The abysmal implementation of welfare legislations reveals the welfare state has let down the worker by not providing any safety net or security. Most legislation-driven anti-poverty efforts have failed too.
In his 1845 work The Condition of the Working-Class in England, Friedrich Engels coined the phrase Social Murder, and the quotation begs careful study:
“When one individual inflicts bodily injury upon another such that death results, we call the deed manslaughter; when the assailant knew in advance that the injury would be fatal, we call his deed murder. But when society places hundreds of proletarians in such a position that they inevitably meet a too early and an unnatural death, one which is quite as much a death by violence as that by the sword or bullet; when it deprives thousands of the necessaries of life, places them under conditions in which they cannot live—forces them, through the strong arm of the law, to remain in such conditions until that death ensues which is the inevitable consequence—knows that these thousands of victims must perish, and yet permits these conditions to remain, its deed is murder …  murder against which none can defend himself, which does not seem what it is, because no man sees the murderer, because the death of the victim seems a natural one, since the offence is more one of omission than of commission. But murder it remains.”
Written in the context of Manchester in the Victorian era, this controversial expression “social murder” could well be applied to Covid-stricken India. The past 60 days have been witness to an unfolding of social violence and an assault on rights that pre-date this pandemic and have been exacerbated by the pandemic. The pandemic has not only broken the backs of the poor, but has also revealed that their backs were already broken, exposing in its wake that the Indian welfare state is a mere chimera and has failed the vulnerable.
The Indian Constitution endeavours to create a welfare state by incorporating “Directive Principles of State Policy” in Part IV. It envisioned that the State would play the key role in the protection and promotion of the economic and social well-being of all its citizens and provide equality of opportunity, equitable distribution of wealth, and public responsibility for those unable to avail themselves of the minimal provisions for a good life. Towards this end, the Directive Principles set out the Economic and Social Welfare charter in Articles 39 to 43, which, inter-alia, include: right to adequate means of livelihood, right against economic exploitation, right to equal pay for equal work, right to just and humane conditions of work, right to public assistance in case of unemployment, old age or sickness, and right to maternity relief. Underlying this “welfare state” is the view that all individuals in a society are entitled to share, to some extent, in the prosperity enjoyed by the middle and upper classes.
The over 200 state labour laws and close to 40 Central labour laws which regulate payment of minimum wages, bonus, right to have associations, safety and hygiene at the workplace, maternity benefits, gratuity, provident fund, insurance, and redressal mechanisms fulfill the Economic and Social Welfare charter, deriving strength and guidance from the Directive Principles and enforceability from Article 256 (which provides that the executive power of every state shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that state). Though not justiciable, the Supreme Court converted these into justiciable rights by invoking the wide sweep of the enforceable Articles 21 and 23.
In Bandhua Mukti Morcha v. Union of India, the court held that the right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Article 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men, women and children in conditions of freedom and dignity, just and humane conditions of work and maternity relief, and that no state has the right to take any action which will deprive a person of the enjoyment of these basic essentials. The court further held that since the Directive Principles are not enforceable in a court of law, it may not be possible to compel the State through judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials. However, the court held that where legislation is already enacted by the State providing these basic requirements to the workmen, the State can be obligated to ensure observance of such legislation, for “inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21”.
The past 60 days have starkly brought to the fore that most, if not all, economic and social welfare-oriented legislations have been observed in the breach. Had the Inter-State Migrant Workmen Act, 1979 been effectively implemented, governments would have been in a better position to help stranded workers. Unorganized Workers’ Social Security Act, 2008 (which provides for social security and welfare to unorganised workers i.e., home-based, self-employed and daily-wage workers) has been found wanting as it excludes vast sections of unorganized workers, especially agricultural labourers, aanganwadi workers etc. and has no penalties for breach. Implementation of Building and other Construction Workers Cess Act, 1996 was riddled by non-disbursement of funds and poor registration of construction workers. State Governments collected cess between 1% to 2% of the cost of construction which was to be allocated to the State Welfare Boards to spend on the safety, health and welfare of construction workers. Till March 2020, States and UTs had collected around Rs 52,000 crore but did not spend this money for the purpose collected. Pursuant to the 24 March advisory by Union Ministry of Labour and Employment to all States and UTs to use this Rs 52,000 crore as corona relief, by 8 April, 2020, only Rs 3,000 crore (a mere 6% of the funds) were distributed as one-time payment in amounts ranging from Rs 1,000 to Rs 5,000. Most State governments didn’t even have a database of workers they can reach out to.
The abysmal implementation of these, among other welfare legislations have revealed that the welfare state has let down the worker by not providing any safety net or security and that most legislation-driven anti-poverty efforts have failed to promote opportunity, self‐sufficiency, and inclusion, such that a mere one week into the lockdown reduced them to beg for food and shelter, and a fortnight later lakhs and crores of contract labourers, drivers, painters, plumbers, cooks were walking on the highways to reach their remote villages.
The Executive’s response to this human catastrophe has fallen far short of the ideal of a welfare state. On 29 March, the MHA made it mandatory for salaries and wages to be paid even during the lockdown period. Yet, most employers did not pay wages even for those days in the month of March that the labourers had worked. In an inexplicable decision taken in total violation of the Payment of Wages Act and under pressure from the business lobby, the MHA issued an order on 17 May countermanding all orders issued by the National Executive Committee under the Disaster Management Act, from 18 May onwards, which includes the 29 March order. This move begs the question of what message is being sent to workers, who had been without wages for the past 60 days, save the one-time payment of Rs 500 in Jan Dhan accounts?
To compound matters, in a move that shifts the burden disproportionately onto the workers, four state governments, contrary to the ILO mandated global norm of 8-hour work-day or a 48-hour work-week, have passed orders allowing for increase in working hours from 8 hours to 12 hours.
Furthermore–as the economy struggles with the lockdown and crores of workers stare at a precarious and uncertain future, some state governments have decided to make significant changes in the application of labour laws, with Uttar Pradesh making the boldest changes as it summarily suspended the application of almost all labour laws in the state for the next three years. The Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020, only retains the Bonded Labour Act, Employee Compensation Act, Building and Other Construction Workers’ Act, Maternity Act, Equal Remuneration Act, Child Labour Act, and Section 5 of the Payment of Wages Act. The laws that would no longer apply include Minimum Wages Act, Trade Unions Act, Industrial Disputes Act, Factories Act, Contract Labour Act, Payment of Bonus Act, Inter-State Migrant Workmen Act, Working Journalists Act, Employees’ Provident Fund Act. This suspension of laws will create an environment enabling exploitation by stripping labour of its basic rights and social security and drive down wages, with no redressal mechanism at their disposal.
As regards the Rs 20 lakh crore package announced by the Finance Minister, more than half of the measures focusing on migrant labour, small and marginal farmer and urban poor (eg affordable rental housing, portable ration delivery system, credit facility for street vendors and farmers, extension of the credit-linked subsidy scheme for middle class) have a long-term horizon and will not fructify in immediate relief. In the immediate, the vulnerable who have lost wages, get no cash relief. Instead as a “stimulus”, 8 crore migrant workers without ration cards and outside the ambit of National Food Security Act are to get 5 kg of wheat/rice per person and 1 kg of pulses per family for May and June – neither a survival nor a atma-nirbharta package.
Knowing that thousands of families will perish, and yet permitting conditions which deprive crores of citizens the bare necessaries of life to remain, and placing them under conditions in which they cannot live, and forcing them, through the strong arm of the law, to remain in such conditions until the inevitable consequence i.e., death ensues, will indeed be social murder most foul.
Adv. Ketaki Goswami practises at the Supreme Court and the Delhi High Court, Senior Advocate Sidharth Luthra has served as the Additional Solicitor General of India (ASG).