The invisible virus and the invisible people – How law can make our soldiers fighting corona visible?

The 'invisible' sanitation worker only comes within our range of vision when there is a 'disaster' such as a Coronavirus pandemic or when one of them falls into a manhole. What is also often forgotten is that the casual or contract worker is usually a Dalit worker, and is doubly exploited. Yet if in the post-Corona world, we wish to really honour them, there is a way of doing it, without banging thali or lighting diyas, read on: 

If you want to know a person's true character, observe how he treats those who don't matter.
― Matshona Dhliwayo

ONE of the ironies of this global pandemic is that suddenly we, as a society, from our grotesquely built urban high rises, have been forced to accept that those who don't "matter", in fact, do if we are to save the human civilisation as we have built it to be. In the list of people who didn't  "matter" Before Carona Epidemic (B.C.E) and who now do, can be included that manual scavenger, the safai karmachari (now known as the more politically correct "sanitation attendant"), the nursing orderlies in the government hospitals and finally, the underpaid government hospital doctors.

It took a virus from a wet market in Wuhan to make a transcontinental journey across thousands of kilometers leaving thousands dead and millions economically devastated in its wake, to reach our country for us to sit up and finally notice these hitherto invisible people.

Today we are circulating to our WhatsApp groups, from the safe confines of the sanitised innards of our home, Lakshman Rekha-ed by a 21-day lockdown, video clips of a safai worker being showered petals by residents and garlanded.  What better time than now to ask: How has our society and our legal system treated these "invisible" people?

The public employer

Public health and sanitation are mostly municipal functions.  The three-tier system in India (which has now even received a constitutional blessing through the 74^th Amendment) places the Nagarpalika at the helm of employment and engagement of personnel to get these services provided.

However, a few obstacles have impeded our municipal bodies over the years in the efficient discharge of these functions. One has been the sheer bureaucracy involved in recruiting manpower. Framing of recruitment rules, securing financial approval and sanction for creating additional vacancies, requisitioning from the commission tasked with public recruitment and finally ensuring selection and appointment of municipal staff are, sadly, processes with proverbial inbuilt delays and red-tape. As engagement by a municipal body would be public employment, it being "State" within the meaning of Article 12 of the Constitution of India, the rigors of public selection mandated by Article 16 could not be dispensed with.

Obstacles breeding exploitation 

The second obstacle has been the perpetual curse of public bodies, not all as cash-rich like the Brihanmumbai Municipal Corporation whose budget can even put some small Indian states to shame.

Resultantly, while our cities have expanded over time, its bowels taking in lakhs of migrants from the rural hinterland and smaller towns over the years, creating a telling strain on the municipal services, the corporations have a uniform miserable record in playing catching up.

While red tape and lack of funds may delay municipal recruitments, municipal waste could not afford the luxury of waiting.  For that matter neither could hospitals, nursing homes and dispensaries ask disease to pause until their required doctor and para-medical human recourses stood replenished.

Necessity is the mother of invention and two devices came to the rescue of these bodies.  First was daily wage employment. This meant that the workers /employees such as safai karmacharis and beldars would be taken on daily wages and paid only for the days that they worked. These rates would be way less than what the regular full-time employees would make. Also, such employees would be denied the allowances and facilities such as permanent employees would be entitled to.

Even retirement benefits like pension etc would not be payable to such employees. Overtime as courts frowned upon daily wage arrangements, corporations started engaging workmen on "fixed contracts".  These were also a sham as many employees would be on these 'fixed contracts' for years on end with a convenient day's break enforced between two terms for the pretense of non-permanence. Even these contract employees would be denied parity of wages/salary with the regular employees.

What was to be a transient arrangement, until, say, recruitment rules were amended or additional vacancies sanctioned or the recruitment formally is undertaken, stood continued for years on end as it cost less on the purse strings of the public employer and was a less inconvenient process.  Also, one must concede, as the formality was absent in the selection process, there was a propensity to accommodate the political requests of the corporate or even worse, actually "sell" the posts for money.

Over the years, such employees started demanding some form of permanence, as well as parity.  Various High Courts adopted divergent approaches.  Some directed the public employers to formulate their own schemes, while others ordered the "regularisation" of the employees directly.

Steel authority and Uma Devi – Court obliges

The issue reached the Top Court in Uma Devi's case.  This case was decided in the backdrop of an era (1990-2010) when India, post-collapse of the Soviet Union, was gradually shedding its socialist baggage and opening up its economy.  The government of the day was conscious that with a change-averse workforce and militant trade unions, the legislative route was a no-go.  It was simply fraught with too much political risk.  The unelected branch of government, which was insulated from popular politics, was obliging.  In fact, in the case of another exploitative device that had been resorted to by the public employer, namely "contract labour", the Court had rescued the government with aplomb.

"Contract Labour" was a device which was resorted to by the public employer to even rid itself of the minimal inconvenience which a daily wager or fixed contract employee would have caused.  Here the entire task is hived off to a "contractor" who simply would hire his own workers and depute them in the establishment of the public employer.  In most cases, this was a sham device as the "contractor" was a name lender. The direct control would remain in the hands of the public employer.  Employees moved High Court and Courts directed that such employees be "absorbed".

This course even received the Top Court's nod in Air India Statutory Corporation'sCase.  The Government found this inconvenient as it defanged the "contract" system of its exploitation quotient. It took its disquiet to the Constitution Bench of the same court and the Court obliged in Steel Authority of India's Case.   The Court reversed Air India Statutory Corporation's Case and held that a writ court could not go into such disputed questions of fact and relegated the contract workers to decades of litigation under the Contract Labour (Regulation and Abolition) Act, 1970 and the Industrial Disputes Act, 1947.

In Uma Devi, the Court again repeated its rescue mission and closed the doors of the High Court for the exploited daily wager and contractual workers seeking regularisation.  The Court noted the distinction between "irregular appointments", those where the appointment process suffered from very minor or technical defects, and "illegal appointments", those where unqualified persons were appointed to unsanctioned posts, thereby striking at the very root of the recruitment process. It ultimately put an end to the practice where individuals would secure initial appointment through what the Court considered were uncompetitive backdoor channels, in flagrant violation of an existing and active scheme of public employment, and then subsequently petition the courts, seeking regularisation.

It, however, carved out an exception, whereby irregular employees working for more than 10 years against a duly sanctioned post without the intervention of any court, had to be regularized. The regularisation process had to be set in motion within 6 months from the date of judgement. A little known fact is that in fact in terms of this direction, the State of Karnataka "regularised" thousands of employees.

Even a decade after Uma Devi, this "exception" has ensured that the hopes of the exploited are not extinguished.   The Courts are still trying to flesh out the contours of this exception and if I may be bold to call it out- this has emerged as the "rarest of the rare doctrine for imposition of death penalty" equivalent in public employment law.  It is subjective and judges centric.

Also, what does this "one time" exception mean?  The greatest failing of Uma Devi was that it did not have the moral courage to call out this practice as exploitative.  In fact, the Court upheld the right of the employer to continue with such daily wage or contractual employment.  This emboldened the public employer and even after selective "regularisation" in some establishments, and none in others, they continued with this practice.

For instance, in Narendra Kumar Tiwari, the Supreme Court took note of the fact that the State of Jharkhand chose to continue with irregular appointments, even after a decade since the judgement in Uma Devi, and termed it exploitation of employees.

In Nihal Singh's case, the Court found that there could be no justification for the State to first utilise services of employees as "temporary engagement" for decades together, and finally refuse to absorb them into regular service, citing the lack of "sanctioned posts". Such a defence did not find favour with the Court, which held it to be the solemn duty of the State to rationally assess its needs and create sanctioned posts, in a timely manner.

Similar directions for proper assessment of manpower needs, creation of a requisite number of sanctioned posts, and consequent regularisation of contractual employees were issued by the High Courts of Delhi and Rajasthan.

Equal pay

The twin exploitative features of this system were lack of permanency and denial of pay parity with permanent employees.  The Supreme Court has time and again upheld the principle that all public employees would be entitled to equal pay for equal work. In Dhirendra Chamoli, the Supreme Court held that denial of same salary and prerequisites to contractual employees, as received by regular employees, for the same work, violates not only Article 39(d) of the Constitution, but also the fundamental right to equality enshrined in Article 14, which amounted to a clear case of exploitation of the workers. Of course, the courts have also made it clear that while granting the relief of "equal pay for equal work", due regard must be had for the qualifications, nature of work, responsibilities discharged and experience if the concerned employees.

In State of Punjab vs Jagjit Singh, the Court held:

The Corona-Conundrum

A few weeks before Corona hit us, I was pressing the case of 18 contract doctors engaged by the South Delhi Municipal Corporation who were seeking "regularisation" before the Central Administrative Tribunal has put in long periods ranging from 13-17 years.  All had breached the 10-year threshold set by Uma Devi.  These doctors had the qualifications as per Recruitment Rules.  They had been selected by an expert Committee after having applied pursuant to a public advertisement. The only hitch was as the Corporation had to formally requisition the Service Commission for selection of candidates, they were given "temporary contract" employments. It was a different matter that such an alleged transient arrangement went on for over a decade with over 20 extension orders with an enforced day's break between each order. Their plight had even melted the deliberative body of the Corporation which had passed a resolution demanding they be made permanent.

What surprised me is the vehemence with which the Corporation opposed these doctors in court.  Who forced them to work?  They had no other place to go, could not compete and so held on to these posts.  We have done them a favour by allowing them to work.  Sadly, this insensitivity of the public employer found judicial approval and sanction. Their cases were dismissed.

It is therefore with great amusement that, post-pandemic, I read a newspaper report that when four contract doctors (not the ones who had litigated) faced with inadequate safety gear, wanted to hand their boots, the same Corporation responded with outrage.  How can you leave? (the fastest turn around from "who forced you to work?" that I have witnessed).

The path ahead 

Having been a ringside spectator to judicial and institutional insensitivity to the plight of the marginalised labour, pardon me if I should find this post-Corona pot-pan Banging, lamp lighting, PM-CARES donating sudden compassion a little amusing!

It is now beyond the pale of dispute that the front line soldiers in this battle against the epidemic are these very "invisible" people whom we as a system have short-changed for too long.  It is time to go beyond the sound and light!

Public interest litigation has been initiated before the Supreme Court to drawn attention to the plight of the migrant labour displaced by the pandemic.  The Learned Solicitor General, a lawyer from Gujarat, has opposed the same, making a passionate call to even shut the "PIL Shops" during the emergent times as they distracted officials from real work.

In fact, I am of the opinion, there is no better time than this for not only the Court but the entire society to nudge the Government to put its money where its mouth is and direct it to announce that post the pandemic, all government, and municipal contract/daily wage staff, who have selflessly served the public at great personal risk, shall be honored with their services being regularised.  Imagine what an incentive and recognition such a step would be!  Conceded, that the responsibility would be of respective states and municipal authorities.  However, like in many Centrally funded schemes, the funds for such regularisation can certainly be made available by the Central Government.

This time the Court, the nation and our government, should listen to the voice of another Gujrati lawyer instead.  He had given us a talisman, to guide us in our moments of doubt.  It was:

Sanjay Ghose is a lawyer practicing in Delhi Courts.