Attempting a contrapuntal reading of the Supreme Court’s judgment pertaining to migrant workers and trying to excavate the version of the truth that the apex court has accepted and therefore made “official”, SREERAM VG writes that in using the pandemic as a floor for its analysis on migrant worker social security and passing prospective directions, the Court fails to acknowledge that India’s migrant worker population was already in a vulnerable state before the pandemic.

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THE conventional understanding of litigation and its architecture, that of courts, rival parties, lawyers and judges, is that it produces outcomes to disputes between two contesting parties. This, in turn, shapes our understanding of what judgments do. They record reasons that resolve inter se disputes between parties, be those ordinary litigants in civil courts or the state and social interest litigants in constitutional courts.

Here, I explore the argument that judgments, specifically but not exclusively constitutional ones, also affirm and testify to certain narratives. By implication, they reject competing narratives and therefore relegate them out of public consciousness. This reading, called “contrapuntal reading” by lawyer Gautam Bhatia (a term borrowed from American academic Edward Said’s work), argues that judicial decisions don’t just interpret history but also make it. By sifting through competing narratives and acquiescing some while rejecting others, every judgment is a trial on what the Court decides will become part of official public memory.

As Bhatia argues, contrapuntal readings aim to resuscitate the non-legal narratives which otherwise remain invisible in the text of the judgment or order, but ground the legal decision.

In the world of fake news, where truth is now a political contest, narratives and the institutional endorsement they receive are what make up the truth.

Judgments of the Indian Supreme Court, complete with the diminishing yet significant legitimacy the higher judiciary carries, are more than just conventional judgments. They formulate our understanding of the Indian State and its performance against its stated ideals. As the highest arbiter of the land, the Indian Supreme Court and its writings carry a burden to paint a picture of the truth about the Indian State, at a time when truths themselves are subject to political and public arbitration.

Also read: Supreme Court ‘missed’ its chance to help migrant workers

In Re: Problems and Miseries of Migrant Labourers

On June 29, 2021, the Supreme Court delivered a judgment in its suo moto petition regarding the problems and miseries of migrant workers during the COVID-19 pandemic. The judgement, that has been well received by civil society, carries a slew of directions with regard to promptly registering migrant and unorganised workers under existing legislations, covering for any shortages in food-grain demand and establishing schemes for their distribution, along with directions to put in place and to implement the Union Government’s “One Nation One Ration Card” scheme.

I will attempt to do a contrapuntal reading of this judgment and these directions to show that for all its bona fide intentions, this judgment and its silences stand as a testimony to the failure of the Indian State to protect its workers. For every instance of a requirement for the abovementioned directions to the executive, the judgment, literally and metaphorically, papers over the cracks in the state of worker welfare in India.

Throughout the narration of the said order, the Court carefully stitches together the context it is operating under.

At multiple points in the order, the Court is mindful to set up the false floor of the pandemic as the baseline for its observations on the duties and derelictions of the government towards migrant workers.

Right at the start, in paragraph 2, the Court paints the image of stranded migrant workers travelling back home and “facing several untold miseries.” It is made clear to us that the suo motu case was registered due to this crisis which unfolded due to the fear of the pandemic and the resultant cessation of employment.

Once again, in paragraph 7, the Court is at pains to remind us that government measures during the first wave of COVID-19 brought some, though not complete, respite for migrant workers and helped them reach their native homes and “brought some solace.”

The limited scope of the apex court’s examination

I use the term ’false floor’ not to suggest that the pandemic did not significantly affect migrant workers, but to point out that that is the extent of the problem that the Court sets out for itself to solve.

It is almost indisputable that the living conditions of migrant workers in India, much prior to the onset of any pandemic, were of poverty, insecurity and uncertainty. As has been empirically demonstrated, they have no job security, they are exploited by middle-men and employers and are paid lower than local labour due to their desperate economic location. By virtue of being largely unorganised, they have barely any bargaining power and receive little political attention. The contrapuntal reading of the narrative of the Court, of the pandemic being the inflection point of their crisis, is that this narrative obfuscates the fact that migrant workers were much in need of the Court’s ire towards the government even prior to this pandemic.

Also read: UP: Reverse Migration of Workers Begin After Failing to Find Work Under MGNREGA

At some points in the judgment, the Court is itself forced to reckon with the gravity of this reality. At paragraph 13, the Court observes that, as of 2018, unorganised workers form more than a fourth of India’s 1.3 billion strong population. That is an astonishingly large number of citizens, for any self-declared welfare State, that are living as daily wagers and dependent on the state’s benevolence and political will in order to survive.

The Court then proceeds to observe, in paragraph 20, that the central government and the state governments had floated various schemes for unorganized workers, but the “sad picture of the ground reality” was that most beneficiaries were unable to access them. The Court states that it had earlier issued various directions regarding the registration of unorganized workers and that “the progress has not been satisfactory rather shows lethargy on the part of the concerned Government.”

Failure of the State: non-implementation of existing legislation

The judgment makes a reference to the “sad picture of the ground reality” with regard to the implementation of existing laws and schemes thereunder. At this juncture, it is clear that while the Court is ready to recognize the immediate consequences of this observation, it has swept its obvious implications under the rug.

The Court refers to three legislations, namely the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (ISMW Act); the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (BOCW Act); and the Unorganized Workers’ Social Security Act, 2008. Two of these legislations have been in effect and, by implication, have been the duty of the Indian executive to implement, for more than two decades.

It is here that the sobering reality of the silence of this judgment starts to become uncomfortably loud.

The above mentioned three legislations require the registration of workers and employers to ensure that scheme benefits can reach the workers. In effect, registration becomes the exclusive access point for social security and it is the responsibility of the State to set up a prompt, effective, and worker-friendly infrastructure for the registration of beneficiaries.

The reality is, and the judgment itself is unable to avoid this truth, that India’s migrant worker social security legislations have pathetic coverage. A report by the Azim Premji University notes that the registration rates under the BOCW Act stand at about “52.5 per cent at a national level, there is considerable heterogeneity across states, with rates as low as 11 per cent in Assam and 18.6 per cent in Bihar.” This only goes to show that crucial social welfare legislations are poorly implemented and every day of their non-implementation comes at a heavy cost for the daily lives of migrant workers.

For daily wage earners, with little to no savings, the inability to access government sponsored schemes is a matter of life and death.

At paragraph 46, the Court notes that the affidavits filed on behalf of different states and union territories did not give any facts and figures pertaining to the implementation of the ISMW Act, and that the non-implementation of the ISMW Act adversely affects the rights of migrant workers.

The Court is quick to couch the fact of this non-implementation in the language of rights but seems to make no observations on the damning indictment of that construction. If the non-implementation of social security legislations is a violation of the rights of migrant workers (admittedly forming a fourth of the nation’s population), then how do we measure the extent of this infringement when these legislations have not been properly implemented for more than 40 years?

Gap between rhetoric and practice

The necessity of a contrapuntal reading is to show that this judgment ends up masking the violence of some of the facts it hosts and the implications thereof. India’s migrant worker population lives at the intersection of an increasingly neoliberal economy and a poorly implemented welfare State. While India’s welfare legislations and schemes get enmeshed in judicial orders and political proclamations, every day of their non-implementation comes at the unmeasurable human cost of the welfare of the country’s migrant worker population. While not expressed directly, this failure of the Indian State to fulfil its constitutional commitments is writ large in the silences and omissions in this order of the Supreme Court.

Also read: COVID-19: Migrant Workers’ Plight Continued to Grow Through Second Wave, Says Report

In fact, near the end of the order, at paragraph 75, even the Supreme Court is unable to mask the obvious truth. Remarking upon the affidavit of the Union of India with regard to the process of registration of unorganized workers, the order, that deserves to be quoted in full, reads:

“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.”

In a terse and perhaps restrained remark, the order could not help but draw attention to the same image as the one found through the contrapuntal reading. The uncomfortable silence in the order points to a giant gap between the rhetoric and praxis of social welfare in India. The long-standing non-implementation of welfare legislations is evidence of the same.

The order of June 29  stands as a testament to the fact that at the ripe age of 70, and more than two decades after the enactment of important welfare legislations, the Indian State still needs to be reminded of its duty towards its most vulnerable.

Beyond court orders: remedying state lethargy

To be clear, this is not a critique of the directions of the Supreme Court. It is amply clear that it would take more than a court order to correct this injustice.

In fact, the Supreme Court, in a remarkably similar order in National Campaign Committee for Central Legislation on Construction Labour, directed the State to implement the BOCW Act in good faith on March 19, 2018. Just like in In Re: Problems and Miseries of Migrant Labourers, the Supreme Court passed directions, couched in the language of rights, regarding the registration of workers and employers and monitoring the implementation of the said Act. Two years on, the Court found itself issuing the same directions again.

It is evident that it is not just pandemic related consequences, but something more fundamental that needs remedying. While we wait for that correction, in the words of the Hon’ble Supreme Court, “unorganized workers are waiting for registration and are waiting to reap the benefit of various welfare schemes of the States and Centre.”

(Sreeram VG works as an advocate in the chambers of Senior Advocate Gayatri Singh at the Bombay High Court. His main practice areas are labour and human rights. The views expressed are personal.)