Who are Migrant Workers?
At time of industrial revolution, India’s more than half of population was depended on agrarian sector for employment and livelihood, country saw a migration (movement from one place to another) of workers between districts, cities and states. There is no hard and fast definition of migrant workers but in laymen terms, migrant worker is a worker that moves from his place of residence to another place for job purpose. It can be temporary or permanent in nature. According to the International Labour Organization, there are between 20 to 90 million domestic workers in India and many are migrants. Migrant labour contributes to about 10% of India’s Gross Domestic Product (GDP)[1].
This constant movement with no roots makes migrants extremely susceptible to exploitation by employers/agents and the lack of welfare legislations to ensure their protection leaves them vulnerable.
Statistics
According to data of 2011 census, collected from the National Sample Survey Office (NSSO) mentions that there are over 65 million inter-state migrants, one third of whom depend on daily wages or are employed in unorganized sector but even with this huge number, their welfare and safety in society seem to be unimportant.[2]
Reason for migration
- Floods
- Constant droughts in different parts of countries
- Lack of infrastructure
- Lack of communication
- Illiteracy
- Poor enforcement of policies of development
Dadabhi Naoroji, (1888), and Lewis, (1956) have pointed out some reasons for migration of labour, like agricultural poverty, the decline of village, decline of cottage industries, poverty of the people, drought affected villages and cities in which absentee of work for about six months per annum, small cultivators whose holdings are extremely inadequate and landless labour in economically weaker sections of the community.[3]
Rights of Migrant workers
Rights ensured to workers under Indian Constitution
Article 15 says that the state should not discriminate against its citizens.
Article 16 provides ‘equality of opportunity for employment or appointment under state.
Article 43 says workers should have the right to a living wage and “conditions of work ensuring a decent standard of life”
Article 39(e) of the Constitution requires the State to formulate the non-abusive policy on health and strength of women and men workers.
Article 21 provides for the Right to life, and all migrants’ workers have a right to life, and States have an obligation to ensure that no migrant is arbitrarily deprived of this right.
Rights ensured to workers as Human rights.
According to Article 22 of the Universal Declaration of Human Rights, every member of society has a right to social security.
Rights ensured to workers under International labour organisation
India is one of the founding members of the International labour organisation (ILO) and ILO is constitutionally bound to promote social security programmes and measures providing basic income to all in need of protection. Social security systems provide nine types of benefits as defined in the in social security convention,1952 namely, medical care, sickness and maternity, medical care, sickness and maternity benefits, family benefits, unemployment benefits, employment injury, invalidity and survivor’s benefits, old-age benefits.
Rights ensured to workers under different legislations
- Employee’s compensation Act, 1923
- Payment of wages Act, 1936
- Equal Remuneration Act, 1976
- Minimum wages Act, 1948
- The Unorganised workers Social Security Act,2008
- Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act
Other implicit rights
- Equality and non-Discrimination
- Protection against arbitrary arrest and detention
- Protection against torture and inhuman treatment
- Family rights
- Right to social security
- Freedom of movement
- Right to primary education
- Right to enjoy culture in community with others
Inter-state Migrant Worker Act
Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, was passed in the year 1979 to tackle the abusive nature of inter-state migration labours (known in Orissa as Dadan Labour) that was mostly prevalent in the State of Orissa and other parts of the country. Initially, these labours are recruited from different parts of the country by agents called Sardars for large scale construction projects.
This system was very abusive in nature since agents were not paying adequate payments and working conditions were very harsh for these migrants. The provisions of the various labour laws of the country are not being observed in their case and they are subjected to various malpractices and harassment.
Earlier legislation like the Contract Labour (Regulation and Abolition) Act, 1970, even after necessary amendments was not able to tackle malpractices in Inter-State Migrant workers.
The Twenty-eighth Session of the ‘Labour Ministers’ Conference (New Delhi, October 26, 1976) which considered the question of protection and welfare of Dadan Labour recommended the creation of a Compact Committee to suggest measures for eliminating the abuses prevalent in this system of inter-state migrant workmen. The Committee recommended the formulation of separate legislation to manage the employment of inter-State migrant workmen.
Some important highlights of this legislation
1. 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.
2. The law requires contractors to get licenses from states where they intend to bring labourers from. Apart from that, each contractor is required to provide complete details of migrant workers to the registering authority within 15 days of hiring any migrant worker.
3. 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.
How this Act helps migrant workers?
1. The Act mentions that there should be registration of establishments deploying migrant labours. This creates a system of accountability.
2. It helps the government to keep track and maintain data about the number of workers employed and hence policy targeting migrants can be formalised.
3. All the terms and conditions like the remuneration payable, hours of work, fixation of wages and other essential amenities were to be pre-decided which resulted in less exploitation than before.
4. The wages of migrant workers cannot be lower than the wages mentioned in the Minimum Wages Act.
5. 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.
Criticism
1. While the Inter-State Migrant Workmen (ISMW) Act was formulated to provide protection to migrant workmen, it recognises only those workers who are engaged by a contractor as an inter-state migrant worker. Workers who are migrating on their own and employed in any other state are not covered under the purview of the ISMW Act. Further, a migrant workman is required to be registered in his home as well as in state of current employment, which has often proved difficult for the workers to get the benefits under the ISMW Act. Therefore, the definition of ‘migrant workmen’ in the Act is discriminatory in nature.
2. It is always alleged that it is “A law that remains mostly on paper”. It is never the lack of legislation but it is always the lack of will, efficiency and implementation of the law that fails it.
3. This Act did not provide any remedies or ways to tackle unprecedent situation like Covid 19 or any other natural calamity.
Recent amendment
Initially, there were 44 labour laws in the country. The Central Government had now subsumed these 44 laws into 4 laws. Inter-state Migrant Worker Act has now been subsumed in the Occupational Safety, Health and Working Conditions Code, 2020 and the Code has been notified on 29.09.2020. 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.” This code commonly known as OSH Code provides for-
- Decent working conditions
- Minimum wages
- Grievance’s redressal mechanisms
- Protection from abuse and exploitation
- Enhancement of the skills and social security to all category of organised and unorganised workers including Migrant workers.[4]
Proposed Solutions
1. The Government should think about the formation of a separate ministry dealing with issues relating to the migrant worker population, and implementation of their legal, constitutional and human rights. Also, the court in case of Shashank S. Mangal v. GNCTD[5]held that “… there is a dire need for creating a mechanism for registration of migrant workers.”
2. Direct benefit transfer should be given to migrant workers.
3. More opportunities should be created at local level in form of handicraft works or small units of manufacturing, so there is less migration for job and survival purpose.
4. Other data bases like nutrition requirements, their working hours, frequency of migration can be created in line with National Database of Unorganised Workers (NDUW) by ministry of Labour and employment, (which will be a comprehensive data base of the Unorganised Workers including the Building and other Construction Workers and Migrant workers, seeded with Aadhaar. It will have details of name, occupation, address, occupation type, educational qualification, skill types & family details etc. for optimum realization of their employability and extend the benefits of the social security schemes to them).
5. The Government should promote and provide aid to the NGO’s and different self-help groups taking an active part for the protection of the legal rights of the migrant workers.
6. There is a need to improve understanding of migrant men, women and children’s lived experiences of inclusion/exclusion, and the reasons for their migration which are highly varied.
7. Migrant workers need to be sensitized about their rights. The Grievance redressal mechanisms should be strengthened.
Conclusion
We can conclude by saying that despite the efforts made by different state government they are not able to regulate the rights, harassment and movement of migrant workers. Even after the existence of plethora of labour right laws in the country, due to administrative inefficiency, there is a wide gap between human rights of labours and legal framework governing their rights.
Legislature needs to take a practical approach towards the protection of the rights of the migrant labourers, Occupational Safety, Health and Working Conditions Code, 2020 can be a path-breaking decision in matter of labour rights if implemented successfully. The labour rights in country still have a long way to go.
[1] https://www.livemint.com/news/india/why-india-s-migrants-deserve-a-better-deal-11589818749274.html
[2] https://indianexpress.com/article/opinion/columns/invisible-india-migrant-exodus-coronavirus-6425627/
[3] https://www.ilo.org/legacy/english/protection/travail/pdf/rdwpaper22a.pdf
[4] https://pib.gov.in/Pressreleaseshare.aspx?PRID=1705415
This article has been written by Mrityunjai Rai, 1st Year B.A. LL.B. Student at Army Institute of Law.
Also Read – Migration – An Overview of the Cause and the Solution Ahead
