The pandemic Covid-19 in India is not a new issue, but its impacts are still being felt all over the country – by all classes, professions and genders. The central government and state governments have tried to deal with the pandemic by creating new laws and policies – but it is debatable how much of it is yielding positive results and if those laws and policies are being practised in the first place. Apart from the pandemic, there have been developments which have made the political atmosphere of the country tense as there have been arrests and interrogations of activists. Almost every Indian has reflected on the police and their actions at time when majority of the people are at their most vulnerable. The Supreme Court’s role amidst all of this has been also been debated. In such a context, scholar Kalpana Kannabiran and journalist Bharat Bhushan engaged in an important discussion about these questions with K.M. Parivelan moderating the session. Sukanya Bhattacharya reports on the webinar organized on 30th July.
Kalpana Kannabiran started her talk on pandemic and jurisprudence with the question of justice. For her, it was impossible to understand the larger context of labour, body of rights and claims without understanding the question of justice. She spoke of 17 different categories and specific cases when examining the major themes of jurisprudence. In a situation where the fundamental freedoms for claims of citizens as commons is also juridicalized, it becomes important to see how far the constitution is compatible with carceral governance and enclosure. During the pandemic, the “bare fangs” of the carceral state and the hostile environment created by it was aptly visible. She tells us that rather than asking which laws were flouted by the government during the pandemic, we need to ask which were the laws that were not flouted.
Citing the tragic incident of a 12-year oldgirl, Jamlo Makdam, who died while walking home, she focused on the heavily controversial issue of child labour which exists in India through a largely ineffective blanket ban. Even Nobel laureate Kailash Satyarthi had asked the government of India to grant a 3-month amnesty to all child employers in order to access the children who were working there. She then moved onto ask the question of where the state was during the difficult times when citizens could not reach home easily. Article 19/1(D) and (E) grant citizens the right to move around the country freely. The vast number of migrant workers who had to walk home was the result of a failure of memory on the state’s part towards its obligations and a stark refusal of empathy. Rather, the measures taken for damage control were further counter-blames mostly inflicted upon individual states. Even the relief that was granted to the suffering groups and classes during the lockdown was minimal with bare necessities of transport and food. For Kannabiran, this is sheer state impunity and abdication of responsibility – resulting in violence by the state which must be treated as such.
She also spoke of how quarantining and being under lockdown itself has not been easy under the police. The image of the policy spraying insecticide on the returning migrant workers’ bodies or the custodial torture of Jayaraj and Bennicks in Tamil Nadu has shaken the entire country.
The talk then veered to the actions of the carceral state and how the Supreme Court did not alter them or stop them. The arbitrary arrest of different activists especially during a pandemic by the government has been criticized by many. The aging poet Varavara Rao even tested positive for Covid-19 but the NIA was adamant that he was using the pandemic as an advantage to get bail. Kashmir has also been conveniently wiped out from the memory of judiciary, executive and civil society. The Supreme Court has often deferred major decisions to the state and expressed “hope” for a correct and appropriate path. Kannabiran starkly criticizes this deferral as it does not fall under the ethical framework of the Supreme Court to remain inactive and pass on its responsibilities to the state with the hope for resolving issues.
She also points out the latter developments which became visible as India kept battling with the pandemic through months. The stigma of contagion and caste became apparent as did the “genocidal journalism” – as termed by her. The intentional suppression of information and hiding the magnitude of the pandemic makes one worried about the state of journalism in the country. Kannabiran concluded her talk by emphasizing that the pandemic is making state impunity possible at a time when it needed to show empathy and take responsibility of its suffering citizens.
Journalist Bharat Bhushan began with the Inter-State Migrant Worker Act which leaves out a large portion of the informal sector from its ambit. The biggest lacuna in the Act lies in the fact that employees do not have to register themselves but contractors do. This leads to large-scale corruption and collusion. If a worker stays on for more than 90 days, they need a certificate from their employers or trade unions for acknowledgement which is also quite difficult.
The Parliamentary Standing Committee sought an expansion of social security goodwill whereby a social security fund and unemployment insurance fund would be made for all informal sector workers. The question that remains however is that who would contribute to such a fund? Domestic workers already work in a sphere which offers no protection but consists of regular exploitation. While the Ministry of Labour and Employment grants domestic labourers the right to form Trade Unions, the migrant workers are offered virtually no protection.
Further, during the pandemic, the dilution of labour laws through ordinances is creating a hostile work environment that will endanger migrant workers even more. The recurring theme of Supreme Court not helping at all comes up once again as Chief Justice Bobde casually remarked how the migrant workers should not need wages as they are being fed.
Another important fact that emerges is of the government’s absolute lack of anticipation about the problem of the migrant workers. The Labour Minister was not a part of the group of cabinet ministers which was made to battle Covid-19. This showed how the government had not even expected the huge number of migrants who would be returning back due to the sudden lockdown.
Further, there has been confusion regarding the non-payment of wages and salaries to the workers. Guaranteed lockdown automatically implied that wages of the workers were also up for negotiation. The government, in such a scenario, did not take any coercive action to force the private sector to pay full wages to its workers.
Bhushan ended his talk on the importance of migrant workers as a collective group in India in the absence of a lockdown or even a pandemic. The migrant workers did not constitute as a vote bank either in their home or work state. They are hardly represented as a category and their problems are not for ethnic or linguistic reasons but for purely economic ones.
K.M. Parivelan concluded the talk by emphasizing how the National Disaster Management Authority did not even consider, much less do anything about the plight of the migrant workers.
The question and answer session saw some very interesting questions. There were questions on if laws to protect migrant workers, specifically female workers existed; and if the amendment of labour laws by individual states was a violation of rights for free movement of workers. There were also questions on sex workers as migrant workers and their response to the crisis along with the role that civil society could play when there is no judicial directive.
Bharat Bhushan pointed out that no such law existed which protected women migrants, rather one would assume that the laws were made keeping male migrants in mind entirely. For him, even if there are judicial directives, the government has no will to implement them. Rather, the government has even violated the guidelines set by the International Labour Organization during the pandemic.
For Kalpana Kannabiran, the disregard by the government for detailed research on non-cisgender persons and women resulted in a lack of nuance in the laws made by it. According to her, when women migrant workers are facing sexual assault while returning back home – the tunnel of the pandemic should have been used to revise the existing discourses on stigmatization, caste orders and contagion.
The second round of questions put up queries about the existence of a proper database on migrant workers and the feasibility of asking them to register. There were also questions on if the current emergency could be brought under the National Disaster Management Act (NDMA); and if there were some remedies for the vulnerabilities faced by the migrant workers.
Bhushan answered by pointing out that the NDMA was invoked largely due to the central government’s failure to respond to the pandemic in time. Consequently, it shifted the responsibility to the state governments.
Kannabiran pointed out another facet of the NDMA and how it fell under the Ministry of Home Affairs which made its jurisdictions quite problematic. For her, the government has a machinery that cannot be replicated by any NGO. She repeated about the lack of will she noticed on the government’s part to address the issue as well as coordinate with the states. Hence, laws would not work as long as the government avoided accountability and transparency – making it an ethical question rather than a procedural one.
For remedial measures, Kannabiran spoke of introducing such measures to the entirety of informal sector with non-negotiable provisions. This would ultimately affect and apply to the migrant workers in a positive light.
The webinar ended with moderator K.M. Parivelan speaking of the decentralized approach of the government with vague guidelines about lockdowns. As we proceed towards new phases of Unlock 1,2 and so on, further impact of the pandemic remains to be seen and experienced – especially in conjecture with our social, political and legal spheres.
Sukanya Bhattacharya is a third year undergraduate student at Presidency University and an intern at Refugee Watch Online. She can be reached at firstname.lastname@example.org.