(A fact-finding report by the Kerala unit of All India Lawyers Association for Justice AILAJ.)

The immediate aftermath of the incidents of reported violence by migrant workers at Kitex garments Kizhakkambalam, Ernakulam in the late night of 25th December 2021 was that criminal cases were registered against migrant workers and about 174 of them were arrested, with the media reporting screaming headlines such as “Kitex migrant workers in Kochi go berserk, attack cops”  and “Migrant labourers of Kitex wreak havoc in Ernakulam; several policemen injured” . Subsequently, several versions have emerged of what actually transpired on that night. What also emerged were reports of arrest of scores of migrant workers who had nothing to do with the incident, their difficulties in accessing legal representation and bail, and, the inhuman living and working conditions of the migrant workers in Kitex factory. In this situation, AILAJ – Kerala constituted a Team constituting of Advocates Jaykumar S. Theertham and Ubaidulla Farooq to visit to conduct a Fact Finding inquiry into the circumstances surrounding the events that transpired on the night of 25th December 2021, the social realities of the migrant workers and the status of their trial court proceedings.

The Team conducted its inquiry on 29.01.2022 by visiting Kitex garments factory to meet the other migrant workers and the management, and meeting with other concerned persons including Mr. George Mathew of Progressive Workers Organisation and Advocate B.A. Aloor who is representing several arrested migrant workers.

The incidents

The Team learnt that in the late night of 25th December, 2021, there was a tussle between  amongst the migrant workers and also with the security guards on account of loud celebrations of Christmas by one group of migrant workers. The security guards informed the police authorities. The police came and only heard the security guards without hearing what the migrant workers had to say about the events that transpired.  That led to the disturbances with the police. This led to two FIRs against the migrant workers registered by the by Kunnathunadu Police Station, being Cr. No. 1587/2021 and Cr. No. 1588/2021.

Cr. No. 1587/2021 alleges a crime at about 02.00 a.m. on 26th December 2021, and has been registered against “identifiable 100 persons” for offences punishable under sections 143, 144, 147, 148, 324, 326,307, 333, 353 r/w 149 of Indian Penal Code and section 3(1) of the Prevention of Damage to Public Property Act, 1984. The complainant is Inspector and SHO of Kunnathunadu Police Station. The allegation in the FIR is that the police received information that migrant workers of Kitex Garments Company were indulging in group clashes and hence the police went to the spot at about 00.30 early morning on 26th December 2021, where they found a group of armed people comprising about 100 workers of Kitex Garment Company who assaulted the police and destroyed the glass of the department vehicle.

Cr. No. 1588/2021 is in regard to alleged crime at around 0030 hours in the morning of 26th December 2021 against identifiable 200 persons” for offences punishable under sections 143, 146, 148, 332, 323, 324, 342, 427, 436, 440 r/w 149 of Indian Penal Code and section 4 of the Prevention of Damage to Public Property Act, 1984. The allegations in the FIR are that the accused migrant workers engaged in group clashes and violence at Kitex factory, assaulted and injured the police and destroyed police vehicles.

As per available information, in Cr. No. 1587/2021, 51 migrant workers hailing from Manipur (5), Assam (12), Uttar Pradesh (4), Bihar (4), Jharkhand (23), Odisha (1), and West Bengal (2) have been arrested. Further in Cr. No. 1588/2021, 174 migrant workers hailing from Uttar Pradesh (18), Bihar (7), Jharkhand (77), Manipur (6), Assam (31), West Bengal (16), Rajasthan (1), Odisha (14), Chhattisgarh (2), Tripura (1) and Nagaland (1) have been arrested. The 51 migrant workers charged in Cr. No. 1587/2021 are also charged in Cr. No. 1588/2021.

According to the various persons spoken to, only 15 to 20  migrant workers and the whole security guards were  involved in the incidents but the police has ignored the workers' side and instead registered criminal cases against them. It is interesting to note that the Kitex managing director Sabu M. Jacob has also claimed that only 23 migrant workers were involved in the incidents and that the others are innocent.  Incidentally, one of the security personnel at Kitex factory, on the condition of anonymity, informed the Team that hardly 15-20 migrant workers were involved in the incident and this was evident from the CCTV footage that has been handed over to the police by the management.

Thus from all available information, it appears that a small number of migrant workers were involved in the incidents, however 174  are now arrested and will have to face a criminal trial. The police arrested the innocent workers sleeping inside the camp. It is also learnt that the migrant workers were now in an extremely precarious condition, especially with the management allegedly using this incident for blackmailing  the other migrant workers. There is a strong suspicion of collusion between the management and the police in the registration of the criminal cases and arrests of migrant workers.

Status of trial court proceedings:

As stated above, 51 workers have been arrested in Cr. No. 1587/2021 and 174 workers are arrested in Cr. No. 1588/2021. It is seen that the 51 workers charged in Cr. No. 1587/2021 are also charged in Cr. No. 1588/2021.

Mr. George Mathew informed the Team that since the management washed their hands off the workers and failed to secure any legal representation for the arrested migrant workers, the District Legal Services Authority assured  that they will provide free Legal Aid to the arrested workers. However, later Advocate B.A. Aloor has filed vakalath on behalf of large number of arrested migrant workers. Advocate B.A. Aloor informed the Team that the case was brought to him by relatives and representatives of the arrested workers due to the inactivity of legal service authority. He assured the Team that efforts are underway to secure bail for all arrested migrant workers. He confirmed that the Kitex management had done nothing to secure legal representation of the arrested workers and was unconcerned with the welfare and release of the arrested migrant workers. Advocate B.A. Aloor informed that bail order have been passed in regard to 22 workers but the bail conditions required were rather onerous mandating local surety, which is clearly a big problem.

Social conditions leading to the incidents

That migrant workers are a neglected section of the working class barely needs to be said. Indeed, it took the Coronavirus pandemic and the unplanned lockdown that exposed the social reality of migrant labour, those oppressed sections of rural India travelling to all parts of the country in search of survival wages. Their lives of precariousness marked by inhuman living conditions and oppressive working conditions with no job, wage or social security was laid bare for the country to see. To use Jan Breman’s classification, these workers comprised the  sub-proletariat, that largest group in the urban labour force, including not only casual and unskilled labourers but also those who are employed by small-scale enterprises, and the lack of dignity and stigma that they face makes them feel powerless.

Kerala has been using the nomenclature “guest workers” instead of migrant workers and the first known use is perhaps was the then finance minister F.M. Issac’s budget speech  in 2018 where it was said that workers from other states would be known as “guest workers” in government records. The Chief Minister Pinrayi Vijayan, and other government officials, made “atithi thozhilalikal” a common word during the lockdown.  However, as the Kitex situation has revealed, this change in nomenclature has not translated into a change in the social realities of the migrant workers.

Kitex Garments is the world’s second-largest children’s garments producer and its clients include global majors such as Gerber, Carter’s, Wal-Mart, Amazon, among others.  According to Mr George Mathew,  Kitex employs more than 1000 migrant workers from various states Central North and North-eastern parts of the country. most of the migrant workers belong to the Dalit and Adivasi communities and several are uneducated. They do not know the local language and are comfortable only in their own language. The migrant workers are housed inside the Kitex factory premises in “labour camps”, where the living conditions are dismal. The management bars any entry to the labour camps and the workers too are not allowed to go outside unless permission is granted to them. The cumulative impact of these conditions is that the migrant workers are denied any interaction with the residents of the village in which it is located and as such there is no relationship between the migrant workers and the resident population. It is learnt that the migrant workers, after their normal work hours, were deployed by the management to perform their personal work. Mr. George Mathew informed that the migrant workers did not enjoy the rights available to workers and there was no Trade union in Kitex factory. He also informed that he had attempted a union of migrant workers but his efforts were foiled by the feudal attitude of management that treated the migrant workers like slaves.

In fact, it is learnt that one of the basic and primary reasons for the tensions was that the migrant workers were not allowed to leave the “labour camps” located inside the Kitex factory premises, and that no one, let alone trade unions, are permitted to come in an interact with them. An investigative report  into these incidents reveals two reasons:  Firstly, growing anger among the migrant workers forced to live in poor and inadequate conditions. Secondly, simmering tension between migrant workers and residents of the area due to the environmental pollution caused by the garment factory. The investigative report also acknowledges the rampant xenophobic messages against migrant workers and clarifies that the local Kizhakkambalam residents do not harbour any ill will against the migrant workers and instead are sympathetic towards them. Indeed there are fears that this incident may further aggravate the discriminatory treatment of migrant workers across Kerala.

The Team learnt this first-hand when they visited the Kitex factory and tried to meet the migrant workers. Kitex’s security personnel outrightly refused to allow the Team to meet and interact with the workers. The Team was told that they would allowed inside only on the “orders of Managing Director Sabu Jacob”, without which no one can enter and talk to the workers. In fact, since Team insisted on meeting with the workers, either inside the premises or outside, the security personnel grew belligerent and adamant. The Team, on the spot, drafted a letter to Managing Director Sabu Jacob highlighting these issues. Initially the security personal refused to accept this letter and instead directed the team to the HR managers, but the persistence of the Team paid off and they were compelled to receive and acknowledge the letter. While the Team was outside the factory, they chanced upon a migrant worker, who was petrified when they tried to speak to him and refused to say anything about the incident.
This locking up of migrant workers inside Kitex’s gates, refusal to allow the Team, or anyone else, to meet them, has to be seen together with the refusal of the management to secure legal assistance to the arrested workers or help them in any way at all.

According to reports, after the incident, the State Labour Commissioner, Smt. S. Chithra, led a team from the labour department and held an inquiry into the conditions of the labour camps inside Kitex factory. The report in regard to this inquiry is yet to be made public. However, from the visit of the Team, it is clear that the situation is alarming.

Recommendations:

Regarding migrant workers in Kitex Garments Company:

1. The current living and working conditions of the migrant workers in Kitex Garments Company are in direct contravention of various labour statutes including the Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. The State Government and the Labour Department have to conduct an immediate inquiry into the living and working conditions of the workers and ensure all remedial measure are taken, as also action against the Kitex Garments Company.


2. The State Government and the Labour Department must ensure that the migrant workers are not treated as slaves and locked up in the “labour camps” and instead have full freedom of movement and access to trade unions and other organisations.


3. The Labour Department shall ensure compliance, in letter and spirit, of section 3 of the Industrial Disputes Act, 1947 regarding the constituting of Works Committee and Section 9C regarding Grievance Redressal Committees.


4. It is a matter of grave concern that an establishment employing such a large workforce, and that too poor migrant workers, does not have a workers Union. In order to ensure strict compliance with laws and the balance between employers and workers, it is absolutely essential that a strong trade union system is present. The right to organize and collectivize is protected under Article 19(1)(c) of the Constitution and in order to ensure that it is given complete meaning, it is necessary that the Labour Department take necessary steps to inform workers of their right to organize and collective bargaining. In protecting the fundamental rights of workers guaranteed under Article 19(1)(c) and 21, there is a positive obligation on the State to remove all obstacles in the enjoyment of these fundamental rights.

Regarding criminal cases and arrested migrant workers:

1. All the arrested workers must be unconditionally released and the criminal cases against them must be immediately withdrawn. It is necessary to note that incidents of 25th/26th December 2021 have occurred in the context of an extremely exploitative sweat-shop like working conditions in gross violation of labour laws. Under these circumstances, when workers have been pushed into an extremely vulnerable situation already, the State Government must understand that the filing of criminal cases and arrests of workers is only going to further deteriorate their situation and would serve no other purpose. As such the State Government must consider dropping of all charges against the workers.


2. We request all the advocates representing the accused migrant workers to conduct the cases pro bono (free legal representation). The State Legal Services Authority must ensure that the arrested workers, who are unrepresented to date, are immediately provided free legal aid and representation.