Status of Migrant Workers: A Constitutional Conundrum – By Neha Tripathi and Soumya Rajsingh

Our Constitution, the most fundamental document which every one of us has pledged to defend and protect, has been based on certain fundamental ethos, which seeps throughout the whole scheme of provisions including the Preamble.

The Preamble very authoritatively has been adopted and enacted in the name of “We the People of India” and declares unequivocally that India is a sovereign, socialist, secular, democratic, republic and further secure to all its citizens; Justice, social, economic and political; equality of status and of opportunity and also Fraternity, assuring the dignity of individuals, among other things.

If we look at the words very carefully, our Constitution provides for protecting the rights of the citizens irrespective of their economic status and also assures human dignity. This sentiment further finds its roots and is echoed in the form of other provisions under Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) of the Constitution. Article 21 talks about rights to life and further Articles 38, 39, 41, 43, 46 creates an obligation on the state to undertake necessary steps towards the fulfilment of an egalitarian state. 

Though Directive Principles of State Policy (DPSP) are unenforceable unlike fundamental rights (FR), Dr B.R. Ambedkar referred to DPSP as “instrument of instructions” and stated “We do not want merely to lay down a mechanism to enable people to come and capture power.  The Constitution also wishes to lay down an ideal before those who would be forming the government.  That ideal is of economic democracy.” The Supreme Court further in the case of Minerva Mills v. Union of India (1980) held that FR and DPSPs are like two wheels of the same chariot, one no less important than other, snap one and the other will lose its efficacy, the Court further declared that the harmony between FR and DPSP is the basic structure of the Constitution. Reiterating the words of the Supreme Court itself, the edifice of Indian Constitution is built upon the concepts crystallised in the preamble. 

The recent instances with respect to the plight of migrant workers should really make us wonder whether this is the failure of the promises made by the Constitution to those who the Constitution had put up at the higher pedestal and made an obligation on the State to protect their rights and dignity at all costs and also, whether such incidents are not a violation of oath by Constitutional authorities to defend and protect the Constitutional principles. All hopes were rested on the Hon’ble Supreme Court,  being the sentinel qui vive and have had the likes of Justice Krishna Iyer, Justice Bhagwati and Justice Khanna, to assume the role and act as a crusader of human rights, which it has been successfully performing since independence and would be sympathetic towards the constitutionally guaranteed rights of the migrant workers and the poor and downtrodden in the society by drawing attention towards their needs by the other organs of the Government and the well-off section of the society, but, alas, in the recent pronouncement by the apex court of the country, it stated its inability to monitor and implement the movement of the migrant workers across the country. It is noteworthy to mention that earlier, the Supreme Court had disposed of the PIL seeking migrant workers’ welfare during the pandemic and consequential lockdown saying that the Centre and states are taking appropriate steps to provide them relief. The judgment aforementioned and the approach of the organs of the Government (judiciary being one of the important pillars) have failed to assure the Constitutional rights to the migrant workers and it is a blatant violation of their guaranteed fundamental rights, to say the least. The Constitution under Art 21 assures right to life and with so many lives being lost on the roads, it poorly reflects on the Government’s attitude to protect the vulnerable. Even Justice Lokur, in his recent interview, pointed out that “the Supreme Court, he said, is not fulfilling its constitutional functions adequately. Certainly, it should be more pro-active than it has been.” Though as a ray of hope, Madras High Court on Saturday (16.05.2020) took suo moto cognizance and directed the Central Government and the State Government to submit an action report on measures taken to alleviate sufferings of migrant workers amid Covid-19 lockdown situation. 

In another important instance, one of the major facts that must not be ignored in this matter is also that how far the law has played its role to protect and restore the constitutional and fundamental rights of these migrant labourers of India.  No doubt they are a substantial part of the nation’s population, and as a country, we are accountable to them. This is to note that in the hindsight some state governments (Uttar Pradesh, Madhya Pradesh, Rajasthan, Punjab, Haryana, Himachal Pradesh and more states likely to join) have provided for a relaxation of operation of certain provisions of labour laws to attract investments or have completely suspended its applicability for the time being. These labour legislations of India also known as social security legislations establish a system that ensures protection of the labour community from exploitation. Recently, ILO in this context has stated that “labour laws protect the well-being of both employers and workers. They are an important means to advance social justice and promote decent work for all. Consequently, the formulation of labour laws and revisions is most effective when it emanates through a strong dialogue.” These actions are so ghastly that in addition to being violative of Constitutional provisions are also in blatant violation to India’s international obligations, especially the ILO Declaration on Fundamental and Principal Rights of Work which India had adopted in 1998. 

The followings are some of the highlighted reforms brought by different states, overtime of up to 72 hours and the period of working shifts in factories to increase from 8 hours to 12 hours, no inspection in the firms employing less than 50 workers and in the small and medium enterprises, the inspection will take place only with the permission of the labour commissioner or in case of complaint (Madhya Pradesh Government). Uttar Pradesh Government by an audience defunct the substantial labour laws for the next three years to provide a cushion to the sagging businesses and factories in the state. Now, the industrial units will also not have to worry about inspection or enforcement officials knocking on their doors as they would not be looking if the labour laws are implemented. 

Rajasthan government with addition to raising the working hours from 8 hours per day to 12 hours per day, the state has amended Industrial Disputes Act to increase the threshold for lay-offs and retrenchment to 300 from 100 earlier. In order to recognise the trade union, the threshold membership of the trade union has been increased from 15 per cent to 30 per cent. 

Leaving the technicality of law apart, the major question as a sovereign, socialist, secular, democratic, republic we have to face is, how far as a nation we are successful to ensure the basic rights of these citizens to remain intact. This leaves us in a question unanswered, despite having the best constitutional regime in place, is the law becoming an instatement of oppression?  

Poverty is the society’s malady and sympathy, not sternness is the judicial response.

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Neha Tripathi and Soumya Rajsingh are both Assistant Professors (Law) at the Maharashtra National Law University, Aurangabad.

Disclaimer: The views or opinions expressed are solely of the author.