Mass Migration of Workers: A failure of the Constitutional Machinery?

In one of the most unprecedented moves by the central government, the entire country was locked down with effect from 24 March 2020. There were no words of caution- only a single message that the entire country would be locked down and everybody must stay at home. The move wasn’t resisted at all. In fact, people appreciated it as it was the only hope of the country to contain the monstrous Covid-19 (china-virus) spread. The ritual was soon followed by the railways and the flight services and soon, everything came to a dead halt. But hark! Somebody had already started moving out on the roads- the workers. Gradually people started criticizing these workers for their insensitivity to the ongoing crisis and started prophecies of the Covid-19 spread due to such irresponsible attitude of the workers.

If they need to go back to their villages, why did they come to the cities in the first place? To earn more maybe! But if they haven’t been able to earn enough to even feed themselves for 21 days, what’s the use? And who would feed them in their villages? And if they had enough in their villages, why did they come to the cities? – wrote a social media user.

The workers continued traveling and the country continued yelling. Meanwhile there were some who were stranded in different countries and wanted to get back home. Special flights brought them in and fearing the pandemic spread, these people were home quarantined for a specific period. These affluent people casually violated the lockdown restrictions and became the spreaders of the SARS-Cov-2 and the criticism was still targeted towards the migrants. Towards the end of the lockdown, it was announced that the restrictions would be continued as the pandemic spread could not be contained within the previous version of the lockdown.

The perspective of the general public gradually changed as they themselves started facing the effects of lockdown and imagined how magnified the effects would be on the daily wage earners who had already started their journey to their homes, on foot, and were facing hunger, thirst, heat, and police excesses. Soon the social media was flooded by pictures and videos of migrant workers traveling either in substandard conveyances or on foot. Many journalists were seen talking to one of the workers and ho-hyping his sufferings without being able to do much for helping him out with food, water, or shelter. The tear ridden eyes of the migrants have become TRP magnets for the news channels. In the subsequent versions of the lockdown, the restrictions were relaxed despite no relief in the pandemic spread. It was said that the economy of the country and the people would move hand in hand and the people must learn to live with the coronavirus.

Shramik Special trains were announced for the migrant workers and the cost of their travel was to be borne by the government or its agencies. In a hard to understand move, the central government imposed one of the strictest lockdowns, however, the implementation of the same was left out for the states. Instead of tackling the issue of the migration of daily wage workers, the center pulled itself out of its responsibility by labeling it as an inter-state issue.

One must be aware that the state, even during the situations of emergency or crisis, is bounded by constitutional propriety and has to respect human rights at all costs. Though the country was facing an ongoing health crisis, the right to life of the workers should not have been dishonored. Though the Supreme Court of India is known as the guardian of the constitution, it remained ensconced in its ivory tower. Instead of exercising judicial intervention, the Hon’ble Supreme Court conveniently dismissed or adjourned several petitions in regards to the protection of the rights of the migrants in terms of directing the state to take appropriate actions to prevent the mass exodus through considering and acting upon the needs of the migrants. The petitions were dismissed on the pretext that the condition of migrant workers was a matter of policy and did not require any judicial intervention.

By not granting relief in such cases, the supreme court itself denied the most fundamental right to equality before the law to the migrant workers. However, Vishaka guidelines on sexual harassment at workplaces, the right to food, and several environmental protection policies are also matters of policy that have been adjudged upon by the Hon’ble Supreme Court. Not only has the apex court interfered in these instances, but it has also formulated the policies and asked the states to implement the same. The apex court has also reprimanded lawyers to have brought in petitions merely based on reports. It seems that the epistolary jurisdiction of the supreme court has become a story of the past wherein the court would have happily acted on letters written by or on behalf of the oppressed people by converting them into writ petitions.

Most unfortunately, the apex court has started believing that the government is the best judge of the ongoing situation. The Hon’ble court seems to have forgotten that the constitution lives even in times of crisis. In a very arbitrary move, the court is not only dismissing/adjourning the petitions regarding the protection of rights and welfare of the migrants, but also dissuading people from filing further petitions. Even the PILs are being viewed as adversarial instruments against the government which demonstrates the apex court’s lack of compassion and judicial insensitivity.

Given the above, I have a few questions to ask:

1. When a daily wage worker does not have access to food, is his right to life protected? Whose is responsible to provide him with safe transport if he wishes to go home for survival amidst such a crisis?

2. While in institutional quarantine, who is going to loom after the needs of their families What about their needs beyond food? Aren’t there any?

3. Who shall ensure the compensation for whatever they have suffered – from enduring heat, hunger, thirst, to inhuman police brutality?

4. Do the individual fundamental rights vanish in the times of crisis such as this pandemic? Or do they vanish when an individual is labeled as a migrant worker?

5. Though some of the high courts have taken the responsibility of raising questions on the violation of the fundamental rights of the migrants, shouldn’t the apex court have an equal responsibility towards the oppressed as the affluent?