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Legal Frame Work Relating To Migrant Workers Needs To Be Reconfigured In India

Deepak Tongli
1 Aug 2020 1:31 PM GMT
Legal Frame Work Relating To Migrant Workers Needs To Be Reconfigured In India
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Labour is the fruit of civilization, not the basis of it- Alexander Crummell. Labour class is the backbone of the national economy. Indian Labour class is always in discussion since pre independent era where they faced crucial issues with the capital class and as a result of various movements and recommendations laid down by the Royal Commission on Labour; various Labour law legislations came in force on Indian mother land. Emphasis was laid on the critical parameters like wages, equal pay for equal work, industrial relations, rights of employee and employers, maternity benefits, bonus and provident funds, health and medical benefits, disputes resolution mechanism, industrial tribunals and appeal authorities etc. One of the latest and less popular legislation amongst all is THE INTER-STATE MIGRANT WORKMEN (REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICE) ACT, 1979. This is an Act passed by the Parliament of India to regulate the condition of service of inter-state labourers in Indian Law.

Historical Perspective & Enactment of ISMWA:

The Interstate migrant employment was more or less in an exploitative manner spread across various parts of India. To be more specific there was rampant spread of exploitation of migrant workers in Orissa and other parts of the country. It was popularly known in local language as dadan labour. There were Khatedars / Sardars who used to migrate a large number of labours outside the state for various works like construction projects, drainage and sewage treatment, daily wages labourers etc. This system itself lends to various abuses. The Contractor / Agent promising the wages at the time of sending the labourers were not paid as promised in reality. There were no specified working hours, holidays, wage structure etc. They were made to work whole week and there was absolute squeezing of the human rights and very poor working conditions.

The 28th Labour Ministers Conference held in 1976, recommended for setting up of a Compact Committee to study the abuse and ill treatment on Migrant workers and recommend measures to eliminate it. The recommendations of the Compact Committee had been examined with concerned central ministries, state governments and finally the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. Was passed by both the houses of the parliament and obtained the President's assent on the 11th of June 1979. The Act's purpose is to protect workers whose services are requisitioned outside their native states in India. Whenever an employer faces shortage of skills among the locally available workers, the act provides to employ better skilled workers available outside the state and to provide for their conditions of service and for matters connected therewith.

Relevance of the Act and Challenges:

The Act, which is almost four decades old, was always legislation on papers but not in force as the objective of the Act was to resolve the problems being faced by the Inter State Migrant workers and these working class are the deprived classes who had no time to fight for their rights as earning their livelihood was of prime importance for them. None gave any importance on the provisions of the Act and its shortcomings.

Until very recently, most Indians were unaware of a statute titled the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. The Act came in the limelight and became a National Headline only in the recent days of the Covid-19 Lockdown period. Never in the history of this generation, had the world witnessed such a global crisis. Within India, we were locked down by our own areas, it was a complete isolation. People from one colony couldn't step in to neighbouring colony. This followed up to state borders too. The State Borders are shut owing to the rapid spread of pandemic. At this juncture, their arose the question of the Migrant Labours who had fled from their native for earning their livelihood. Thus, the Act became a matter of discussion on various platforms.

The recent hardships which the migrant labourers confronted, our law and correspondingly the legal system failed to address these voiceless citizens. In fact it is the collective failure of our society. The government, law enforcement agencies and civil society have all let down this section of Indians who have been termed as the "builders of our booming economy." The Act provides for a systematic protection for these migrants but it was not followed in reality.

Statistical Data Analysis:

Let us look at some data which will also detail that they are by no means insignificant. According to the 2011 Census, India has 5.6 crore inter-state migrants, most of who come from the Hindi speaking belt of Uttar Pradesh, Bihar, Jharkhand, Rajasthan and Madhya Pradesh. A majority of such migrants work in the unorganized sector; a large number are daily wagers and very few have any form of a valid identity card, given their transient existence. Notably, while the number of inter-state migrants grew at 55% between the 1991 and 2001 Census, it came down to 33% between the 2001 and 2011 Census. While most migration happens to states like Delhi and Maharashtra, the dream destinations, owing to them being the hub of commercial activity, between 2001 and 2011, there was a steady increase in the movement of migrants to other destinations within their own states and sometimes even to other locations within the same district. But in recent years, these migrants were once again drawn towards the big cities and capitals.

Important Provisions of the Act:

If we critically examine the provisions of the Act, we notice some relevant important facts like, The contractors who engage in migrating these migrant workers, enticing them with the promise of fulfilling their dreams, are required under the Act to obtain a license from an authority both of the state to which the workman belongs (home state), as also the one in which they are proposed to be employed (host state). Establishments / Organizations hiring them are also required to obtain a certificate of registration before employing them. The Act stipulates that the license may contain conditions regarding the arrangements under which the inter-state migrant will be recruited, the remuneration payable, hours of work, fixation of wages and other essential amenities to be provided. There is an explicit provision regarding the wages to be paid to these migrant workmen, the date from which it is due, and their entitlement to a displacement allowance. Suitable residential accommodation, adequate medical facilities and protective clothing are also amongst what is to be provided.

The Act provides for the appointment of inspectors by the appropriate government, and inspectors from the home state may visit the establishments where these workmen are employed in the host state to ensure compliance. Punishment for non-compliance is quite stringent and includes imprisonment. Regrettably, most inter-state migrant workmen aren't even aware of their rights and those who dare raise questions risk losing employment, as also their wages, as the contractor usually keeps them on a hand-to-mouth existence.

Implementation Failures:

The Covid-19 pandemic is a Natural disaster. No one is to blame for this act of god. But can the same be said about the ensuing humanitarian crisis? It brought to the fore the pre-existing vulnerabilities of our labour workforce and the shortcoming of our labour laws. And for the migrant worker, it stole their dignity. Scores of civil society folks doing good work have shared stories that the migrants didn't want charity. They just wanted their due share. It is sham eon our part that the fact is we have collectively failed to protect the interest of migrant labourers. Thousands of Migrant Labourers walked miles together due to state's improper guidelines and directions. It hurts me to quote an incident happened in Aurangabad wherein around 25 migrants decided to walk the way back home in North India and en route they halted on a railway track overnight. The stressed and strained body was asleep when a goods train ran over them making them not to see the next day sunrise. Government drew line to pandemic through locking state borders, but Corona is a borderless and limitless virus. Just to secure their numbers of affected people the whole Administration has forgot Human Rights and Human Values. It will be a dark spot forever in the history of mankind.

Following questions come to my sound sense of humor after reading various incidents during this pandemic period; if the law is there, then why was it not implemented? If the migrants are entitled to a dislocation allowance then why was it not given to them? In fact, why were even the monies due to them not paid? If the contractor who hires them is to be licensed then how did he disappear deserting them and leaving them to fend for themselves? Why were health facilities and other basic amenities not provided? If even some of this would have happened, then we may have been able to hold back these workers from embarking the journey back home. The response is that the Act is in many ways obsolete and hardly enforced anywhere. One may wonder, how is that even possible, but that is the harsh reality. The time has come for repealing the Obsolete Laws from the statute books.

Occupational Safety, Health And Working Conditions Code, 2019

In order to streamline the existing Labour Laws, the Occupational Safety, Health And Working Conditions Code, 2019 was introduced in the Lok Sabha in July 2019. This code subsumes and replaces 13 labour laws, including the Act, and, amongst others, attempts to strengthen migrant labour rights. It provides that where any establishment is employing migrant labour through a contractor who is required to obtain a licence, but who has not done so, then the migrant labour so engaged through the contractor, shall be deemed to be employed by the principal employer. It reiterates the provisions relating to the entitlement of migrant workers to receive a displacement allowance equal to 50% of the monthly wages payable to them.

The code was referred to a standing committee towards the end of 2019. In February 2020, the committee made its report and on the issue of migrant labour noted the unanimous view of the state governments and the labour ministry that an exclusive chapter on migrant workers be introduced in the Code, notwithstanding the special provisions currently referred to in it. The committee also pointed that the Code should have initiatives similar to those adopted by Odisha for migrant workers such as a toll-free Shramik (labour force) Sahayata Helpline, Migrant Labour Help Desk, seasonal hostels for the children of migrant workers, strengthening AntiHuman Trafficking Units and the setting-up of migration support centres and thereby protecting the interest of the labour force. Various NGO's and Student Unions are conducting surveys putting the code for tests. Some of the suggestions done by these NGO's propos for incorporation in the chapter proposed for migrant workers are to include schemes like universalisation of PDS (as proposed by the Government) and the elimination of domicility based eligibility criteria, providing safe and hygienic shelter facilities. Provision also must be made for the security of single women migrants, and allow migrant groups to live together with their communities. These circular workers must also have access to urban healthcare systems and the new legislation must entirely remove the burden of providing documentation from migrant communities.

Conclusion:

As of now, and to the best of our knowledge and belief, these migrants have no faith in the system and are justified to look at us with doubt. In due course, and let us manage our expectations on the time-line, when their measly savings, if any, are exhausted, chances are the migrants will eventually be compelled to return to the same cities where their dreams turned to nightmares. Let us not forget what happened. It will be a reflection of our moral compass if, going forward, we as a nation and as a society, in our own ecosystem, don't treat our labour force with the respect they deserve. Or extend to them the protection which our laws and the legal system must give them. If extending to them fair and equitable treatment sounds reeking of concepts from public international law or just too utopian concept, can we at least be humane. It is an alarm for the System to awake before it's too late.

In purview of this, the Legal Frame Work relating to Migrant Workmen to be reconfigured in India keeping the interest of the receiving ends. Mere passing laws and enacting laws doesn't serve the purpose. A proper implementing mechanism and its awareness is the need of the hour. There should be sufficient attempts by the authorities to educate the labour class of their rights and obligations. Let us rebuild the Confidence in them and treat them like our family members.

Millions of migrants breathed a sigh of relief when the Supreme Court of India passed its interim directions on May 28, 2020 in a suo moto Public Interest Litigation to redress their miseries caused by the unplanned lockdown to beat the Covid-19 Corona Virus. However, the extraordinary intervention sparked a debate whether the SC should have refrained itself from the majoritarian art of governance.

Let us step towards self-reliance… Our Labour Force… Our ATMANIRBHAR

Maintain Social Distancing

Views are personal only

(Author is a Law Student at KPES' Dr. G.M.Patil Law College, Dharwad-01)

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