aCOVID 19 Lockdown and Human Rights of Migrant Labourers

A Pandemic is fast evolving, becoming a human rights crisis. The foremost priority for the
government, has been to contain the virus and curb the graph. However, on the way, the
people most noxiously impacted are those who were marginalised and for whom social
distancing is a myth. India is a State Party to the International Covenant on Economic, Social
and Cultural Rights (“ICESCR”), where India “recognises the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health”. However,
the right to health is not absolutely guaranteed, as it is been expounded in Article 4 ICESCR.
All efforts to enhance and promotion the realisation of this human right have to be balanced
with its effects on other human rights which mean the nexus shall be maintained one right
cannot overshadow the other. Furthermore, the right to health itself is somewhere related and
dependent on various other human rights enlisted, inter alia non-discrimination, privacy and
access to information, to unfold fully. The pandemic could provide government a pretext to
undermine democratic institutions, quash legitimate dissent or disfavoured people or groups
even ignorance of voices in a democracy. The International Covenant on Civil and Political
Rights (“ICCPR”), of which India is also a member state, offers protection of such rights. It
only allows a derogation from obligations being bestowed to the state in case of national
emergency under Article 4.1. However, for it to be invoked, two fundamental conditions need
to be fulfilled.: Firstly, the situation of the state must amount to a public emergency that
threatens the life of the state, and secondly, the nation must have proclaimed the state of
emergency. As, the clause is conditional, and the under the absence of such proclamation, all
of the obligations under the ICCPR continue to apply. The state is hereby bounded to protect
not just human rights because they are non-derogatory in nature, but also because they form
an integral part of the right to health. The coercive measures may be justified in certain
situations, but excessive force risks backfiring in devastating ways some forces where used to
annihilate the voices1, who have wished to go back their home state. India is currently under
largest unprecedented and uncertain lockdown in the world, with over 1.3 billion people
locked inside. In a bid to flatten the growth curve, the Indian government seems to have
disregarded basic human rights of millions of immigrants, as an opportunity cost of saving

1
Anisha Sircar, India’s coronavirus lockdown is bringing out the worst in its police force, Quartz India ( March
28, 2020), Available at: https://qz.com/india/1826387/indias-coronavirus-lockdown-brings-police-brutality-to-
the-fore/
the population from the widespread disease. The right to seek and receive information is
entrusted and protected by Article 19 ICCPR; the CESCR considers it an important aspect of
the right to health, and providing “access to information concerning the main health problems
in the community, including methods of preventing and controlling them” is understood as
core obligation of the state and with, a mere 4-hour notice before the implementation of a
countrywide lockdown goes against the soul and spirit, of this right as it left the immigrants
labours of country wide unorganised sector, clueless and unprepared to take care of
themselves for the coming days. Article 12.1 of the ICCPR protects the people of the member
state, “right to liberty of movement” within the territory of a State. This right can only be
restricted on exceptional grounds, these restrictions must be necessary and non-arbitrary,
provided by law, and consistent with the other obligations of the Covenant. Since the
nationwide lockdown, stories on the plight of migrant daily wage-earners have flooded the
internet. With non-essential business and all public transport services shutting down, and thus
daily wage earner lost all their prospects of income, the daily wage earners found themselves
with only one indubitable option – walk hundreds of kilometres back to their home village.
The stress to survive the lockdown overshadowed the stress to survive the disease. More than
30 of daily wage workers have reportedly died due to this lockdown. Long-standing
inequalities and unequal underlying determinants of health are leaving particular individuals,
as immigrants and groups disproportionately affected by the lockdown. Even, The UN
supports the time limits some member states have imposed on special emergency powers and
periods of review, but have also asked to align with human rights law. Health care workers
across the world have been battling and being the frontline warriors – in India, without
protection equipment. Article 12.2(c) of the ICESCR requires states to take steps for the
prevention of occupational diseases. This requires health workers to be provided with proper
health information and most importantly with suitable protective clothing and equipment.
Indian doctors/ Healthcare workers have been treating Covid-19 patients without access to
proper personal protection equipment (“PPE”), dominantly relying on homemade hazmat
suits, masks and sanitisers. The Government did very little to ensure the protection of health
workers with their poor and inefficient procurement policies, delaying in framing
guidelines for the manufacture of PPE. With the guidelines coming in with the imposition of
the lockdown, supply side constraint led to be a herculean task for the government.  Latest
news reports show that over 548 doctors have been tested positive for Covid-192. In
2
Harshit Sabharwal, 548 doctors, nurses, paramedics infected with Covid-19 across India: Report, The
Hindustan Times, ( May 6, 2020), Available at: https://www.hindustantimes.com/india-news/548-docs-nurses-
particular, giving just a 4-hour so-called notice before shutting down the entire nation is
incompatible with these obligations and derogatory in nature. Even though providing safety
to one-sixth of the world’s population is a mammoth task, the lockdown would have been
better implemented with high effectiveness and efficiently, it would had even done in a
phased manner to allow individuals to plan, prepare, and take informed decisions. Although a
large population of India lives a day-to-day life, a phased lockdown would have provided
them with the ability to at least reach their villages safely instead of either covering hundreds
of kilometres on foot or fearing for their lives in shelter homes with lack basic facilities.

paramedics-infected-with-covid-19-across-india-report/story-o2pM3w2adM4g3PXI6TBlkN.html