Kota Students Versus Migrant Labourers: A Tale of Bias and Discrimination During the Lockdown?

The argument IS, what makes a welfare state pull out its students and not it’s migrant workers. Is it because the stranded Kota students of UP were better off and more influential than their migrant labourer brethren?

Amidst the countrywide lockdown aimed at flattening the curve of the Corona pandemic, the “Kota factory” has become a controversial subject of debate. This is after the government of Uttar Pradesh decided to ferry back its students from the third most populated city of Rajasthan, Kota. The city of late has turned into a COVID-19 hotbed with the number of positive cases growing alarmingly every passing day. While the Madhya Pradesh government is following suit, actions on part of the UP government has exerted tremendous pressure on governments of Bihar, Chhattisgarh and West Bengal, something that these states are extremely uncomfortable with.

In the above conspectus, a very legitimate question has popped up i.e. Can there be a class bias and discrimination in dealing with the lockdown issues? The immediate comparison of the Kota students is made with the lakhs of stranded migrant workers. The argument being, what makes a welfare state pull out its students and not it’s migrant workers. Is it because the stranded Kota students of UP were better off and more influential than their migrant labourer brethren?

As I resolve to justify the UP government’s action, just to clarify, I am very well aware of the harsh conditions under which our migrant workers are spending their days. Their numbers stand close to half a million. The Central and the State governments have for a very valid reason restrained the movement of the migrant workers. As submitted by the Centre before the Hon’ble Supreme Court, there hovers a fear that the migrant workers might infect the rural populace, giving India a big setback in its fight against COVID-19. The Supreme Court agreeing to the same has directed the Centre to ensure food, water, shelter, medication and counselling to the stranded workers. The States have already set up relief camps and some states have started providing dry ration to the migrant labourers. NGOs, social welfare organisations and spirited individuals have pledged their full support to the needy. I understand, not all is well but things definitely have not slipped out of hand.

Critics have not connected the dots well. Close to 1.5 lakh students visit Kota every year. At a time when the entrance examinations for engineering and medical branches were nearing and preparations were at its peak, the Kota township should have sheltered the aspirants in its full capacity. In other words, all 1.5 lakh students should have resided at Kota. However, only 20,000 students from different states have been left stranded in Kota. Have the rest of the students, about 1.3 lakh of them left Kota? Yes, they have!! Let’s connect the dots. On 14.03.2020 the Rajasthan government issued an advisory to curtail the spread of COVID-19. From 15.03.2020, classes of all institutions across the state including those in Kota were suspended. The coaching institutes promised online classes, circulation of test papers over WhatsApp and various other innovative tactics to compensate for the physical classes. With these assurances, students, most of whom belonged to far off places and could afford the airfare, travelled back to their homes. Most of the students returned back. Students were vacating Kota and the number of students left out establishes this fact. On 21.03.2020, the Rajasthan government announced a pan state lockdown from 22.03.2020 till 31.03.2020. The buffer period of six days facilitated the travel of the rich but restrained the poor. Thus the obvious conclusion, the stranded Kota students, barring a few, of course, belong to poor and uninfluential families, who thronged the city of Kota, dreaming to make it big someday by qualifying for a reputed technical/medical college in the country.

Further, the incentive schemes announced by the Central and the State governments never aided the stranded Kota students. These students didn’t have Jan-Dhan accounts to get monetary benefits, no provision of dry ration was made for them, no petition was filed before the Supreme Court to their rescue nor did the Court take suo moto cognizance and pass an order to their aid. PGs (private hostels) were shut down, food wasn’t served and the students were asked to vacate. A student anywhere in the age group of 15 to 22 years, whose family had somehow managed to pay a hefty tuition fee, was left stranded in the midst of a life-threatening pandemic, with no governmental support. That’s the harsh reality that a stranded poor student of Kota faced.

In this futile comparison between Kota students versus migrant labourers, the numbers, a fixed place and a foreseeable extraction action plan also favours the students.

No doubt, executive policy decisions can be tested, on the touchstone of the violation of fundamental rights. Let’s now deal with them. Critics argue that the policy decision to bring back the students was a gross violation of Article 14 of the Constitution of India. Now the legal jurisprudence of Article 14, developed over time by a cantina of Supreme Court judgments brings before us two principles to test a law/policy decision on the premises of Article 14. The first being the “Nexus test” (also called the “Reasonable Classification test”) and the other being the “Arbitrariness test”. Elucidating the former, for a law/policy decision to qualify the Nexus test, it has to display two valid characteristics. The first that the law/policy decision must make a reasonable classification and the other that this classification must have a nexus with the object sought to be achieved through such law/policy decision. Applying the test to the policy decision of the UP government to evaluate the stranded students from Kota, there is no doubt of the existence of reasonable classification. The students are denizens of UP, their numbers are a few thousand (7-9 thousand) and they have been/are to be evacuated from a fixed place i.e. Kota. Quarantining and testing them seems both feasible and practical. The object of such a policy decision is repatriating the students and to secure their lives. There is a clear nexus between the classification made and the object sought to be achieved. The policy decision thus qualifies the Nexus test. I shall deal with the test of Arbitrariness at the end.

Then again, assuming without admitting that the decision to extract the students is illegal and wrong, the labourers cannot claim parity as per the concept of negative equality. Article 14 of the Constitution of India is a positive concept which cannot be enforced in a negative manner. To simply explain what the concept of negative equality means- When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on the ground of denial thereof to them.

By its order dated 19.04.2020, the Union Home Ministry has permitted intra-state movement of stranded labourers and has issued a Standard Operating Procedure (SOP) to facilitate their movement, keeping in place the social distancing measures. This shall surely ensure that the labourers are employed, which in turn help to kick start the economy.

We are in the midst of an unprecedented pandemic which has created havoc across the world. The right to life and personal liberty, as provided under Article 21 of the Constitution of India, is a compromised fundamental right of every Indian today. No doubt, the levels of compromise is varied.

Lastly, coming to the Arbitrariness test, one has to show that the law/policy decision is reasonable. One might just argue that the students have been arbitrarily cherry-picked while the labourers have been left stranded. Undoubtedly, in a crisis situation like the one the country is enduring, all states have their duties to make all possible efforts to ensure the safety of the maximum number of its denizens. Ensuring the safe extraction of a few thousand students from a fixed location, which is feasible, should not be stalled in the pretext of non-viability of extraction of a large number of migrant workers, who are stranded across numerous locations in the country. Something achievable is always better than nothing done. The decision thus is both sound and reasonable, and thus qualifies the test of Arbitrariness. This is precisely why other states alike UP, should extract their students from Kota and should follow suit, needless to mention adhering to all safety measures to prevent the spread of COVID-19.