7] catered to exceptional circumstances which halt work altogether. Loss of wages suffered from abrupt unemployment; (lack of) security of retaining employment post economic lockdowns; payment on leave during ecological crises; a mechanism mandating the employer to ensure its employees are eligible to access social security benefits, etc. have not been adequately addressed in labour legislations. Labour legislations are claimed to serve as regulatory mechanisms to strike a balance between the interests of inherently inequal class relations. However, situations such as the COVID-19 pandemic which seemingly halt labour, unveil the garb of welfare which labour legislations are often cloaked under and display the utter lack in substantial onus on employers towards securing the welfare of its workforce.
With more than 245 labour legislations, there exists no dearth of policies that may be implemented to secure migrant worker interests. However, in creating a distinction between the formal and informal sector, the latter often loses out on benefits that accrue alongside legal regulation. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, was enacted to curb the exploitation of migrant labourers by contractors recruiting them from other states and subjecting them to extremely harsh labour conditions. While the intent of this Act is noble, it remains largely ineffective as it depends on a contactor to furnish and maintain records of transactions between the migrant workers and the contractor. This limits the practical accessibility for workers, who must appease the Contractor to merely be recognized by this law. Furthermore, the dispute resolution mechanism incorporated under the Act remains non-functional, unless the worker procures a prior permission from the inspecting officer (appointed by the state). This Act, like several others, fails to address exploitative ground realities and the commercial disposability of such workers. Other schemes such as ‘The Employees’ State Insurance Corporation and the Employees Provident Fund—that provide social security to workers in India—fail to cater to the needs of informal sector workers in India. The ESIC, for instance, is applicable to premises where ten or more workers are employed. However, as per the Economic Census of 2013-14[8], a little over 98 percent of Indian entities employ less than ten workers, which effectively means that a vast majority of workers fall outside the purview of social security’[9].
The Code on Wages, 2019 is a much-celebrated legislation for attempting to establish a minimum wage ceiling. Aside from the lack of a defined methodology for calculation of such a wage, the Code also omits the principal-employer liability. For migrant workers who primarily work in industries operating on the sub-contracting of labour, this omission implies that the principal employer is no longer liable, if the contractor fails to pay wages. This leaves migrant workers even more vulnerable to exploitation, especially when payment is avoided through layers of contracting chains.
Presently, monetary relief granted to the migrant is restricted to State/National Disaster Management Fund[10], PM Garib Kalyan Yojana, regular wages of workers under MGNREGA (which might not aid majority of the workers covered under the scheme due to the complete halt of any work during the lockdown and many claim that routine increase on wages has been termed as COVID relief[11]), various other relief funds set up by the Centre and State (such as PM CARES, PMNRF, various State COVID- relief funds). The absence of punitive measures or mandatory undertones to the advisory[12] issued by the Ministry of Labour and Employment provides no assurance on the migrant workers’ status of employment or social security prospects, post the lockdown.
With regards to provision of wages and compensation, a diversity in approaches can be observed in the response of the Apex Court and the High Courts. The Apex Court’s dismissal of a PIL[13] seeking a direction to the Central Government for payment of minimum wages to migrant workers and deference of the discretion to the Government seems indicative of their stance on non-interference with policy matters. It further rejected a plea to use hotels as an alternative to shelter homes with dismal sanitation facilities, to shelter migrants walking back to their home states[14]. This raises key questions regarding the role of the judiciary in addressing labour concerns during crises and to what extent reluctance to provide executive directions can be considered beneficial. Does a rigid alignment with separation of powers justify turning a blind eye towards to the sufferings of those worst-hit by the situation? When does pliancy become annihilation?
On the other hand, High Courts have displayed support in ensuring implementation of policy schemes providing relief packages to migrant workers. Madras High Court displayed an active role in aiding redressal of migrant worker concerns by directing distribution of relief packages[15] and checking legislative and executive delay. Delhi High Court has also been monitoring the implementation of the relief announced for registered construction workers[16].
While both approaches may be viewed as harmonious to legislative endeavours in tackling this crisis, the prior approach often leaves migrant workers vulnerable to exclusion and invisibility. For most migrant labourers, immediate policy implementation and judicial redressal are essential to their survival, especially when labour policies do not incorporate active measures to secure their interests.
Reality in motion: Alternative mechanisms
One of the peculiar features of this pandemic is the suspension of the ordinary means of collective mobilization to voice grievances. Under regular circumstances where, the freedom of movement is unhindered, workers often demonstrate their right to strike by collectivizing. Right to strike is a critical feature of labour jurisprudence as it helps ensure sensitivity towards the working conditions that labourers are subjected to. Section 2(q) read with s. 2(s), 22, 23 and 24 of the Industrial Disputes Act highlight the existence of a statutory right to strike, as a tool of collective bargaining[17]. This statutory right is available to all those who qualify as “workman”[18] belonging to an “industry”[19] pertaining to an “industrial dispute”[20] under the ID Act.
However, the COVID-19 pandemic has created an unprecedented void in the bargaining process. Due to the paralysis of physical mobilization, one of the greatest modes of bargaining gets robbed from the labourers. This leaves them with negligible alternatives to negotiate with their employer, who retains a significant upper hand. If mode of negotiation shifts to electronic means, such as online ADR procedures, does the onus on the government to act as parens patriae during such emergencies increase? Furthermore, do emergencies where the right to strike is inexercisable warrant an increase in governmental vigilance to worker’s rights and in doing so, could provision of suo moto powers to Labour Courts be an alternative remedy? While one of the foremost counters to this suggestion would be posed by the lack of legitimacy of Labour Courts (which are quasi-judicial per se), this alternative could ease considerable amount of burden on the judicial system.
Alternative welfare models such as the Australian Jobseeker payment system[21] enables unemployed individuals or casual workers, aged between 21 to pension age, to sustain themselves by receiving payments from the government as long as they qualify the statutorily defined aspects. Similar systems are in place for employed workers which entitles them to certain payments from their employers, aside from the COVID disaster fund which acts as an additional monetary top-up. While the Australian welfare model raises several concerns for employers[22] and its impacts on the economy, it provides a certain safety net to those in critical need of an income to sustain themselves. However, the same might not be feasible in India given the present state of the economy[23] and the sheer number of informal sector workers.
Another social alternative which could help assuage migrant anxieties as well as help communicate issues with the government would be setting up of local bodies constituted by the workers themselves as a self-support system. While these groups somewhat already exist amongst migrant workers informally, a formal recognition and encouragement of such groups by involving them in facilitating provision of emergency supplies would lead to a more holistic support. The system of forming local collectives to aid the community as a whole has been employed as a tool in other forms, such as the microcredit grameen system. In crises such as the COVID-19 where social distancing is crucial, presence of such communities would not only help in focused communication of ration, wages and other sustenance needs to the executive bodies but also provide psychological support.
‘Naya Daur?’: Conclusion
One of the foremost things that pandemics, crises and great sufferings offer us is an opportunity to reimagine ideological and structural settings. In light of several states scrapping of central labour legislations[24] and reducing the existing structures of protection which aim at levelling unequal bargaining power, the need for a re-evaluation is higher than ever. The exemption of labour laws (other than the 4 specified[25]) implies a complete absence of the dispute resolution mechanism afforded by the ID Act, non-recognition of Trade Unions, lack of social security guaranteed by ESIC and Employees Provident Fund, the wide and sweeping discretion in the hands of the employer to employ exploitative practices- through the exemption of Standing Orders, laws regulating contract labour, Unorganised Workers Social Security Act 2008 provisions, increasing of work hours (from 9 hours to 12 hours) under the Factory Act 1948 without access to overtime bonus and possibility of arbitrary termination bodes a dark time ahead for workers. The leeway provided to employers not only increases the substitutability of workers in harsher, competitive environments, but also moves away from the concept of state being a neutral arbiter in labour relations. The absence of both, state-regulatory mechanisms as well as modes of collectivization, i.e., trade unions, places workers at a tremendously lower position in a system where employers already wield a higher bargaining power.
Crises can act as an enabler of change by radically redefining access to resources (economic capital, political power or cultural authority) which form the basis of shaping our present. What we require, more than ever, is to stop invisiblizing the costs of proposed post-pandemic economic growth policies and assess its impact on those creating the building blocks towards realizing such aims, especially when they happen to be amongst those worst hit by this crisis.
We must rethink the current web of laws and examine how lifting the veil of benevolence from labour laws helps address deeper issues of structural imbalance. We must identify alternate routes that incorporate worker sensitive policies while focusing on economic growth. Fundamentally, it leads to one question- does the latter always have to come at the cost of the prior?
[1] This article accommodates for social developments taken towards the COVID-19 pandemic in India upto 13th May 2020.
[2] Kulkarni S, ‘PM Narendra Modi announces 3-week national lockdown from March 24 midnight’ (24 March 2020) DeccanHerald https://www.deccanherald.com/national/pm-narendra-modi-announces-3-week-national-lockdown-from-march-24-midnight-817221.html Accessed 28 April 2020
[3] Rautray S, ‘Make private Covid-19 tests free, says Supreme Court’ (09 April 2020) Economic Times <https://economictimes.indiatimes.com/news/politics-and-nation/make-private-covid-19-tests-free-says-sc/articleshow/75054574.cms?from=mdr> Accessed 28 April 2020
[4] Bindra J, ‘SC clarifies free Covid-19 testing at private labs only for poor’ (14 April 2020) liveMint <https://www.livemint.com/news/india/sc-clarifies-free-covid-19-testing-at-private-labs-only-for-poor-11586784990810.html> Accessed 28 April 2020
[5] Mandhani A, ‘SC modifies free Covid-19 test order, says it wasn’t intended for those who can afford them’ (13 April 2020) ThePrint <https://theprint.in/judiciary/sc-modifies-free-covid-19-test-order-says-it-wasnt-intended-for-those-who-can-afford-them/400933/> Accessed 30 April 2020
[6] ibid
[7] Mahapatra D, ‘Payment of minimum wages to migrant workers: SC leaves decision to Centre’ (21 April 2020) Times of India <https://timesofindia.indiatimes.com/india/payment-of-minimum-wages-to-migrant-workers-sc-leaves-decision-to-centre/articleshow/75274875.cms> Accessed 14 May 2020
[8] Ministry of Statistics & Programme Implementation, ‘Abstract of the Sixth Economic Census 2013-2014’ <http://www.icssrdataservice.in/datarepository/index.php/catalog/146/study-description> Accessed 30 April 2020
[10] Disaster Management Act 2005, Section 48(11)(a) and Section 46
[11] Nidhi Jacob, Utsav H Gagwani & Khaitan S, ‘India’s COVID19 Financial Package: Rehashed Existing Programmes, Little New Spending’ (27 March 2020) IndiaSpend <https://www.indiaspend.com/indias-covid19-financial-package-rehashed-existing-programmes-little-new-spending/> Accessed 01 May 2020
[12] Ministry of Labour and Employment, D.O. No.M-11011/08/2020 -Media (20 March 2020) <https://labour.gov.in/sites/default/files/Central_Government_Update.pdf> Accessed 01 May 2020
[13] Prakash S, ‘SC refuses to pass order for payment of wages to migrant workers during lockdown’ (07 April 2020) The Tribune <https://www.tribuneindia.com/news/nation/sc-refuses-to-pass-order-for-payment-of-wages-to-migrant-workers-during-lockdown-66933> Accessed 01 May 2020
[14] ‘Coronavirus: SC rejects plea for using hotels as shelters for migrant workers’ (03 April 2020) The Economic Times <https://economictimes.indiatimes.com/news/politics-and-nation/coronavirus-sc-rejects-plea-for-using-hotels-as-shelters-for-migrant-workers/articleshow/74964239.cms> Accessed 01 May 2020
[15] Press Trust of India, ‘Madras HC directs distribution of COVID-19 relief to migrant workers in TN at PDS outlets’ (03 April 2020) The Economic Times <https://www.business-standard.com/article/pti-stories/madras-hc-directs-distribution-of-covid-19-relief-to-migrant-workers-in-tn-at-pds-outlets-120040301801_1.html> Accessed 01 May 2020
[16] Press Trust of India, ‘Provide COVID-19 relief scheme benefits to eligible workers: HC to Delhi govt’ (28 April 2020) Deccan Herald <https://www.deccanherald.com/national/north-and-central/provide-covid-19-relief-scheme-benefits-to-eligible-workers-hc-to-delhi-govt-831032.html> accessed 01 May 2020
[17] Gujarat Steel Tubes Ltd vs Gujarat Steel Tubes Mazdoor Sabha, 1980 AIR 1896
[18] Industrial Disputes Act, s 2(s)
[19] Industrial Disputes Act, s 2(j)
[20] Ibid, s 2 (k)
[21] Australian Government Services, ‘Payments for job seekers’ <https://www.servicesaustralia.gov.au/individuals/subjects/payments-job-seekers> Accessed 03 May 2020
[22] Castles, FG, ‘A Farewell to Australia’s Welfare State’ (2001) 31(3) International Journal of Health Services <https://doi.org/10.2190/E6W8-3HYY-EHJ5-7VFK> Accessed 03 May 2020
[23] Suneja K, ‘Lockdown impact: India April manufacturing PMI at all-time low of 27’ (05 May 2020) The Economic Times https://economictimes.indiatimes.com/news/economy/indicators/indias-factory-activity-slumped-to-record-low-in-april-pmi/articleshow/75527546.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst Accessed 05 May 2020
[24] Srivastava P, ‘Key labour laws scrapped in UP for 3 yrs as Yogi govt brings major reform to restart economy’ (08 May 2020) ThePrint <https://theprint.in/economy/key-labour-laws-scrapped-in-up-for-3-yrs-as-yogi-govt-brings-major-reform-to-restart-economy/416925/> Accessed 12 May 2020
[25] Jha S, ‘Covid-19 crisis: UP exempts biz from all but 4 labour laws for 3 years’ (09 May 2020) Business Standard < https://www.business-standard.com/article/economy-policy/up-govt-to-exempt-businesses-from-all-but-three-labour-laws-for-3-years-120050701531_1.html> Accessed 12 May 2020
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