In Re: Problems and Miseries of Migrant Labourers vs .

Disposing of the writ petitions, the Court

HELD: 1. The Right to Life as guaranteed by Article 21 of the Constitution gives right to every human being to live a life of dignity with access to at-least bare necessities of life. To provide food security to impoverished persons is the bounden duty of all States and Governments. The Parliament with object to provide food and nutritional security in human life cycle had enacted the National Food Security Act, 2013. Those who have been identified as beneficiary under National Food Security Act, 2013 are provided dry rations as per the Centre and States’ Schemes. In event, a migrant labour is covered under the National Food Security Act, 2013 and had been issued a ration card under the Act, he is entitled to access the dry ration wherever he is, at his work place also, in accordance with scheme of the Central Government namely “One Nation One Ration Card”. Both the Central Government and the State Governments have floated various schemes for unorganized workers, building and construction workers but sad picture of the ground reality is that large number of beneficiaries are deprived from access to these welfare schemes of the Central Government or the State Governments. [Paras 17, 18, 20][194-A-C, E-F, G-H; 195-A]

2. Dry Ration to Migrant Workers

2.1 The migrant workers, who possess the ration card and are covered under the National Food Security Act, 2013 can avail the dry ration utilising their card even in the State where they have migrated for work. Real difficulty arises with regard to migrant workers who do not possess any card issued under National Food Security Act or even by respective States. There is a large number of such migrants who do not possess any card. Their above disability is due to their poverty and lack of education but the State cannot abdicate its duty towards such persons, especially in the wake of the pandemic and the events where large numbers of migrant workers are not able to get jobs which may satisfy their basic needs. [Para 24][197-A-C]

2.2 The affidavit of Union of India indicates that under Atma Nirbhar Bharat Scheme, which was issued by the Department of Food and Public Distribution, migrants/stranded migrants were covered and 5 Kg per person per month free of cost dry ration for a period of two months was given. It was the States, who identified about 2.8 crore migrant population in the first wave of pandemic, which is clearly stated in the affidavit of Union of India. When there is identification by the States of 2.8 crore migrants, there is no difficulty for the State in reaching such migrants and supplying dry ration to those who may still be at their identified places. The Union of India in its affidavit has clearly stated that the Union of India is ready and willing to provide the additional food grains to the States under various schemes in event such request is made by the States/UTs. [Para 25][197-C-F]

2.3 From the affidavits filed by different States, it does appear that although some States have devised certain schemes for distribution of dry ration to migrant workers, most of the States do not have such schemes. Several States have not mentioned any scheme under which in the second wave of pandemic any ration has been distributed to the migrant workers. State of Gujarat has referred to a scheme namely ‘Annambrahma’ Scheme which scheme has been once again implemented and as on date is current. However, no details have been given as to how many migrant workers have been provided dry ration in this second wave of pandemic. [Para 27][197-G-H; 198-A-B]

2.4 The States/Union Territories who are responsible for Public Distribution System and who are the agency to reach beneficiary have to devise the scheme to cater the needs of migrant workers and find out ways and means to reach those migrant workers and supply the dry ration. Especially during this pandemic, the States/Union Territories have to make extra efforts to reach migrant labourers so that no migrant labourer is denied two meals a day. The Union of India has mentioned that Ministry has extended various schemes to enable all States/UTs to obtain additional quantities of food grains. The Union of India has also referred to Circular dated 20.05.2021 issued by Government of India, Ministry of Consumer Affairs, which states on the subject “various food security measures announced during COVID-19, 2021”. Thus, the Central Government is ready to allocate additional quantities of food grains to the States for supplying food grains to migrant workers after identification. The Central Government may, in consultation with the States, devise a mechanism to reach migrant labourers especially in this pandemic so that dry ration be provided to them. [Paras 29, 30, 31][198-FH; 199-A, C-D]

2.5 The Central Government having undertaken to distribute additional quantity of foodgrains as demanded by the States/Union Territories for distribution to migrant labourers under some Scheme framed by the States, Central Government, Department of Food and Public Distribution (Ministry of Consumer Affairs, Food and Public Distribution) is directed to allocate and distribute foodgrains as per demand of additional foodgrains from the States for disbursement of dry foodgrains to migrant labourers. [Para 33][199-F-G]

2.6 The States are directed to bring in place an appropriate scheme for distribution of dry ration to migrant labourers for which it shall be open for States to ask for allocation of additional foodgrains from the Central Government, which, shall provide the additional foodgrains to the State. The State shall consider and bring an appropriate Scheme, which may be implemented on or before 31.07.2021. Such scheme may be continued and operated till the current pandemic (Covid-19) continues. [Para 34][199-G-H; 200-A-B]

3. One Nation One Ration Card

3.1 “One Nation One Ration Card” is a scheme

implemented by the Government of India providing for nationwide portability of National Food Security Act Ration card. Several States have been integrated under One Nation One Ration Card cluster at the National level. One Nation One Ration Card is an important citizen centric reform. Its implementation ensures availability of ration to beneficiaries under National Food Security Act (NFSA) and other welfare schemes, especially to the migrant workers and their families at any Fair Price Shop across the Country. To ensure seamless inter-State portability of the ration card, Aadhaar seeding of all ration cards as well as Biometric Authentication of beneficiaries through automation of all Fair Price Shops (AFPS) with installation of electronic- Point of Sale (e-POS) devices are necessary. [Para 35][200-B-E]

3.2 The Union of India, Department of Expenditure has permitted State-wise additional borrowing for completion of One Nation One Ration Card Scheme. The Solicitor General during his submissions has submitted that Four States have not yet implemented the One Nation One Ration Card Scheme being the States of Assam, Chhattisgarh, Delhi and West Bengal. [Para 36][200-E-F]

3.3 When migrant workers are spread throughout the Country, each State has to implement the scheme, which is a necessary welfare measure towards food security to this class of persons. The States are duty bound to implement this Scheme, which is a welfare scheme in the interest of poor and marginal sections of the society. When a migrant labour reaches to a particular State for work/employment and is covered by National Food Security Act Scheme, the receiving State is under duty to ensure that his rights and entitlement under National Food Security Act is not denied merely because of the fact that he is not in his native State from where he was issued the ration card under National Food Security Act scheme. Thus, those States who have not yet implemented One Nation One Ration Card scheme should implement the same. The States who have not implemented the One Nation One Ration Card scheme are directed to implement the scheme by not later than 31.07.2021. [Paras 37, 38][200-G-H; 201-A-C]

4. Coverage of Rural and Urban population under National Food SecurityAct, 2013

Section 3 of the National Food Security Act, 2013 provides for Right to receive foodgrains at subsidised prices by persons belonging to eligible households under Targeted Public Distribution System. Section 9 provides for coverage of population under Targeted Public Distribution System, which is to be determined by the Central Government and the total number of persons to be covered in such rural and urban areas of the State shall be calculated on the basis of the population estimates as per the census of which the relevant figures have been published. The State-wise coverage under National Food Security Act was determined by the then Planning Commission (now Niti Aayog) by using the NSS Household Consumption Survey data for 20112012. More than 10 years have elapsed from determination of State-wise coverage. In event, Central Government undertakes fresh determination of the State-wise coverage under National Food Security Act, number of beneficiaries State-wise are bound to increase benefitting the large number of eligible persons. [Paras 39, 40][201-D; 202-B-E]

5. Inter-state Migrant Workman (Regulation of Employment and Condition of Service) Act, 1979

5.1 The Parliament enacted the above enactment with a very laudable object protecting migrant workers from large number of ill-practices. Chapter II deals with registration of establishments employing inter-State Migrant Workmen. Section

6 contains an injunction that no principal employer of an establishment shall employ inter-State migrant workmen in the establishment unless a certificate of registration in respect of such establishment is issued under the Act. Similarly, Chapter III deals with licensing of contractors. Section 8(2) provides that a licence under sub-section (1) may contain the terms and conditions of the agreement or other arrangement under which the workmen will be recruited, the remuneration payable, hours of work, fixation of wages and other essential amenities in respect of the inter-State migrant workmen are to be included. Section

12 provides for duties and obligations of contractor. Section 12(1)(a) provides that it shall be the duty of every contractor to furnish such particulars and in such form as may be prescribed, to the specified authority in the State from which an inter-State migrant workman is recruited and in the State in which such workman is employed, within fifteen days from the date of recruitment, or, as the case may be, from the date of employment. [Paras 41, 44][202-F-G; 206-C-F]

5.2 Form X under which the information is to be given by a contractor contains various details pertaining to the migrant workmen. In event, the licensed contractors engage migrant workmen, he is bound to give the particulars of the migrant workmen to the specified authorities and it is in the domain of the authorities recruiting migrant workers to enable the authorities to reach the migrant workers and extend the benefits to which such migrant workers are entitled. The appropriate Government is to appoint Inspectors for the purpose of this Act. A direction need to be issued to the States/Union Territories to register all establishments and license all contractors under the Act and ensure that statutory duty imposed on the contractors to give particulars of the migrant workers is fully complied with. The competent authority while registering the establishments and granting license to the contractors may also impose conditions pertaining service condition, journey allowance and other facilities as set out in Chapter V of the Act. [Paras 45, 46][207-A-C, E-F]

6. Registration of Unorganised Workers

6.1 The Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 was enacted by Parliament to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health and welfare measures and for other matters connected therewith. The Act provides for registration of establishments. Chapter IV provides for registration of building workers as beneficiaries and also contemplates issuance of identity cards. [Para 47][207-G-H; 208-A-B]

6.2 The other enactment, which has been enacted by Parliament to provide for the social security and welfare of unorganized workers’ is the Unorganised Workers’ Social Security Act, 2008. The Unorganised Workers constitute 94% of the work force, which is also noticed in the Statement of Objects and Reasons. The unorganized workers belong to poor strata of society, less educated and are not much aware of their rights and obligations of their employer. Unorganised workers are also not able to easily get themselves registered under Act, 2008 so as to enable them to reap the welfare schemes of the Central Government as well as of the State Governments. [Paras 48, 49][209-C-D; 210-F-G]

6.3 Although, Code on Social Security, 2020 has received the Presidential assent in August, 2020 but the same has not yet been enforced except the provision for use of Aadhaar. Thus, the registration under Act, 1996 and Act, 2008 has to continue till the provisions of Code on Social Security, 2020 are enforced, the registration of unorganized workers both under Act, 1996 and Act, 2008 is beneficial to the unorganized workers since it is only after registration they are able to access the welfare schemes of the Central Government and the State Governments. The registration of the unorganized workers is, thus, pivotal and most important insofar as welfare of workers is concerned. [Para 50][211-D-F]

7. NCT Delhi

7.1 In the affidavit dated 08.06.2021 filed on behalf of State of NCT Delhi, no details regarding process of registration of construction workers, inter-State migrant workers and unorganized workers have been mentioned. However, in the note dated 14.06.2021 submitted on behalf of NCT Delhi with regard to Act, 1979 and Act, 1996, it has been stated that online portal for registration of establishments employing migrant workers is in place since December, 2019. It is further mentioned that Delhi Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Rules, 1982 have been notified on 04.06.1982. It is further stated that by virtue of Section 2(e), migrant workers themselves cannot register under Act, 1979 and it is the contractor, who has to register the migrant workers. With regard to Act, 1996, it is stated that under the said Act, Delhi Building and Other Construction Workers (RE & CS) Rules, 2002 have been notified. It is further mentioned that steps are being taken by issuing notice to the various employers to get them registered under Act, 1996. [Para 52][212-A-D]

7.2 This Court had directed the Ministry of Labour and Employment to make available the module to all States and Union Territories for purposes of registration under Act, 2008. In spite of the above direction which was issued on 21.08.2018, the Ministry of Labour and Employment has not yet been able to provide the module to all States and Union Territories for the purpose of registration. Several States have stated in their affidavits that they are waiting for the module to be provided by the Ministry of Labour and Employment to proceed further with the registration of unorganized workers. [Paras 72, 73] [218-B-C, G-H]

7.3 The Union of India was directed by order dated 24.05.2021 to file a detailed affidavit with regard to process of registration of unorganized workers as undertaken by Ministry of Labour and Employment. In pursuance of direction, an affidavit has been filed by the Union of India dated 09.06.2021. [Para 74][219-D-E]

7.4 When the unorganized workers are waiting for registration and are waiting to reap the benefit of various welfare schemes of the States and Centre, the apathy and lackadaisical attitude by the Ministry of Labour and Employment is unpardonable. There was urgency in the portal to be finalized and implemented looking to the pandemic and dire need of unorganized workers to receive the benefit. The attitude of Ministry of Labour and Employment in not completing the module even though directed as early as on 21.08.2018 shows that Ministry is not alive to the concern of the migrant workers and the non-action of the Ministry is strongly disapproved. The Secretary, Ministry of Labour and Employment is directed to ensure that National Database for Unorganised Workers (NDUW) portal is finalized and implementation of the portal commences on or before 31.07.2021. [Para 75][220-F-H; 221-A]

7.5 To provide access to the migrant workers to different Schemes of State Government and Central Government, registration is a must. It is impressed upon Central Government as well as States and Union Territories to complete the portal for registration under National Database for Unorganised Workers (NDUW) project as well as implement the same, which by all means may commence not later than 31.07.2021. It is made clear that after registration is complete, the correction and updating of the data should be always possible and which is part of the process. It is only after registration of the workers that the States and the Centre shall be able to extend the benefits of the welfare schemes to them. Prior to that unless the registration is complete, tall claims by all the States and Union that they have implemented various welfare schemes for the migrant workers and unorganized workers remain only on paper without giving any benefit to unorganized workers. [Para 76][221-B-D]

8. Community Kitchen

The States have been running community kitchens during the pandemic. State should run the community kitchens at prominent places where large number of migrant labourers are there, which community kitchens should be continued at-least till the pandemic continues. The States should advertise places where facility of community kitchen/subsidized meals is provided so that no migrant labour, who is unable to arrange for his two meals can remain hungry. [Para 78][222-G-H; 223-A]

9. Direct Bank Transfer to unorganized workers.

9.1 All States have filed their affidavits and most of the States have made direct bank transfers to construction workers, who are registered under Act, 1996. The amount ranging from Rs.1,000/- to Rs.6,000/- has been transferred to the construction workers. Few States have also made transfer to other categories including auto rickshaw drivers and some other categories. The right of direct bank transfer flows from a particular scheme framed by a State. In event, a person including a migrant labourer is entitled for any direct bank transfer from any scheme, he can claim for such entitlement. No such scheme by any State has been pleaded on record where conscious decision has been taken by the State to make direct bank transfer to a migrant labourer. The direct bank transfer being matter of policy and being in domain of the State, no direction can be issued by this Court for any direct bank transfer as claimed by certain applicants/intervenors. In event any person is entitled for direct bank transfer as per the existing scheme in any State, he can avail the said benefit by the mechanism as provided in the policy decision. [Para 79] [223-A-E]

National Textile Workers’ Union and Others v. P.R. Ramakrishnan and Others (1983) 1 SCC 228:[1983] 1 SCR 922 – referred to