This article has been written by Shilpa Patil pursuing a Diploma in Labour, Employment and Industrial Laws (including POSH) for HR Managers from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).
Table of Contents
Introduction
India has the largest immigrant population in the world, recording at a staggering eighteen million. The Draft Emigration Bill, 2021 aims to replace the existing Emigration Act 1983. Several reports have highlighted the grave exploitation of Indian workers overseas. The Emigration Act, 1983 limits the service fee chargeable and establishes government clearance of travel and work-related documents. Migrants face problems at various stages, corruption and involvement of middlemen.
The Emigration Bill 2021 “Bill”, provides a long-overdue opportunity to reform the recruitment process for nationals seeking employment abroad. It also provides for welfare committees, establishes a help desk and a three-tier institutional framework.
Key features of the Bill
There has been a growing number of reports of exploitative practices like large recruitment charges, contract substitution, deception, retention of passports, non-payment, and underpayment of wages, poor living conditions, discrimination, and other forms of ill-treatment of the Indian migrant workers.
1)The Bill intends to replace the Emigration Act of 1983.
2)The Bill foresees comprehensive emigration management, institutes a regulatory mechanism governing overseas employment of Indian nationals, and creates a framework for protection and promotion of the welfare of emigrants.
3)The Bill proposes a three-tier institutional framework –
- It launches a new Emigration policy division which will be referred to as the Central Emigration Management Authority.
- It proposes a Bureau of Emigration policy and planning, a Bureau of Emigration administration shall handle day to day operational matters and oversee the welfare of emigrants.
- It proposes nodal agencies under a Chief Emigration officer to ensure the welfare and protection of the emigrants.
- It permits government authorities to punish workers by cancelling or suspending their passports and imposing a fine up to Rs. 50,000 for violating any provisions mentioned in the bill.
- When the law is enforced, it can be used to crackdown on workers who migrate through unregistered brokers or through tourist Visas.
- The proposed legislation will also maintain registration of human resources agencies, validity and renewal and cancellation of a certificate.
- Apart from these, authorities will have rights equivalent to the powers of civil court.
Need of the Bill
Migration of labourers is governed by the Emigration Act, 1983 which sets up a system for hiring through government-certified recruiting agents, public or private agencies.
- It outlines compulsions for agents to conduct due diligence of prospective employers, sets up a capping on recruiting fees and generates a review by the government on travel and documentation process labourers.
- The Act falls short in addressing the wide geo-economic, geo-political and geo-strategic impact that emigration has today.
- From many years, independent investigations have disclosed various exploitation practices, such as: high recruitment fees, retention of passports, non-payment or under payment of wages, discrimination and other forms of ill treatment, health issues arising during mental stress and poor working conditions.
Loopholes in the Bill
Lack of human rights framework
- The Bill is criticised because it lacks the human rights framework which is required to secure the rights of migrants and their family members.
- In this law the migrant workers who use criminal ways to get things done and are punished because they are not aware of the law, get influenced by the middle man, or simply desperate to find a decent job.
- Migrant labourers in an irregular situation fear that they can be fined or have their passport revoked, do not make complaints or try to seek remedies for their problems.
- The migrants who go missing after travelling to other countries, this issue is addressed partially.
Act is not in sync with international standards
- The Bill allows manpower agencies to charge service fees to workers and even allows agents to set their own rules.
- As compared to the International Labour Organization, the principles of ILO state the employers will bear the recruitment fees instead of workers.
- Migrant labourers, go into heavy debts, because they lose their savings, take high interest jobs, go into debt bondage, just to find a job in other countries.
Gender aspect
- This Bill does not give clarity on the gender aspect of labour migration.
- Females are given less preference as compared to male counterparts. Females are likely to be employed in informal sectors and/ or isolated occupations in which labour, psychological and sexual abuse are common.
Typology of emigrants
Irregular migrants
- Irregular entrants
- Trafficking
- Withdrawal of Visa
- Asylum seekers
- Labour migrants
- Students
Section specific concerns
| Section | Clause | Concern |
| 2.1(e) | “emigrate” and “emigration” mean the departure out of India by a person with a view of taking up any employment, with or without assistance from recruitment agencies. | This definition does not include students and family dependents, these are two important categories of emigrants. |
| 2.1(f) | “emigrant “means any citizen of India, not below the age of eighteen years, who tends to emigrate in search of a job. | A portion of emigrants comprise students and may be below the age group of eighteen years. |
| 2.1(j) | “Human smuggling” means making arrangements for a person to enter into another country illegally of which the person is not a citizen or resident. Knowing that it is illegal to do so, entering the country for financial gains. | The term “illegally” should be replaced by “irregular.”The irregular entry of a person in a country, to make financial gains, of which he /she is not a resident. |
| 3(2) | The Bureau shall consist of a Chief of emigration policy and planning | The “Bill” provides multi-stakeholder responsibility which includes Government Officials and similar inclusion of non-governmental stakeholders such as recruiting agents, academic experts. |
| 5(1)(2)&(3) | With the view to prevent and check the contravention of the provision of the Act, it is necessary to set up check posts at such places as may be defined. | The “Bill” should consider setting up data collection centres at the check post. |
| 9(i)&(ii) | Maintain record in digital form: – The administration department of Government agencies should collect data of people travelling to other countries, from the bureau of immigration. List of blacklisted foreign employers. Establish data to check people traveling to locations for employment. | Will this data be accessible publicly, the way current emigration clearance data is available on the e-migrate portal? |
| 17(x) | To ensure that sub-agents engaged by it duly comply with such standards as me be specified by the regulations. | The burden on human resource agents operation from small towns, to ensure the compliance of other sub-agents is too high. The “Bill” can consider incorporating a system of formal agreements between registered Human resource agents and sub-agents. |
| 25 | Countries with a large number of Indian emigrants may establish a labour and welfare segment to deal with the issues related to Indian emigrants. | With reference to the word “significant”, it is important to ensure that this does not, in practice, result in welfare activities being available only in countries with a large number of Indian emigrants. |
| 25&26 | Countries with a large number of Indian emigrants may establish a Labour and Welfare segment to deal with the issues related to Indian emigrants. For the purpose of the Act, the Consulate may be notified by a committee to oversee, review, direct, address the grievances of Indian emigrants. | The composition and power of the labour and welfare segment are not well defined as that of the powers of the committee. |
| 28 | Services and functions of the committee | A range of activities is given to the Emigration Welfare Committee, but there is a lack of clarity on how they will help the students, their family members, and other categories of emigrants apart from emigrant workers. Necessary fiscal allocation will be required by the embassies to undertake this activity. |
| 30 | Whoever indulges in any act of trafficking of people or any other Act, which may constitute an offence, will be punished. | The “Bill” mentions the penalties of trafficking but fails to mention the relief or rehabilitation for the victims of such trafficking. It should add the Bonded Labour System(Abolition) Act,1976 to cater to the needs of victims of such human trafficking. |
| 31(1) | Whoever (a) emigrates in violation of Section 46 (b) in contravention of any provision of the act or the rules and regulations made thereunder. The emigrants will have to pay a penalty, which shall not be less than ten thousand rupees which at times may extend to fifty thousand rupees. | The term “intention to migrate for or with regards to employment “is absolutely vague and extremely difficult to determine. Given the penalties associated with this, the” Bill” should explain the definition of “emigrant”. |
| 44 | All Indian nationals proceeding for overseas employment shall make a declaration in such manner as may be prescribed by the rules. | The term” declaration” should be defined to specify if it is binding in nature. |
Conclusion
India will have to formulate policies related to migration, strategies to streamline processes, and mechanisms to bring in ease and smoothness in the process and reduce the stress involved in migration. The requirement of this moment is to frame policies that will serve as the guiding document for the people looking for jobs in other countries. Importantly, it should uphold the dignity and human rights of migrants and their families.
The Parliament must address the concerns raised in the proposed bill, to uphold the rights and safeguard the interests of the migrant workers employed abroad assuring them their dignity and protection against exploitative practices, as per established international standards.
References
- https://economictimes.indiatimes.com/nri/migrate/at-18-million-india-has-the-worlds-largest-diaspora-population/articleshow/80290768.cms?from=mdr
- https://mea.gov.in/Images/amb1/Emigration-Bill-2021.pdf
- https://www.indiacode.nic.in/bitstream/123456789/1779/1/198331.pdf
- https://www.theleaflet.in/new-emigration-bill-a-step-forward-but-indians-need-more/
- https://medium.com/@indiamigration/indias-emigration-policy-framework-a3e775c237ef
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