LEGALITY OF MIGRANT WORKERS’ EXODUS: A NECESSITY AMID ADMINISTRATIVE BLUNDERS?

COVID-19 has befallen the ever-ignorant humanrace like hellfire. With over 700,000 people infected and more than 33,000 dead due to this pandemic, the entire world hangs in turmoil. The China-originated virus has brought even the major world powers to their knees, with all of them taking desperate measures to control the spread of the virus. With cases increasing each day in India, the National Disaster Management Authority announced a nation-wide lockdown for 21 days on 24^th march.[i]However, the major obstacle for India as usual, is not the policy but its implementation. As crucial as the lockdown is to contain the spread of the virus, ensuring a lockdown for a population of more than 1.3 billion people is a herculean task and a few hiccups are fated to come up. Mass exodus of migrant workers to their home states is the first to emerge.

Exodus of migrant workers

In the first 5 days of the lockdown, more than one lakh such workers have migrated from Delhi, Maharashtra, Karnataka etc. Most of them started the journey on feet as the government had already closed the public transport including the buses and trains. This has led to a twofold problem – (1) the risk of spread of the virus throughout their journey and, (2) the starvation and weariness due to the extreme conditions of their journey. The fear of being stranded out of their states without a job, food supplies or shelter led to this step. This panic was further fueled by their homesickness and fake rumors. Hence, even though Central Government and the different state governments have come up with several schemes to ease their plight, it had no effect — the migration has continued to happen nevertheless. People are heavily criticizing the government for not taking the appropriate steps to ensure these workers’ safety. 5 people (4 in Maharashtra and 1 in Uttar Pradesh) have died while travelling to their home states on feet. This has resulted in widespread debate on what needs to be done to control the situation. Meanwhile, some people are also criticizing the workers for such a step despite the promise of arrangement of food and shelter by the government.

Criminality of the act

This act done by these workers wasn’t just reckless and irresponsible but can very well be considered to be criminal. Some of the major criminal law provisions applicable in this scenario are the following:

• Section 188 of the IPC states that disobedience to order duly promulgated by public servant may incur an imprisonment of one month. [ii]

• Section 269 criminalizes the negligent act likely to spread the infection of any disease dangerous to life.[iii]

• Disobedience to quarantine rule is an offense under section 271.[iv]

Strict reading of these sections clearly indicates that this act incurs criminal liability. However, different states have come forward in order to facilitate such exodus. Delhi government has provided hundreds of DTC buses to transport workers belonging from UP and Bihar to Ghazipur (UP Border). Even UP government sent 1000 buses to bring workers back from different states. Ironically, these steps came after the Central Government advised the states to prevent such mass exodus. On the face of it, these actions seem to be directed towards the welfare of the public. It is afterall a humanitarian act to facilitate the return of thousands of such workers safely to their homes. However, these steps are bound to create much more problems in the long term. Through these actions, these state governments have essentially sanctioned an illegal act.

A defense to these actions of the governments could be put in the form of doctrine of necessity. Through this doctrine, the extra-legal actions of the state actors may be found constitutional if done because of a necessity or to prevent a more imminent harm from happening.This doctrine also includes private persons’ illegal actions to prevent further harm, going without punishment.This principle is also envisaged in the general defenses of IPC under Section 81 of the IPC. It states that if an act is done without a criminal intent and to prevent other harm, it will not be considered as an offense. Though, the explanation to the section states that for this section to apply, the harm to be prevented must be so imminent as to justify the risk of doing the act with the knowledge that it was likely to cause harm. The ideal test to determine the applicability of the section is to see whether in the face of two grave harms, the accused chose the lesser harm of the two.[v]

The workers feared for their livelihood and hence took this step. And, the state governments facilitated them so that these workers are not left without food, shelter and jobs in another state. However, whether this passes the test of section 81 or not is the question of the hour.

Consequences of the exodus

Even though many state governments took proactive steps to ensure welfare of the workers from other states, they have continued to try to get back to their home states. As a result of their homesickness and poor implementation of states’ policies, the situation has worsened. Inter-state migration of such a large magnitude is bound to have dire consequences and so it will have. Majority of these workers are from UP and Bihar and work in states like Delhi, Maharashtra, Karnataka, Chhattisgarh, Kerala, Telangana etc. With such migration, they have increased the risk of spread of the virus exponentially. It is pertinent to note that the threat of this virus is

The UP and Bihar governments have given strict guidelines to ensure that these workers are quarantined for at least 14 days after entering the state borders. However, it is a fact that Bihar and UP do not have enough resources to ensure the same for lakhs of people. Reports of administrative failure have started to come in already from both of these states. In Uttar Pradesh, migrant workers coming in from cities to Bareilly were forced to take bath in disinfectants and then sent home. Furthermore, there have been instances of workers being sent home after a thermal scan in Bihar. These are all the more proof that this migration can cause unprecedented destruction in states like UP and Bihar which already lack medical resources.

What went wrong?

The biggest hurdle in tackling this issue was the lack of coordination between the central government and state governments. The first and foremost step by the Central Government should have been to prohibit all the inter-state movement (except for the essential goods and services). Interstate migration of lakhs of people has essentially violated the whole purpose of the lockdown. The orders of sealing off the state borders to prevent further migration has come late (being five days after the lockdown), as the damage already seems to be done.

The migrant workers took this step out of confusion, panic and due to absence of any apparent recourse. The lack of awareness of the government schemes and uncontrolled spread of fake rumors played a major role in compelling the workers to leave for home. The root of all this lies in the failure of state governments to ensure timely relief for such workers.

Section 16 of the Interstate Migration Workmen Act, 1979 states that the contractors must provide for the shelter, clothing and medical facilities for the workmen during the term of their employment. And, the state government being the appropriate government for the purposes of this act, must ensure that its provisions are met with.[vi]Most of the state governments failed to carry out their duties properly, thus leading to the current situation.

Conclusion

As already discussed, implementation of policies is a big problem in India and the same has led to this situation. Many of such workers are still continuing their journey on foot thus endangering their lives along with that of many others’. The danger of collective, mass transmission of the virus now looms over the society. The government must take strict steps to ensure that these workers are taken care of and quarantined for the requisite time period. If the virus spreads among the rural population of UP and Bihar, the results would be, in a word – cataclysmic.

REFERENCES

[i] Through order no. 1-29/2020-PP (Pt.II) dated 24.03.2020.

[ii] Indian Penal Code 1860, s. 188.

[iii] Indian Penal Code 1860, s. 269.

[iv] Indian Penal Code 1860, s. 271.

[v] Southwark London Borough Council v. Williams, (1971) Ch 734.

[vi] Interstate Migration Workmen act 1979, s. 2(1)(a)(ii).

ABOUT THE AUTHOR(S)

Srijan Somal is a 3^rd year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. He has a keen interest in the areas of Criminal Law, International Criminal Law, and Human Rights. He has authored several articles on these subjects as well as other socio-legal matters.

Kratika Indurkhya is a 3^rd year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. She has a keen interest in the areas of Criminal Law, Constitutional Law, and Cyber Law. She is an academically gifted individual who wishes to pursue her career in litigation. She has authored various articles on some grave issues of Constitutional Law and Criminal Law.

In content picture credit: Aljazeera