India witnessed one of the largest exoduses of people since the partition due to the COVID-19 pandemic. India, due to its highly dense population, lack of medical facilities, lack of preparedness, and administrative capacity, has seen one of the worst effects of COVID-19. The Government of India, like other Governments, declared lockdowns to prevent loss of lives and spread of the virus. However, the combined effect of the COVID-19 and lockdowns claimed millions of lives and the economy. In an attempt to get the economy up and running the state of Gujarat in India exercised power under Section 5 of the Factories Act, 1948 to exempt factories in the state from various provisions under the Act vis-à-vis wages, working hours, overtime payment, breaks, etc., A petition challenging the notification of the state government was heard by the Supreme Court and on October 1, 2020, the Supreme Court quashed the notification of the state.
The Supreme Court in the decision held that the power under Section 5 of the Factories Act, 1948 can be exercised only in cases of internal emergency which threatens the security of India. And the Court rejected the argument of the state that the ongoing pandemic fell in that category. The Court in its decision reminded the state that the exploitation of workers, especially at a time when their survival and security is at threat due to lockdowns, is unconscionable. The decision also cited Granville Austin’s work The Indian Constitution: Cornerstone of a Nation (Oxford University Press, 1966)– “the conscience of the Constitution which connects India’s future, present, and past by giving strength to the pursuit of social revolution in India”.
The notification of the state was held to be violative of the right to life and dignity in the workplace under Article 21 of the Constitution of India, and the notification as antithetical to the principles of social and economic justice laid down under Article 38, 39, 42, and 43 of the Constitution. The Supreme Court went on to hold that the notification of the state government denies the workers basic rights such as humane conditions of work and consequently amounts to forced labor.
The Supreme Court while addressing the constitutionality of the notification of the state government recognized the hardships faced by the migrant workers across India and stated that “right to life cannot be deemed contingent on the mercy of their employer or the State”.
The Supreme Court used its power under Article 142 of the Constitution and ordered the state government to pay the workers’ overtime wage which was denied to them by the virtue of the notification.
At a time when the Government of India and other state governments have initiated measures that adversely affect the rights of the workers, this comes as a ray of hope for the poverty-stricken workers of India. The decision reminds the government that lives must take precedence over the economy. The judgment is strongly worded (strong for a judicial decision) and expresses condemnation of the government’s decision to resort to forced labor and inhumane working conditions to restart the economy.
Migrants laborers in India are mostly from the rural regions of states like Bihar, West Bengal, Orissa, and Uttar Pradesh. These are mostly men who migrate to other states in search of menial jobs to earn a living and send savings back home to their families in villages. These laborers are often referred to as ‘bhai’ or ‘bhaiya’ across the country. They remain obscure, and without identity and individuality. However, several industries will shut down if these workers leave for their homes, and this was evidenced during the pandemic. Despite the overwhelming demand for this class of laborers, they remain absent from any major government welfare program. Especially considering that most of these migrant laborers are not on the electoral rolls of these states.
The pandemic has caused the governments and citizens to recognize the plight of the workers and the state of Kerala is calling the migrant workers, ‘guest workers’. Several states have also adopted this usage. However, changing the terminology will not create an identity for the migrant workers.
Before the COVID 19 pandemic, the image of migrant workers in society was poor due to the increasing number of crimes committed by them. The police have also pointed at the migrant worker community for a significant number of crimes and have a pervasive attitude towards them. Thus, in a scenario where the government does not consider migrant workers as important since they do not vote for local elections, police harass them, and local residents are afraid and only want to get cheap labor, the identity of these workers is not just obscure but in crisis. And replacing ‘migrant’ with ‘guest’ will not bolster the welfare of these workers since the workers primarily need governmental recognition and protection of fundamental rights, instead of societal respect.
The author consciously excludes International Labour Organisation principles and guidelines since the issue at hand is fundamental which does not require much analysis or international study.
The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 provides specifically for the registration of migrant laborers and their welfare. However, the issue in India does not have to do much with the implementation of such laws or their interpretation or even the absence of law. The Constitution of India in Entry 81 of the Union List under Schedule 7 recognizes inter-state migration as a domain of the central government. The issue revolves around the fundamental rights of a worker to decent working conditions and the right to work with dignity. Unfortunately, the guardian of fundamental rights, the Supreme Court has also delivered several decisions to protect the rights of these laborers but in vain.
The problem is not the lack of law or lack of judicial recognition of the crisis; rather, the lack of political will is the cause of the problem. The amendment to the labor laws to bolster the economy or being unable to manage the migrant exodus are examples of the failed system which failed to cater to the welfare of the laborers in a country consisting of over 50 million migrant workers and millions of local laborers. The crisis of laborers in India is more political than legal.
Thus, one may ask how effective the decision of the Supreme Court will be in ensuring the protection and enforcement of fundamental human rights of laborers. The legislature and executive are responsible for the escalation of the human rights violations of the laborers; however, both are responsible for different counts. The reason the legislature amended the law or did it through a notification is that the existing laws protect the minimum working conditions and standards of the workers. And the failure of the executive branch is in not effectively enforcing the existing laws to prevent fundamental rights violations. The problem lies in the action of the legislature and inaction of the executive. This combination is detrimental to governance, especially in a parliamentary democracy where the line between executive and legislature is thin.
Nikhil Erinjingat is a fourth-year B.A. LL.B student at Ramaiah College of Law, Bangalore, India.
Suggested Citation: Nikhil Erinjingat, Recognizing Indian Laborers as Humans, JURIST – Student Commentary, October 26, 2020, https://www.jurist.org/commentary/2020/10/nikhil-erinjingat-labor-india/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
