The Problem With SC’s Recent Orders in the Migrant Workers Case

The tragedy of the migrant workers in India will be witnessed repeatedly unless the Supreme Court becomes an ‘activist’ court once again. 

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The most recent order of the Supreme Court of India in the case of Bhandua Mukti Morcha v. Union of India has been cause for much adulation and has restored the faith of some in India’s judiciary

While the apex court has made all the right noises in terms of the rights-based approach it has adopted and its recognition of the duty of the government to implement schemes to alleviate the suffering of migrant workers, whether the orders of the court will amount to much is debatable. The orders are essentially unimplementable. 

The most important directions of the court, for this article, are:

  1. Directions to the states to implement the One Nation One Ration scheme (ONOR) by July 31, 2021.
  2. Directions to the Centre and states to operationalise the National Database for Unorganised Workers (NDUW) and to register all unorganised workers in it by July 31, 2021. 

Implementation of the ONOR scheme 

While with old ration cards, holders of a card could only withdraw rations from the Fair Price Shop (FPS) where they resided, the ONOR scheme now makes it possible for ration card holders to withdraw their rations from across the country.

This in essence means that migrant workers, who continuously move from place to place in search of work, will now be able to withdraw their rations in their destination states, essentially ensuring portability of benefits. 

There is no doubt that this is the need of the hour. It is a measure that has been advocated for by various authorities including the Standing Committee on Food, Consumer Affairs, and Public Distribution. However, the implementation of ONOR within the given time frame is near impossible. This is because implementation is dependent on two crucial steps: 

  1. Availability of functioning electronic Point of Sale machines (e-POS) at every single FPS across the country, and 
  2. Seeding of all ration cards with Aadhaar.

Functioning e-POS machines:

As per the most recent data available on the National Food Security Portal, only 4,88,832 out of the 5,45,593 functioning e-POS machines have been installed as on July 2021. As per the data submitted by the Central government to the Supreme Court, currently four states including Assam, Chhattisgarh, Delhi and West Bengal are yet to implement the ONOR scheme.

As per the Centre’s own admission, only 42 e-POS machines out of the necessary 2,254 machines had been installed in Delhi as of June, 2021. As per the National Food Security Portal, Meghalaya has only 60 out of 4,741 FPSs equipped with e-POS machines.

West Bengal had only 366 out of 20,806 e-POS machines installed.

It is to be noted that there is some discrepancy in the data on the National Food Security Portal and the data submitted by the Centre to the Supreme Court. Be that as it may, that the state governments in the midst of COVID -19 will be able and willing to prioritise the speedy procurement and installation of e-POS machines within the timeframe of one month seems unlikely, to say the least. 

Aadhaar seeding

The Aadhaar linking process requires migrant workers to submit various documents including their Aadhaar cards, ration cards, a copy of passbook if not yet linked to Aadhaar and passport size photograph of the head of the family to the nearest FPS.

Also read: How a Villager’s ‘Wild Chase’ to Retrieve Aadhaar Number Reflects a Crushing Lack of System

This again makes multiple assumptions including that all migrant workers have the Aadhaar to begin with, that they have bank accounts and that they have mobile phones to receive the seeding completion SMSs. How far migrant workers who have been traumatised through the last two years of running from pillar to post will be able to procure all the required documents and submit them is also a question the needs to be pondered. 

That the seeding of all ration card holders will be completed within the next month seems far fetched even by the most optimistic reading of the judgment. An example to illustrate how low the seeding rates are in some states is that of Assam. As of July, 2021 a mere 36 to 38% of ration cards had been seeded with the Aadhaar. 

Registration of all unorganised workers in NUDW

One of the biggest reasons for the catastrophic fallout of the lockdown on migrant workers has been the abysmal lack of data on migrant workers in India.

A lack of data meant that the government could not effectively plan for the impact that the poorly implemented lockdown would have on migrant workers. Through its second direction the Supreme Court directs the states and the Centre to register all unorganised workers in the national database, NUDW by July 31, 2021. As per the Economic Survey (2018-2019) more than 93% of workers in India work in the unorganised sector

The Supreme Court in this case has relied on the provisions in the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Unorganized Workers Social Security Act, 2008 to compel the Union government and states to register migrant workers. 

This is not the first time the Supreme Court has directed the government to implement these provisions. In this very case, the court has lamented that although it has directed the states and the centre to register migrant workers, they have failed to do so time and again.

The Supreme Court in the National Campaign Committee for Central Legislation on Construction Labour v Union of India after multiple directions to the states to register workers as per the Building and Other Construction Workers Cess Act, 1996 expressed its dismay as its orders were repeatedly disregarded by the states.

The likelihood of the Unorganised Workers Social Security Act, 2008 coming to the rescue of migrant workers is also limited. This is an Act that has dismal implementation rates and is one that is essentially defunct.

Even assuming that the state and central government were willing to carry out the Court’s orders, it would be impossible to register let alone all unorganised sector workers but even just migrant workers in the timeframe given by the court. There are more than 38 crore workers in India’s unorganised sector.

A task of this magnitude would need a tidal wave of coordination, resources and most importantly, time and stringent supervision. 

Therefore, in essence two of the most important orders issued by the Court in the present case are for all intents and purposes, unimplementable. While the orders might have been a symbolic victory for those who have toiled so hard to have the Supreme Court acknowledge the rights of migrant workers and the duties of the state, their real-world implementation is not possible within the current timeframes. 

If the Supreme Court wants to restore the faith of disillusioned Indians and truly help migrant workers, it will have to go much farther than merely producing orders.

The Supreme Court will once again have to don the mantle of an ‘activist court’ and adopt the methods of the Supreme Court of yore, which through its tenaciousness and ability to have the government respect its orders essentially gave birth to the National Food Security Act, 2013 in the People’s Union for Civil Liberties v Union of India case (also known as the Right to Food case).

It will have to continuously monitor the implementation of its orders and ensure oversight and strict adherence. COVID-19 is here to stay for the time being and so are lockdowns. The tragedy of the migrant workers in India will be witnessed repeatedly unless the Supreme Court becomes an ‘activist’ court once again. 

Akhileshwari Reddy is a Senior Resident Fellow at the Vidhi Centre for Legal Policy.