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May 31, 2020
By: Venkatesh Nayak
Readers might remember my previous despatch about an RTI intervention to obtain access to information about migrant workers stranded in different parts of the country since the nation-wide lockdown to contain the spread of COVID-19 began on 25th March 2020. On 8th April, 2020, the Chief Labour Commissioner (CLC), under the Union Ministry of Labour and Employment had issued a D.O. letter to the Regional Heads stationed in 20 different places across the country to collect details about every stranded migrant worker and send it to New Delhi within three days. On 5th May, 2020, the Central Public Information Officer (CPIO) had claimed in an unsigned reply, that the Statistics Section of the Office of the CLC did not have this information. I filed a complaint with the CIC, the same day.
On 27th May, 2020, the Central Information Commission (CIC) conducted an out-of-turn hearing of my complaint against the CPIO's reply, treating it as a matter deserving urgent attention. Now the CIC has issued an advisory to the CLC under Section 25(5) of The Right to Information Act, 2005 (RTI Act) requiring him to cause all available information about stranded migrant workers to be uploaded on an official website within a week's time, in accordance with Section 4 of the Act. This information is required to be updated from time to time.
Click here to read the CIC's decision.
The RTI Intervention
Click here for the RTI application.
The CPIO's Reply
Click here for the CPIO's reply.
The Complaint submitted to the CIC
Click here for the text of the Complaint. I submitted the following grounds in support of my prayer for proactive disclosure of data about migrant workers:
1) that all the Regional Heads to whom the CLC addressed the D.O. of 08/04/2020 are subject by law to his administrative jurisdiction. There is no reason why the Regional Heads would not have complied with the instructions of the Respondent Public Authority to complete the enumeration exercise and send the data within the time period specified in the said D.O.;
2) that the information sought concerns the lives of not just one person but all migrant workers residing within the territory of India due to the widespread effect of COVID-19. This Complainant searched the website of the Respondent Public Authority for information sought in the instant RTI application before submitting this Complaint After finding that none of the information is disclosed suo motu on the said website, he felt constrained to seek access to such information formally, not for himself alone, but for the benefit of the taxpaying citizenry at large who are dependent on such migrant workers directly or indirectly in a myriad ways;
3) that all the information sought in the instant RTI application is that which ought to have been disclosed by the Respondent Public Authority proactively under Sections 4(1)(c) and 4(1)(d) of the RTI Act read with Section 4(2) of the RTI Act, so that people are not required to file formal RTI applications to obtain access to it;
My additional submissions to the CIC
The CIC granted an out of turn hearing within three weeks of receiving my complaint. On 27th May, 2020, the CPIO and I were heard via telephone because neither of us could travel to the CIC Bhawan during the the fourth phase of the lockdown. The CIC also took note of my additional submission made on the following points (verbally submitted during the hearing and followed it up in writing later on):
1) that as a founder member of the International Labour Organisation which was constituted 101 years ago, in 1919, India had ratified the Labour Statistics Convention, 1985 in April 1992. Under Article 8 of this Convention, India has accepted its international obligation to collect:
"Statistics of the structure and distribution of the economically active population shall be compiled in such a way as to be representative of the country as a whole, for detailed analysis and to serve as benchmark data."
This obligation includes the duty to collect information about migrant workers also, and that duty existed even before the CLC issued its 8th April, 2020 circular, I argued.
2) that according to the data presented by the Joint Secretary, Union Home Ministry, at a press briefing held on 23rd May, 2020, there were four crore migrant workers across the country. Of these 75 lakh had been ferried to their home States on trains and buses. Even the four crore figure was based on 2011 Census whose detailed Data Tables were released as late as in July 2019. So it is reasonable to expect that this figure had become obsolete and the actual numbers might be much more than what the Government was citing, I argued. Nevertheless, by the Government's own admission there were 3.25 crore migrant workers who had not yet returned to their home States, I argued. So the collecting and publishing of statistics about migrant workers was as relevant as ever because three quarters of them had to be accounted for.
Click here for my additional submission.
The CIC's decision and reasoning
The CIC took serious note of the issue of stranded migrant workers. In its decision, the CIC extensively cited from the orders of the Supreme Court of India (the suo motu case) and the High Courts of Orissa, Madras and Andhra Pradesh which have already taken judicial notice of the extreme levels of distress and suffering of migrant workers, resulting in scores of deaths.
The CIC has now issued an advisory to the CLC as follows:
"...an advisory is issued u/s 25(5) of the RTI Act to the Chief Labour Commissioner, to suo-moto upload maximum data as available with them in relation to the migrant workers stranded in relief camps or shelters organised by governments or at the workplace of their employers or generally clustered in any district and wherever possible cumulative numbers of the migrant workers and the names of the districts from where the data is collected should also be uploaded in compliance with Section 4 of the RTI Act, 2005, having regard to the peculiar circumstances prevalent in the country. The website should be continuously updated as and when additional data on this subject matter is received from time to time. The Chief Labour Commissioner is advised to ensure compliance of this advisory in letter and spirit and to submit a compliance report to the Commission within a period of 01 week from today. The present CPIO is directed to serve a copy of this order on the Chief Labour Commissioner for his immediate and necessary action." (emphasis supplied)
The CIC buttressed its decision with the following reasoning:
"Undoubtedly, the need of the hour is to get concrete data regarding the number of stranded migrant workers across the country so that necessary measures may be taken by the concerned State Governments/ UTs to provide some relief to them...
...The Commission while verifying the authenticity of this (additional) submission found that India has ratified Article 8 of Part II of the Labour Statistics Convention, 1985 on 01.04.1992 which is still in force and for the purpose of implementing the said ILO Convention, India is under an international obligation to collect data about all categories of workers across India even under normal circumstances. This makes it clear that the duty to collect data about migrant workers across India arises not solely from the said D.O. letter but first and foremost from the international obligation as a member of ILO who has ratified the said International Convention. Therefore, the Respondent Authority is under a bounden duty to collect information about migrant workers and make the same publicly accessible even during normal times...
...Keeping in view the submissions ... and the poor response from the respondent, the Commission considers the contentions of the complainant to be well founded, and strongly opines that what is required is to immediately place the data regarding migrant workers on the website of the Respondent Authority. It is pertinent to note that given the uncertainties of the present times, any further delay in disclosing these details or evading the disclosure will only compound the difficulties of either side, the government and that of the unfortunate migrant workers...
...Moreover, being a matter of national importance during this pandemic, it is likely that there will be more requests for information on similar lines from the citizens in the immediate future which necessitates expeditious action on the part of the Respondent office to voluntarily disclose as much data as possible so that citizens do not have to file RTI Applications to seek such basic yet significant information. Section 4(2) of RTI Act may be noted in this regard which mandates every public authority to provide as much information suo- moto to the public at regular intervals through various means of communication, including the Internet, so that the public need not resort to the use of RTI Act...
...Moreover, the purpose and object of the promulgation of the RTI Act, 2005 was to make the public authorities more transparent and accountable to the public and to provide freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto....
...The foregoing ... lend adequate emphasis on the need for the Respondent office to act in a manner which is favourable to dispensation of justice. Although this bench is conscious of the fact that under Section 18 of the RTI Act, directions for disclosure of information is not warranted, however, keeping in view the extraordinary circumstances that necessitated this complaint, it is prudent to cloak the requirement of the Complainant in the letter and spirit of the RTI Act. In doing so, the Commission invokes section 25(5) of the RTI Act and issues an advisory to the respondent authority to maintain a robust and dynamic website for placing all data related to migrant workers therein as and when it is received from different Regional Heads. At this point, it is necessary for the CPIO to put his best possible efforts to collect this data from different Regional Heads and place the same on their website immediately even if it is done in a piece meal manner. It is also necessary to continue to update this data from time to time as additional data is received from various quarters." (emphasis supplied)
The first step towards resolving a problem in public administration is to collect adequate information and data about the problem. That crucial step in the case of migrant workers was initiated late. Even now, there is very little credible information about the actual number of migrant workers stranded in various parts of the country. The CLC's D. O. of 8th April, 2020 was a step in the right direction, but its outcomes are hidden from public view. Meanwhile, innumerable migrant workers continue to suffer despite the well-meaning efforts of various authorities and private actors. I hope the CLC will take the CIC's advisory seriously and make data about migrant workers available in the public domain in real time. It is only on the basis of reliable information that further interventions can be planned in a systematic manner.
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