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A supervisor's certificate for a research project conducted by Ms. Divya Jain on the rights of migrant workers in India during the COVID-19 pandemic. The project explores international and Indian laws protecting the rights of migrant workers, focusing on their rights to life, freedom from torture, and employment. The document also discusses the challenges faced by migrant workers during the lockdown, including lack of food, shelter, and payment from employers.
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Covid-19 was and remains a public health crisis that would require governments to take far- reaching measures, many of which would have a severe impact on everyday life and on civil rights. But what is equally unquestionable is that Covid-19 does not accord governments a carte blanche to suspend Part III of the Constitution altogether. Pandemics do not discriminate between the rich and the poor, but the State certainly does. A lockdown, for example, has a severely disproportionate impact, depending on the socio- economic status of a person. “Work from home” jobs statistically track along socio-economic lines, and the forced closure of all establishments has a direct impact on the right to life and livelihood of migrant workers, living on daily payments, in particular. This submission will deal with migrant workers and their rights. India was one of the leading countries to implement the initial lockdown to contain the COVID-19 pandemic, but still, the lockdown failed and within a few months, India joined the list of countries most affected by the coronavirus pandemic. Why did this transpire? What were the reasons abaft this? Where did the Indian government miss? This submission endeavors to study the lacunae in the lockdown plans of the Indian Government and highlights the mistakes committed by the Government which caused the lockdown in India to fail and further exposed the domestic migrant laborers to unbearable difficulties. The submission argues that the fundamental and economic rights bestowed upon the domestic migrant workers and other laborers under labor laws and the Indian constitution were breached extensively during the lockdown and that the state’s policies during the lockdown worsened the condition of the domestic migrant workers.. Lastly, the submission in its concluding thought will deal with a number of suggestions to deal with the present lacunas. As we eventually emerge from the pandemic, there is a lot to reflect on and to learn from the legacy of this past year, and about the role of courts and of rights in a crisis. Thus it can be said that there exist discrepancies in India’s pandemic and emergency replication strategies that need to be discussed imperatively. The strategy, which increases the inclusion of all components of the internal migrant community in society, especially children and women, should be more humane.
I, the undersigned, hereby solemnly declare that the project work entitled “Migrant workers and human rights: A critical study on India's Pandemic policy” submitted to Rajiv Gandhi National University of Law, Punjab, in partial fulfilment of the requirements of B.A. LL.B. (Hons.), IX Semester, is an original and bonafide research work of mine. All the information declared hereby is true to best of my knowledge. Divya Jain Roll No. 17015 IX Semester B.A. LL.B. (Hons.) Criminal Law Specialisation
The success and final outcome of this project required a lot of guidance and assistance from many people and it is only fair to express my gratitude towards them all. I would like to express my immense gratitude towards by mentor and professor Dr. Ivneet Kaur Walia , who took out time to help me with my project, despite his busy schedule. Without her constant guidance and support, this project would not have been possible. I am extremely thankful to her for giving me the opportunity to work on such an intriguing topic as my project. I also deeply owe my gratitude to our Hon’ble Vice Chancellor, Prof. (Dr.) G.S. Bajpai and our worthy Registrar, Dr. Naresh Vats for providing us with such creative opportunities. I would also like to extend my gratitude to my batch mates, who have supported me as and when required and have given me their precious time when I needed it badly.
Power when exercised has the ability to change the legal position and imply liabilities on others. It is either structured or unstructured and for the law to serve as an instrument of social transformation, the power has to be structured, defining the lines along which it is permitted to flow. Necessarily, therefore, the correlation between power wielder and power yielder is to be found on a purpose-driven arrangement of power which indicate both permissions and prohibitions for a valid exercise of power.^1 Judicial behaviour has been receiving attention, especially since 1998 when it was observed by one of the retired judges of the Superior Court that, “everything was rotten about the Indian Judiciary”.^2 It also brings to mind the statement by Felix Frankfurter, Professor at Harvard, who cautioned against depending on adjudicatory bodies and officers to preserve liberty.18 The Indian judiciary has come into notice for the role played by it in contrast to the role assigned to it under the Constitution.^3 Human Migration is a significant aspect of social science and the oldest action against poverty.. However, there has been a significant difference in the migration process of developed and developing countries. While in India the migration is more induced by push factors like penuriousness, unemployment, regional disparities, family movement, marriage, natural calamities, etc those in developed nations are more pull factors like prosperity, safety, freedom, etc. Migration and regional disparities are strongly interlinked and the volume of migration within a given territory varies with the degree of diversity of areas included in that territory, diversity of people, the difficulty of intervening obstacles, and fluctuations and checks in he economy.^4 Migration is a reason for helping billions in getting rid of poverty, improving health, education, income, and conflict and the decline in migration leads to a less-flexible economy. (^1) David S. Law, “A Theory of Judicial Power and Judicial Review” 97 Georgetown Law Journal 723, 727 (2009). (^2) T. Devidas and H. Bhandri, “Judicial Accountability”, 48 Journal of Indian Law Institute 94 (2006). (^3) T. Devidas, “Directive Principles: Sentiment or Sense” 17(3) Journal of the Indian Law Institute 478 - 484 (1975). (^4) Shailendra Kumar, Sanghamitra Choudhury, "Migrant workers and human rights: A India’s COVID-19 lockdown policy", Social Sciences & Humanities Open , Vol. 3, Issue 1, 2021.
internet sources, for referring to various reports, guidelines, legislations, regulations, articles, case laws, news items etc. that have been cited throughout the project. The scope of this study was limited to India, given the fundamental and economic rights bestowed upon the domestic migrant workers and other laborers under labor laws and the Indian constitution. This submission will endeavor to study the reasons due to which the lockdown in India couldn’t prosper as per the prospect and the adverse impact it had on the migrant population, concretely the inter-state migrants. The first part of the submission provides a glimpse of international human rights and labor aegis laws, business and human rights, and the rights of migrant workers in India. The second part fixates on the conditions of migrants in India whereas the third part of the submission critically examines the COVID-19 lockdown policy of the Indian Regime. Finally the last part of the submission will examine the role played by the Supreme Court of India during the COVID- 19 pandemic. Although this project was carefully prepared, there were some unavoidable limitations. They include:
The Indian government’s response to dealing with the COVID-19 pandemic was undoubtedly very swift^5 but it also manifests an apparent lack of planning and coordination in the scale of its implementation. India could not get many benefits of implementing early lockdown and within a few months, it joined the list of countries most affected by the coronavirus epidemic.^6 Before analyzing the lockdown policy of the Indian government it would be feasible to discuss some important studies on COVID-19 and the situation and the context of imposing lockdown. Viruses have differing capacities to infect persons. As with other corona viruses such as SARS or MERS-CoV, COVID-19 is more contagious and each person infected with this virus is expected to infect around 2.5 individuals with COVID-19. The Fatality Rate or chance of dying from the latest coronavirus is around 4.4 percent, but this peril differs by geography and can even shift over the course of a pandemic, it is withal less hazardous than SARS (10 percent) or MERS-CoV (34 percent). So, if COVID-19 is less pernicious than other viruses, then how has it traveled so far and so astronomically immense that it has brought the entire planet to a halt? The replication appears to be simply that the current coronavirus is less lethal. Thousands of individuals have transmitted the virus nescient that they were still contaminated with either no symptoms or rather minor symptoms. This designates that the epidemic had already spread to several countries until health ascendant entities became apprised of the issue and commenced to suggest control steps. Since no vaccine and medication were available for COVID- 19 hence observing lockdown and keeping the infected person under mandatory quarantine was the best option available. China’s ambiguity in timely sharing the nature and severity of the disease and the WHO’s laxity in taking timely action made the problem more acute and universal. The governments around the world were caught by surprise as they had little knowledge and expertise to deal with the problem. Their response was ambivalent and very few understood the trouble that was brewing up. (^5) BJP gives‘full marks’to PM Modi for lockdown citing Oxford study, but stands corrected. available at https://theprint.in/india/bjp-gives-full-marks-to-pm-modi-for-lockdown-citing-oxford-study-but-stands- corrected/400688/ (last accessed October 23, 2021). (^6) Jha, P⋅S.(2020, July 6). How Long Will the Pandemic Last? Rate of Growth of Active Cases Holds Key. available at https://thewire.in/health/covid-india-timeline-active-recoveries (last accessed October 23, 2021).
wellbeing and safety in their native places.^10 Migrants belong to the most marginalized sections of the society who are dependent on daily wages for their living, and in times of such distress, need the sympathy and understanding of the community. Immediate concerns the migrant workers usually face relate to food, shelter, health care, fear of getting infected or spreading the infection, loss of wages, concerns about the family, anxiety, and fear. Occasionally, they also face harassment and adverse reactions from the local community.^11 (^10) Ibid. (^11) K.C. Das and S.S. Saha, "Inter-state migration and regional disparities in India", International Union for the Scientific Study of Population (2016) available at https://iussp.org/sites/default/files/event_call_for_papers/Inter- state%20migration_IUSSP13.pdf (last accessed 23 October 2021).
The ideals of universal human rights are one of the most paramount political legacies of the 20th century. Fundamental human rights do not make any distinction between people predicated on nationality and locality. According to Locke, "a foreigner (migrant) cannot be denied local protection and homage due to and from all The fundamental rights have anti-utilitarian implicative insinuations and they cannot be gainsaid by the government even if it is required in the general interest."^12 These rights accentuate individual security and autonomy and their base reposes on the pillars of human dignity, equity, equal rights, equal concern, and equal reverence. Migrants often suffer from a sense of alienation while they work in different states and this is conspicuous from their mass exodus during the COVID-19 lockdown in India. This intrinsical and inalienable right of migrants often gets superseded by the laws derived from the sovereignty of the state. If immigration laws and policies cannot be imposed without resulting in the breach of a migrant’s rudimental rights, such laws and policies are presumptively illegitimate. Human rights are distinct from other rights in the sense that they apperceive extraordinarily special rudimental interests. These incipient types of rights gained prominence when Article 1 of the 1948 UDHR declaration affirmed,^13 “all human beings are born free and equal in dignity and rights”. Similarly, the Preamble to the UN Charter additionally calls for tenaciousness to reaffirms faith in fundamental human rights. The ILO constitution declares that“ all human beings irrespective of race, creed or sex have right to pursue both their materials alacrity and their spiritual development in conditions of liberation and dignity, of economic security and equal opportunity”. The workers and migrant rights movement are so old that in some ways they even antedate the modern human rights movement. It has been observed that migrants and refugees exude special interest in liberty and personal integrity rights, procedural rights, family rights, employment rights, political rights, and cultural rights, but the majority of the migrant workers, particularly those doing low wage jobs in developed and underdeveloped countries, enjoy very few of the rights outlined in the international conventions. (^12) R. Dworkin, "Taking rights seriously" Harvard University Press , Cambridge (1977). (^13) G.A. Res. 217 (III)A, Universal Declaration of Human Rights (Dec 10, 1948).
Apart from the provisions laid down in the Indian constitution, there are also laws meant to protect the interest of Indian migrant workers Inter-State Migrant Workmen Act-1979 (ISMW). This Act was amended in 2017 and now it is known as the Inter-State Migrant Workmen (ISMW Regulation of Employment & Conditions of Services)Central (Amendment) Rules, 2017. The ISMW Act regulates the employment of inter-state migrant workmen and makes provision for their conditions of service and matters connected there-with. The act makes it mandatory for the labor contractors to obtain a license, register his migrant workers with the government authorities, and arrange the issue of a passbook to record the identity of the workers. The Act also outlines the guidelines related to the wages, accommodation, medical facilities, protective clothing, etc to be provided to the workers by the contractor. The other important Indian laws meant to protect the interest of workers are:
