– Oliver D’Souza
Early last week, Advocate Alakh Alok Srivastava, filed an interim application in a disposed petition asking the Supreme Court (SC) to stop migrant workers from walking to their homes. He filed the plea after the early morning incident at Gadhejalgaon village in Aurangabad District (Maharashtra) on 8th May wherein 16 migrant workers who were walking from Maharashtra to Madhya Pradesh were run over and killed by a train. The victims were sleeping on the railway tracks assuming that since trains were not running due to the lock-down it was safe to do so. They were run over by a goods train. Yesterday, 24 such workers making their way home in trucks were killed in a collision. The SC’s response was ‘we cannot monitor whether migrant labors are walking or not’.
A perusal of the petition reveals that the primary spirit of the petition was to provide relief to the migrants who have been faced with all kinds of extreme difficulties following the thoughtless lock-down. The petition was filed because in the first place the government has failed in providing succor to the workers. In fact it has no policy on the matter and has instead passed the buck onto the states though this is a national issue transcending state boundaries. It is common knowledge that migrant labor is present in large volumes in every state. Knowing that the pandemic is going to be a long-drawn affair following announcements by the WHO as early as February, the primary step the government should have done before the lock-down was to ensure that these workers would be able to return to their homes. It is almost two months since the lock-down and numerous migrant workers are still stranded across the nation, left high and dry both by their employers and the government. With no adequate transportation, and with paucity of funds to stay put, a large number of them have been trying to reach their homes anyway they can; by foot, bicycle or cart. Not only have many of them died during their journey home, but as of April 13, almost 200 such people have also died of starvation.
The evidence presented before the court were media reports of the condition of the migrant workers. The SC, however, refused to take media reports as evidence of the human tragedy unfolding before the nation, of the plight of migrant workers, while ironically the Gujarat and Tamilnadu High courts have taken suo moto action in the same migrant workers issue in those states.
The Tamilnadu HC suo moto asked for a action taken report from the Tamilnadu government over arrangements for transport of migrant workers, with the bench comprising of Justices N Kirubakaran and R Hemalatha observing “It is a pity to see the migrant laborers walking for days together to reach their native places and in the process, some of them had lost their lives due to accidents. The Government authorities of all the States should have extended their human services to those migrant laborers”.
The Gujarat High Court bench comprising Justices J B Pardiwala and Ilesh J Vora, on the other hand, while taking suo moto action observed “It appears that people at large are hungry. People are without any food or shelter. It seems that it is the outcome of complete lock-down. Whatever little help the poor people used to receive from the NGOs, other charitable institutions and volunteers, have come to a grinding halt. It has been reported that more than two hundred people living on the footpaths near the Ellisbridge have not had a morsel of food for the past four days. It is reported that the volunteers used to bring them food, but since the complete lock-down even that has stopped“.
If the Tamilnadu HC and the Gujarat HC could suo motu take action on the plight of migrant workers based on media reports – no one filed a petition with evidence – what prevents the SC from doing so when a petitioner has presented the same media reports as evidence? Do the SC and HC of the same land follow different legal morality, jurisprudence, law books and Constitution? Everyday most TV news channel, which the judges most certainly watch, telecast fresh footage of the plight of migrant workers walking home on foot, with feet full of blisters and bleeding and on the verge of starvation. The SC itself has on numerous occasions in the past taken suo motu action based on media reports in less devastating matters of public interest. What prevented it from doing so now, especially since a PIL was filed in the matter?
The SC said it cannot monitor whether migrant workers are walking or not which is true, but that was neither the letter nor spirit of the plea. The plea was about the overall plight of migrant workers. Under the visible given circumstances, the least it could have done was to ask the government to ensure that these workers have adequate and free transportation to reach their homes. After all, the Union government is organizing flights for Indians stranded abroad. By not doing the same for those displaced internally, the workers are being discriminated. The government has shown no concern and sympathy for those on whose backs and whose sweat the economy and the country runs, leaving them to their fate in a situation in which they not only have to deal with a virus, but also with penury, heartless employers and ruthless landlords.
The least the SC could have also done was to order the government to ensure that migrant workers walking home are provided what they need: food, medicines, shelter and footwear. Some of these workers are so impoverished that they and their children have been walking bare feet to their villages hundreds of kilometers away.
The petition filed by Srivastav is not the only one concerning migrant workers in which the SC is perceived as siding with the executive despite its abject failures. Earlier, another PIL was filed by lawyer-activist Prashant Bhushan asking the government to pay handouts till the restoration of normal economic activity to migrant workers and daily wagers left jobless after the random lock-down that was imposed on the country after the COVID-19 outbreak, which pathetically lacked planning and concern for the welfare of the people, especially the daily wagers, the labor class and the poor. The SC bench responded by asking ‘why do they need money when the government is giving them food’. The SC again took the government submission of doing enough as the Bible truth while the fact is even despite SC orders the government has done very little.
For instance, on March 31, the SC directed the Centre to ensure basic facilities for migrant workers, but the with the exception of a few states like Kerala and Maharashtra, the only help they have got is from NGOs and civil society. The situation is particularly bad in North Indian states, where the migrant workers are getting nothing from the government, with states like UP not only failing to waive train and bus fares but also extracting exorbitant fares from migrant workers. Reports coming in from refugee camps for migrant laborers in those states cite food that is inedible. NGOs have stepped in to provide food to 96% of migrant labor.
The SC also could have seen the larger picture. It’s not only the migrant workers but the entire population that has been affected by the failures of the government. The government did not act when it should have. India’s first COVID case was reported on Jan 30; that was the day all international and domestic flights should have been stopped. The government, however, needed the planes and the airports for its jamboree (which should have been called off) at Ahmedabad for US President Donald Trump’s reelection. Thereafter, most of Union government ministers were occupied first, with the Delhi elections (pic above) and then in the subsequent riots unleashed by the ruling party’s own folk and its sister cadres that engulfed the north-eastern parts of the city after its humiliating defeat in the elections. This was followed by the Union government sponsored political crisis in MP which again required that the airports remained open to ferry hijacked Congress MLAs to Bhopal from Bengaluru in case of a vote of confidence on the floor of the assembly. Even as late as March 13, waiting for the government to finish its political agenda, the Union health ministry was telling the nation that there is no medical emergency though by then India already had 83 COVID-19 cases and 2 deaths and the virus was ravaging the rest of the world. Various epidemiology experts have said that the virus went into community transmission in India mid-February itself, which, the government still keeps denying even after having over 91,315 corona cases and 2896 deaths.
It was only after taking care of its political interests that the government paid attention to national interest and acted on March 24, that too by putting in place a ridiculously executed and unplanned lock-down. It is a matter of conjecture as to how much the 56 days of inaction between the first case and the time the government started acting has cost the nation in terms of life and economic damage and how much it has contributed to the present harrowing situation with migrant workers. This was time that should have been used for planning; for ensuring that the migrant workers reach their homes, that all supply chains continued, that all essential services were in place before announcing the lock-down. Instead, the government first enforced the lock-down with bravado, which created additional problems, and has now tied itself in knots trying to give some sense to the lock-down. Its handling of the crisis has been akin to setting a house on fire first and then calling an incompetent fire brigade to douse the fire. Critics may blame PM Minister Modi for the poor manner in which the lock-down was started, but the fact is the PM is unlikely to have taken the decision alone. He would have certainly consulted others, but the ones who should have prevailed on the PM are the bureaucrats who know the administrative capabilities of the government better. All that was needed was 3-5 days. All the migrant workers could have been moved, even if it required commandeering private vehicles.
That the government is additionally driven not by the interests of the migrant workers but by their utility was evident from the incident in which the Karnataka government first organized trains for migrant labor and then cancelled it after a meeting of the Chief Minister with the construction lobby (pic above), only to restart them following public outcry. Most labor intensive businesses, like construction and the service industry all over the country, employ cheap migrant labor from the Hindi heartland, W Bengal and Odisha. Migrant workers insisting on going back to their villages, preferring to die with dignity of starvation in their own homes as opposed to dying in places where they came for a livelihood, may spell disaster for these businesses, but this too is a self-created problem. These businesses have largely been exploitative, providing pathetic accommodation, low wages and poor work conditions to laborers. Worse, after the pandemic hit the nation, most of these businesses have washed their hands off the workers, in many cases not paying pending salaries in full and evicting them from their shanties. A report by Stranded Workers Action Network (SWAN) reveals that 90% of migrant workers have not received salaries during lock-down. What the businesses attempted through the government is akin to forced labor and what the Karnataka government did was to promote such forced labor.
Considering its failure to effectively respond to the pandemic, as has been its past tactic in covering up its failures; it was obvious that the Union government would make every attempt to hide it by obfuscating statistics regarding the pandemic. In this pursuit, while responding to petitions regarding the welfare of migrant workers on March 31, the government, tangentially citing the trend of fake news, put in a plea asking the SC to pass orders preventing the media from publishing any figures save those provided by the government. Once again the government was appeased and though it refrained from passing any sweeping orders the court did pass orders asking the media to cite only government figures while allowing discussion of the figures, thereby serving the government’s purposes.
The ground reality is that every other person you talk to does not believe the figures of the government with good reason. The Delhi government, for instance, cites only 68 odd deaths from COVID, but over 225 people were cremated in Delhi with protocols used for COVID-19 victims. In Vadodra, on record there is only one death, but 8 people were cremated with COVID-19 protocols. Simultaneously, all over the country, people presenting COVID like symptoms are merely being screened, not tested due to the shortage of testing kits. Nationwide, there has also been a spurt in cases of respiratory problems and related illnesses, with the victims not being tested for corona virus.
While data analytics show that the confirmed cases as compared to total cases is vastly lower because of under testing, various studies using global data and trends suggest that the real figures in India would be much higher, both in number of infection cases and deaths. BBC also reported that, “studying mortality data in 12 countries, The New York Times found that in March at least 40,000 more people died during the corona virus pandemic than the official death counts. These include deaths from the contagion as well as those from other likely causes.” Financial Times analysis of overall fatalities during the pandemic in 14 countries found that the death toll from corona virus may be almost 60% higher than reported in official counts.
Prabhat Jha, of the University of Toronto, who led India’s ambitious Million Death Study, on the other hand, told BBC he believes that to “do this right, missing deaths have to be considered. Since most deaths occur at home – and will be for the foreseeable future – in India, other systems are needed”. Around 80% of deaths in India still happen at home, including deaths from infections like malaria and pneumonia. With abysmally low testing rates, no one knows how many of the dying now are COVID-19 victims. Moreover, contrary to earlier reports, it is now reported that it is not only respiratory system that is affected by the virus but also the cardio-vascular system, while children with symptoms akin to the devastating Kawasaki syndrome are being reported as well.
It has been argued that if the corona virus has really taken off in India, surely we would see the impact in all-cause total deaths. The fallacy with this argument is that the lock-down has affected total mortality in unexpected ways. With the shutting down of industry, businesses and all transportation, transport related and deaths caused by industrial accidents and environmental factors has been almost entirely, if not entirely curtailed. The physical distancing observed in varying degree may have also lowered death rates due to other types of viral infections. This means that the total deaths may have not risen but it would be foolhardy to assume that there has not been much larger number of COVID-19 deaths than reported merely because the total figure has not gone up if indeed it has not. If all the people kept under observation and quarantine have not been tested, if people dying of respiratory illnesses have not been tested, if 80% of deaths are taking place at home and since our testing is among one of the lowest one in the world (rank 134), on what basis can the health ministry figures be relied on as an accurate picture of the pandemic situation?
Clearly, there is obfuscation of COVID-19 pandemic data in India due to a number of factors, most of which put the government in the dock. The end result of obfuscating data is that people become complacent and the government is protected from accountability, further deepening the crisis, doing no favor to anyone except the government. With the media being the fourth pillar of democracy, the remedy for such obfuscation in any democracy would have been aggressive, investigative and analytical reporting by the media on the actual cases, about the methodology of the reporting of cases and about testing. But along with the conditions of the lock-down, the media has been muzzled by the Supreme Court order, India being the only country in which such an order has been passed.
Although the SC at various stages in its history has been seen to serving government interests before correcting itself, the present phase which started with the BJP coming to power at the Centre in 2014 beginning with Justice Dipak Misra and continuing with Gogoi is particularly bad. Under both the previous CJI’s, the unprecedented practice of accepting information from the government in sealed envelopes without divulging the same to the other contesting party was also introduced. The Gogoi led bench’s ruling on Ayodhya will be recorded in the annals of jurisprudence as one of the most serious cases of miscarriage of justice in India. These are tell-tale signs of a court which is doing the bidding of the executive and not the Constitution of India which established the court in the first place to preserve it.
When the government fails at its job, the common man’s only resort is the courts. But with the courts increasingly failing the people, welfare of the nation and the people has got the short shrift, lives are being lost and social amity widely disturbed. The impunity with which the government keeps failing at governance through negligence and incompetence can only come when courts toe the government’s line. By going with the government’s lies, failures, neglect and incompetence and passing orders that are inequitably in favor of a failed government, the differentiating lines between the Executive and the SC have become increasingly blurred. The SC while asking the media to be responsible while reporting on the COVID-19 crises told the media to observe both the letter and the spirit of the law. The same edict now arises before the court.
And as far as how the government, emboldened by the SC’s rulings, views the migrant labor and the problems they are facing is best demonstrated by the UP CM’s order (snapshot below) wherein the people have been prohibited from even giving a glass of water to migrant labor workers making their way home.
Your honors, please show some sympathy to the migrant workers; you could have have been one of them.