Table of Contents
The increasing development and encouragement of technology made the workers run from one place to another in search of work to fight rising unemployment and poverty.
The term ‘migrant workers’ is defined under International Labor Organization (ILO) which described the condition of a worker who moves from one place to another or who has already migrated to another place than their own, in search of work.
United Nations also defined the term ‘migrant worker who is engaged or will engage in any kind of remunerated activity provided some other state with a view of getting wages in which he is not citizen, under the convention which was introduced for Protection of the Rights of all Migrant Workers and Members of their Families. It further defines the undocumented worker or irregular worker which means the workers who don’t have complete documents nor completed their legal formality but still their stay in the country is more than authorized length.
The International Organization for Migration (IOM) has described different kinds of migrant workers where they initially differentiated between economic migrants and labor migrants. Economic migrants are large group workers whose main aim is to perform economic activity like investing whereas Labor migrants are those workers who migrated with the objective of employment. They stated that the sub-group of migrant workers included business travelers and migrant workers on contract who can be bifurcated as a skilled worker, project-tied workers, seasonal worker, or temporary worker.
Instruments by ILO
ILO has made some standards for countries from where the migrant workers belong and to where he lands up, for protecting the interest of this vulnerable section of society and to manage the flow of workers between two concerned countries.
Migration for Employment Convention (Revised), 1949
This was the initiative where the duty was imposed on the rectified states to facilitate international migration and provide basic facilities like information service and free assistance, to prevent misleading and fraud emigration. It was instructed to provide medical services to migrant workers and other facilities which they generally provide to their national workers. In addition to this, they stated that workers face a lot of problems in transferring earnings to their families who are in a different country; hence the transfer should be made easy and accessible for the migrant workers. Also, the migrant workers are entitled to basic rights such as freedom of association, social security, and the basic surviving condition, irrespective of their nation.
Migrant Workers (Supplementary Provisions) Convention, 1975
It focused on general human rights for the migrant workers and to prevent them from illegal or secret emigrations which are against their interest. They encourage equality between the workers who a citizen and who are not citizens but emigrated from another part of the world by even going beyond the provisions of the 1919 convention of ILO which talks about trade union, respect of culture, collective freedoms. They even call for the reuniting of the families of migrant workers who live legally in that country.
Social security for migrant labor
Constitutional duty is imposed on the international labor organization (ILO) to provide at least basic pay to workers and promote social security which is defined as per social security (minimum standards) convention 1952 which includes unemployment benefits, medical facilities, maternity benefits, employment injury, and survivor’s benefit. By the report of Rodgers, 2001 ILO estimated that only 10% of the total migrant workers get adequate social security and others still suffer from abuse.
After the growing globalization, workers are found very casual and that is the main reason for the struggle behind labour rights and their dignity. In 1997, Singh’s report was formulated which observed that almost no developing country has any bilateral agreement nor they have national legislation for the security of migrant workers and due to this, migrant workers don’t have any social security in the country in which they migrated in search of work.
Most of the migrant workers even don’t have any right to shelter, drinking water, and any toilet facilities. This view was changed by the factories act 1948 which made an obligation on the employer to provide their workers basic services like latrines facilities, potable water, bathing, and urinal for all workers, irrespective of their nationality.
The condition of migrant woman workers is worst than man and this constitutes the reason behind less rate of participation of women in the workforce. Approximately 96% of the women are engaged in the unorganized sector or informal sector which is unhygienic; low waged, lacks union, and has inhuman working conditions. Due to these conditions, in 1997 ILO introduced a convention for protecting women workers from sexual harassment at the workplace which was accepted by the government of India but the stated convention was threatened by growing marginalization and actualization. By the various reports such as Acharya 1987, Sardamoni 1995, Teerink 1995, it was established that women workers are mainly abused when migrated.
Change in Labor Codes of Migrant Workers after 2019 and 2020 Code
It is generally believed that the labour code is absolutely in favour of the working class and it is the weapon for redistributing rights to all classes.
Before 2019, there were 29 labour codes on the different subject matter but in 2019 they all were repealed and formulated into four codes which are The Code on Industrial Relations, 2020; The Code on Social Security, 2020; The Code on Wages, 2019; and The Code on Occupational Safety, Health, and Working Conditions, 2020 (OSH Code), where The Code on Wages came into effect in 2019 and rest came in 2020. Earlier, there was no law applicable on the unorganized sector but the government intended to include the workers working in the unorganized sector by formulating a new code of 2019 as 96% of the workers work in the unorganized sector who don’t even provide basic rights.
Till now we are following ISMA 1976 for the migrant worker as the new code OSH, code 2020 has not been notified to be in force yet. Recently the Supreme Court directed the government to supply necessities items to migrant workers like community kitchens and follow the ‘one nation one ration card rule’ by asking them to implement ISMA 1976 efficiently.
Earlier there was very little strictness in law and the regulation of the workers was so informal and casual but now this scenario is changed by four codes that introduced the concept of fixed labour and the contract labour concepts which are mandatory to follow.
It was highlighted that majority of the migrant workers are located in the informal sector which lacks regulation and structure and hence deprived the labour of all the facilities. Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (‘ISMA’), is the first regulation which objects to provide protection end entitlements to migrant labour and now it is merged with The Code on Occupational Safety, Health, and Working Conditions, 2020. Apart from ISMA 1979, this code (OSH 2020) pertains to the Factories Act, 1948 and other contract labour laws such as the Contract Labor (Abolition and Regulation) Act, 1970 (“CLA”) and Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. It is noted that migrant workers are generally hired as contract labourers and hence their rights are mentioned under OSH 2020.
OSH 2020 has introduced various changes in the law for the migrant worker where most of the changes reduce the poor implementing of law across India. On contrary, there is harmful change also which provides for the shrinkage for including the workers. Chapter XI of OSHC 2020 deals with special provisions for contract labour and inter-state migrant worker, where part II talks about inter-state migrant workers. Section 59 of the code states the applicability which established that the code will be applicable on the establishment where more than nine or we can say 10 or more interstate migrants are employed whereas ISMA was wider applicability and it covers the establishment in which 5 or more workers are employed. As per the economic census 2016, it was reported that there is only 1.66% of the establishments who are engaged in a non-agriculture field with 10 or more interstate migrant workers and this is the reason why the establishments are left out of the applicability of section 59 of OSH 2020 hence prevented the workers from getting relief under enacted code and still facing exploitation and abuse.
Another aspect on which the latest code OSH is differentiated from ISMA is the role of ‘contractor’. Earlier under ISMA, the migrant worker was defined as the workers which are recruited by or through the contractor which means the contractor plays the role of intermediary and it makes obvious that he would be charging something from both sides for fulfilling needs to both employers who needs worker and worker who needs work. But this scenario is changed by the OSH 202 which omitted the role of contractor and defines the migrant worker as the direct relationship between employer and worker where there is no intermediary, therefore saving extra cost.
Moreover, OSH 2020 limits its scope of prevention to the class of worker who earns less than RS. 18000 only which means that workers earning more than 18000Rs will be left out of the protection of this code. The intent behind the legislation is that this provision is still unclear but it can be inferred that they want to focus more on the vulnerable and poor section of the class of migrant workers.
OSH 2020 talks about merely interstate migrants under chapter XI and missed the whole concept of intra migrant workers. It is noted that almost 88% of the movement is internal to the state and intra migrant workers also face the same vulnerabilities and abuses. There is also a need for the law regarding intrastate migrant workers.
Earlier, the contractor was obliged to pay displacement allowance to a migrant worker at the time of migration which motivates him to migrate and supports him in working at another place. ISMA recognized the displacement allowance which was done away with by the OSH 2020.
Administrative law plays a vital function in OSH 2020 as well as ISMA where the legislature delegated the power with the state government to make rules and regulations as per the situation. There is a reservation in OSH 2020 for the rules which will be formulated by every state government as per the situation in their state. For the ‘ease of doing business,’ the legislature delegated the power.
It is expected from the labour code that it will improve the situation but instead it is against the working class and bending more towards the capital. Government failure is observed that several levels and it impacted the marginalized section. Trade union and other labour activists raised their voices and ask for their rights and demands but that is generally ignored but it is high time to focus on those concerns and prevent future circumstances. We have already faced one drastic in-humanitarian crisis in 2020 and we need to make sure that this won’t repeat in any other year.
Labor rights and labor standards for migrant labor in India
The intent of the government and the employers is anything that is to be revived and has to be on the backs of the laborers, making them even more miserable than they are now.
Over the years one has seen the real formalization of labor and now it has become even more informed. The mechanism has been through contractor and casualization. The casual way of working doesn’t recognize the worker at all. As far as employers are concerned, it’s just a mask of unidentified labor, and that is the problem that has now come up.
During the pandemic, there was a complete criminalization of migrant workers existence, as a migrant person cannot be out on the streets of a city to buy even ration and protest otherwise they have to face lathe charges from police to send labourers back to their respective residential places if not houses. Migrant workers can’t even go further from the state border to their home state.
Whenever we talk about labour conditions in India, there can be no presence of demarcation between the social question and the question of labour. When we talk about the social question, the issue of caste, gender, minorities, and ethnic identities has become widely important.
The recognition of the fact that India is so deeply hierarchical and discriminatory that we don’t care about classes of labour. That is the situation from which India has existed in all times despite whatever pattern of capitalist development India witnessed with time. The fact that Indian culture and governance hand in hand has been able to treat all kinds of indignities of labour, that citizens of India do not imbue physical labour with human dignity.
Labour policy is merely a part of how we structure ourselves is used to dealing with vulnerable labour at the bottom of the pyramid. Institutions were never created irrespective of the conundrum that India had faced in terms of how d we give handouts to workers; it is believed that the Indian state can deliver in the most complex situations.
Story of labour transformed its specific ways after 1991 with liberalization and Indian states started liberalizing a phase of labour laws more De Facto than De Jure dealing with the states rather than the centre labour market in-formalized as a result of such change.
The heart of the Indian economy was followed out from the 1990s onwards with an accelerating pace in this century so that the organized sector of the economy itself become informalized. Even at the beginning of this century, 73% of organized sector manufacturing in this country was already informal and that increased to 77% in 2017-18. The organized service sector which was technically the most formal part of the economy was 33% informal in 2004-05 and became 52% informal in 2017-18. If growth is kept into consideration, over the last 15-20 years, India has had declining agricultural employment, but this was matched by the very slow rate of growth of formal employment. Primarily it was informal employment that has grown in this country and it grew within the purview of the labour law that India has.
The labour law did not afford any protection to any section of the labour either within the formal sector of the economy or within the informal sector of the economy. This occurred much before the nature of the state. India still has a new liberal state under this government, but now we have a harder and rigid state. In a state which believes that the courts will do its bidding and interpretations of laws, the legislature will make just and reasonable laws followed by the executive leading to implement such laws most efficiently and effectively.
The changes started occurring much earlier, previously a modicum of regulation of unorganized sector workers was lacking but over the past 20-30 years it is the organized sector of the economy which has become unbuttoned.
Unconventionality and migration have to be understood simultaneously as it has gone hand in hand and they co-exist with discrimination in labor market segmentation. The growth into informality in India is due to the growth of a circular migration in India which includes both short-term and long-term migration periods.
The most important aspect we need to consider is the “social distance”. Social distance dwells between migrant workers and the state. The fact that most of our labor communities emerged from Dalit Bahujan communities whereas most of those who hold power and dominate come from a very different background is something that cannot be ignored.
Those who are in positions of dominance and will, understanding of the nature of labour and the idea of fixed labour should be enlightened with the present scenario of the country. When it comes to India thinking about labour, it is well known that labour is not fixed rather categorized under mobile population. The juncture that labour is not fixed we see today doesn’t necessarily come with the recognition that the social protections and social rights that should be made available and not, therefore, be fixed. Our procedures of excess in social rights tend to be based on the imagination that labour will remain at one place whereas it is not the case as seen by all.
“One Nation One Yojana” or similar ideas are sort of too late to introduce in a country like India where rapid growth of population has always been a major concern. Portable social rights would have perhaps been one way of addressing the very pressing concerns the labour population has. Concerning this is the non-observance of the Indian state and Indian ruling or privileged classes to think about labour as citizens. The Indian state has barely thought about labour concerning citizenship. In some respect, responsibility must need to be taken for the way labour has been written and portrayed.
In terms of such basic aspects of citizenship as forte, India is a country where millions of people are involved in immigration and migration practices in search of work. Voting is an act that is incredibly fixed in place, the corollary being that you can only vote where registered. That eventually becomes meaningless for so many people who are moving around in search of work, for them voting would ultimately become a challenge that can be done effortlessly. A version of the long-distance vote and postal vote must need to be introduced and probably counted in respect to understanding the gravity of the voting system.
One of the most discussed questions that arise here is, “how urban governance link labour employment with questions of labour procurity?” There are no ways in which labour is represented in day-to-day urban governance of the city, neighbourhoods, residential areas where labour resides. That highlights the omission of the government system concerning treating labour as citizens. In addition to the actual framework of labour law, the ideas of labour in the last few months where solidarity would have been expected from the middle-class society with the condition that migrant labour was facing during their period of hardship and struggle.
The state now believes economic revival is possible only by further weakening of labour protections and many states have used ordinances to go down the path. Within that larger context, the question of gender and labour also assumes a very urgent relevance because of the extraordinary scale of decline in women employment which India has witnessed between 2004-05 and 2017-18.
In responding to the pandemic (covid-19), migrant workers were not the area of concern for the central government as the nation has to deal with a catastrophic virus attacking the country speedily. Women migrant workers were completely out of the sight of the state and its governing bodies. Provisions were lacking which needed to be there for the women labour for their protection, safety, and health. Not only survival was at stake, even terms of travel, food, and rebuilding of women migrant labour were also forsaken.
As far as the lockdown is concerned in India due to the pandemic, it has affected the entire universe of informal work. Here 85-90% of the working class has been referred. Dwelling in India and the consumption data also shows very clearly that 80% of households have experienced significant declines in consumption without having savings to cope with the pandemic.
Covid-19 has proven to be a very severe crisis. It would be wrong if it is said that this crisis lends itself to what people call V-shaped recovery. Coming out of such destructive crises is going to be extremely protracted. The major issue of concern is going to be the problem of demand. External demand which is almost 30% of the gross domestic product s going to take an extraordinarily long time to revive. Demand should be systematically revived and stipulated. The government of India has announced a stimulus package, which is less than 1% of GDP. Alongside, the government has announced a medium-term reform package which mostly regurgitates the old reforms with some new sets of amendments and alterations.
There is nothing shortly which can help revive India’s economy in the led 6 months to here. India has witnessed a set of changes in labour laws. There was a prototype recommendation made by the central government that states need to respond in attracting investments which includes both domestic and international investments through lengthening of the Labor Day, through demolishing labour laws, and so on. From a labor economic point of view, this is a bizarre response to the extremely serious crises.
The major manifestation of which be in the form of demand contraction, nothing much has been done. Nearly 0.8% of GDP is going for demand.
The liberalization of labour laws does not lend itself to either hire employment or high growth scenario.
When there is a severe quantity rationing of employment, all the data from Indian states i.e. cross-sectional data, time-series data tells us that it is majorly weaker sections and particularly women whose employment declined very precipitously. India had experienced a decline of 18% in female labour post participation over the last two decades. Unfortunately, this situation will exacerbate in years to come.
Formerly, mere workforce participation rates have been more or less stable. Female workforce participation has been declining. In the next two-three years, India will witness extreme constriction of overall employment within which sharp declining rates of women workforce participation will be seen imminently with sharper impact on the wages and earnings of the labour class population irrespective of their age and gender.
The trafficking in persons (Prevention, care, and rehabilitation bill 2021) was placed in the public domain by the Ministry of Women and Child Development.
The concerned and responsible government authority does not highlight the improvements of employer-employee relationship but majorly focuses on Dalit or Tribal migrant workers to take on his employer. The labour will be sent and rescued to perform such labour practices through forceful means and this new law will ultimately prove in degrading the livelihood of labour capital.
While anyone who is exposed to forced labour should discover a response in law. The enrollment and development for such work is regularly an aftereffect of affectation and may likewise include bonus promises and duplicity, ultimately resulting in bringing them under the meaning of trafficking.
Dragging National Investigation Agency authorities in investigating trafficking crimes including young migrant workers as casualties is contrary to the standard of the well-being of the child. In this regard, the Draft Bill is in opposition to the Juvenile Justice (Care and Protection of Children) Act, 2015 which Accenture on child-friendly structure through the proviso for child welfare committees, special juvenile police units, and child welfare police officers.
The Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, (ISMWA) 1979 has been the main labour law in India for interior migrants. It tended to project worker activated migration, where advances are paid for enrollment as a standard. It avoided intrastate migrants from its ambit and isn’t applied to the weak circumstances of these migrant labourers who might be driven by trouble, yet have gone from their homes all alone. The ISMWA imparts normal reason to the Bonded Labor System (Abolition) Act, 1976 (BLSAA) as an interpose against labour bondage in migration.
The BSLAA orders a notable status since it illegalized bondage induced by customary relationships and debt, just as their appearance in monumental imperatives on agreement labour and interstate migrants. It subsequently addresses debt-based bondage and primitive caste-based frameworks of forced labour. It incorporates restoration financed by the central government, and the carrying out power is the area authority/magistrate. Lastly, it was given constitutional status in the Ninth Schedule. All the more impressive managerial constructions and assets were squeezed right into it by the law against bonded work in contrast with other labour laws.
In migration streams tended to by the ISMWA, the standard is of wage advances to the families a long time before they migrate, for the work that is generally occasional, and where ladies are regularly recruited as a component of nuclear families instead of as separate individuals. Since wages are for the most part paid to family heads, ladies are effectively denied a maverick wage. This distinctive condition was not, notwithstanding, tended to by the main law for migrant labourers in India, addressing an inclination to disregard women’s independent way of life as labourers.
Regardless of their genealogy in the Constitution, it is well to remember that both BLSAA and ISMWA were considered under the shadow of a dominion crisis system (1975–77) that subdued working-class potential, yet tried to acquire political help by abrogating communist rhetoric. Perhaps, laws contained a hierarchical methodology and didn’t draw in with labour representation or labourers’ voice. While the BLSAA has not prevailed with regards to abolishing a few types of bonded labour, the ISMWA is perceived as a most inadequate labour law (NCEUS 2007). The ISMWA, obviously, makes reference to rise to pay “regardless of sex,” and records the Maternity Benefit Act as applicable, which indicates the proprietor’s responsibility to pay maternity advantage at the pace of the normal wage. In any case, this doesn’t work where ladies don’t have freely measurable pay.
Shockingly, regardless of many years of lawful activism on issues of bonded labour, a viewpoint on the particular types of subjugation of bonded labour migrants has stayed untapped. No information is accessible on the quantity of women labourers delivered from bondage, nor is there any conversation on the estimation of free wages for women when nuclear families of work are paid at piece rates.
The movement of migrant workers was unstoppable despite having rules and laws for the regulation of policies and schemes favouring poor labourers and migrant workers at large. Planning was the key factor that was missing throughout the timeline and even during the Covid-19 Pandemic when it was required the most so as to control the chaotic spread of people around the world. Efforts were to regulate the movement and improve the living standards of labourers but the result came out was not satisfying as expected. Despite having rigid laws and policies and the existence of a plethora of legislation at all levels state, national and international, labourers still have to suffer and fight to get their basic human rights enshrined in the ILO. Merely planning and executing a bit of it won’t give out the best result with efficiency and effectiveness. Proper implementation and strict interpretations of policies and provisions by the governing and law framing bodies must need to be adopted and strengthened to ensure the availability of resources, rights and basic respect to the labour class people so as to make the world free and fair for them to survive without facing many difficulties which can and should be avoided if genuine and appropriate measures come in force with a vision to achieve certain goals which will devise ameliorating the conditions of the labourers and migrant workers.
Most states despite their efforts have remained ineffective in regulating the movement of migrant workers and also screening them properly. It is astonishing to note that even after the existence of a plethora of legislation and labour standards at the national and international level, there still remains a wide gap between the basic human rights of labourers and the legal framework governing their rights. Policymakers need to take a practical approach towards the protection of the rights of the migrant labourers as their social situation is already difficult. Covid-19 outbreak underlined the grave inadequacies in the policy of Disaster Management constructed by the Government of India.
In this manner, it very well may be inferred that there exist inconsistencies in India’s pandemic and crisis replication techniques that should be examined critically. The technique, which builds the incorporation of all parts of the intramural migrants’ local area in the public eye, particularly kids and ladies, ought to be more empathetic. It is withal suggested that in advance of presenting any enactment that could affect the existence of the majority, the public should be taken into certainty. Central to turn away unexpected strategy choices can influence the existences of huge masses. Apprehension on the need to focus on inner movement in policymaking moreover should be increased. In Indian culture, there is a further need to modify the disparaging discernment framed on the migrant workers.
It’s undeniably true that most nations have adopted a lazy strategy towards the ILO norms for transient workers/labourers. Apparently, nations should consolidate authoritative systems as per the ILO guidelines; in any case, most have neglected to do as such. The work laws in India actually have far to go.
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