This article is written by Ms Sankalpita Pal, who is currently pursuing BBA.LL.B (Hons) from Symbiosis Law School, Pune. This article extensively discusses the position of migrant workers under the Indian legal framework and according to International standards.
Table of Contents
Introduction
Migration has been a significant part of human history as it has shaped societies and economies due to the intermixing of different cultures. Movement for economic and financial purposes has gained immense popularity over the past few decades. Millions travel from developing to developed countries in the pursuit of economic advantages and better quality of life. Various issues have propped up over the years regarding labour rights for migrant workers as more and more migrant workers were exposed to exploitation. Thus, governments across the world have realised the importance of recognising labour rights as a part of human rights.
Across the world, the violation of labour rights by employer companies is a grave concern. Migrant workers are especially vulnerable due to the fact that they lack social security along with economic freedom. There are certain risks involved when such workers are rendered unemployed. The present article attempts to venture into the Indian legal standards governing the rights of migrant workers and international policy suggestions regarding the same.
Regulations concerning migrant labourers in India
One of the most important labour rights is the right to decent working conditions and social security. The inception of the concept of social security took place at the time of the French Revolution, 1793.
The Indian Constitution protects labour’s rights. This aspect is circumscribed within the Preamble, the Fundamental Rights and the Directive Principles of State Policy under Part IV of the Constitution. Minimum rights are guaranteed in the workplace according to the Constitution. This enables workers and employees to translate economic growth into social security. Integrated development is only possible if all kinds of workers have their fair share of rights. The Preamble itself portrays that the Indian Constitution prescribes and promotes social justice for workers. There are various labour specific legislations along with government social- security schemes.
Now legislations concerning migrant workers in India are:
Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
The primary purpose of Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 is to benefit migrant workmen. The framework of the legislation is spread over 7 chapters. The legislation encompasses registration of establishments employing inter-state migrant workmen, licensing of contractors, duties and obligations of contractors, welfare facilities etc. that needs to be provided to the workers.
Payment of Wages Act, 1936
The Payment of Wages Act, 1936 ensures the regular and prompt payment of wages. Untimely payment of remuneration is a type of exploitation and in order to prevent this, legislation came into force. The imposition of Arbitrary fines on migrant workers is also prevented.
Employees’ Compensation Act, 1923
The Employees’ Compensation Act, 1923 is another important piece of legislation that provides protection to all kinds of workers (including migrant workers). With the increasing use of machinery, the need for manpower is going down. This leads to comparative poverty of the workmen. Thus, workmen are prone to accidents even at the risk of losing their lives. Therefore, in order to protect migrant workers from such hardships, this legislation was enacted.
Equal Remuneration Act, 1976
This legislation is proposed to achieve the ‘Equal pay for equal work’ motto amongst migrant workers. The Equal Remuneration Act, 1976 has an overriding effect on any other law or legislation or any court award, agreement, contract of service which otherwise suggests or orders anything that violates this motto.
Minimum Wages Act, 1948
The primary purpose of the Minimum Wages Act, 1948 is to fix, review and revise the minimum rates of wages. This Act safeguards the interests of the migrant workers or workers engaged in unorganised sectors. This sect of workers is especially vulnerable to exploitation owing to their illiteracy and inability to bargain.
The Maternity Benefit Act, 1961
This Act is intended to achieve social justice for women workers (including migrant workers). The Maternity Benefit Act, 1961 has provisions under it that is for the well being of the women migrant workers pre and post their pregnancy.
The Unorganised Workers’ Social Security Act, 2008
The aim of this legislation is to provide social security to the workers of the unorganized sector. The collective term, ‘unorganized sector’ is exhaustively defined under the Unorganised Workers’ Social Security Act, 2008 and the scope of this Act includes migrant workers.
ILO standards on Migrant workers
The International Labour Organisation is headquartered in Geneva, Switzerland. The International Labour Organisation was created by the execution of the Treaty of Versailles in 1919 after the Postwar Peace conference held in Paris. It is one of the important United Nations agencies which lays international labour standards in order to bring about uniformity amongst its member states. The preamble of the constitution of this organisation makes it evident that ILO particularly emphasizes the rights of migrant workers and sets standards for the protection of their interests.
International migration involves the interflow of millions of people every year. Two broad categories of migrant workers were chalked out.
- Temporary migration
Such migrant workers are also known as guest workers as they are employed only for a specific period of time. For example, workers employed for a year, seasonal jobs, trainees etc. Seasonal migration is a subset of temporary migration and one of the most familiar forms of it.
- Permanent migration
Permanent Migration refers to the admission of workers who avail immigration services. There are various types of immigration categories such as family reunification or intensive skill employment etc. Such workers migrate to a different place for an indefinite period of time. No definite time limit is imposed by the employing country.
The unprecedented growth of the phenomenon of international migration has given way for a diverse outlook towards work culture. The factors which lead to migration are diverse and sometimes may not apply to individual situations. However, there are a few ‘push and pull factors’ such as:
- Poverty-stricken condition in the home country
- Lack of competent opportunities for a highly skilled worker
- Better wages in a rich country
- Oppression and conflict
- Political instability in economically lower grade countries
- Urbanisation
- Lack of social security in developing home country
- Family reunification
- To seek a higher standard of living
- To gain higher skills via training
There are various other contributing factors due to which a worker migrates. Therefore, the above list of factors is not exhaustive.
It is to be noted that a few migrant workers benefit immensely and do actually salvage their economic situation however, it is not the same for all. Some migrant workers live and work in pitiable conditions completely unaware of the violation of basic human rights that they are entitled to.
The ILO Declaration on Fundamental Principles and Rights at Work, 1998
The ILO Declaration on Fundamental Principles and Rights at Work, 1998 is an important piece of declaration. It is safe to state that the ILO’s approach towards labour rights is that it treats it as basic human rights. At the forefront, the ILO gives labour rights are given the entity of universal rights i.e. the ILO standards apply to countries regardless of their political and economic development. The ILO has prescribed international standards for the effective abolition of forced labour, child labour and raise a progressive mindset for governments to realise the value of the migrant workers, almost a generation ago. With the influx of the idea of globalisation, migration for employment has become the norm. There are 4 core principles however under each principle 2 more conventions are chalked out in order to lay down standards.
The Fundamental Principles and Rights at Work covers four core areas:
- Freedom of association and the right to bargain collectively
The Universal Declaration of Human Rights (UDHR) first declared the right to form associations.
This principle consists of two contributing conventions:
- Freedom of Association and Protection of the Right to Organize Convention, 1948
- Right to Organize and Collective Bargaining Convention, 1949
2. Elimination of all forms of forced or compulsory labour
Forced servitude is a gross violation of labour rights and in order to give it a universal outlook the ILO drafted this principle.
This principle also consists of two conventions:
3. Effective abolition of child labour
Child labour is one of the most atrocious violations of human rights. There have been reported cases of migrant child workers or children of migrant workers are subjected to forced labour, sexual exploitation etc. It focuses on 2 broad conventions laid down under this principle.
- Worst forms of Child Labour Convention, 1999
- Minimum age Convention, 1973
- Elimination of discrimination in employment and occupation
This principle was realised in recognition of the ‘equal pay for equal work’ movement. Discrimination exists amongst migrant workers as well thus, bringing about more disadvantage to the ones discriminated against. This principle has 2 focus areas with regard to established conventions under it.
Migrant Specific instruments by ILO
There are four migrant worker specific instruments.
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The objective of this convention is to prevent misleading propaganda with regard to emigration and immigration. The member nationals are under an obligation to inform the ILO regarding their policies on emigration and immigration whenever requested. The member states must also inform the ILO regarding the general and specific agreements regarding migrant worker policies. There are 2 main purposes for these recommendations. Firstly, to facilitate the distribution of manpower across the world. Transferring surplus labour to those manpower deficiency countries. Secondly, the member nations must have due regard for manpower. The main purpose is to prosecute the author of manpower trafficking and to protect migrant workers from abuse. This convention strives for equality of pay and treatment of migrant workers by the destination nations. The purpose of these recommendations is that member nationals must make policies facilitating family reunification of migrant workers. Employer organisations must consult social services for migrant workers. |
Impact of lockdown due to COVID-19 on the migrant workers
India’s country-wide lockdown amidst the outbreak of COVID-19 pandemic has critically impacted the whole nation. It has led to a number of hardships to businesses and job-goers. However, the worst affected section of society would-be migrant workers. The migrant workers thrive on rootless existence with no proper place to stay and establish themselves. In fact, Interstate migration is a massive phenomenon. This lockdown has completely dislocated the migrant population. Recently due to the sudden shut down of public transportation, thousands of migrants were forced to walk miles in order to reach their home villages. Some migrant workers and their children also died on their way back to their home journey. The truth is saddening.
Migrant workers became one of the most vulnerable groups whose rights remain eclipsed due to the lack of timely governmental action. The condition of migrant workers is already pitiable. Each day’s economic productivity decides the amount of wages they receive. Thus, during the lockdown, since such workers became economically unproductive, they didn’t receive any payment. With little or no savings at hand, a massive exodus of migrant workers took place.
Few of the major hardships faced by migrant workers are:
- Job cut and unemployment,
- Pay cut or lesser pay than the already low wages,
- Immense impact on health due to unsanitary condition of the places where migrant workers have been rehabilitated,
- The migrant workers have been living in crowded and inadequate living conditions,
- Lack of proper electricity supply to places where migrant workers are temporarily rehabilitated,
- Lack of clean water,
- International migrant workers are still stranded in foreign countries with no actual heed being paid to their repatriation process,
- Social distancing norms set by the government breached due to non-availability of space in temporary rehabilitation centres,
- The health of the children of migrant workers at grave risk of contracting the virus,
- The mental and emotional well being of the workers are compromised,
- Impacts families of migrant workers who are left behind in villages and depend upon the remittances sent by them.
There are few more complex ongoing problems such as the safety of women migrant workers is at stake. Unsanitary living conditions make them more vulnerable to reproductive tract infections. Some pregnant migrant workers are also putting their and the unborn child’s health at stake and are walking miles back towards their home villages. There is no reliable account as to how many migrant workers have opted to return to their home villages.
Response of the State Government
The lockdown was implemented via the implications under the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005. On the 29th of March, the Home Ministry released an order stating that the exodus movement of migrant workers is to be treated as a violation of the lockdown guidelines mandate. The Ministry also directed the state authorities to ensure a few necessary arrangements such as:
- To provide temporary rehabilitation/ housing and adequate food supply to the migrant workers.
- The migrant workers are supposed to be screened properly for a minimum of 14 days. The standard health protocol has to be followed.
- Migrant workers should be provided with the wages so that they have means to survive at least on the bare minimum.
- Landlords cannot demand the rent migrants for at least a month and they can’t force the workers to move out as they will be held accountable for it.
On the 28th of March, the UP government arranged a couple of thousand buses to facilitate the movement of migrant workers. The government prepared an action plan in order to facilitate the return of the migrant workmen to their home states.
The Delhi government had converted the government schools into shelter homes for migrant workers. The government also promised to provide foodgrains to 7.2 million workers. It also started an e-coupon service system in order to benefit migrants not covered under the public distribution scheme. Just like the Karnataka government, the Delhi government released an online application system for the migrant workers who are willing to leave the state and accordingly appointed nodal officers to execute the same. Police officials were also directed to restrain any kind of unregulated movement of migrant workers.
The Bihar Government stated that it distributed Rs.100 crores from the Chief Minister Relief Fund. Disaster relief centres were set up in order to house migrant workers. The total budget towards the public health expenditure was Rs.8,788 crores.
The Maharashtra government established 262 relief camps for the migrant workers. These relief camps have provided shelter to an estimated number of 70,399 migrants. The government had introduced the “Shiv Bhojan Scheme” and reduced the rate of meals per day.
The Odisha government primarily delegated duties to Panchayats to tackle the issue of stranded migrant workers.
Recommendations
- First, the working of the Construction Workers Welfare Board (CWWB) must be reoriented in each state. The CWWB provides social security to migrant workers. However, the funds are utilised at 21% only. This needs to be taken care of.
- The Migrants shouldn’t be charged by the government for food and train fare.
- The migrant workmen legislations state that the displacement and journey allowances must be paid to the migrant workmen at the time of their recruitment. These allowances are to be paid when the migrant worker arrives at the host state from the home state. However, it has been observed that most of the time migrant workers are not paid the allowances they are entitled to.
- According to the Inter-State Migrant Workers Act 1979 (ISMWA), a migrant has to migrate through a contractor. The intermediaries must be reduced and the legislation must be updated according to the current legislation.
- Amid the lockdown, it has been observed that numerous economists and activists have tried to push the government to provide a proper ratio to workers. However, very few states have paid heed to such appeals. For example- The Tamil Nadu Government serves food at all its Amma canteens amid lockdown free of cost.
- Migrant workers need to be sensitized about their rights. The government needs to take initiatives with regard to grievance redressal mechanisms and educate the workers as to why the grievance redressal mechanism exists.
Conclusion
In conclusion, it can be said that 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 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. It is a well-observed fact that most countries have taken a lackadaisical approach towards the ILO standards for migrant labourers/ workers. Ostensibly countries are supposed to incorporate legislative frameworks in accordance with the ILO standards, however, most have failed to do so. The labour laws in India still have a long way to go.
References
- Yadvender Singh, Protection of migrant workers a study (2016)
- The International Labour Organisation website
- Dr W.N. Salve, Labour Rights and Labour Standards for Migrant Labour in India
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