Image source - https://bit.ly/38Q5NT3

This article is written by Janhavi Shah.

Introduction

Migrant workers form the largest part of India’s unorganized work sector, according to the International Labour Organisation, more than 85% of India’s workforce belongs to the informal sector of the economy. According to the 2011 census report, there are 40 million migrant workers in India. The States having the highest percentage of migration are Uttar Pradesh and Bihar where the share of total migration is 23% in Uttar Pradesh and 13% in Bihar. These migrant workers often get exploited due to lack of critical skills, illiteracy, lack of information, and bargaining power into low-end, low-value and hazardous work. Lack of identity, representation, and legal protection add to their vulnerability.

Rights Ensured to Workers under the Constitution

The Constitution of India protects labour’s rights. The Preamble, Fundamental Rights and Directive Principles of State Policy under Part IV of the Constitution. Article 14 states everyone should be equal before the law, Article 15 specifically says the state should not discriminate against citizens, and  Article 16 extends a right of ‘equality of opportunity for employment or appointment under the state. Article 43 says workers should have the right to a living wage and “conditions of work ensuring a decent standard of life”. Article 43A, inserted by the Forty-second Amendment of the Constitution of India in 1976, requires the state to legislate to “secure the participation of workers in the management of undertakings”.

Rights Ensured to Workers during the time of disasters 

In the event of a countrywide lockdown implemented under the Epidemic Diseases Act, 1897 and Disaster Management Act, 2005 amidst the COVID-19 global pandemics, the migrant worker population was shattered. Despite the curbs on transportation services nationwide, the financial uncertainty due to the shutdown of all economic and commercial activities leading to loss of livelihood and fear of severe illness, caused the migrant workers to undertake extreme hardships to travel back to their places of origin i.e. their home villages.

India’s Ministry of Home Affairs directed that the movement of migrant workers will be a violation of the lockdown guidelines; it also issued an advisory to the States and Union Territories to provide adequate food, clothing, shelter, basic amenities such as clean drinking water and sanitation services to stranded migrant workers. More than 300 deaths of migrant workers were reported up to 5th May 2020, caused due to lack of food, suicides, physical exhaustion and exertion, road and rail accidents, police brutality and lack of timely quality medical care.

Instances of Deaths 

Among the reported deaths, most were among the marginalized migrants and labourers. 80 died while travelling back home on the Shramik Special trains. 16 migrants were killed by a freight train when they had stopped to rest on railway tracks near Aurangabad in Maharashtra. A truck carrying migrants collided with a bus near Guna, causing the deaths of 8 migrant workers and nearly 55 injured. A trailer carrying migrants in Uttar Pradesh rammed into a stationary truck, 24 migrant workers were killed, and many more were injured.

Laws enacted for Worker Rights

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 was enacted to protect the rights of migrant workers against exploitation by contractors. This law is applicable to establishments employing five or more migrant workmen from other states. In addition to this, contractors who have employed five or more inter-State workmen also come under the purview of this law. The law provides for the registration of migrant workers employed, either with the Central Government or the State Governments. The law requires contractors to get licenses from states where they intend to bring labourers from. With 15 days of hiring, each contractor is required to provide complete details of migrant workers to the registering authority.

Contractors have to maintain registers for all migrant workers and provide them with a passbook containing details of their employment. The establishments have to provide a displacement allowance of 50% of the wages and fares in addition to wages during any disruption period. They are also required to provide accommodation and health facilities. The law prohibits the employment of migrant workers without registration and state governments are required to appoint inspectors to ensure its implementation. Migrant workers are entitled to various allowances under the law such as displacement allowance, journey allowance, and payment of wages during the period of the journey. They are also entitled to the timely payment of wages, non-discrimination, provision of suitable accommodation, free healthcare facilities, and sanitation facilities.

Criticism

The proper and accurate implementation of The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 would have equipped the State Government with the complete details of the inter-state migrant workers returning back to their place of origin through their contractors. The enforcement and strict adherence were crucial for the availability of data necessary for the formulation of policies, rules and regulations required for crisis management regarding the stranded migrant workers during the global pandemic.

A large segment of migrant workmen would be automatically registered in compliance with the provisions of the Act and the Government could have handled the situation in a much more efficient manner and protect the rights of the workmen during the pandemic. However, there was no compliance with such an obsolete law, the primary reason seems to be the onerous compliance guidelines and requirements. The various allowances payable under the Act along with equal pay makes migrant workers more costly than intra-state workmen. The main reason for non-enforcement of such law is also due to lack of government enforcement, compliance costs which were never taken into account. The absence of government preparedness was the consequence of being a failure in prevention of genuine hardships faced by vulnerable groups.

A petition was filed in the Supreme Court on 1st April 2020 for the payment of minimum wages to the workers during the lockdown period, the PIL was rejected on the basis that it is the State Government’s responsibility and by counter questioning the need for payment of wages when the migrant workers are being provided with food. The District Magistrates were directed to provide free transport and relief facilities to the affected migrant workers. After a while, the Supreme Court admitted to certain lapses in the functioning of the Government machinery and directed the Centre and the States to provide free food, transportation and shelter to the stranded migrants. The Supreme Court also ensured the return of all migrant workers stranded by the post-coronavirus lockdown to their home states within a fortnight and to inform them about welfare programmes, including job opportunities, they plan to offer.  The Supreme Court also directed the Centre and the States to withdraw any complaint or prosecution lodged against migrant labourers who had set out on foot from big cities for their native villages to escape starvation, unemployment and disease during the pandemic apparently in violation of the lockdown guidelines.

India is a founding member of the International Labour Organisation and has been a permanent member of the International Labour Organisation Governing Body since 1922. India has ratified six out of the eight-core/fundamental ILO conventions. These conventions are: 

Cases

A Rapid assessment survey was conducted by Habitat for Humanity’s Terwilliger Center for Innovation in Shelter, 2020. 974 migrant workers were interviewed for a better understanding of the impact on migrant workers in Maharashtra, Pune and Ulhasnagar of the nationwide lockdown due to COVID-19:

  • About 71% of the workers had not received wages post the lockdown.
  • 63% of the workers claimed to not have any source of livelihood at their place of origin i.e. home villages.

Due to lack of financial support and no alternate livelihood in their home villages, the migrant workmen were forced to rely on the welfare measures undertaken by the Government.

  • 28% of the workers received no help or support from the Government.
  • 26% of the workers suffered hunger during the lockdown with little or no access to food.
  • 40% of the workers struggled to gain access to food grains and ration.

The Pradhan Mantri Garib Kalyan Yojana made direct cash transfers to female holders of Jan Dhan accounts, in addition to a transfer of Rs 1,000 to senior citizens. This was supplemented by the provision of cooking gas/LPG free of cost for the three months, from 1 April to 30 June 2020, to enrolled beneficiaries under Pradhan Mantri Ujjwala Yojana as welfare measures in order to cope with the lockdown. The Finance Minister of India announced the Atma Nirbhar fiscal relief package, allocating an additional Rs 40,000 crore to the Mahatma Gandhi National Rural Employment Guarantee Act, in order to enhance support to the working poor in rural India.

New Developments

The Occupational Safety, Health and Working Conditions Code, 2020 (OSH) was introduced in Lok Sabha on September 19 and passed on September 22. It was introduced and passed in Rajya Sabha on September 23. According to the previous legislation, The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, only the interstate migrant workers hired through contractors were covered under labour laws. Therefore, the migrant workers who travelled on their own account for employment or in search of employment from villages to big cities were not covered under the ambit of the labour laws.

Under the Occupational Safety, Health and Working Conditions Code, 2020 a migrant worker is defined as the one who “has been recruited directly by the employer or indirectly through a contractor in one state for employment in such establishment situated in another state” or “has come on his own from one state and obtained employment in an establishment of another state.” The bill provides certain benefits for inter-state migrant workers.  The workers have the option to avail the benefits of the public distribution system either in the native state or the state in which they have been employed. The benefits under the building and other construction cess fund can be availed in the state of employment, and insurance and provident fund benefits are available to other workers in the same establishment.

The government has, however, dropped a provision in the previous draft of the law which made it compulsory for employers “to provide and maintain suitable residential accommodation” to migrant workers “during the period of their employment.” The 2019 Bill required contractors to pay a displacement allowance to inter-state migrant workers at the time of their recruitment, which was equivalent to 50% of the monthly wages. The 2020 Bill has removed this provision. A parliamentary panel has recommendations on a separate chapter on migrant workers in the code and recommended that every state should have a helpline for migrant workers.

However, the inspection authority to assure the implementation of such law has been further weakened by the code. The code does not provide for powers of inspectors envisaged by ILO Conventions such as stated in Article 12 “free entry at any time and without prior notice” Article 16 “and as frequently as possible to secure effective enforcement of laws”.

Solutions

Obsolete laws such as the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 should be made more efficient by discarding onerous compliance procedures and ensuring uniform labour standards. The Government should aid in the formation of a separate ministry dealing with issues relating to the migrant worker population, ensuring compliance by implementation under the purview of governmental bodies. The Government should promote and provide aid to the  NGO’s taking an active part for the protection of the legal rights of the migrant workers and to build an active movement to generate awareness about their rights, lobbying and advocacy to prevent the abuse and exploitation of the migrant workers.

As per a report on the “Social Inclusion of Internal Migrants in India”, by UNESCO and UNICEF (2013) it states that a clear and concise governance system needs to be developed to address the issues concerning internal migration in India. A framework of applicable laws, dedicated institutions that ensure the proper implementation of such law, policies supporting and protecting the rights of migrant workers in India. Quality education to prevent exploitation of workers, PDS, free healthcare services or health insurance, and to ensure easy and equal access to opportunities by the workers. They should also be integrated into large scale important state-level policies.

References 

  • Government of India. (1979). The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) ACT, 1979. Chief Labour Commissioner. https://clc.gov.in/clc/acts-rules/inter-state-migrant-workmen#:~:text=1979%20and%20came%20on%20the,1979%20(30%20of%201979).&text=An%20Act%20to%20regulate%20the,and%20for%20matters%20connected%20therewith.
  • Habitat for Humanity Terwilliger Center for Innovation in Shelter. (2020, August 1). Leaving the City Behind: A Rapid Assessment with Migrant Workers in Maharashtra. Habitat for Humanity. https://www.habitat.org/sites/default/files/documents/Leaving-the-City-Behind_Rapid-assessment-with-migrant-workers-Maharashtra.pdf
  • International Labour Organisation. (1919, April 1). ILO Constitution. ILO. https://www.ilo.org/dyn/normlex/en/f?p=1000:62:::NO:62:P62_LIST_ENTRIE_ID:2453907:NO
  • Lok Sabha. (2019, July 23). The Occupational Safety, Health and Working Conditions Code, 2019. Ministry of Labour and Employment. http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/186_2019_LS_Eng.pdf
  • Salve, W. N. (n.d.). Labour Rights and Labour Standards for Migrant Labour in India. International Labour Organisation. http://www.oit.org/legacy/english/protection/travail/pdf/rdwpaper22a.pdf
  • UNESCO Office New Delhi. (2013). Social inclusion of internal migrants in India. UNESCO. https://unesdoc.unesco.org/ark:/48223/pf0000223702.locale=en

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here