BA-LLB (HONS.

)/SEMESTER VII

HUMAN RIGHTS

“HUMAN RIGHTS VIOLATION BEHIND THE VEIL OF PANDEMIC: THE ISSUE

--I--

INTRODUCTION

The world has endured two years of a globe pandemic, COVID-19, and the impact of the
same is being addressed actively. During the pandemic, every sector was exposed to certain
issues however, a sector that has been facing issues even before the pandemic and whose
issues have increased to the maximum level possible, is the marginalized sector.

The term marginalized can be defined as a group of people that faces social exclusion from
society. It would mean that those people who are marginalized are kept outside the
mainstream of society, of social system that comprises of all different aspects such as
economic, political, cultural, and social, thus they are the outsiders1.

Marginality is an experience that affects millions of people throughout the world 2. People
who are marginalized have relatively little control over their lives, and the resources available
to them3. This results in making them handicapped in delving contribution to society 4. A
vicious circle is set up whereby their lack of positive and supportive relationships means that
they are prevented from participating in local life, which in turn leads to further isolation 5.
Due to marginalization, this sector is unable to participate in the development as other
sectors. Just as defined in the ‘Encyclopedia of Public health’, “To be marginalized is to be
placed in the margins, and thus excluded from the privilege and power found at the center”,
the statement clearly defines the difficulties faced by this sector before the pandemic.

For a sector that already is exposed to the above stated issues, facing a pandemic was the
worst nightmare. Although, it is the duty of the state to protect the human rights of the
people, in reality the same may not be happening. One such example of this, is the condition
of marginalized sector during pandemic, in India.

The current paper attempts to examine, how the marginalized sector has been a major victim
to human rights violation that took place during the pandemic and further throw light upon
the duty of the state with respect to such situation as per domestic as well as international
laws and conventions signed and ratified by the country on the same subject matter.

--II--

REALITY OF MARGINALIZED SECTOR DURING PANDEMIC

In India, lockdowns were placed to curtail the spread of coronavirus, putting vulnerable
workers such as domestic workers, migrant workers, daily wagers, scrap shoppers, car and
truck drivers, vegetable and fruit vendors, sex workers, waiters, delivery boys and employees
among thousands of others at risk of malnutrition [Link] the government declared relief for

1
Swasti Sourav, Marginalized Communities, PATNA UNIVERSITY E-CONTENT (Oct. 10, 2021, 11:35 PM)
[Link]
2
[Link]
3
Id, at 2.
4
Id, at 3.
5
Id, at 4.
6
Khyati Basant, Situation of Marginalized sector amid Lockdown, IPLEADERS (Oct. 10, 2021, 11:45 PM)
[Link]
the poor populations, the danger of imminent starvation came first and was much more
terrifying than the danger of coronavirus contracture7.

EFFECT OF COVID ON MARGINALIZED SECTOR

There were many marginalized groups that were neglected during the lockdown. A direct
result of such neglection was that, these groups were faced with increased hardships and
financial issues. The lockdown “has disproportionately impacted vulnerable populations as a
result of job loss and a lack of food, housing, health care”, and other essentials. The state
does have a responsibility to protect health of the public and well-being, but some of these
measures have resulted in hundreds of thousands of homeless migrants and the closure of rail
and bus lines. In reality, their employers persuade them to continue working and threaten
them with replacement.

The extensive “lockdown of state borders has impacted the availability of essential
commodities, causing instability and fear of shortages, thousands of homeless individuals
require shelter. Police efforts to punish individuals who violate orders are said to have
contributed to harassment of those in” need. Most domestic “workers were fired without
adequate compensation, and others were forced to take pay cutbacks in the months that
followed, and given that these workers have no means or financial help, the danger that the
domino effect of growing unemployment and income loss would severely damage” their life
is quite high.

Domestic work that falls “within the category of non-registered and unorganized work, and
most of these employees have been unable to obtain government aid programs to deal” with
the present crisis. “This basically implies that the majority of domestic employees are not
even eligible for the state government's food grain allocation scheme, leaving them with little
access to health-related benefits”.

Problems of loss of income and lack of social security are the prospect of harassment and
eviction by domestic workers from their rented accommodations [Link] may be attributed
either to their incapacity to pay rent or to the social stigma applied to these workers, which

7
Id, at 6.
8
Supra, note 6.
marks them as potential virus carriers 9. It is the marginalized people who need legal security
most and who are left without it10.

In several states, photos and videos show police beating people who are trying to get essential
supplies11. In West Bengal, police allegedly beat a 32-year-old man to death, after he stepped
out of his home to get milk 12. A video from Uttar Pradesh shows police forcing migrant
workers, who were trying to walk home, to hop on the street to humiliate them 13. Police in
Maharashtra allegedly beat homeless people to evict them from streets14. The police have
actively targeted the daily wage earners, the vegetable vendors, milk vendors, even taxi and
rickshaw drivers. The authority that is meant to protect the people of the country and ensure
that their rights are no violated, is in fact, the one violating their rights.

Migrant workers hoping to return to their homes were left in the lurch with all means of
transport having been stopped and no alternative arrangements put in place immediately 15.
The crisis was exacerbated by the absence of a nationwide strategy to provide relief to
stranded migrant workers16, “wherein some states adopted pro-migrant measures and add-
ressed the issues of the migrants in a humane way, while some states remained as mere
spectators as the migrant crisis unfolded.” There were videos being telecasted by the news
channels showing how the migrants have started walking to reach their homes carrying their
bags along with their children, because they have no support available by the government for
the same.

The lockdown affected the livelihoods of nearly 4 crore internal migrants 17. Around 104 lakh
of migrant labourers moved from urban areas to rural areas of origin in about 30 days from 1
May to 31 May 2020 using various modes of transportations, including Shramik trains bus,
truck, autorickshaw and walking for thousands of kilometers and many died in the process 18.
The reliefs regarding the issue of transport was provided by the government too late.

9
Id, at 8.
10
Id, at 9.
11
Manish Swarup, India: COVID-19 Lockdown puts poor at risk, HUMAN RIGHTS WATCH (Oct. 11, 2021,
10:10 AM) [Link]
12
Id, at 11.
13
Id, at 12.
14
Id, at 13.
15
EPW Engage, COVID-19: Examining the impact of lockdown in India after one year, ENGAGE (Oct. 11,
2021, 10:22 AM) [Link]
16
Id, at 15.
17
Supra, note 15.
18
Id, at 17.
The pandemic was surely a new challenge thrown before the world at large, and all the
countries were collectively facing issues tackling it. However, this does not mean to neglect
the already neglected sector of the society. It is the duty of the state to work for their
upliftment and betterment, to provide them with necessary facilities, but did the state made a
complete dedicated strategy to help the marginalized during the pandemic? The answer
remains no.

ISSUES WITH THE LOCKDOWN STRATEGY ADOPTED BY THE STATE

SUDDEN LOCKDOWN

The human rights violation of the marginalized sector started from the very announcement of
lockdown in the state. The government announced the lockdown at an extremely short notice,
giving the people no time to store the necessary resources. All the migrants were stuck where
they were as soon as the announcement regarding lockdown was made by the Prime Minister
of the country. After the implementation of lockdown, the government enforced the
provisions of Disaster Management Act, 2005, wherein if any person was in violation of the
orders given by the Central or State government, were to be convicted. In addition to this,
there were punishments such as fines and confinement as well.

The number of human rights violation of migrants that happened from the time the lockdown
was imposed, could be directly related to the number of cases that were filed before the
National Human Rights Commission of India.

A major mistake that the government made after enacting a sudden lockdown in the country
was that, even while the authorities were assessing the situation at hand, no attention was
paid to the condition of migrant workers and they were left unattended. Although the
government issued order to the pay wages to the workers, this still left out the workers who
were not in the organized sector.

IGNORANCE FROM GOVERNMENT

Further, the government did not provide any solution to the issues of migrants with respect to
rent. Since most of the migrants live on rent, and because they were not being paid their
wages, they were forced to vacate the houses by the landlords.

Since public convey was absent hence the migrants opted to go back to their habitation on
foot, bicycle, autorickshaw, hitchhiking, or via any other available mode, often on the
vacuous or half-filled stomach19. Some died ambulating, some died in accidents, some died of
hunger, and some even committed suicide20. The highways of the country were filled with
woebegoneness, scream, and pain of migrant laborers21.

Finally, on April 29, 2020 the Central government issued order regarding facilities that were
arranged for the migrants to go back. However, even with this step taken by the government
was not of much use, because of the formalities that the migrants had to fulfill in order to
return back to their home-state. There was a three-step process required to be fulfilled:

I. The first and foremost step was to get a medical certificate from a government
hospital stating that person travelling is corona negative. The charges of obtaining
the certificate were to be borne by the person.
II. The second step was the fill an e-form, and register with their home state.
III. Third and last step was to reach the local police station and obtain a pass so that
the person could reach the railway station or bus stand.

This process given by the government had compliance issues. Firstly, a migrant who does not
earn much and has been surviving somehow in another state without income, is not in the
stage to bare the cost of a simple certificate. Secondly, this sector of society, is not so well
learned and comfortable with filling out e-forms, and thirdly, there was a sense of fear in
approaching the police station because of the violence they were exposed to by the police
officers, as stated above. “The decision to charge the stranded migrant laborers for Shramik
(Labor) Special Trains was another apathetic decision and misconstrue on part of the Central
Government”.

Even though the judiciary does not play a role in policy making of the country, there was a
major blown off faced from the side of Supreme Court as well. The Supreme Court, refused
to address the Public Interest Litigation filed on the issues faced by the migrants. The court
changed its decisions only after being subject to major criticism and took suo-moto
cognizance of the matter and passed an order to open transport facilities for migrants. The
relief granted by the court clearly not with respect to time, when it was needed the most.

--III--
19
Shailendra Kumar & Sanghamitra Choudhary, Migrant workers and human rights: A critical study on India’s
COVID-19 lockdown policy, 3 SOCIAL SCIENCE & HUMANITIES OPEN 2, (2021).
[Link]
20
Id, at 19.
21
Id, at 20.
RIGHTS IN VIOLATION

The National Human Rights Commission (NHRC) recorded over 2582 cases of human rights
violation in the month of April, when the country was under a strict lockdown, indicating
rampant violation of human rights which left millions of migrant labourers in the lurch 22.
With the country facing the socioeconomic crisis of all times, migrant labourers held fight to
survive over human rights to life and dignity23.

“Many migrant workers, either stranded or stuck in government shelter homes while
attempting to reach their native places are facing violation of their constitutionally
guaranteed fundamental right to life with dignity and India must respond to human rights
violations being faced by these workers”, said Maitreyi Gupta, India International Legal
Advisor at International Commission

The disproportionate impact of state policy also breaches the right to equality under Article
14 of the Constitution (enshrined in Article 7 of UDHR) and imposes a corresponding
duty on the government to mitigate negative effects 24. Although the Indian government
has flown back citizens who were stranded abroad, it did not provide similar travel support
for internal migrants until much later25. This unequal treatment of formally equal citizens is
questionable at the very least, when in fact there was a pressing and well-publicized need for
special policy measures to help the migrants26

Article 21, (also enshrined under Article 17 of ICCPR) the shortest article, granting right to
life, was violated as well. In, Parmananda Katara v. Union of India 27, it was observed that
“Art. 21 of the Constitution cast the obligation on the State to preserve life. The patient
whether he be an innocent person or a criminal liable to punishment under the laws of the
society, it is the obligation of those who are in charge of the health of the community to
preserve life so that the innocent may be protected and the guilty may be punished” the
migrants were subject to violence by police officers who are the executive arms of the state.
They were left in between a pandemic, without necessary resources, that includes food and
22
Neetu Chandra Sharma, How coronavirus turned into humanitarian crisis for migrants, LIVEMINT (Oct. 11,
2021, 11:21 AM) [Link]
[Link]
23
Id, at 22.
24
Ananaya Sharma & Rohit Raj, Migrant workers in India: The pandemic pressure, THE LONDON SCHOOL
OF ECONOMICS AND POLITICAL SCIENCE (LSE) (Oct. 11, 2021, 12:00 AM)
[Link]
25
Id, at 24.
26
Id, at 25.
27
Parmananda Katara v. Union of India, (1989) SCR (3) 997.
shelter. So many were forced to leave their rental places and were not provided facilities of
alternate housing by the government for a long time. Their health was compromised since
they did not had access to safety equipment’s and were exposed to a deadly virus. Their
mental health was affected as a result of the actions taken by the state. Some even committed
suicide along with their families.

Most migrant workers were fired from their jobs on a short notice and as most them earn
daily wages, due to lockdown they found themselves without sufficient resources and
knowledge. At this time, the government should have intervened in this situation.

According to a survey of 11,159 workers of various states, about 90 percent of the migrant
workers did not receive a ration from the government and were denied payment by their
employers28. An ordinance passed by the Uttar Pradesh government exempts the employers
from complying with the Industrial Disputes Act 1947, which exposes labourers to
mistreatment by their employers and allows them to be dismissed at will 29. There is a real
danger that the relaxation of labour standards in some states will also spread to other parts of
the country30.

Human rights are inherent to all human beings, without discrimination. The ILO Declaration
on Fundamental Principles and Rights at Work, adopted in 1998, states that economic growth
alone is not enough to ensure equity and social progress 31. Yet the Indian government is
focused on increasing investment opportunities to improve foreign investment to bring the
economy back on track while labourers across the country are struggling to secure basic
goods to ensure their survival32. In this unprecedented global crisis due to COVID-19, the
precarious conditions of labourers are being grossly neglected, and the government is
wrongly treating them as commodities that are to be risked for economic growth33.

Article 19 of the constitution (Article 12.1 of the ICCPR) protects the “right to liberty of
movement” within the territory of a State. According to Article 12.3, this right can only be
restricted in exceptional circumstances, including to protect public health 34. These restrictions
28
Pranav Sharma, Impact of COVID-19 on rights of labourers and workers in India, HUMAN RIGHTS PULSE
(Oct. 11, 2021, 12:15 PM) [Link]
rights-of-labourers-and-workers-in-india
29
Id, at 28.
30
Id, at 29.
31
Id, at 30.
32
Id, at 31.
33
Id, at 32.
34
Nisha Gupta, Indias Battle against COVID 19, VOELKERRECHTS (Oct. 12, 2021, 3:05 PM)
[Link]
must be necessary, provided by law, and consistent with the other obligations of the
Covenant35. The imposition of such harsh restrictions on movement has also become an
excuse for police brutality36. Citizens have been assaulted by police officers for lawful acts,
such as when venturing out to buy essential goods37.

Article 6 of the Universal Declaration of Human Rights [UDHR]. The marginalized sector,
comprising of migrant’s labourers does not have right to recognition due to the fact that they
keep migrating. The violation of this right also results in violation of right to work embedded
under the same law. There is no work security granted to them. In fact, during COVID, the
workers were fired without giving adequate notice, they were denied their wages and benefits
they are entitled to, and as stated before they were denied equal treatment even before the
pandemic, but after the pandemic, it got worse.

Further under the same article, another violation occurs constantly irrespective of the
pandemic. The marginalized sector, comprising of migrant’s labourers does not have right to
recognition due to the fact that they keep migrating. The violation of this right also results in
violation of right to work embedded under the same law. There is no work security granted to
them. In fact, during COVID, the workers were fired without giving adequate notice, they
were denied their wages and benefits they are entitled to.

--IV--

CONCLUSION

During COVID, various challenges were faced by people belonging to different sectors,
however, the worst impact was on the sector that has already been fighting the challenges
faced due to exclusion from society and inability from participating in development process.

The marginalized sectors, mainly the migrant workers under this sector, have faced multiple
issues during the pandemic. The hap-hazard manner in which the government has taken steps
to tackle the pandemic situation in the country has resulted into multiple violation of human
rights. The rights include constitutional as well as international human rights. In fact, even
the fundamental rights mentioned in the constitution have been adopted from the Universal
Declaration of Rights.

35
Id, at 34.
36
Id, at 35.
37
Id, at 36.
From initiating lockdown till providing adequate assistance to the affected sector, the time
taken by the government has led to grave violation of rights as mentioned in the paper.
Firstly, they were left without enough resources, secondly, when facilities were provided it
was too late, as the migrants were in dire need of returning to their state-home so that they
can get access to their homes, as they were evicted from their rental homes, due to non-
payment of rents, which was the direct result of no access to jobs during this time.

It should be noted that it was not just the government who was delayed in taking the
necessary actions, but the Apex Court of the country as well. The Supreme court also
provided the reliefs relatively late, and did not bother to examine whether the state is taking
the actions to protect on time or no. The court cannot participate in policy making, but it does
have a duty to act as a watchdog on state actions and protection of rights of the citizens which
was not performed by the court on time.

The migrant workers were completely neglected, and when they were given services, the
services were not according to their comfort. They had to go through a series of process in
order to obtain a train/bus ticket to which they should be entitled to and provided by the
government free of cost. The situation was given attention only when it was shown on the
news channels how the migrants workers along with their children have started walking
towards their home, carrying whatever they could. Such event should not have occurred in
the first place.

Therefore, the state should have acted in a quick and diligent manner in order to ensure that
no human rights violation takes place. Human rights are the basic rights that are provided to
all the people, irrespective of their nationality or their identity, the same was breached by the
state itself, who is supposed to protect such rights and is the guarantor of the same, and
despite of such violation India has been accepted by the United Nations Human Rights
Commission with an overwhelming majority.