Making migrant workers pay for their train travel back home is unconstitutional

In a shocking development, it was brought to public notice that migrant workers who were ferried back to their home states in special trains were made to pay for their rail travel. A number of special trains that began their journey from Maharashtra and Kerala over the course of the weekend required migrants to pay for their train travel. Now, let us recall that this crisis of stranded migrant workers was a direct result of the nationwide lockdown that was imposed by the Central Government on 24^th March - which did not give the migrants any sufficient notice or timeframe to depart back home by catching trains.

The Central Government did not make any arrangement for ensuring the safe travel of the migrant workers throughout the month of April, when the lockdown was in force. The migrants were left stranded due to the imposition of the nationwide lockdown, and not because of any fault on their part. Now, as the migrants were left stranded due to State action i.e. the imposition of a lockdown, the State has an obligation to ensure that the migrants do not suffer, and are eventually taken back to their native places. As all workplaces were shut during the course of the lockdown, most of the stranded migrant workers also lost their means of livelihood, and did not have any source of income.

In such a situation, I would argue that charging them for their rail travel to their native State is manifestly arbitrary, and hence violative of Article 14 of the Indian Constitution. Before referring to the test of ‘manifest arbitrariness’ under Article 14, it is pertinent to note that making migrants pay is an executive action of the Ministry of Railways and the State Governments, and is not undertaken through a statutory law or an ordinance. As Nariman, J held in the Shayara Bano case, the test of manifest arbitrariness applies to both executive action as well as statutory law.  

Under this test of ‘manifest arbitrariness’, executive action can be struck down if it is undertaken in a manner that is capricious, irrational and/or without adequate determining principle. Furthermore, executive action can be struck down even if it is excessive or disproportionate. In the present situation, the Ministry of Railways and the State Governments are charging migrants for their train travel, despite clear evidence that they have not had any definite source of income during the lockdown, and have faced tremendous difficulties in finding food and shelter.

In this situation where they lost their means of livelihood and income, charging them for their train travel is without any adequate determining principle, and is also irrational, excessive and disproportionate. This action has been undertaken by the State even though it is clearly aware that the migrants may not have the means to pay for their travel. This hence amounts to a textbook violation of the manifest arbitrariness standard, laid down under Article 14. Charging migrants in a situation where they lack the means to pay also goes against their right to live with dignity, which is an integral facet of Article 21. 

Now, whether the cost of the train tickets should be paid for by the Ministry of Railways or the respective State Governments is a matter of policy. But, what is clear is that the Central Government has a constitutional obligation to ensure free of cost travel for the migrants, as they were left stranded solely because of its actions. If free-of-cost flights could be chartered to rescue Indians who were stranded abroad in the month of March, then there cannot be any justification for making poor migrants pay for their rail travel. 

The Government must hence review their policy in accordance with constitutional standards, and should also provide a refund to those migrants who were unfortunately charged by the State. Unless this happens, the State would have penalized the migrants for its own lack of foresight.