A walk to remember: Trudge of the Inter-State Migrant workers
This article is written by Aishwarya Mysore Ravi, Currently pursuing B.A LL.B. (9th Semester) at Ramaiah College of Law, Bengaluru. The topic covers the cries of the Indian migrant workers during the lockdown echoed loud around the world.
Abstract
The COVID-19 pandemic has caused havoc across the globe. The cries of the Indian migrant workers during the lockdown echoed loud around the world. The Inter-State Migrant workers are a part of India’s colossal unorganized and mostly unregulated workforce. Despite the burgeoning population of migrant workers, they have been mostly left out of social security and labour policies and legislations. This article analyses the lacunae in the existing labour legislation and contributes some suggestions towards the Occupational Safety, Health and Working Conditions Code, 2019 that is currently tabled in the Parliament.
Introduction
At the stroke of midnight of March 24th, 2020 began the Indian migrant worker’s arduous long journey, finding their way back home. India went into a what began as a 21-day lockdown to contain the spread of the novel Corona Virus. A nationwide lockdown that gave rise to the trends of Dalgona Coffee and Banana bread also heard the cry of lakhs of migrant workers that echoed the loudest.
India’s 40 million migrant workers had to a different battle to contend. An exodus of lakhs of workers threw light on their fight against not just COVID-19 but against a much bigger adversary of homelessness, starvation and impoverishment. The pandemic impended their health, socio-economic situation and their very survival. The vulnerable class of unnoticed but quintessential people, who are the fulcrum of India’s growing urban economy were left to fend for themselves.
Thousands complained that their ordeals were unheard and ignored by their employers. Innumerable migrant workers walked thousands of kilometres to reach their hometowns. They had to bear the brunt of the being on foot for thousands of miles in the scorching heat with infants in their arms, road accidents and non-availability of food for the most of their journey. The migrant worker crisis is emblematic of a much larger problem of low paying and insecure occupations in key industries.
This debacle threw light on the plight of this vulnerable section of people who are devoid of social security and comprehensive legal protection for themselves and their family. Analysis of the existing labour legislations such as the Industrial Dispute Act, 1947 and Minimum Wages Act, 1948 elucidate the fact that a workforce so large lack legal protection.
The Industrial Dispute Act, 1947 was enacted for the welfare of the organised sector of the workforce. It does not provide any legal protection to those belonging in the unorganised sector such as the migrant workers or casual workers. The Minimum Wages Act, 1948 does not include migrant workers within the definition of “employee”. Over 50 Central and State legislations do not include migrant workers within the spectrum of the Acts.
The Inter-State Migrant Workmen Act, 1979 which was supposed to be the saving grace for the migrant workers also proved to be redundant due to poor implementation. This Act if implemented effectively would avert exploitation of the migrant workers and bestow legal protection. The Act laid down provisions for employers and establishments who employ migrant workers to obtain a license from the home state to which he belongs as well as the host state where he is occupied. The Act comprehensively laid down the law concerning conditions of employment, remuneration and wages payable, working hours and other essential nuances of employment.
The punishment for non-compliance is stringent with fines and imprisonment. However, this does not corroborate the reality in which there have been less than ten prosecutions. The real problem is not the lack of legislation, it is the lack of implementation thereof. Regrettably, there is a rampant lack of awareness of their rights among the migrant workers.
Unfortunately, even those remotely aware of their rights fear speaking up as they fear losing income or occupation as they live a mere hand to mouth existence. As a result of poor implementation coupled with lack of awareness of the law, the Inter-State Migrant Workmen Act, 1979 was ineffective and did not stand the migrant workers in good stead during the crisis of the pandemic.
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The latest initiative of the State towards the protection of the migrant workers is the Occupational Safety, Health and Working Conditions Code, 2019 that was introduced before the Lok Sabha in July 2019. The Code would subsume and replace thirteen existing labour laws including the Inter-State Migrant Workmen Act, 1979. This Code could prove to be the messiah for the migrant workers provided it is effectively implemented. It expands the scope of Inter-State Migrant workers to include therein the workers recruited or engaged by an employer directly, from one State to another State for employment in his establishment.
The Code entails special provisions for the inter-state migrant workers. The migrant workers would be bestowed with a plethora of rights under this Code including facilities such as residential accommodation, displacement allowance at the time of recruitment, journey allowance, medical facilities and all such cardinal amenities. The Code was put forth before a Standing Committee in 2019.
The report of the Committee stated that it was the unanimous opinion of the State Governments and the Labour Ministry to include an exclusive chapter on migrant workers in the Code to strengthen the legal protection accorded to them, notwithstanding the special provisions presently laid down in the Code. Provided that the Code is promulgated into a comprehensive legislation inculcating holistic welfare and protection of the Inter-State migrant workers it could become the panacea for India’s migrant labour crisis.
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However, an impeccable legislation alone will not heal wounds. Implementation is the key behind making an impeccable legislation, an effective one. A preeminent hurdle in implementing legislations for the migrant workers is the lack of credible data on the quantum and particulars of the migrant workers. Implementation in letter and spirit in toto could only take place if we have credible data is made available.
The Indian Census of 2011 is the most credible data that is currently available and it does not paint the real picture of migrants in 2020. The official data is ideally collected by the State Governments when the employers and contractors register as mandated under the law. In reality, unfortunately, most employers either don’t register at all or under-report resulting in a vast majority of migrant engaged by those who are not licensed to engage them. Incorrect data or the lack thereof is one of the primary reasons effective implementation does not take place.
By the virtue of entry 81 of List I, Inter-State Migration is a subject of the Union List. In exercise of this power, an extensive national-level database of Inter-State Migrants must be created by the Centre in collaboration with States. Provisions must be made for penalisation in case employers or establishments fail to duly register. Registration would also ensure validation of a government identification card of the migrant workers. When the correct number and details of the migrant worker are ascertained it becomes a cinch to transfer benefits to them. This would bring about ease in implementing legislations, policies and welfare schemes in favour of the migrant workers.
The COVID-19 pandemic unearthed a deep-rooted problem and the predicament of the migrant workers in India. Despite their substantial contribution to the economic output of the nation, they are not accorded with the rights and welfare measure they deserve. It is the need of the hour to implement holistic legislations and welfare policies keeping in mind their anomalous nature of work. It is about time that India implemented sweeping structural reforms and give the migrant workers sanguinity and respite.