This article is written by Priyanka Cholera, a student of MKES College of Law, Mumbai University.
- Prof. Sunita Reddy – Associate professor JNU, Specialises on Medical Anthropology
2. Sanjoy Ghodse – Labour Law expert. Practicing Advocate for over 20 years, Standing counsel Government of Delhi
3. Aman Madan – Partner at Chamber of Legal Solutions Legal Aid
4. Indu Prakash Singh – Facilitator, Citymakers Mission International, National Convener of a national forum for Housing Rights Working Rights of Homeless people, Member of State Level Shelter Monitor Committee
5. Ramapriya Gopalakrishnan – Practicing Advocate at Madras Highcourt, Specializes in Labour Law, Associated with ILO, for 16 years now
6. Vishnu Shankar Jain Advocate –on-record, Supreme Court of India.
Sanchita Ain — Advocate – on- Record Supreme Court of India
Why is focus on Migrant Worker’s need of the hour?
Sanchita Ain states that WTO released a report in 2019 states that there are around 453 million internal migrant workers reported in 2011 report, hence migrants and their concerns have been around for many years, it has surfaced during COVID crises, hopefully this conversation will lead us to a sustainable solution, for a post-pandemic world too.
What are the important issues of migrant workers?
Sanjoy Ghose, Attention towards migrant workers was brought due to the Corona Crises and through media, everyone is now aware of their conditions and crises when they’re walking back home to their natives and living off railway stations and bus stand it has brought forward the reality that our industries are powered by Migrant workers.
Before understanding the issues we have to understand the migrant workers are ordinary workers with migrant status, all the labor laws, which are extensive in numbers and complicated, according to Mr. Sanjoy, and the Trade Unions and Employers agree on it too. Hence the government came up with four code systems to overcome these flaws.
According to Mr. Sanjoy following changes can be made to improve the condition of laborers:
- The lockdown was implemented with four-hour notice and the later government released the notification for the payment of migrant workers, which already lapsed and caused court proceedings. Many states like Uttar Pradesh, Gujarat, Madhya Pradesh, Orrisa have tried to come up with their versions to dilute labor laws with the understanding that after a pandemic is over these labor laws will inhibit growth.
- In other countries, the government has given a lot of economic concessions to their employers to restart the industry. Unfortunately in India, similar measures are not taken, in turn, they have taken the measures that if you remove these workers, conducting business would be easier.
What laws apply to migrant workers? What changes can be made if any?
The Interstate Migrant Workers Act 1979, this said act was implemented from a supreme court judgment and a parliamentary committee, to look after the socio-economic problem of the Dadan Labours of Orissa, this act is revolutionary in its nature as it clearly states that, it is the right of the migrant workers to be sent back to the native state by train. Their rights to regulate these contractors who would bring these workers from the home state to the host state and registration of their contracts, of the workers, keeping the attendance record and dealing with a problem like, if the migrant worker was forced to agree to debt, then he is released from it when he goes back to his home, provisions of residence, etc.
Over time society and employers outsmarted the laws. E.g. Minimum wages, when this law was implemented, everyone honored it in Scouting. Delhi High court has implied that the wages would be paid in electronic means, the employers deposited money in the migrant’s account in the morning and the migrant in the evening withdrew it and gave it back to the employer.
Hence the essence of Interstate Migrant Workers Act i.e the contractor will bring the migrant workers from the originated state to the receiving state is completely vanished; over the time due to the confusion of receiving and registering, the employers stopped hiring people from other states and started hiring people in their state only. This “outsmart move” of the employers rendered all the benefits of the discussed ‘Null and Void’.
As a result, all migrants were walking back home. Not only the employers, even the government is responsible to take care of the migrants, but unfortunately, they stepped in with their ‘Shramik Train’ when the damage had already been done.
What is being done concerning the Labour laws?
The implementation has been the root of the cause and it lies on the part of the employers, thus it has been manipulated for their benefits. As even factory inspectors are in their control. One of the solutions is to make registration of workers centrally and give every worker one number identity and link it with his bank account like Aadhaar, so that money gets directly transferred to that person.
The answer to complicated laws is not to go around it but bring it midway for both small scale employers and the workers.
The Informal Sector already has an Unorganised Workers Act, which unfortunately hasn’t been operationalized yet. Hence it is the need of the hour to take everyone’s benefit into account and leave no one out of the welfare scheme.
What steps can be taken for the Migrants welfare?
Mr. Indu Singh, with his decades of experience says that he calls the migrants as ‘City-makers or Village-makers or Nation-makers’ because they build everything. He agrees with Mr. Sanjoy, on the point of having a similar structure for Migrants like Aadhar Card System. The pandemic has revealed the gap that exists in society between the rich and the poor, and the government picked its side to favor, while the poor were marching barefoot on the road to reach home. The benefits of the poor should come to them rather than seeking it. To facilitate the migrants, the government needs to apply a central ration card system, because the migrant maybe is living in Delhi but has the ration card of the U.P, because without the ration card they are not given the benefits of ration.
The interstate migrant workers act implies that it’s a state’s responsibility to look after the migrants, but the railways decided to donate a generous amount of Rs. 150 crores to the PM cares fund. The relief called the Shramik Train was an agonizing journey for many people with no food, no water, there have been cases where migrants reached home but they died in a train because of lack of basic facilities.
What is the danger ahead on the road for migrant workers?
The government is using ploy as an excuse to dilute labor laws. If that comes into implementation it will economically massacre the laborers of the country, which as responsible citizens we cannot let it happen. Hence the onus is on us to use every legal tool possible to safeguard the rights of migrants.
What can the government do, to better the condition?
One of the steps that can be taken is ‘registration of workers in the place of origin’, various Panchayats and Gram Sabha should be empowered to do so. The contractor should be registered too, this notion is supported by the act too. The onus is on the Society too, to follow every word of law made for the welfare of migrants. Some employers have sent buses to bring back the migrant workers, the same who turned their backs on them in the first place.
We have to understand that people who come to the city as laborers are not doing so out of choice but the lack of choice in their hometowns, the casteism and the fascism that happens against these workers has already caused them enough distress and harm, for others to cause any further.
The people have to hold the government accountable to compensate the families of migrants who died on the front of the economy, while they were helping build a better nation through their hard work.
Now that the laborers are back the government can develop a Skill Development Center under the National Skill Development Center Scheme in the villages to help these people to pick up some skills that can help them sustain life with higher income. Mr. Indu Singh puts forward that poverty is inversely proportional to prosperity. The richer we get as a country, laterally we get poorer too.
How does the constitution disagree with the conditions of migrants today?
Mr. Vishnu cites that the word ‘Socialist’ was added to the Indian constitution by the 42nd Amendment in the year 1976, the purpose of introducing in the Preamble, was to eradicate the gap between the rich and poor. The state should endeavor to establish a society which strives to achieve the welfare of all classes and presents itself as a role model for the entire country, all this labor was taken to ensure that the Labourers should not face the conditions they did today.
The Article 43 of the Indian Constitution, ‘The State shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavor to promote cottage industries on an individual or co-operative basis in rural areas’.
There has been an endless number of laws implemented for work or living wages, but there has been no law implemented to ensure the ‘leisure or cultural or social’ opportunity to the workers. This situation from 1950 till today has not been improved.
Article 43 is supported by Article 31(c) which states that ‘Saving of laws giving effect to certain directive principles Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with ……’
Article 43 (a) Participation of workers in the management of industries The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry.
We should be asking questions about, why aren’t the above articles implemented in its full force yet. The provisions of THE BUILDING AND OTHER CONSTRUCTION WORKERS’ (REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICE) ACT, 1996, which has various schemes for workers, implies to workplaces with only more than 10 workers, there is no provision for those excluded.
The obligation of registration is on the laborers, which is completely unreasonable given the conditions these people live, in all the above mention acts, there is provision for funds, but lack of implementation; There is restriction working hours and overtime for workers in BOCW Act, a writ petition under Article 32 was filed in respect of above-discussed Act, in the case of National Campaign Committee for Central Legislation on Construction Labour vs Union of India, 2018. The Supreme court said that To date many states in India have not created guidelines for the implementation of the Time restriction rules in the BOCW Act. To make any state welfare state funds are needed but states continue to disappoint in this regard. Section 11 that emphasizes on registration of workers, that is also not being implemented. As a result of non-registration all the ‘Citymakers’ are deprived of the rights they are entitled to.
Mr. Vishnu puts forward a similar opinion as to the other speakers, that there should be a unified code for all workers regardless of their migration status. He adds that the Labour work and the migrant work is in the concurrent list, hence both state and central can implement laws regarding it. He emphasized centrally to do everything in its capacity to ensure all the rights and provision in the Constitution for workers is secured. And if possible have a central body set up to look after the interstate migrants.
Recently in U.P during the current crises, 2.5 million migrant workers were brought into the state within the span of 10 days and 1 million were relocated by the government. Commendable work has been done by the U.P government in this crisis order to ensure the relocation and safety and safety of migrants.
What can be done from a Social Science Point of View?
Prof. Sunita Reddy, as a social science expert and disaster being her core subject, says that whenever there is a disaster, it allows everyone to think and rethink, it causes greater vulnerability than it already exists in the underprivileged and existing social fissures widen in these times of crises. On top of it, this pandemic was not predicted by anyone hence the whole is on the same page of suffering.
Two studies that she was part of, were focussed on Marginalised and Construction workers as well as the gender aspects of it.
BOCW act based on cess points collected from construction companies, a small amount of their profit is used for the welfare of the workers, there are 18 schemes under the CESS funds to be utilized. Unfortunately in every state welfare fund remains untouched for the welfare of workers.
She shared data of crores of funds that have remained unused, in states like Madhya Pradesh and Gujarat, Except States like Kerala, who has used its funds to optimal utilization.
According to her research unskilled were supposed to be paid Rs. 513 per day but the research Prof. Reddy was part of in 2015 and 2017 showed that none of the workers in 3 construction sites and 9 Bastis they inquired, were given the standard amount. They were paid Rs 250 to 300 maximum.
In the 18 schemes she mentioned earlier, there are fellowships for children of construction workers from class 1 to professionals where they are entitled to Rs.5k, but if the child and family are in Bihar they cannot transfer the money. She supports the previous speakers on their suggestion of Unique ID.
Research stated that 85% of workers did not know about the rights and acts in their welfare. In her opinion, there should be boards of awareness about the discussed privileges. One time campaigning will not help.
Even in these marginalized sections, women are at the bottom of the schemes, most women as head loaders, that job is being replaced by machines, and then they move to domestic work. We have RPL – Recognition of Prior Training where women should be trained for masonry and painting. Women and children as seen as one unit in these schemes, but most women leave back their children to work on sites, in these cases there can provision of Aanganwadi for Children, as the number of missing children and child abuse is increasing day by.
Despite all numbers being available out and clear, still, we’re not able to implement any policy regarding it.
We need to introspect, rethink and empathize with the current situation of workers; As most of them have gone back to their hometowns, employment generation there would be ideal, helping them get skilled and set up smaller towns for their benefits.
Taking disaster as an opportunity to make all workers self-sufficient and focusing on their skill development.
What are the shortcomings of Laws related to Migrants?
Mrs. Ramapriya Gopalkrishnan agrees on the opinions of other panelists. The COVID Crises has brought forth the inadequacy of Law and Policy Making. She cited the Interstate Migrant workers act definition of Migrant Workers, as a person recruited by or through a contractor from one state to work in another state. Hence workers who migrate by themselves i.e. without a contractor, are not covered in the Act.
The shortcomings are as follows:
- The Definition aspect
- The number threshold
- No provisions related to Social Security in Law
- Denied Access for Migrant workers
- Only one provision relating to equal wages for equal work
- No provisions for women.
- No provision for safety and accommodation of single women migrant workers,
- No separate provision for the prevention of Sexual Harassment of Migrated Workers.
The Act discussed only applies to establishments and contractors with 5 or more workers, however, many establishments are split into smaller units, they might employ only 4 people as a unit, which results in excluding the workers out of the ambit of the Act.
There are certain obligations placed on the employer as well as the contractor, e.g. the contractor has to ensure the timely payment of the worker and minimum wages, payment of the displaced allowance, journey allowance, suitable residential accommodation for migrant workers, properly protected clothing if the migrant worker doing the same work as permanent workers in the establishment, then they are supposed to pay at par with regular workers, etc
Some states have approached the Center to ‘Repel the Act’ as there are already “too many acts” around it.
The government of the U.P has drafted Exemptions from Certain Labour Laws Ordinance, it has not been assigned by The President until now, but if it does it will have dangerous consequences. Madhya Pradesh has exempted new industries from the Industrial Disputes Act for the first 1000 days.
The Draft Occupational Safety, Health and Working Conditions Code, 2019 has been drafted by Central Government, which includes 13 laws in itself, including The Interstate Migrant Workers Act, with a change in definition, which says that even if a person is directly recruited by an employer, he will be counted under the definition of Migrant Workers. There is a provision in the Code for ‘Wage Ceiling of Migrant Workers’ in the host state.
In the Parliament Standing Committee made recommendations in February 2020, it was proposed that there be separate chapters in the Draft Code for interstate migrant workers that should be distinct and separated from Contract Workers. They also suggested that there are not sufficient provisions related to the welfare of Migrant Workers. There should be a Support desk, helpline, hostels for children, etc. all these recommendations were put forward.
As a lawyer what can be expected while dealing with Migrant worker’s issues?
Mr. Aman Madan shares his personal experience as legal aid. He had visited labor camps housing about 500 workers at a construction site, had spent close to 2 weeks interacting with workers.
He observed the following:
- Prima facie, the reality on paper and reality on the ground are two very different situations. The implementation that is expected and the one that happens are extremely contradictory.
- Laborers do not know about labor cards, lack of awareness, lack of sensitization, ignorance is breeding, and thriving among these people.
The solution to these problems is not more laws, as the existing ones are enough to complicate the situation. The focus should be on how we implement what we currently have because ignorance won’t drive itself away by making more laws, awareness will.
Mr. Madan insisted on the points made by panelists earlier regarding One Nation One Ration, a centralized database system not only for workers but also employers, regardless of their structure of establishment, the distinction between longer-term and short term workers.
Technology can extremely elevate the standards of distribution we have today.
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