Centre’s report ignores issue of minimum wages to migrant workers: Harsh Mander, Anjali Bharadwaj in SC

In their rejoinder to the Centre's status report on the issue of the welfare of migrant workers, petitioner-activists Harsh Mander and Anjali Bharadwaj point out that the report does not "in any way deal with the issue of ensuring payment of minimum wages to migrant workers", legal news website LiveLaw.in has reported.

Instead, it is asserted that the government has only engaged in making "unfounded allegations" and "appears to give advice to the Supreme Court on how to deal with the present matter".

The Centre had earlier urged that such filing of petitions and sitting in appeal over every action of the government ought to be discouraged as it diverts attention and effort from statutory functions and that the Court may not allow itself to be deviated from its Constitutional functions and divert the Human Resources of the Central and State governments to answering such "sceptical contentions" and "vague pleas".

The petitioners have countered as misleading the Centre's assertion of "fake or inaccurate reporting either in electronic, print or social media and particularly in web portals" that has the "inevitable potential of causing panic in large sections of the society", resulting in the massive movement of migrant workers after the lockdown. It is advanced that the panic was on account of the hardship that these workers were flung into on the very first day of the lockdown.

"Their ability to undertake their daily work or report to work, was taken away, and with it the potential for them to earn their daily wage. This created the panic and mass exodus since these migrant workers form one of the poorest segments of our society, survive on daily wages to meet their basic needs", the rejoinder reads. "There are various needs such as their health care, food, education of their children and sustenance of their families (living with them or in their villages) that is met by them through their wages. Provision of drinking water, food and medical facilities in shelter homes for the migrants is not just inadequate, but also caters to only that segment of the migrant workers who have been stopped while migrating to their homes and quarantined in shelter facilities," it is sought to be submitted, says the report published by LiveLaw.in.

"They were stranded suddenly with just 4 hours' notice with no work, no assured income, no assured food, and fear of infection and death far away from home...the economic package was announced 36 hours after the sudden lockdown and therefore none of the workers who began migrating soon after the lockdown was announced were aware of it at that time. Considering that the vast majority of migrants are in the unorganised sector and are devoid of any access to any form of social security, the government needed to have given them sufficient time to prepare for this uncertainty," it is insisted.

The rejoinder also pointed out that:

–As for the financial package of Rs 1.70 lakh crore under the Pradhan Mantri Garib Kalyan Yojana announced by the Central government, it is contended that Rs. 1.70 lakh crores constitute only around l% of the GDP of India. Further, many elements of the scheme are merely front-loading instalments of existing schemes or disbursement of cess funds already earmarked for welfare of particular sectors' or programs that were in any case in the pipeline.

–So far as the announcement of additional rations is concerned, it is submitted that 1 kg pulse free of cost for next three months is to be given per ration card and not to each person covered under the Public Distribution System. This means that the 23 crore ration cards will be given one kg pulse each and not each of the 80 crore persons covered under the PDS. "...a large section of migrant workers is excluded from the PDS as the system is a domicile based entitlement Also, there is the absence of any system of inter-state portability of ration cards,"it is pointed out.

–"To ensure that each person is able to get a modicum of food security, there is an urgent need to universalise access to food grains, pulses, cooking oil and soap, and provide it to everyone desirous of obtaining these, irrespective of whether they have a ration card or not," it is suggested.

–Further, the announcement of ex-gratia of Rs. 500 to 20.4 crore women who have Jan Dhan accounts is claimed to be extremely inadequate in terms of the quantum and will only benefit those who have functional accounts and the necessary instruments to withdraw funds from their accounts. "Every Jan Dhan account holder should be paid wages for the next three months (calculated using the daily wage rate of notified agricultural minimum wages of states for 26 days per month). This must be made universal and not to only 'poor households' identified by the government", the petitioners have recommended.

–As for the declaration that separate financial support would be made available for those earning less than Rs 15,000 in the organised sector and working in businesses having less than 100 workers by way of 24% of their monthly wages being paid into their PF account for the next three months, it is argued that "this will benefit a very miniscule percentage of people, as by government's own estimates more than 90% of workers are in the unorganised sector and therefore, will not receive any ID benefit" and "No income/wage support has been announced for such people".

–The government has also promised that construction workers (most of whom are migrant workers) will be provided financial assistance through the Welfare Fund for Building and Other Construction Workers, which will cover 3.5 crore registered workers. "The registration is an eraborate/ tedious process with an application fee, requiring a certificate of employment showing 90 days of working from the employer/ contractor concerned and annual renewal of registration by the worker. In this regard, it is submitted that the vast majority of construction workers are not actually registered under the Building and other constructions workers (Regulation of Employment and Conditions of Service) Act, 1996...", it is advanced.

–In as much as all State Governments have been required to utilise the District Mineral Fund [DMF] for medical and other needs arising out of COVID 19 for health care workers, safai karamcharis, ward-boys, nurses, ASHA workers, paramedics in terms of an insurance scheme of Rs. 50 lakh if they meet with any accident, it is submitted that this scheme has no specific component for migrant workers.

"Minimum wages are fixed by governments taking into account the cost of living in each state and therefore, at this time of intense distress and lack of opportunity to earn their livelihood, it is important that the government provide financial support equivalent to minimum wages to migrant workers", reads a portion of the rejoinder.

Finally, the March 29 order directing employers to pay wages to workers at the place of work and to landlords to provide rent-free accommodation, is criticised as being impractical for not taking into account the ground realities – that many of the small employers will not be in a position to pay workers their salaries since their businesses and establishments have permanently closed down as a consequence of the lockdown; that It makes no provision for the financial security of the large percentage of migrant workers that are self-employed as street vendors, rickshaw pullers, dhobis, petty service providers, etc and are therefore not paid any salaries; and that, as most migrant workers live in slum settlements, in jhuggis or at worksites, there would be no formal rent agreement to prove that they were staying there and the government would also have no record of this, making enforcement untenable.

On the last occasion, the Chief Justice-led bench, however, refused to pass any directions to the government for payment of wages to migrant workers belonging to the unorganised sector. The top court stated that policy decisions were the "prerogative of the government", suggesting that a helpline for taking up such complaints can be created by the Government.

"We do not plan to supplant the wisdom of the Government with our wisdom" - said Chief Justice S. A. Bobde.

"There's a dispute on facts and on the best course to be adopted. How can you say the government is not doing anything when you have not seen the status report of the government?" he asked the petitioners.