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Constitutional provisions and migrant workers in India
6/3/2020 11:20:36 PM

Dr. Rajkumar Singh

Amidst the COVID-19 crisis, the government has ordered a nationwide lockdown and the citizens have moved into a state of virtual house arrest. Whereas there is no question on the imminence of ordering a lockdown in the present factual scenario, the nature, extent, and scope of the lockdown ought to be put to a legal scrutiny. A lockdown is an all-pervasive order involving restrictions upon a bundle of civil liberties. The freedom of movement, freedom to carry on profession, trade or occupation of choice, and freedom to reside in any part of the country constitute the first layer of curbs in a lockdown. What makes this scrutiny of lockdown to be of utmost importance is the fact that the power of state to order a lockdown and rights of citizens to resist disproportionate curbs on their civil liberties are both born out of the same document, the holy document, the Constitution of India. It’s an old saying that extraordinary times call for extraordinary measures, however, a distinction has to be carefully drawn and understood between extraordinary measures and extra-constitutional measures. The former can be sustained only as long as it does not militate against the latter.
Analysis of Constitutional provisions
It is pertinent to note that the guidelines restricting freedom of trade/occupation/profession have been framed under the National Disaster Management Act, 2005. Notably, these guidelines do not put a direct restriction on the freedom of movement. The movement of citizens is restricted through a web of executive orders passed under Section 144 of the Code of Criminal Procedure, 1973 coupled with the addendum issued by the Home Ministry and read with the colonial era Epidemic Diseases Act. It is important, at this juncture, to note that the nature of lockdown varies from jurisdiction to jurisdiction, depending largely on the perception of the government as regards the ingredients of civic life in the country.
The fundamental source of ordering these restrictions can be traced to Article 19(5) of the Constitution and the fundamental basis of such restrictions is the concern of “general public interest”. That there is a crucial distinction between the existence of power to impose restrictions and proportionality of such restrictions is a well settled exposition in the realm of constitutional law. In the present piece, our examination revolves around this distinction. While discussing their proportionality, I have examined the restrictions in light of their impact or effect on two classes of citizens - traders (right to trade) and migrant workers (right to movement).
In a country with huge socio-economic diversity, blanket restrictions of a pervasive nature could produce highly inequitable effects upon enforcement. Various state governments have dictated mid-level industry and factory owners to ensure timely and full payment of wages to the workers despite complete lockdown of their operations. The effect of this restriction on freedom of trade is two-fold: stoppage of operations and the added obligation to pay timely salaries to the employees. The intent behind this diktat is clear (and laudable) but the ultimate effect on the economic interests of an already shut business can be questioned as inequitable. Giving such a direction is also traceable to the Directive Principles of State Policy under the Constitution. Article 38, for instance, guides the state to secure a social order with minimisation of inequalities in incomes, status and opportunity. However, Article 38 offers guidance for state actions and not for actions of citizens. The net result of enforcing such a direction in the name of reasonable restrictions in general public interest would take the matters from Directive Principles of State Policy to fundamental duties of citizens. In other words, it would tantamount to an indirect method of enforcement of otherwise unenforceable fundamental duties upon the citizens.
Legal and social status of migrant workers
The migrant workers constitute a significant class of citizens facing inequitable consequences of the lockdown. The principle of proportionality of restrictive measures is based upon an inherent understanding that one uniform formula does not apply to all situations and all citizens at all times. It is so because natural circumstances in a society have placed citizens at different rungs of the ladder with varied quality of liberties enjoyed by them. If the quality of liberties vary inter-se citizens, the impact of restrictions will also vary. Unintelligent restrictions imposed at once on distinctly placed citizens without taking into account their unequal placing in the society is a typical case of unreasonableness of restrictions. Today the whole country is witness to the spectacle of migrant workers being labelled as enemies of lockdown. We failed to note that underneath the spectacle, at play was the automatic conversion of a class of citizens into violators of a bunch of statutory provisions solely because of disproportionate restrictions imposed unintelligibly upon them. Here the word "unintelligibly" is more appropriate because restrictions having such massive economic impact on the citizens ought to take into account their socio-economic status. It is their social standing that directs their behaviour in the face of restrictions because in times like these, even to abide by the law becomes a luxury not everyone can afford. In a society deeply divided in economic and social terms, the quality of rights, desirability of restrictions and effect of restrictions upon the citizens can never be the same, and this fundamental feature of our society puts extra onus upon the state to ensure the standards of proportionality.
Global perspectives of the pandemic
In times of crisis, where concerns of public health loom large, it is all the more important to ensure that the law does not take the backseat because state-citizen intercourse is more intimate in such times, and needless to add, whenever state and citizens interact, the Constitution must always register its intervention. Earlier in December 2019, the COVID-19 epidemic broke out in the Chinese city of Wuhan, and over time the infection spread to thousands of people. Now it is Spring of 2020 and this epidemic has spread across the rest of the world. As the virus continues to spread across the world, European countries —and the EU itself— decided to act, taking drastic preventative measures to contain the pandemic. Since this is a public health emergency, the first on the list of human rights being compromised is the right to health and access to healthcare. In line with Article 35 of the Charter of Fundamental Rights of the European Union, everyone has the right to access preventive health care and the right to benefit from medical treatment. During the COVID-19 crisis, however, the number of people affected by coronavirus has broken all records, and as a result, healthcare systems are overwhelmed. With no adequate capacity in the system to meet their needs, healthcare professionals are turning patients away, costing a number of people their chance to exercise their right to healthcare.
In Italy, as in France and Spain, authorities have imposed strict quarantine measures to prevent the spread of the virus. Following the closure of shops, sports and arts venues, lockdowns and travel authorisation documents have taken priority over freedom of movement, enshrined as it is in Article 5 of the European Convention of Human Rights. In this category we can also include the right not to be stopped arbitrarily by police for aggressive inspections. However, these restrictions are legitimate if there is a serious risk to public health; the only fault of these measures is the fact that they have been imposed for a indefinite length of time.
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