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Migrant Labour Crisis

Written by: Khushi Malhotra and Vedant Avdhoot Sumant, Students, Faculty of Law, The Maharaja Sayajirao University of Baroda and Gujarat National Law University, Gandhinagar

Image courtesy: New Indian Express


Introduction

The coronavirus pandemic has highlighted the heart- rending scenes of the low-skilled migrant workers and workers employed in unorganized sectors. The nation-wide lockdown that has been applauded internationally has left the migrant workers of Bharat to the whims and fancies of their employers. The outbreak of Covid-19 has underlined the fact that even though Bharat has numerous social security policies, these policies are insufficiently implemented and there is desperate need to reform them.

According to the latest statistics, the Annual Average PCI of Bharat is estimated to be $2010.[1]This presupposes that the labour in the country undergoes extreme hardship on a daily basis. Especially in the current situation where the entire country’s economy has come to a halt, the labour population of the country is the hardest hit as they earn a daily income based upon their daily work fulfilling their daily essential requirements.

In such a situation where the citizens of the country are undergoing such hardship we must show empathy towards the less fortunate. The complete opposite of this has been observed in the Indian judiciary where Hon’ble Chief J. S. A. Bobde found the demand for wages by migrant labourers odd when “they’re being provided meals”.[2]


Does living connote mere existence which is fulfilled by obtaining clothes, food and shelter? No!

Human existence demands various rights in order to live with dignity.

The remarks made by the Hon,ble SC fail to take into consideration the needs of migrants workers other than that of food. Hon’ble SC seems to think that migrant labourers do not need money for anything other than food.


In Kharak Singh v. State of Uttar Pradesh [3]and Sunil Batra v. Delhi Administration[4] the judiciary has already laid down precedents describing how a human life has more requirements than a basic animal existence. Further, In the case of, Peoples Union for Democratic Rights v. Union of India[5] held that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and violative of Article 21 of the Constitution.


However, the Gujarat HC, took Suo moto cognizance of the lockdown miseries that were faced by the migrant workers and ordered the State authorities to use more humane approach while dealing most downtrodden, under privileged and weaker sections of the society."[6] Further, the Karnataka HC directed that, “(...)considering the constitutional rights of the migrant workers, no one should be deprived of an opportunity to go back to his own state only for the reason that he has no capacity to pay for the transport(...)”[7]

Social Security Laws

The Covid-19 cases have been surging day by day and it is necessary to address this grave migrant labour crisis at the earliest. Where the Hon’ble SC has given disappointing responses to tackle this situation , the protective labour law legislations that have been adopted are namely, but not limited to , The Unorganised Workers Social Security Act, 2008 , The Contract Labour (Regulation and Abolition) Act, 1970 and The Interstate Migrant Workmen Act, 1979. Analysis of these legislations will help the readers understand whether the legislations that have been resorted are sufficient or not.

The Unorganised Workers Social Security Act, 2008, was enacted to provide for the social security and welfare of unorganised workers. In order to avail the benefits under this Act it is compulsory for the unorganised workers to get themselves registered with the District Administration. Further it provides in certain cases the workers might also have to contribute to be eligible for the scheme.[8] These provisions of the Act are time consuming and are impediments for the unorganised workers in availing social security during this pandemic when they are in dire need of help. The Central Government must provide for a special emergency provision which minimises these formalities in times of urgency such as the one presented by the outbreak of Covid-19 in Bharat. The state governments must also respond accordingly by implementing similar measures.


Further, The Contract labour (regulation and abolition) Act, 1970, requires that the contractors need to obtain licence in order to execute any work through contract labour[9]. After the license has been granted to the contractor it is his duty to provide for food, first aid facilities and wages of contract labourers and failure to do so results into their licenses being revoked.[10] However, in the present situation contractors have failed to comply with the provisions of this Act without consequences. No one must be allowed to take advantage of the labourers in these uncertain times. The provisions of penal consequences can be more effective than a mere revocation of license. The Act may also be amended to include absorption of workers, though such an amendment is not a need of the present emergency situation. The failure of implementation of the Act has forced these unprivileged workers to live in these appalling conditions.


Lastly, The Inter State Migrant Workmen Act, 1979. The Act has a specific provision for providing information of workers by labour contractors in the states of origin and also the destination states.[11] According to the law, all establishments and contractors have to maintain records of the migrant workers employed, the wages paid to them and the nature of work assigned to them.[12] The records and the facilities provided are to be inspected by government officials. [13]The Covid-19 situation has effectively highlighted the inefficient implementation of this Forty-one year old law. The provision of providing with displacement and travel allowance makes the Act very ideal, however its implementation has not been up-to the mark even in the pre-Covid-19 period. If the Act would have been effectively implemented, the database of the migrant workers and their labour contractors would have been available with the states and it would have been easier for the authorities to list out those labour contractors who have not paid wages, travel allowance and other necessary allowances as stipulated in the legislation. This situation showcases the failure of the maxim “Law in action is justice”, as today’s labour legislations are in deep slumber. Further, the entire issue of which state should bear the travel cost would not have arisen given the extraordinary circumstances of the Covid-19 pandemic, which has effectively terminated the employment contracts of these workers.[14]The effective implementation of this Act in past would have made it possible to provide speedy assistance to those workers and that would have prevented them from walking across lengthy distances and would have saved them from suffering through all the deplorable and inhumane conditions that they are facing as of now.

Conclusion- Way forward

The pandemic has exposed the non- implementation of the social security laws and has highlighted the need to revolutionize labour laws in order to provide maximum benefits to the labourers who provide their invaluable services to the society. The current pandemic has made us realise that it is time when the archaic social security laws need to change and new laws need to be made or at least the honest adherence to old laws so that workers in unorganised sector are treated with respect and dignity in life. The Occupational Safety, Health and Working Conditions Code, 2019 is a step towards reforming the existing labour laws. The bill identifies and states that safety, health, welfare and improved working conditions are a pre-requisite for the well-being of the workers and also for the economic growth of the country, as a healthy workforce would be more productive and increasing efficiency of the workers would be economically beneficial to the employers.[15] The bill is modified to include prohibition on charging of fees or commission from workers,[16] the responsibility of providing welfare facilities is shifted on to the principle employer,[17]further in event on non-payment of wages by the contactor, the appropriate government can order the contractor to pay from his security deposit.[18] These proposals would enhance the coverage of the safety, health and working condition provisions, manifold as compared to those which are currently existing one.


Even though the Code seeks to preserve many of the protections and rights given to inter-state workers, trade unions stress on a separate enactment as they believe separate enactments stating separate rights and benefits for the workers as a better option. However, taking into consideration the sudden changes in the economy, it is prudent that new laws be made and that government may create a committee and conduct surveys in order to seek suggestions for the bill from the parties involved. Suggestions like providing group-housing for the migrants for ease of access to workplace ,or setting up of a helpline for the migrants in case a breach of their rights or interests as included within the said piece of legislation occurs, may be included within the bill. The unprecedented distress and misery faced by migrant workers due to the current lockdown has drawn attention to this beneficial legislation dedicated to their welfare.


References

[1]GDP per capita ( Current US $)- India World Bank 2018, The World Bank, (June15,2020,11:30 AM) https://data.worldbank.org/indicator/NY.GDP.PCAP.CD. [2]Manu Sebastian, Migrant Workers Case: SC Failed to Rise to The Occasion, Live Law, (June15,2020,1:00PM), https://www.livelaw.in. [3] Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295(India). [4] Sunil Batra v. Delhi Administration, AIR 1978 SC 1675(India). [5] Peoples Union for Democratic Rights v. Union of India, 1982 AIR 1473, 1983 SCR (1) 456 (India). [6] Suo Motu v. State of Gujarat & Ors., C/WPPIL/42/2020 (India). [7] Mustafa Plumber, No Migrant Should Be Denied Opportunity To Travel Back Only Because Of Incapacity To Pay Rail Fare : Karnataka HC, Live Law, (June,16,2020, 11:30 AM), https://www.livelaw.in. [8] The Unorganised Workers Social Security Act, 2008, No. 33, Acts of Parliament,S.10. [9]The Contract labour (regulation and abolition) Act, 1970,No. 37, Acts of Parliament, S.12. [10]The Contract labour (regulation and abolition) Act, 1970, No. 37, Acts of Parliament,S.14. [11]The Inter State Migrant Workmen Act, 1979,No.30,Acts of Parliament, S.12. [12]The Inter State Migrant Workmen Act, 1979, No.30,Acts of Parliament, S.23. [13]The Inter State Migrant Workmen Act, 1979, No.30,Acts of Parliament,S.20. [14]Basant Kumar Mohanty, Neglected migrant shield now set for axe, Telegraph India, (June16, 2020, 4:00 PM), https://www.telegraphindia.com/india/coronavirus-lockdown-neglected-migrant-shield-now-set-for-axe/cid/1770958. [15]Ministry of Labour and Employment, The Code on Occupational Safety, Health and Working Conditions Bill, 2019, Press Information Bureau, (June 16,2020), https://pib.gov.in. [16] The Occupational Safety, Health and Working Conditions Code, 2019, S.48.

[17] The Occupational Safety, Health and Working Conditions Code, 201,S.52. [18] The Occupational Safety, Health and Working Conditions Code, 2019, S.54.

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