Parth Tyagi & Jaisal Singh
Introduction
Post the nationwide lockdown (March 24th) following the Covid-19 outbreak, millions of migrant workers were left floundering. They had the option to either die of starvation, or to leave for their homes in different states and expose themselves to the risk of contracting the coronavirus. Consequently, the lockdown, which pushed us inside our homes, ended-up pushing the migrant workers on the streets, leaving them with no food, water or shelter. On 19th of May, when the inter-state travel was resumed, the Inter-state migrant workers finally took a sigh of relief. However, for almost two months, the plight of the migrant workers was deplorable, especially when the priority of the state governments remained protecting investment, rather than the protection of its workforce. With thousands of migrant workers dying in the course of last two months, it is high time that the government revisits India’s labor Laws, in order to provide better legal safeguards to the migrant workers. The Article discusses the inadequacies in the laws currently applicable to the migrant workers, following up with a discussion on what should/can be done in order to protect the interest of these workers.
Inadequacies in the laws currently applicable to the migrant workers
Out of the all the labor laws, the article discusses three primary legislations which apply to the migrant workers; these are the Contract Labour Act 1970, Inter-state Migrant Workmen Act, 1979, and the Unorganized Workers Social Security Act, 2008. This section briefly discusses the loopholes in these laws:
The Contract Labour (Regulation and Abolition) Act, 1970
This Act was enacted to regulate the conditions under which contract labourers work, and to abolish contract labour under certain circumstances. It is applicable to every establishment that engages 20 or more workmen and also to the contractor through whom such 20 or more workmen are engaged. The Act mandates the registration of the principal employer with the registering officer of the region and restricts the contractor from undertaking any work without obtaining a license from the licensing officer. The licence lists out certain conditions under which the principal employers and contractors are obliged to ensure the health and welfare of the contract labourers. However, even after five decades since its implementation, the Act has abysmally fallen short of its aim. Even though the Act imposes an obligation on the principal employers and contractors to get themselves registered, for almost thirty years since its implementation it was silent about the repercussions in cases where the employer fails to register the establishment or the contractor fails to obtain the license under Sections 9 and 12 respectively of the Act. However, in 1991 the Supreme Court settled this debate in the case of Dena Nath v. National Fertilizers Limited where it was held that the consequential effect of non-registration of establishments and not obtaining license by the contractor will only have penal effects as envisaged under Section 23 and 25 of the Act; it does not entitle the contract workers with any specific relief or rights. Resultantly, the penal effects (imprisonment in rare cases) of non-compliance as proposed under the act are not an effective deterrent since the cost of complying with the provisions (for each assignment of work) is higher than the penalty imposed upon non-compliance, which motivates the employers as well as the contractors to evade the provisions of the Act. This glaring loophole was the primary reason why many migrant workers were forced to leave their homes post the lockdown as they were not ensured food, shelter and medical facilities by their principal employers and contractors.
The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
A key piece of legislation available for grievances specific to migrant workers is the Inter-State Migrant Workmen Act, 1979. The Act provides for, among other things, the contractor’s responsibility for payment of wages together with residential accommodation and home journey allowance to the inter-state migrant workers. It is applicable to all establishments employing five or more inter-state migrants. The act specifically prohibits employment of migrants in any establishment which is not duly registered under this Act, and mandates the principal employer and the contractor to keep a record of every worker. Implementation and strict adherence to the above stated provision is crucial in the generation of data which leads to the formulation of enforceable policies, regulations as well as standard operating procedures for crisis management. But the lack of proper implementation of the Act has led to incomplete data on immigrant workers in regard to their native state and other particulars.
A constructive execution of the Act would have meant that state governments had comprehensive details of inter-state migrant workers employed by contractors within their states. The main cause for non-compliance with the Act originates from its provisions, under which the contractors are not only required to ensure equal pay for inter-state workmen but they are also required to ensure the availability of other social protections to these workers. Adherence to these provisions makes the cost of hiring inter-state workmen higher than hiring similar labour from within the state, thus leading to the deliberate violation of the Act. For example, in Tamil Nadu agents hand over migrant workers to contractors for monetary consideration. These migrant workmen virtually become employees of the local contractors who are licensed contractors under Contract Labour Act, 1970, to various companies, consequently these workers are deprived of all the privileges which they are entitled to under this Act.
The Unorganised Workers Social Security Act, 2008
This Act, aims at protecting the interests of the workers coming from the unregulated sector through various welfare schemes. Workers seeking to get the benefit of the act, need to get themselves registered, following which they will be provided with a Unique Identification Number. Even after a decade since its enactment, the act fails to protect the interests of migrants due to three primary reasons, the first reason is due to the administrative failure, wherein most of the workers are unaware of the mandatory requirement of registration. Non-registration means that the government lacks the data of the workers, because of which targeted benefits of the social security scheme cannot take place. The second reason relates to section 10(4) of the Act, wherein the unorganized workers are required to make a regular contribution for availing the benefits of some schemes for example the Pradhan Mantri Shram Yogi Maandhan Scheme. This mandatory requirement of regular contribution till a certain age, disincentivizes majority of the workers from enrolling into such schemes. The third reason relates to domicile based benefits of certain scehmes, under which only the inhabitants of a particular state can derive the benefits. One such scheme is Rashtriya Swasthya Bima Yojna, included in schedule one of the Act. To avail the benefit of the scheme the worker must be registered in the district Below Poverty Line List. As a result, the benefits which these schemes provide, cannot be availed by the migrant workers.
Way Forward
The primary obstacle for government in relocating the migrant workers was the lack of availability of proper data which could reflect the exact number of migrant workers in each state. This points to the urgent need to generalize the requirement of registration across all laws applicable to migrant workers and issuing identification numbers to all the migrant workers on the basis of their Aadhar card. Such a step would simplify the process of registration and it will consequently help in keeping a track of migrant workers coming out from every state.
Apart from using Aadhar card-based Identification number, the government should also work towards the development of an extensive database, which would help in keeping a track of migrant workers’ origin state and destination state and their population density in every region. This would not only enable the Government in delivering targeted benefits but it would also help in relocating the migrant workers, making government well equipped to tackle unprecedented circumstances in future.
Since, the issues related to the Inter-State migrant workers involve a number of inter-state complexities, there needs to be the establishment of an inter-state council to protect the interest of migrant workers. Article 263 of Constitution of India provides for the power to create an inter-state council, and the creation of an inter-state migration council would not only help in improving the current situation but will also help in the long run. If constituted the inter-state council can help in drafting better and targeted policy measures for improving the conditions of migrant workers, it can also look after the proper implementation of the various Acts, such as the Inter-state Migrant Workmen Act and the Contract Labour Act.
The exodus of migrant workers from the cities must serve as a lesson for the policy makers to draft more inclusive and more responsive policies for the overall protection of the interest of every strata of society. The government should work towards making the ‘Movement’ a right as granted under the constitution and not an obligation.
Parth Tyagi and Jaisal Singh are third year students at National Law Institute University, Bhopal
Picture Credits: Danish Siddiqui, REUTERS.