The Occupational Safety, Health and Working Conditions Code, 2020 - When exemptions become the norm

In the last Parliament session, three consolidated labor codes were passed by both Houses. The three labor codes that were passed are – (i) The Industrial Relations Code, 2020; (ii) The Social Security Code, 2020; and (iii) The Occupational Safety, Health and Working Conditions Code, 2020. Each of the three labor codes consolidated all labor laws relating to social security, industrial relations, and occupational health and safety of the workers.

In this post, we shall limit our focus to the Occupational Safety, Health and Working Conditions Code, 2020 (‘Occupational Health and Safety Code’). We shall discuss the provisions of this Code which allow the Central and State Governments to exempt an industrial establishment/factory from complying with the provisions of the statute. We shall also discuss on how wide-ranging these powers are, and how they effectively allow the Government to nullify the protections conferred to the workers.

The Occupational Health and Safety Code

The Occupational Health and Safety Code consolidates all existing labor laws that previously governed aspects relating to the health, safety and working conditions of the employees. Some of the pre-existing laws that have been consolidated into this Code are the Factories Act, 1948, the Mines Act, 1952, and the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service), Act, 1979. The Code mandates various obligations which an industrial establishment or a factory has to fulfill, for protecting the health and well-being of the workers.

Some important provisions which confer rights and protections relating to health, safety and working conditions are as follows:

• Section 6 – it mandates the employer to ensure disposal of hazardous and toxic waste, and provide government-prescribed free tests and annual health examinations to the employees.
• Section 24 – it mandates the employer to adhere to all guidelines prescribed by the government relating to separate bathing places and locker rooms for male, female and transgender employees; periodic medical examinations for employees working in mines; and provision of adequate medical facilities such as first-aid equipment and ambulance rooms.
• Section 25 and 26 – It imposes a mandate on the employer to ensure that no worker works for more than 8 hours in a day, and for more than 6 days in a week.

These provisions are intended to address the power imbalance that exists between the employer and the workers, by conferring the workers with essential rights and protections. These rights aim to safeguard the dignity of the workers – by ensuring that the conditions at the workplace are just and humane. The statute also aims to mitigate the health risks that workers may face in certain hazardous industries, such as chemicals and mining.

While the enactment of the Occupational Health and Safety Code is a step in the right direction, the Code confers the Government with wide-ranging powers to exempt one or more industrial establishments from complying with its provisions.

The power to grant exemptions

Section 127, Section 128 and Section 129 of the Code lay down the conditions under which the Central Government can exempt an industrial establishment/factory/workplace from complying with one or more provisions of the Code. Let us discuss each of these provisions below.

Section 127

Under clause (1) of Section 127, the Central Government can issue a notification exempting a single industrial establishment, or a class of such industries from complying with one or more provisions of the Code. This exemption can be given for any period that the Government specifies, and can be made subject to any condition that it may prescribe. Clause (1) confers the Government with a general discretionary power to exempt establishments from complying with one or more provisions of the Code.

But, this general power has an extremely wide ambit, as the Government can, based on its subjective discretion, effectively exempt one or more establishments from complying with the entire Code.

Under clause (2) of Section 127, the State Government can through a notification exempt a new factory or a class of new factories from complying with all or any of the provisions of the Code – if it is satisfied in public interest that it such an exemption is necessary to create more employment opportunities and economic activity. Such an exemption can be granted for any period that the State Government deems fit. Any and every exemption that the State Government grants can easily be justified on the ground that it aims to increase employment and economic activity – as these are among the primary functions of a Government.

Using such broadly worded parameters, the State Government effectively has the power to exempt any new factory from meeting the obligations prescribed by the Code.

Section 128

Section 128 prescribes that during a public emergency, disaster or pandemic, the Central or State Government can issue a notification exempting any workplace or type of work activity from complying with all or any of the provisions of the Code. The term ‘public emergency’ has been defined as a situation where the security of any part of India is under threat – due to war, external aggression or an internal disturbance. While granting an exemption from compliance on the ground of a ‘public emergency’ was also present in the Factories Act, 1948, the other two grounds (disaster and pandemic) have been introduced for the first time by the Code.

During a pandemic, employers should have a greater obligation to protect the health of their workers. Ironically, the prevalence of a pandemic can now be used as a justification to reduce the employers’ obligation to protect the health and safety of the workers. Also, akin to Section 127, even Section 128 can be invoked to nullify compliance with all the obligations prescribed by the Code.

Section 129

Section 129 allows the Central Government to exempt a public institution that is maintained for the purpose of education, training or research from complying with all or any of the provisions of the Code. However, unlike Section 127 and Section 128, this provision has a limited safeguard. An exemption relating to working hours and holidays can only be granted if the Government is satisfied that the institution that receives the exemption has implemented a scheme that has equally beneficial provisions. But, this safeguard shall not be applicable for all other protections conferred by the Code.

If we now read Section 127, 128 and 129 jointly – it is clear that the Government has wide-ranging powers to allow certain industrial establishments to not comply with the entire Code. The Government now effectively has the power to exempt establishments from even the most basic obligations, be it safe disposal of hazardous waste, separate washrooms for male, female and transgender employees, access to safe drinking water, medical facilities etc.

It is likely that Trade Unions may challenge any such exemption notification that the Government may issue in future, if it significantly dilutes the employer’s obligations under the Code. To determine the tests that Courts may use to examine such a challenge, a recent judgment of the Supreme Court in Gujarat Mazdoor Sabha v. State of Gujarat assumes relevance.

The relevance of the Gujarat Mazdoor Sabha decision

In Gujarat Mazdoor Sabha, Justice Chandrachud struck down an exemption notification issued by the Gujarat Government under Section 5 of the Factories Act, 1948 (the Factories Act has now been subsumed into the Occupational Health and Safety Code). This notification exempted all establishments in the State from complying with multiple provisions of the Factories Act. It diluted the protections granted to workers by increasing the working hour limits from 9 to 12 hours, and also reduced the extent of overtime wages that had to be paid.

The Gujarat Government defended this Notification by contending that this was necessary in light of the financial urgency brought about by the Covid-19 pandemic – which was a ‘public emergency’ within the meaning of Section 5 of the Factories Act. Under Section 5, ‘public emergency’ was defined as a situation where the security of any part of India is under threat – due to war, external aggression or an internal disturbance. (This definition is the same as the definition given in Section 128 of the new Occupational Health and Safety Code).

The Court held that the Covid-19 pandemic cannot be considered as an ‘internal disturbance’ within the meaning of the term ‘public emergency’. In light of this, the exemption notification went beyond the ambit of Section 5, and had to be struck down. But, the outcome of a similar litigation under the new Occupational Health and Safety Code may be different, as Section 128 of the Code specifically allows the Government to exempt establishments from complying with its provisions – during a pandemic.

If a similar notification is passed today, the Government can directly contend that it is necessary in light of the pandemic, and need not even refer to the ‘public emergency’ provision. Hence, as long as the pandemic exists, Governments can take benefit of Section 128 to dilute the employers’ obligation to protect the health and well-being of his workers.

At this juncture, it is significant to note that Justice Chandrachud had also observed that the Gujarat Government’s notification was blanket in nature, and applied to all establishments irrespective of the nature of their business. If this observation is taken forward - it implies that the exemption granted should be narrowly tailored in accordance with the doctrine of proportionality. There should be some link between the objective behind the exemption and the establishments who are receiving benefit from the same. Only those establishments that fall within the stated objective of the Government should be entitled to receive the exemption.

If the exemption goes beyond its stated objective, the Court can strike it down for violating the doctrine of proportionality. Also, if the exemption significantly dilutes the employers’ obligations relating to the health and safety of the workers, it can also be challenged for violation of the right to health and dignity, under Article 21. There is hence sufficient scope for a legal challenge, if the State were to dilute workers’ rights by using the pandemic as a justification.

 Irrespective of the outcome of future legal challenges, the larger issue here is that the new Occupational Health and Safety Code is a rare example of a legislation which confers the Government with the power to effectively nullify the applicability of all its provisions. This, in a nutshell, has left workers’ health and safety rights at the whims of the Executive.

The forgotten soldiers - Some reflections on the migrant workers' crisis

This post has been co-authored with Rohit Sharma. Rohit is a graduate student from NUJS Kolkata (Batch of 2020). He is a former Editor of the Journal of Indian Law and Society. During his tenure as an Editor, he also successfully headed the JILS Blog. Over the course of the last two months, Rohit has done commendable work in helping stranded migrant workers in the State of Madhya Pradesh. 

Since the advent of the Covid-19 pandemic, countries have tended to adopt a protectionist approach to minimize the health risk that has ensued. However, as we shall discuss below, this protectionism has led to unintended consequences, and has created multiple new issues in addition to the health crisis. 

One such step of protectionism was taken by the Modi Government, which imposed a nationwide lockdown from 25th March onwards, by giving merely a four-hour notice. While the lockdown was initially envisaged for a three-week duration, it was extended on four occasions and continued  till 8th June, after which a roadmap was laid down for reopening different sectors of the economy. 

This approach of protectionism, which culminated in a nationwide lockdown, created a new kind of unanticipated crisis for the migrant workers in the country. As per the 2011 Census,  there were 453.6 Million Indians who were migrants - out of which around 70%  were female. Now, since the lockdown was imposed with only a four-hour notice, the migrant workers could not return to their hometowns – as transportation services were halted by the Central Government.

As transportation services had been halted completely, they were stranded in the cities without any source of employment and income, and were left estranged from their families. In order to provide them partial relief, the Central Government belatedly planned to provide them Shramik Special trains from the first week of May - through which the migrant workers could travel back to their hometowns. The Central Government in this regard claimed that 85% of the fare for the train service shall be covered by them. But this was later retracted, and the obligation on paying for the train services was transferred to the different State Governments.

The ensuing uncertainty resulted in a situation where migrant workers were asked to pay for their own train tickets. This was a travesty of justice as the migrant workers were left stranded and had no access to income solely due to the imposition of the lockdown, and not for any fault on their part. 

While providing transportation services to migrant workers, the Central Government made the Railways a pawn of harassment, instead of taking an active role in facilitating free train services. Under the transportation scheme, it was stated that trains can be supplied only through a joint request of both the origin state and the destination state, which again created multiple coordination issues between different State Governments.

The migrants were also requested to fill online registration forms to avail transportation facilities. Such a step was oblivious to prevailing ground realities, where most migrants cannot manage to afford a smartphone. This forced many migrant workers to walk back to their hometowns on foot, as they had no other alternative at hand.

As per an estimate, the cost of getting 6.5 crore inter-state migrants back to their hometowns would have been approximately Rs 4,200 crore. This amount could have been financed through the PM Cares Fund itself, which was also not effectively utilized by the Central Government to tackle this humanitarian crisis.

The Union Home Ministry also assured to establish more than 20,000 relief camps for over 660,000 migrants. However, despite numerous such promises by the State and Central Governments, many stranded workers were left without food and shelter, after having lost their primary source of income. Since most of the workers didn’t have access to regular food, government officials claimed that a  One Nation, One Ration Policy was being put in place.

However, most of these workers were unaware about the scheme, and the manner in which food was to be procured under it. Additionally, the Pradhan Mantri Garib Kalyan Ann Yojana - which aims to provide 5kg of rice or wheat per month to a family, also faced problems due to non-accessibility of ration cards and closure of fair price shops. Hence, very few workers availed of these food services, and many were left with no source of food.

This apathy of the Government in being dismissive of the group that forms the backbone of the economy has already made some migrant workers decide that they shall not return to the cities in  future for work, and shall prefer staying back in their villages. The migrants were penalized for no fault of theirs, and the Central Government failed to provide them with any kind of income support for the lockdown period - where most enterprises were forced to shut down. Even the Supreme Court failed to hold the Central Government accountable for this – and merely stated that the workers and the employers may ‘negotiate’ the extent of wages to be paid for the lockdown period.

On 20th June, the Prime Minister launched the  “Garib Kalyan Rojgar Abhiyaan” to create jobs for at least 25,000 migrant workers in 116 districts across States such as Bihar, which saw the return of a large segment of migrants. This program intends to develop rural areas that have been affected by reverse migration. Along with this, the Garib Kalyan Ann Yojana, which aimed to provide free food rations, has been extended till November. 

While we await the outcome of these belated measures, there can be no justification for the Central Government’s failure to anticipate the migrant workers’ crisis, and provide them with immediate food and income support.  The images and videos of migrant workers walking thousands of kilometers to reach their hometowns shall continue to haunt us for the years to come.

While we look to flatten our Covid-19 curve, let us remember that the sufferings of the working class is another curve that should be flattened on priority.

The Supreme Court’s interim order on payment of wages during the lockdown – A stark ignorance for ground realities

Over the course of the previous two months, we have witnessed devastating instances of migrant workers walking thousands of kilometers to reach their hometowns, after they lost their jobs and were denied wages by their employers. One among the many reasons for the plight of the migrant workers and daily wage earners is the non-implementation of an executive order issued by the Ministry of Home Affairs on 29^th March (‘the 29^th March Order’). The 29^th March Order, issued under the provisions of the Disaster Management Act, 2005, mandated that  all employers in (i) industrial undertakings; (ii) commercial establishments; and (iii) shops shall ensure that wages are paid to their workers without any deduction, for the period during which their enterprises were under closure during the lockdown. 

This Order had legal force for around 50 days, and was revoked through the guidelines for Lockdown 4.0, which were notified on 17^th May 2020. Meanwhile, the 29^th March Order was also challenged in the Apex Court by multiple private enterprises and enterprise associations. They contended that the Order was in violation of the employer’s right to carry on trade and business under Article 19(1)(g) of the Constitution. They also argued that the Order was arbitrary and unreasonable, as no wages can be paid in a situation of closure, where no work has been undertaken by the employees.

The Apex Court had granted an effective stay on the operation of the 29^th March Order through two interim directions passed on 15^th May and 4^th June - where it held that no coercive action shall be taken against any employer who fails to pay full wages. It is pertinent to note here that even after the Order mandating payment of wages was revoked on 17^th May, the Court has continued hearing the matter. This is because the Court has sought to examine whether the Order was legally valid i.e. whether it can be validly passed by invoking the provisions of the Disaster Management Act, 2005. If the Order is legally valid, an obligation is placed upon the employer to ensure payment of wages for the 50 days for which the Order was in force i.e. from 29^th March to 17^th May.

Keeping this background in mind, let us analyze the latest interim direction that was issued by the Court on 12^th June. In its 12^th June interim order, the Court deferred the adjudication on the legality of the 29^th March order, and stated that those private enterprises who are willing to negotiate with their employees on the extent of wages to be paid for the 50-day period may undertake negotiations and try to reach a settlement. If such a settlement is reached, then that would prevail over the mandate of the March 29^th Order – which had directed full payment of wages without any deduction. The Court adjourned the matter to the last week of July, and stated that its earlier direction on not taking any coercive action against employers for failing to pay wages shall continue to be applicable.

As the Court adjourned the matter and continued the effective stay it placed on the enforcement of the 29^th March Order, there is still no certainty as to whether wages will have to be paid for the 50-day period during which the Order had legal force. While stating that willing enterprises may enter into negotiations with their employees, the Court showed a blatant disregard for ground realities. How is it possible for migrant workers, who may have returned to their hometowns, to ‘negotiate’ with their employers, who are placed in another State? A majority of migrant workers and daily-wage laborers also work in the informal sector, and hence cannot be represented by an employee association or a trade union.

Encouraging a settlement by negotiating the extent of wages to be paid is practical and possible only in a limited capacity in the formal sector. Even in the formal sector, there may be an asymmetry in the bargaining power between the employer and the workers. The employer may take advantage of this asymmetry and state, for instance, that the workers should accept only 50% of their regular wages, or face the risk of termination of their employment. Such a negotiation is unlikely to be on fair terms, and any settlement arrived at may be on terms that are detrimental to the employees and workers. 

The Court here also failed to take into account that most migrant workers and laborers earn their wages on a daily basis. If they do not get their wages for even a single day, they may not be able to afford two square meals. The Court’s repeated deferral in determining whether wages should be paid only exacerbates their plight further. If the migrant workers had received their wages on time, and were not left stranded and penniless by their employers, their condition would have been less miserable than what it turned out to be.

By making wage payment a matter of negotiation between the employer and employees, the Court also exempts the Central and the State Government from any responsibility. The Court notes that the lockdown imposed by the Central and State Governments led to a situation where employers could not offer work, and the employees could not take work – for no fault of theirs. But, the Court failed to give effect to this observation. It refused to acknowledge that when the closure has been directly mandated by the State, the State has an obligation to secure the workers’ right to livelihood under Article 21, by providing appropriate means of income support.

The Court also noted that all private enterprises and industries cannot be painted with the same brush. But, it did not take this observation to it’s logical conclusion. While some private establishments may be in a position to pay wages even during a closure, there may be multiple other enterprises, such as those in the MSME sector, which may be on the brink of shutting down their business as a whole. To illustrate, while companies such as Reliance, Maruti Suzuki or Ambuja Cement may still be in a position to pay their workers, a small-scale garment enterprise in the MSME sector may not be in a position to pay wages. Many small-scale enterprises may hence lack the financial resources to comply with the 29^th March order, due to the extent of economic distress caused by the lockdown.

This can be rectified only if the Central and State Governments provide income support directly to the workers, or provide financial assistance to those private establishments who currently lack the financial means to pay their workers. The Court could have asked the Central Government to justify its failure to undertake any of these measures, instead of leaving the issue to be resolved mutually between the employer and the employees. It could have, at the minimum, directed the Central Government to explain as to how it plans to ensure universal implementation of its own order, for the 50-day period from 29^th March to 17th May. Unless the State steps in and provides financial assistance to severely stressed enterprises, the 29^th March Order cannot be universally implemented in letter and spirit.

Meanwhile, the workers and laborers continue to suffer due to a lack of stable income. This collective failure of the Court and the Government to ensure wage support has culminated in a situation where the plight of the workers is a curve that is unlikely to flatten.

Examining the State's failure to provide income support during the lockdown

In an earlier post, we had discussed that the State has a constitutional obligation under Article 21 to ensure that workers and laborers get access to basic sustenance income - during a lockdown where they have lost their means of livelihood. No such concrete measures have been undertaken by the Central or State Governments ever since the lockdown began on 25^th March. Even the economic stimulus package announced by Finance Minister Nirmala Sitharaman did not provide for any such basic sustenance income.

The only form of income support that the Finance Minister assured was for rural employment undertaken under the MGNREGA scheme. Apart from the failure to provide any income support through the economic stimulus package, there is another issue that merits discussion. This is the failure of the Central Government to enforce its own executive order - which mandated that employers pay full wages to their workers during the lockdown period. We shall, in this post, discuss the Central Government’s failure to give effect to its own order mandating payment of wages.  We shall also discuss alternative measures through which income support could have been secured, in furtherance of the State’s positive obligation under Article 21.

Employers’ obligation to pay wages during the lockdown – The chronology of events

At this juncture, it is pertinent to recall that on 29th March, the Ministry of Home Affairs (‘MHA’) had issued an executive order (‘the 29^th March Order’) under the National Disaster Management Act, 2005 which stated that - all employers in (i) industrial undertakings; (ii) commercial establishments; and (iii) shops shall ensure that wages are paid to their workers without any deduction, for the period during which their enterprises were under closure during the lockdown. Effective implementation of this order would have ensured that daily-wage laborers, migrant workers, and other segments of the workforce had some financial resources to sustain themselves during the first three phases of the lockdown.

The lack of implementation of this order is evident from multiple first-hand accounts given by migrant workers, many of whom were left with no option but to walk back to their native places by foot. One aspect that is common in multiple first-hand accounts of migrant workers is that they were denied wages by their employers, and not provided with any resources for sustenance. Now, under the new guidelines for Lockdown 4.0, which were notified on 17^th May, the 29^th March order of the MHA has been superseded. The implication of this is that employers are now under no legal mandate to pay wages for the months of April (when the lockdown was in full force) and May.

Meanwhile, before the new guidelines were issued, enterprise associations such as the Hand Tools Manufacturers Association and the Indian Jute Mills Association filed petitions in the Supreme Court, contending that the 29^th March Order was in violation of the freedom of trade and business guaranteed by Article 19(1)(g) of the Constitution, and was unreasonable and arbitrary. The Supreme Court issued an interim order in some of these petitions - directing that no coercive action should be taken against the petitioners (the employers) for not paying wages when their enterprise was under closure due to the lockdown.

In light of the new lockdown 4.0 guidelines, and as the 29^th March Order has been superseded, such interim orders have also become redundant, as the employers now do not have any legal mandate to pay wages for the lockdown period. We shall now discuss how this failure to ensure payment of wages and provide income support during the lockdown is in clear derogation of the State’s obligation under Article 21.

Failure to ensure payment of wages – yet another violation of Article 21

As I argued in an earlier post, during a lockdown, the State has a constitutional obligation under Article 21 to ensure that daily-wage laborers, migrant laborers, casual wage earners etc have access to some basic sustenance income. We derive this from the State’s ‘minimum core obligation’ under the right to livelihood and social security, which are facets of Article 21. Under this minimum core obligation, based on the prevailing circumstances, the State must ensure that the basic essential levels of a right are realized, that would enable the poor to live with dignity. In a lockdown, where the workers have lost their means of livelihood, the ‘minimum core’ obligation would mandate the State to ensure access to a basic level of sustenance income for the workers.

Examining different measures through which income support could have been achieved

The ‘minimum core’ obligation under Article 21 is only the constitutional benchmark, and does not mandate the method through which the State should secure this obligation. That is a policy prerogative for the State to frame. Now, in such a situation where workers may lose access to their livelihood and income, the State has multiple policy options which it can examine and implement. The first option is for the State to directly provide the workers with some form of basic income through cash transfers. The other option available is to impose a mandate on the employers to not deduct wages for the period during which their enterprise was under closure – which was attempted through the 29^th March notification.  Fulfilling this mandate may however be difficult for many enterprises especially in the MSME sector, who may be staring at losses.

In this scenario, the State could have fulfilled its constitutional obligation by implementing a wage/income protection scheme, through which the State provides eligible enterprises with the financial resources to pay their workers. This would have enabled the enterprises to keep the workers on their payroll, instead of terminating their employment. For other large-scale industrial undertakings, the Central and the State Governments could have ensured that the 29^th March Order of the MHA is complied with in letter and spirit. This would have to a certain extent ameliorated the plight of migrant laborers and daily-wage earners, who have suffered the most under the lockdown.

Let us at this juncture examine the worker-protection measures adopted in the United Kingdom and in USA, which serve as useful templates for India. In UK, Rishi Sunak (Britain’s Chancellor of the Exchequer) announced policy measures through which the UK Government would cover up to 80% of the wages of workers, which would enable companies to keep them on their payroll. In the USA, the Federal Government is implementing a Paycheck Protection Program for small businesses. Under this program, small businesses can avail of loans that are designed to be a direct incentive for them to keep their employees on their payroll. The loans granted shall be forgiven if the employees are kept on the payroll for eight weeks, and the money generated through the loan is used for wage payments, rent etc.

The Central and State Governments could have collaborated to executed similar income support measures, to ensure that enterprises did not lay-off migrant workers and daily-wage earners. Providing small enterprises with the money to pay their workers would have helped both the employers and the wage-earners, and would have ensured  compliance with the 29^th March notification. Without a doubt, such policy measures involve substantial fiscal resources. But, we must note that fiscal resources are in this scenario expended by the State to fulfill its constitutional obligations under Article 21. Another aspect that we must remember is that during a lockdown, where movement and gatherings are restricted, the workers and the trade unions significantly lose their bargaining power with the employers. This dilution in bargaining power can only be rectified when the State steps in to fulfill its constitutional obligation of providing basic levels of income support.

This failure to ensure income support is one of the reasons as to why migrant laborers have no option but to leave for their native places, as they have been left in the dark by their employers and contractors, and have also not received any assurance from the State. In this entire process, ensuring the dignity of the workers has culminated as the biggest casualty of the lockdown.

The State's apathy towards migrant workers - a flagrant violation of Article 21

During the course of the week, we have seen multiple controversial decisions being taken with respect to stranded migrant workers, who have faced severe difficulties during the course of the lockdown. In this post, we shall draw a common thread between these decisions, and establish that they violate the migrant workers’ rights of autonomy, choice and dignity, which are integral facets of the ‘right to life and personal liberty’ conferred by Article 21.

Let us start by enlisting the decisions that have been taken by the government, as well as the Courts:

[I]. The Karnataka government cancelled the special trains that were being arranged to ferry migrant workers back to their native states. This was after a meeting with the real estate builders lobby, with the Chief Minister of the State himself stating that as there was a need to revive the economy – ‘unnecessary travel’ of migrants need not be resorted to. After severe criticism, this decision has been reversed.

[II]. As we discussed in our earlier post, many states charged migrants for their train travel back home. This was because of the prevailing confusion after the Ministry of Railways decided that it would cover only 85% of the cost of the train, and the rest would be borne by the State Governments. Over the course of the previous two days, the problem has been rectified to a certain extent, as certain State Governments such as Delhi have agreed to cover the cost.  

[III]. Before casting all the blame on the state, it is pertinent to note that even the Courts have pronounced verdicts that have been detrimental to the rights of migrant workers. Yesterday, the Orissa HC ordered that only those migrant workers who have tested negative for Covid-19 would be allowed to enter the State from outside. Such a decision only erodes the dignity of the migrants further, as there is no clarity on which State Government had the obligation to conduct these tests, and how such large-scale testing can be arranged at one go. Although this decision has been stayed by the Supreme Court, it aptly reflects the apathy shown by the Government and the Courts.

Although the three decisions referred to above have been partially or wholly reversed, it is important to keep note of the common thread between them, as similar decisions may be taken in the near future. This common link is the apathy that the State has shown (along with Courts such as the Orissa HC) towards the plight of the migrant workers - where its decisions have only exacerbated the sufferings of the migrants.

This also reflects that on many occasions, the sufferings of the poor are directly perpetrated by state action, and that such suffering is not always linked to the state’s failure to act. An analogy can be made here with the slum demolition programs that we have witnessed over the years in cities such as Mumbai and Delhi, where under the garb of ‘beautifying’ the city, the State has evicted slum dwellers on the ground that they are illegal encroachers on public land. This forceful eviction only increases their plight, when they lose their source of shelter and are not rehabilitated by the State. Akin to slum dwellers, the State has treated migrant workers as a burden, and a ‘hurdle’ towards managing the Covid-19 pandemic. 

It is pertinent to recall here that the migrant workers were left stranded because the Central Government announced a nationwide lockdown without giving the migrants any window to travel back to their home states. While the migrants were left stranded due to the Central Government’s lack of foresight, their suffering has continued as the State has failed to provide them with universal access to food and basic sustenance income during the lockdown period - where they have lost their means of livelihood.

Based on our discussion above, let us analyze how the State has breached its negative as well as positive obligations under Article 21, while dealing with migrant workers. As the Supreme Court has held in decisions such as Francis Coralie Mullin, the term ‘life’ under Article 21 does not imply a mere animal existence, and includes a right to live with dignity. Furthermore, as held in subsequent decisions such as Puttuswamy I - choice, autonomy and human dignity are integral facets of the right to life and personal liberty under Article 21.

Decisions such as cancelling trains for migrant workers, and making them pay for their train tickets in a situation where they have been separated from their families and have lost their source of income violates their right to live with dignity. Furthermore, throwing hurdles towards the return of these migrant workers to their native state also goes against their personal choice and autonomy to decide whether they want to stay back and work in a State, or go back home. When the State does not provide transport facilities, the migrants are forced to walk thousands of kilometres on foot to reach their native states, which is another impingement of their right to live with dignity. 

Although the Karnataka Government reversed it's decision regarding cancellation of trains, it is pertinent to note that such incidents may be repeated in the near future. For instance, it has been reported that multiple Chief Ministers have told the Uttar Pradesh Chief Minister that they would prefer if the migrants from UP do not return back home. This is because migrant workers are a cheap source of labour for States that are looking to reopen their economies in the Green and Orange Zones.

But, not giving migrant workers a meaningful choice between going back home and staying back to work offends their personal autonomy and human dignity under Article 21, in a situation where they have been estranged from their families under the lockdown. Instead of the State making this choice on behalf of the migrant workers, it is the migrant workers who should be given the autonomy to make this choice. While we have discussed how state action has violated the migrant workers’ rights under Article 21, let us recall that the state’s failure to act and provide income support and nutrition to the migrant workers also goes against Article 21 – by depriving them of their right to food and social security.

The State’s handling of stranded migrant workers has hence been in flagrant violation of multiple facets of Article 21. While economic recovery and fiscal prudence are legitimate state objectives, such objectives cannot be achieved by infringing civil rights, and by violating the dignity and autonomy of the migrant workers, who have suffered the most under the lockdown. 

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. 

Covid-19: Securing access to socio-economic rights in times of a nationwide lockdown

Ever since the nationwide lockdown was imposed on 25^th March, we have come across heart-wrenching reports of the sufferings of migrant workers, daily wage laborers and other sections of the population - who lack access to means of livelihood till this lockdown prevails. This has led to multiple discussions on the manner in which the State should provide them access to basic resources, so that they can sustain themselves during the continuance of the lockdown.

Two of the biggest challenges that migrant workers, daily wage earners etc. have faced in this lockdown are: (i) lack of access to sufficient quantity of food; and (ii) lack of access to financial resources - in a situation where they may not be able to earn wages, or have lost their only source of income. Policy experts have persuasively argued that in this situation, it is the State’s duty to ensure that the deprived sections of society have access to food and social security. There has however not been sufficient discussion on the nature of this duty, which is to be fulfilled by the State.

Now, right to food and social security are undoubtedly socio-economic rights that fall within the penumbra of rights that have been read into Article 21 of the Constitution. Reading Article 21 in consonance with international human rights law principles, I  shall in this post argue that the State has a constitutional obligation to secure access to - (i) a basic level of nutrition, by providing a certain minimum quantity of food; and (ii) a basic level of cash or sustenance income, for those who cannot earn wages and are bound to lose their means of livelihood during the lockdown.

The corollary between rights and duties

Every right imposes both positive and negative obligations on the State. The negative obligation requires the State to refrain from infringing that right. The positive obligation on the other hand requires the State to secure access to that particular right, by framing requisite schemes and policies. For instance, with respect to the right to food, the State has a negative obligation to ensure that it does not discriminate between citizens while granting food rations. The State also has a positive obligation to ensure that the deprived sections of society have adequate access to food. This obligation of securing access to food requires the State to spend financial resources, and also draw up an effective policy to achieve the same. During a situation of a lockdown, the obligation on the State is positive in nature – to ensure that underprivileged sections of society are not deprived of food or basic social security.  

Now, the State may not have the financial means to immediately secure access to a certain quantity of food and thereby a minimum level of nutrition. Similarly, the State may not have the resources to provide access to a minimum level of income to those who have lost their means of livelihood during the lockdown. Hence, the question that arises here is – What is the scope and ambit of the State’s positive obligation to secure access to food and social security, during this pandemic? This is where the principles laid down in the International Covenant on Economic, Social and Cultural Rights (ICESCR) come in handy.

General Comment No.3 of the ICESCR talks about a ‘minimum core’ obligation – which means that the minimum essential levels of each of the rights recognized by the Covenant should be immediately realized by the State. Aspects of the right which do not form part of the minimum core should be progressively realized by the State – based on availability of financial resources. In other words, States should immediately secure access to those aspects of a right that forms part of the minimum core. This can be illustrated by referring to the example mentioned in the General Comment itself, which is as follows. If in a particular State, a number of individuals are deprived of essential foodstuffs, then that State party is failing to fulfil its minimum core obligation under the ICESCR.

The minimum core obligation is designed to ensure that deprived sections of society have access to a minimum level of resources, through which they can live with dignity. What aspects of a particular right constitute the ‘minimum core’ may also vary based on the prevailing circumstances. Different countries have however adopted different approaches in the past, while elucidating the scope of the minimum core obligation. Courts have especially found it difficult to define the content of the ‘minimum core’ of a right. The approaches adopted by Courts in South Africa, Argentina and India shall be discussed below.

Differences approaches adopted by Courts to define the ‘minimum core’ obligation

South Africa:

In decisions such as Grootboom and Treatment Action Campaign, the South African Constitutional Court has held that minimum core is not an independent enforceable standard in itself, and that it can only be used to examine the reasonableness of the measures adopted by the Government. In Mazibuko v. City of Johanesburg, it was contended that a minimum quantity of 50 litres of water should be provided to every household, in accordance with Section 27 of the South African Constitution, which prescribed a right to access sufficient water. The appellants fixed 50 litres as the minimum threshold of water to be provided based on expert evidence.

The South African Constitutional Court held that Section 27 of the Constitution does not confer the right to claim sufficient water immediately. It held that a minimum quantity of water cannot be prescribed by the Court, and that the Court should only determine whether reasonable measures are being taken to progressively achieve the right of access to sufficient water. This decision has however been criticized by scholars such as David Bilchitz, who have argued that this approach conflates the distinction between a right and a duty. Such an approach of not spelling out the content of the right may also adversely affect the vulnerable sections of society.

Argentina:

In the Miguel Angel case, where the fact situation that was similar to Mazibuko, the Court spelt out the minimum content of the right to water by referring to the Argentinian Constitution and other provincial regulations. This approach of spelling out the content of the minimum core of the right in question is better than the approach adopted in Mazibuko - as spelling out the content gives clarity regarding the State’s obligation to enforce the right, which may work to the benefit of the deprived sections.

India:

The Indian Courts have imposed a minimum core obligation in certain situations, such as while examining the scope of right to health under Article 21. In Mohd Ahmed v. Union of India (Delhi HC) and Manoj v. State of Kerala (Kerala HC), the Courts have held that the right to health under Article 21 imposes a minimum core obligation of providing access to life-saving drugs, especially to the deprived sections of society. Specifically in Mohd Ahmed,  the Indian Courts held that for obligations that fall within the ambit of the minimum core, a paucity of financial resources is not an excuse. Indian Courts have hence imposed a non-derogable minimum core obligation for certain aspects of the right to health.

In my view, this approach is better than the one adopted by the South African Constitutional Court for two reasons. First, it aims to define the minimum content of the right, by taking into account the basic essential levels of the right in question - which is necessary for a person to live a life with dignity. This imposes a specific obligation that the State has to fulfil, to secure access to this right. Second, while defining this minimum core obligation, the approach places specific emphasis on meeting the needs of deprived sections of society.

Applying this ‘minimum core’ standard during a nationwide lockdown

Let us take forward the ‘minimum core’ standard applied in Mohd Ahmed and Manoj to the situation of nationwide lockdown, which exists as of today. Now, if we consider the basic essential levels of the right to food and the right to social security that is necessary in this situation for deprived sections of society to live a life with dignity, there can only be one common end. During a nationwide lockdown, providing a minimum basic level of food (and thereby ensuring basic levels of nutrition) and basic sustenance income to deprived sections of the population who have lost their means of livelihood can be considered as components of the ‘minimum core’ of the right to food and the right to social security. 

The State hence has a constitutional obligation to secure access to the minimum levels of each of these rights. Now, with respect to the right to food, this would mean providing a certain minimum quantity of foodgrain, along with other commodities such as cooking oil and pulses – to the deprived sections of society who may have lost their only source of income. While framing this minimum quantity, the parameter should be to secure access to a minimum essential level of nutrition that is necessary for deprived sections of society to live with dignity. 

While the modalities of framing this minimum quantity falls within the domain of the executive, the constitutional benchmark imposed by the minimum core obligation should be satisfied. Similarly, with respect to social security for the deprived sections of the population, the constitutional benchmark shall be for the State to provide a basic level of cash or sustenance income, that shall be in consonance with the income otherwise earned by such individuals. Providing such a basic sustenance income along with basic levels of nutrition is integral for migrant workers and laborers to live with dignity. 

Meeting this minimum core obligation also serves as an answer to the debate that we are having in India today - on saving lives (through enforcing a lockdown) v. ensuring livelihood (by relaxing the lockdown measures and permitting economic activity). While saving lives v. ensuring livelihoods is being seen as a binary and a trade-off, it is definitely possible for us to fulfill both these goals simultaneously. This can be done by meeting the minimum core obligations discussed above – through which those who have lost their livelihood get access to food and basic sustenance income, even during the prevalence of the lockdown. Fulfilling the minimum core can hence ensure that safeguarding health does not come at the cost of destroying livelihood, and vice versa.

While many State Governments are providing food and cash to migrant workers, daily wage earners etc, a lot more needs to be done to ensure that similarly placed individuals are not excluded from such schemes. Until this is done, the constitutional duties imposed by the ‘minimum core’ aspects of the right to food and social security shall not be enforced in letter and in spirit.

(This is our second post highlighting certain constitutional aspects of the nationwide lockdown and the Covid-19 pandemic. In the next post relating to Covid-19, we shall deal with the right to privacy, and whether it should necessarily be ‘traded-off’ in favor of public health.)