LAW YOG

Legal Intervention on the Problems faced by Migrant Workers during COVID Pandemic

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Migrant workers are amongst the most vulnerable sections of the society in terms of normalcy and emergency. It is intriguing that around 20 lakhs migrant labourers leave their home state and travel to other states in search of work. It is noted that most of them are from the northeastern part of India. It was in 1977 in Odisha that people started their quest in finding jobs outside their state which resulted in various problems. And, thus following the same a Labour commission was held in order to control such problems that arise due to inter-state migrant workers. As an outcome of this nation-wide gathering, Inter-State Migrant Workmen Act, 1979 was enacted by the Indian Parliament to regulate the condition of service inter-state workmen. Even after 40 years of its enactment, the contractors, employers and policy-makers often overlook their health and safety risks.

Interestingly, the spread of COVID-19 pandemic has brought renewed attention, especially to the civilised civilians and civil society organisations that otherwise are neglected in the length and breadth of the country. Internal Migrants constitute a crucial part of Indian Economy. They play a significant role in poverty reduction and economic growth, especially in rural parts of the country.

Internal migration helps the transfer of agricultural surplus labour to the non-agricultural sect of the society and offers opportunities for increasing income and convergence welfare than international migration. When the rapid spread of Coronavirus was reported nationally and globally, the Indian Government was swift in responding to the International migrants who are celebrated as the cultural diplomats were provided with beneficiaries, such as, arranging evacuation flights, issuing travel adversaries and risk profiling them before the travel ban, to name a few. Whereas the Internal migrants, especially the Inter-state migrant workmen had to flee on foot to their hometowns; facing hardships amidst the COVID-19 crisis and the lockdown that followed. The blue-collar inter-state migrant workers had filled the deficit in certain labour-intensive sectors of the economy where the local population preferred not to take such jobs, pertaining, construction, manufacturing, transportation, brick kilns, mining and quarrying and agriculture. They make sure that the economy sustains its growth without any interruptions which eventually help the society to thrive with the dynamism of a better future. But, the lockdown had minimised the likes of their livelihood and forced them back to their home states making the sustainability of growth go down the drain.

This is certainly because the interstate migrant workers were exploited, forced to work and live in deplorable conditions and neglected not only from their social entitlements, housing, and financial services but also of non-portability of social security benefits. This makes the casual floating labourers of the country’s informal sector pushed to the pits by the sadistic circle of distress and marginalisation. Hence, tangible policy interventions should be taken to ensure the human and labour rights of the otherwise voiceless and faceless, inter-state migrant workmen.

Government Interventions and Labour Laws in India

  • Article 19 (d), (e), and (g) of the Indian Constitution states that “all citizens have the right to move freely throughout the territory of India; to reside and settle in any part of the territory of India; and to practice any profession, or to carry on any occupation, trade or business.”
  • In the Directive Principles of State Policy, Article 39 explicitly states that “the citizens, men and women equally, have the right to an adequate means to livelihood;” and that “the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.”
  • Article 43 further directs “the State to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.” These provisions are the constitutional basis for the rights and welfare of inter-state migrant workers along with the legislation enacted by the Ministry of Labour and Employment (MOLE). It was established to protect the interest of the workers in organized and unorganized sectors as well as to promote their welfare by providing social security and creating a safe and healthy work environment for them. Since, constitutionally, labour is a concurrent list subject; the State Governments are also competent to enact legislation and implement labour laws.

Several legislations were enacted that are directly and indirectly related to the migrant labour of which the most direct being the Inter-state Migrant Workers (Regulation of Employment and Conditions of Service) Act, 1979. Though limited by their scope and implementation, other relevant acts are the Minimum Wages Act, 1948; the Contract Labour (Regulation and Abolition) Act, 1970; the Bonded Labour System (Abolition) Act, 1976; the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996; the Unorganized Workers’ Social Security Act, 2008 etc., to name a few.

In 2009, the MOLE declared the National Policy on Safety, Health and Environment at Work Place to eliminate the incidence of ‘work-related’ injuries, diseases, fatalities, disaster and loss of national assets. The National Policy by recognizing a “safe and healthy working environment as a fundamental human right” states that “without safe, clean environment as well as healthy working conditions, social justice and economic growth cannot be achieved” in the country. This goes contrary to the fact that migrant workers often live in unhygienic, overcrowded and unsafe conditions in worksites, slum areas or street payments where social distancing is a luxury in the current times of Covid-19 pandemic. The Policy elaborates only on work-related injuries and diseases, and so was the case with all the labour laws. The scenario like the current spread of a pandemic and the vulnerability of workers to ‘non-occupational’ health hazards, especially the semi-skilled and unskilled migrant laborers in the informal sectors, is not addressed in any existing labour laws.

Interstate Migrant Workmen Act, 1979

In Orissa, Dadan Labour is recruited from different parts of the State through contractors or agents called Sardars or Khatadars for work outside the State in construction projects. No working hours are predetermined for these labourers and they need to work on all the days in a week under deplorable working conditions. The provisions of the various labour laws are not pragmatic in their case and are subject to a range of malpractices. The question of safeguard and welfare of Dadan Labour was considered by the 28th Session of the Labour Ministers’ Conference held on 26th of October in the year 1976 at the nation’s capital, New Delhi. It was recommended to suggest measures for eliminating the abuses prevalent in the system and set up a Compact Committee to go into the whole question. The recommendations of the Compact Committee were examined in consultation with the Ministries in the Central Government and State Governments.

The Inter-state Migrant Workmen (Regulation of Employment and Condition of Service) Act, 1979, lays down the employment conditions of the migrant workers that concern providing minimum wages as per state regulations, displacement allowance, journey allowance, residential accommodation during the time of the work, and other welfare measures. 

  • Chapter 5, Section 16 (e) of the Act directs every contractor employing interstate migrant workmen “to provide the prescribed medical facilities to the workmen, free of charge.” However, by putting the responsibility solely on the contractor who could be unwilling or non-committal to provide such benefits to the inter-state workers for his own petty profit-making interests makes the Act ineffective.
  • After all, no explicit provisions have been stated in the Act about the compensation to the workers in the event of a breach of the provision of benefits other than delegating to the principal employer to pay wages or other allowances to the migrant workers under Section 17 (4). Instead of distributing benefits through the contractors, who are often blamed for the ill-treatment of the workers, the government can grant benefits directly through local government structures, for instance.

Furthermore, as mentioned earlier, health and safety of the interstate migrants, as in the case of other labour laws, are thought-about only in terms of occupational hazards like a fatal accident or serious bodily injury while at work.

  • Provisions to provide protective clothing to the workmen and to report to the states’ authorities and also the family of the workman are specified under Section 16 (f) and (g), but these provisions are definitely not adequate and effective to deal with a situation of an outbreak and the spread of an infectious disease or the like. Even though the migrant workers are exposed to these diseases while at work/workplace, whether to treat a pandemic like Covid-19 as an occupational hazard is a grey area right now in the labour laws.

The 1979 Act has several such inherent gaps; yet another significant lapse is that this law excludes those interstate migrants working in the informal sector as well as in those small scale establishments with less than five migrants. There are a significant number of self-employed interstate migrants as retail traders or street vendors who do not come under the purview of this Act. Also, not all migrant workers are recruited by a contractor since the stream of interstate migration is often facilitated by kinship networks as well, and the Act does not recognize such interstate workers as migrant laborers. Limited applicability of the Act is further evident by the fact that it omits the welfare of almost half of the interstate migrant population, women migrants, who are working in private spaces as domestic workers, who are equally vulnerable in medical emergency scenarios. Thus, the Act fails structurally to provide the intended health and safety benefits to migrant workers.

Present Government measures regarding the stabilization of the state of affairs

The diversity in the measures adopted and implemented to contain the Covid-19 spread at the state level itself is illustrative of the fact that spontaneous and short term centralized approaches are not always equipped to deal with ground realities of each state and ensure the health and safety of especially the migrant workers in the absence of concrete legislations at the centre, state and local levels of governance. Contractors and employers were directed to take necessary steps to contain the spread of Coronavirus disease in their worksites and camps under the National Disaster Management Act, 2005 invoked by the Central Government as well as the Epidemic Diseases Act, 1897 invoked by the various state governments. It is noteworthy to mention that the timely response of civil society organizations has been more proactive in the pandemic situation, with them often stepping in to fill the gaps in the public delivery of relief measures.

Major weaknesses of the labour laws related to migrants workers stem from the nonexistence of accurate data on internal migration. Census data is not sufficient enough to capture the trend and pattern of internal migration, and so is the case with the National Sample Survey Organization (NSSO) data.

  • If empowered, the office of the Chief Labour Commissioner can easily collect more accurate data than the Census or the NSSO since it is stipulated in Section 57 (1) of the Act of 1979 that “the Deputy Chief Labour Commissioner (Central) or the Inspector or any other authority under the Act shall have powers to call for any information or statistics in relation to migrant workmen from any contractor or principal employer at any time by an order in writing.”

A comprehensive data of the migrant workers is a prerequisite to formulate and implement evidence-based policies and social benefit measures for their welfare. As the migrating population is one of the vulnerable populations to infectious diseases, strengthening prevention and intervention approaches will be a critical factor in controlling the spread of Covid-19. However, several media reports substantiate that the state governments are struggling to reach out to migrant workers stranded all over the country amid the ongoing lockdown in the absence of a database. This invariably limits the government responses, and needless to say, institutional neglect, travel bans, and abysmal conditions in worksites, temporary camps and shelters amplify their sufferings and risk of inadequate access to food or health care, particularly so in the current medical emergency.

Conclusion

Even though the primary objective on the Indian labour laws is to ensure the welfare of the workers, vague and evasive government structures, lapses in the labour laws themselves and the procedural delays in implementation, lack of strict compliance and monitoring mechanisms in place and general insensitivity to the sufferings of the rural and urban poor is the gravest problem Indian democracy is grappling with even after seven decades of independence. Poor labour governance can impact not only the socio-economic development negatively but also the workers’ health and safety. To supplement these efforts, decent and hygienic living conditions including proper waste disposal facilities, sanitation, water supply, and avenues for recreation are necessary for the physical and mental health of this vulnerable population. The health budget needs to be augmented to take into account unforeseen pandemic crisis’ like this and setting up of a universal healthcare programme that benefits the deprived sections of the country has to be the priority. Healthcare providers should be oriented for the socio-cultural background of the interstate migrant workers and encouraged to treat them without any prejudice.

Spontaneous interventions to deal with complex emergencies have to be backed by long term institutional policy responses. The Covid-19 pandemic strongly posits the need for exclusive and comprehensive legislation on health and safety, both occupational and otherwise, of the migrant workers in India. Such a migrant-inclusive public health policy framework needs to be complemented with reforms in the existing labour laws, including the 1979 Act. Finally, policy failure is not only due to the gaps in the legislation always but also because of the lapses in the policy-implementation at all levels. Hence, collaborative policymaking and committed implementation need to be embedded in the migration governance system. It is high time to have a realistic and inclusive internal migration policy for the country.

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Meera Bharathi S

Student, Tamil Nadu National Law University

Meera Bharathi is a curious and enthusiastic person who loves writing. She has co-authored a few anthologies. She believes that a legally empowered society can pave the way for a better environment for the people to live in. For any clarifications, suggestions and feedback kindly find her at @meera.marvel@gmail.com

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