NEED OF REFORM IN THE LAW RELATED TO MIGRANT WORKERS IN INDIA
“There is No work which is trivial. All work that promotes humanity has dignity and significance and must be done with diligence.”
–Dr. Martin Luther King Jr.
Migration of workers from one place to another in a hope to get better employment opportunities is one of the key economic issues. In the developing nations like India, it is the common issue. Workers from unorganized and other sectors move from one state to another state in search of improved livelihood. In 2007-08, the National sample Survey office (NSSO) indicated that India’s Migrant workers consist of around 29% of the workforce. Further, it has been observed that from 2001 to 2011, around six crore inter-state labour migrants were identified.
The Unprecedented COVID- 19 has affected miserably the labour class due to which the migration has been increased. During the COVID- 19, workers from unorganized sector have started walking from their workplace to rural areas in order to save their lives from Deadly covid virus. This unprecedented situation has forced them to leave their workplace as there is no more employment due to lockdown in the nation. This covid situation has highlighted the need to bring reforms in the current legal system governing migrant workers rights.
There is a dire need to register the migrant workers in national database and provide them social securities in terms of employment opportunity and other securities as to ensure their livelihood.
ABOUT THE MIGRANT WORKERS IN INDIA
In general, migration is an act of movement by the people from their place of residence to other place. Workers migrate in order to get employment. There can be national (movement within the country itself) or International Migration (Movement outside the country). In India, most of the workers belong to unrecognized and informal sector and the law related to workers in unorganized workers is not a comprehensive and uniform law. Workers from unorganized sectors do not get any social security regarding their employment and the temporary nature of their employment forces them to move to other place.
In India, the migration from rural to urban areas was common but now due to COVID- 19, it has become an alarming issue. During the National Lockdown, the workers from the unorganized sectors have lost their employment and they started migrating from their workplace to their homes (Rural areas).
In re : Problems and Miseries of Migrant Labourers.2020, even the Apex court had taken suo motu cognizance of the Problems and Miseries of Migrant workers and issued direction to the Central and state government to provide adequate transport arrangement, food and shelters facilities to the Migrant workers.
Indian Constitution recognizes India as a welfare state which means it is the duty of state to work for the welfare of the people by directing the policies in that direction. The ideal of social justice is incorporated in the Preamble itself which directs the state to ensure the equality amongst the people in the society. Thus, the constitution of India recognizes the rights of Migrant workers.
Part III of the constitution guarantees fundamental rights to its citizens. The foundation is the Article 14 which ensures equal treatment of all persons including migrant workers. Further, Article 19(1)(c) allows the citizens to form an association or Union of people sharing common concern. The most important provision is the Article 21 which secures the right to life and personal liberty of people. In Olga Tellis vs. Bombay Municipal Corporation 1985, Supreme Court held that “Migrant workers constitute the most vulnerable class in the work place because they are subject to the exploitation by their employers. Even, they have right to livelihood which is part and parcel to right to life under Article 21”.
Part IV of the constitution which deals with the Directive principles of state policy. It enshrines the duty of state to protect the rights of workers including Migrant workers. It is relevant to cite Article 39 which cast the duty upon the state to ensure the principle of equal pay for equal work for both men and women and protection of the health and strength of workers. Another relevant provision is Article 42 which obliges the state to secure just and humane conditions of workplace to the workers. Therefore, the above said provisions are the foundation of a legal framework for migrant workers which protect their rights and ensure the compliance of health and other standard.
STATUTE GOVERNING THE MIGRANT WORKERS ISSUES
As discussed above, Indian constitution empowers the parliament to enact legislations on the Labour welfare. In furtherance of that, Indian parliament has enacted The Inter-State Migration Act, 1979 for governing the Migration of workers from one state to other state. The objective of the Act is to regulate the employment of inter-State migrants and their conditions of service.
Following are the important provisions-
Applicability (Section 1)- It is applicable to every establishment that employs five or more migrant workmen from other States; or if it had employed five or more such workmen on any day in the preceding 12 months.
Scope [Section 2(e)]- This Act is applicable to only those persons who are recruited by a contractor in one state for an employment in another state. Workmen include skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical work except those who work under managerial and administrative capacity and who draws wages exceeding five hundred rupees.
Duty of contractor (Section 12)- It is the duty of the contractor to furnish the details of the worker as to his identity to the authority of the state from where he is migrated and then issue a passbook to the migrant worker which must be in the language known to worker containing all the details of employment.
Principle of Equality (Section 13)- It states that there should not be any discrimination among the migrant workers and equal wages shall be offered for equal work.
Registration of Establishment (Section4) –The Act requires the establishment which employs migrant Workers to be registered with the local authority and must get license too from the authority of both the states i.e. the state from where worker belongs and the state where he is to be employed.
Facilities to be provided (Section 16)- The Act require the employer to provide the basic amenities to migrant workers such as suitable residential accommodation, adequate medical facilities, protective clothing and suitable work environment / conditions.
Apart from this Act, Indian Labour laws have been codified into 4 different codes by the Indian Parliament. They are- Wage Code, Industrial Safety and Welfare, Social security and Industrial relations. The Occupational Safety, Health and Working Conditions Code, 2020 was passed by Lok Sabha and the Rajya Sabha on 22 September, 2020 and 23 September, 2020 respectively. The said code codifies 13 labour laws which also include The Inter-State Migration Act, 1979.
The Code defines the migrant workers as the worker who moves from one place to another for employment on their own and those workers also who are recruited by contractor. It applies to the establishment which employs more than 10 workers. The code prescribes for the registration of Migrant workers for accessing the ration and other facilities. The Home as well as destination state can register those migrant workers and even they can register themselves online with their smart phones.
ISSUES IN THE EXISTING LAW
In India, there is various labour welfare Legislations such as Inter- state Migration Act, 1979 but these legislations would not be of any worth if they are not implemented in its full spirit. The Inter- state Migration Act, 1979 is the legislation which deals with the regulation of employment of migrant Workers. One of the key feature of the said legislation is to register the details of Migrant workers so that the concerned state government can identity them easily and provide them an adequate facility and opportunity whichever require. But, the issue is the poor implementation of the said Legislation at the ground level. Till now, there is no uniform database to register the names of Migrant workers. Due to the poor implementation of the said Legislation, the Law failed to deal with the situation which has been arisen during the COVID-19 time. During the COVID time, the workers from unorganized, informal sector have lost their jobs and they started migration but the government failed to tackle the issue because there was no data available with the government to identify the migrant workers and then provide them with basic facilities for their livelihood.
Further, The Inter - state Migration Act, 1979 regulates the employment of those workers who are recruited by contractor in another state other than his residence state while there are migrant workers who are not recruited by contractor, they work by their own. The said Act does not take into consideration those workers. However, The Occupational Safety, Health and Working Conditions Code, 2020 has been enacted which takes into account even the migrant workers who moves to another place to work by own. The issue is that the said Code has not been implemented yet. This code has codified various labour laws for unification but it has not come into effect yet. Though, there exist laws which can take care of interest of migrant workers but these laws have not implemented properly.
Therefore, the current legal framework regarding the migrant workers is not that effective so that it would meet the present unprecedented situation because it has not been implemented in the manner as it should be.
SCOPE OF REFORM FOR THE MIGRANT WORKERS
One of the highlighted concerns which exist today in India is the protection of Rights of the Migrant workers. The Pandemic has forced the migrant workers to move to their residence back by leaving their place of employment because they are not provided with the basic necessities for their livelihood. Though The Inter - state Migration Act, 1979 exist for the regulation of conditions of services of migrant workers but it failed.
Following are the suggestions to protect the interest of Migrant workers-
There is a need of National database to register the details of Migrant workers so that concerned state government have records and then they can make arrangements for the welfare of such workers. It has been contemplated in the recent codes to develop a database to register the workers from unorganized sector but its implementation is slow. Even, The Hon’ble Supreme Court has recently directed the state and central government to take adequate steps to complete the work of establishing a database for the registration of Migrant workers at an early date.
There is an urgent need of a proper governance system to regulate the condition of services of Migrant workers. There is no dedicated Institution to monitor that whether beneficiaries are able to get benefit from the welfare schemes as stated in the law.
There is need to strengthen the social welfare mechanism so that there would be easy accessibility of public distribution system, Accommodation, education, Health and insurance to the migrant workers likewise other workers.
The state government must be required to frame a Migrant workers policy to regulate the migration and the rights of migrant workers in its state.
The employment opportunities must be available for the migrant workers who have migrated to other places in the search of employment without any sort of discrimination.
Adequate Arrangements should be made to distribute dry rations to the migrant workers and provide community Kitchens by an effective mechanism as stated by the Apex court recently.
There is a need to ensure that equal treatment should be done with the migrant workers regarding the Welfare schemes.
It can be concluded by the aforementioned discussion that it is essential for a nation to take into account the welfare of Labour class. Among them, Migrant workers are the vulnerable group as they move from one place to another in search of employment. The Migrant workers also require equal treatment as the other workers get. Indian Constitution sets out the principle of social justice which emphasizes upon the equal treatment in the society with the people.
Migrant workers interest has been considered by the Introduction of Inter-State Migration Act, 1979. The said Act consists of numerous provisions for the regulating the employment of Migrant workers. The Act provides for registration of establishment which employs migrants and also the workers as well. The Act is considered as welfare legislation but the truth is that this Legislation has not been implemented properly. It is very important for the law to be implemented well so that the beneficiary can derive benefit from it.
As observed, the Pandemic has affected the migrant Workers to a greater extent because law was not implemented properly. If the law had been implemented, there would not have been plight of migrant workers toward their rural Areas for the livelihood.
The biggest question arose as to the identification of Migrant workers because there is no database which consists of details of Migrant workers so that they can get benefit of welfare schemes. Therefore, it is the need of hour to establish at an early date a national database for the registration of details of Migrant workers. Once they get registered, then it would be easy for the government to identify them and then provide them basic amenities which is required for their livelihood. Thus, reform is vital for the welfare of the Migrant workers in India.
In re: Problems and Miseries of Migrant Labourers. SUO MOTU WRIT PETITION (CIVIL) No(s). 6/2020, order dated 26.05.2020]
Olga Tellis vs. Bombay Municipal Corporation, 1985 SCC (3) 545.
Inter-state Migration Act, 1979.
Constitution of India, 1950.
The Occupational Safety, Health and Working Conditions Code, 2020.
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Siddharth Sivaraman, Is the Inter-State Migrant Workmen Act 1979, a dead letter?, https://www.orfonline.org/expert-speak/inter-state-migrant-workmen-act-1979-dead-letter-64979/ (21 April, 2020).
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Dr. W.N. Salve, International Labour Organisation, Labour Rights and Labour standards for Migrant Labour in India.
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B.B.A.,LL.B.(Hons.), 4th Year
School of Law, Jagran Lakecity University, Bhopal