Illegal. Ill-advised. Disgraceful. Alarming. Inhuman. Unconstitutional.
This is how legal experts view the decision by the Karnataka government on 5 May to cancel trains for migrant workers to return to their homes, hours after Chief Minister BS Yeddiyurappa met with leading property developers and builders in the state.
The state government and its supporters claim that it is ‘unnecessary’ for the migrant workers to travel at this time, two days into the second extension of the nationwide coronavirus lockdown, and that ,in fact, the migrants are needed to kick start the economy.
However, such arguments cannot make the decision legal, as it violates the migrants’ autonomy to choose when and where they will work, lawyers including Indira Jaising and Sanjay Hegde told The Quint.
‘Cannot Keep Migrants as Captive Labour for Building Industry’
“Our workers are not slave labour, nor are they bonded labour,” said senior advocate Jaising. Even though these are illegal in India (and around the world), that this is what the Karnataka government’s order amounts to, in her opinion, and it too falls foul of the law.
“What cannot be done directly, cannot be done indirectly by depriving them of all means of transport and keeping them as captive labour for the building industry,” she explains.
Forced labour is expressly prohibited under Article 23 of the Constitution of India, as senior advocate Hegde points out, who says:
“Today you are seeking to compel these workers to stay on in an alien land, away from their families and to work simply because they cannot go home. That is not how a democracy is run, that is not how a Constitution is run?”
Advocate Clifton Rozario, who is the national secretary of the All India Central Council of Trade Unions (AICCTU) and has been working closely with migrant workers in Karnataka over the last few months, also argued that the decision of the state government to not allow the migrants to leave, “amounts to forced labour.”
He says this goes back to the days when workers didn’t have a choice of where and when to work, or the conditions they could be forced to work in – which runs contrary to the Constitution and the very concept of human rights.
“The freedom to work where you want, when you want, is part of our natural rights and the rights guaranteed to us by the Constitution,” he asserts. “The freedom to move anywhere – these are rights that are intrinsic to be being human.”
Migrants Worst Hit by Lockdown, But Still Treated Like ‘Cattle’?
Rozario points out that the migrant workers are the ones who have been worst hit by the coronavirus lockdown, as they’ve been “denied any employment, they were denied access to any source of livelihood.”
And yet, now when the lockdown is being relaxed, and the central government – which had expressly banned movement of migrants back on 29 March – has said they could go home to their homes, the state government has basically bowed to the demands of the builders’ lobby, ie, the Confederation of Real Estate Developers Associations of India (CREDAI).
“Let the state government come out and show if it has spoken to a single trade union or to the migrant workers about this? How can a decision of this nature be made solely to satisfy the needs of the builder class?” he asks.
Jaising – who made her name as a labour rights lawyer in Mumbai, including in the famous Olga Tellis case – argues that this isn’t just a matter of discretion, but that the state government is failing in its constitutional and statutory obligations by not allowing the migrants to go home.
“If public transport was working, they would not need the largess of the State to provide transport to them. Many of them want to return home, rather than live in an apology for a home and on dole. Considering that the migrants were given no notice to enable them to return to their home towns before the lockdown was announced, it is the obligation of the state to provide transportation free of cost to migrant workers, to enable them to return home.”Indira Jaising, senior advocate at the Supreme Court
Rozario notes the difference in how the government is treating the migrant workers, in comparison to its attitude towards students and NRIs.
“Why are they having chartered flights to bring people back from other countries? Why are they chartering buses to bring students back from other states?” he asks, before adding, “This is a class question. There is a particular class which is being treated in a particular way, but because the migrants belong to the working class, they are treated like cattle.”
What About Autonomy of Migrants?
“Migrant workers are Indians as much as anyone else,” says Hegde – a point which should be obvious, but appears to have been missed in the Karnataka government’s calculations.
“They have the right to make choices. If their states of origin send railway tickets for them to come home, then it is certainly no business of the state of Karnataka to stop those trains from running. This is retrograde for the simple reason that you cannot compel people to work.”Sanjay Hegde, senior advocate at the Supreme Court
Rozario also emphatically argues the same point, that it is not for Chief Minister BS Yeddiyurappa or anybody else to determine what workers have to do.
“In this democratic republic of ours, where the Constitution reigns supreme, every individual has the autonomy to take decisions about their life – that is the sum and substance of rights,” he explains. He cannot understand how it is even possible to take a contrarian position, as this would be against our constitutional ethos.
He says that this is akin to saying people don’t need to eat three times a day, that they can only eat twice, or that one cannot go out of one’s house after 7pm for any reason, just because the government says so. “That is an infringement on the autonomy and sovereignty you have over yourself, which is not permitted; we’re not in a dictatorship where our rights will be as per the dictates of a particular ruler.”
Hegde suggests that if the presence of the migrant workers is so essential, then they should be incentivised to choose to stay, not forced to do so. “It is always open to employers to offer better payments which could possibly tell migrants it is not better to go home , it may be better working for enhanced pay,” he reasons. “You can always provide inducements, but you cannot compel.”
In the circumstances, however, migrant workers across the country have shown that they choose to go home, with some even being desperate enough to travel in cement mixers, Hegde reminds us. In Karnataka, too, what the workers want is clear, argues Rozario.
“The impact of it is that workers are starting to walk to get out of Karnataka. In Bangalore, thousands of workers have gathered and said they want to go home. When workers are so clear they want to go home, when they have the right to go to their homes, preventing them from doing that is just patently illegal. You’re trying to just ensure the builders lobby is satisfied, there is nothing more to that.”Clifton Rozario, advocate and national secretary of AICCTU
Will Karnataka High Court Step In?
Jaising, Hegde and Rozario are unanimous in denouncing the way the order to cancel the trains appears to have been passed at the behest of the building industry.
“I am alarmed by the response of the chief minister of Karnataka, coming as it does post a meeting with the building industry,” says Jaising, while Hegde argues that such a decision cannot be made “in concert” with the employers.
So, will it be struck down by the courts?
The Karnataka High Court was already hearing a batch of petitions asking the state government to help migrants get home and ensure they are being provided with provisions.
Following the news that migrants were not only being charged for train fares, but being charged higher prices, the All India Central Council of Trade Unions (AICCTU) had filed an application in the court asking the judges to look into this.
On Tuesday, 5 May, the very day the Yeddiyurappa government decided to stop the trains, it had been asked by the high court to respond to the AICCTU application, and explain what steps it was taking to help migrant workers stranded in Karnataka get home.
The AICCTU has now made a request to the high court to conduct an urgent hearing regarding the cancellation of the trains – which certainly seems bizarre given the ongoing case.
In conclusion, Rozario notes that this whole situation during the COVID-19 pandemic has “brutally exposed the social reality of migrant workers, and this is a reality of oppression, of violation of their rights every single day, where labour laws or any law have no application.”
Migrant workers have to live in labour colonies that are little more than tin sheds and camps, where they have no access to civic amenities that other citizens take for granted, which is why, he says:
“Having understood that, if you’re going to compel someone to live in those conditions, to work under those conditions, you are just saying that at the end of the day, you’re not even a human being – just two hands and two legs – and as long as you’re functioning we will abuse you, after that we don’t care about you. I don’t think that’s permissible, and in fact it is absolutely disgraceful.”