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SOCIO-LEGAL ASPECTS OF MIGRANT WORKERS - A STUDY FROM INDIAN PERSPECTIVE
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SOCIO-LEGAL ASPECTS OF MIGRANT
WORKERS - A STUDY FROM INDIAN PERSPECTIVE
AUTHORED BY - MAHANTESH G S
ABSTRACT
The concerns of migrant workers who
are observed in both rural and urban parts of India need to be understood and
addressed by Indian society, the national government, and various State
governments. Most migrant workers are unskilled and operate in unorganised
industries. West Bengal, Assam, Bihar, Uttar Pradesh, Odisha, Jharkhand, and
Chhattisgarh are the major states that send migrant workers over state lines.
Some migrant workers fall under the category of child labourers, while others
pursue education while working part-time. Interstate migrant labourers in India
deal with a variety of issues. These include failure to provide benefits under government programmes,
poor access to available programmes and services, inadequate and inappropriate
workplace safety measures, subpar housing conditions, excessive working hours,
low wages compared to local employees, restricted access to health care services,
social exclusion, poor social interaction, and lack of community integration.
The existing legal and social
security provisions are not well known. Access to social security, welfare, and
health services is not available to migrant workers. The Central Government and
home State's failure to supply entitlements and the non-portability of benefits
are what cause issues for migratory employees.
The object of the current research is
to outline the difficulties encountered by migrant labourers in India. It also
tries to define the subject of migrant workers' protection under applicable
national and international legislation. Finally, this analysis concludes that
legislation must be passed as quickly as feasible to address the current
problems.
Keywords: Migrant Workers, India, Human
Rights, Inter-State, Social Justice
* Assistant Professor of Law,
Alliance University, Bangalore, Karnataka
INTRODUCTION
“No work is insignificant. All labour
that uplifts humanity has dignity and importance and should be undertaken with
painstaking excellence.” ? Martin Luther King Jr.
The human being has become the best
creature created by God. God has given him wisdom and strength, but still,
human life is not smooth. He has to constantly struggle to survive and keep his
family members with him. As a result, he has to move from one place to another
for his livelihood. For work, he has to go out of his area or from his state or
country. Moving from one place to another is not a new phenomenon. This has
been happening for a long time. For rapid industrial development, a large
number of workers left their rural areas and moved to urban areas to earn a
living.
Our Constitution of India has also
recognized this dynamism of the people by assuring freedom of movement freely
throughout the territory of India [Article 19 (1) (d) of the Constitution]
subject to reasonable restriction.[1] In
addition to the Constitution of India, numerous laws in our country protect the
interest of migrant workers. Taking into consideration the safety and
exploitation of interstate migrant workers, our Indian parliament enacted ‘The
Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979’,[2] to
regulate the employment of inter-state migrant workmen and to provide for their
conditions of service and others related matters.
Migration in the Census of India is
of two types – Migration by Birthplace and Migration by place of last
residence. When a person is enumerated in Census at a place, i.e., village or
town, different from her/his place of birth, she/he would be considered a
migrant by place of birth. A person would be considered a migrant by place of
last residence if she/he had last resided at a place other than her/his place
of enumeration.[3]
According to Census 2011, there were
454 million migrants in India. This had risen by 139 million from 315 million
in 2001 Census 2011 and 220 million in 1991, a doubling from 1991-2011.
Marriage and other family-related migration, which was 72.2% of all migration
from 1991 to 2001, now is 74.7% of all migration from 2001 to 2011, but the
share of marriage is diminishing while the share of other family-related
migration is growing. Further, 40% of all internal migrants (309.4 million)
across all durations who constituted rural to rural marriage migrants (123.9
million of which 122.3 million were female), only 4.8% were interstate marriage
migrants (6.0 million), i.e., 1.9% of all migrants. By contrast, of the 14.6
million rural to urban migrants for work and business (4.7% of all migrants),
43% (2.0% of all migrants) were inter-state migrants. The corresponding share
of such inter-state urban-to-urban work migrants (2.9 million) is 41% of all
urban-to-urban migrants for work (7.1 million). So, inter-state migration is a
significant part of migration for work and business.[4]
II. DEFINITION - MIGRANT WORKERS AND
THEIR FAMILIES
The most comprehensive definition of
a migrant worker is provided in the International Convention on the Protection
of the Rights of All Migrant Workers and Members of their Families (Adopted by
General Assembly resolution 45/158 of 18 December 1990)
According to Article 2(1) of the
Convention on Migrant Workers, the term “migrant worker” refers to “a person
who is to be engaged, is engaged, or has been engaged in a remunerated activity
in a State in which he or she is not a national”.
According to Article 2(1) of the
Convention on Migrant Workers, the term “migrant worker” refers to a person who
is to be engaged, is engaged, or has been engaged in a remunerated activity in
a State in which he or she is not a national.
Article 2 also distinguishes between
particular categories of migrants. These include “frontier worker”, “seasonal
worker”, “project-tied worker”, “itinerant worker”, “seafarer” and
“self-employed worker”; categories which have been excluded from other
international standards developed in the past, including ILO conventions
specific to the rights of migrant workers. According to Article 2(2)(a), the
term “frontier worker”[5]
refers to a migrant worker who retains his or her habitual residence in a
neighbouring State to which he or she normally returns every day or at least
once a week.
According to Article 2(2)(b), the
term “seasonal worker”[6]
refers to a migrant worker whose work by its character is dependent on seasonal
conditions and is performed only during part of the year.
Part V of the Convention sets out the
rights that apply to these particular categories of migrant workers.
In particular, the definition of
“self-employed worker” “recognizes the large number of migrant workers who
operate a small family business by themselves or with other family members.”
These definitions apply across all
regions of the world.
In addition, the Convention
recognizes migrant workers as social entities and extends recognition of rights
to members of their families. Article 4 provides the following definition:
In addition, the Convention
recognizes migrant workers as social entities and extends recognition of rights
to members of their families. Article 4 provides the following definition: The
term “members of the family” refers to persons married to migrant workers or
having with them a relationship that, according to applicable law, produces
effects equivalent to marriage, as well as their dependent children and other
dependent persons who are recognized as members of the family by applicable
legislation or applicable bilateral or multilateral agreements between the
States concerned.[7]
III. CAUSES OF MIGRATION
Although the reasons influencing the
supply and demand of migrant labour can change, the majority of migrant
labourers travel to their places of employment due to bad economic and social
conditions in their home regions.
If we go a bit further and do some
analysis, we will discover that there are numerous causes for labour migration.
These elements can be broken down into four categories, namely environmental,
economic, cultural, and socio-political. The reasons within that could
potentially include "push" or "pull" aspects.
Push Factors
The forces that push people to move
willingly are referred to as pushing factors, and they frequently do so because
doing nothing puts them in danger.
We can use poverty, a lack of
employment prospects, unemployment, underdevelopment, poor economic conditions,
a lack of opportunities, natural disasters, a lack of irrigated land, etc. as
an example of a push force.
Pull Factors
By pulling factor we mean all those
factors in the destination country that attract the individual or group to
leave their home. Those factors are known as place utility, which is the
desirability of a place that attracts people.
Some examples of pull factors are
employment and higher education opportunities, higher wages, facilities, better
working conditions, etc.
IV. ENSURING THE HUMAN RIGHTS OF
MIGRANT WORKERS
Human rights are rights inherent to
all human beings, whatever our nationality, place of residence, sex, national
or ethnic origin, colour, religion, language, or any other status. We are all
equally entitled to our human rights without discrimination. These rights are
all interrelated, interdependent, and indivisible.
Universal human rights are often
expressed and guaranteed by law, in the forms of treaties, customary
international law, general principles, and other sources of international law.
International human rights law lays down obligations of Governments to act in
certain ways or to refrain from certain acts, to promote and protect human
rights and fundamental freedoms of individuals or groups.[8]
As non-nationals, migrant workers
therefore generally have the same human rights as citizens. Under international
human rights law, migrant workers are entitled to some form of special
protection. The only UN document directly relevant to migrant workers is the
"International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families". According to Article 2(1) of the
convention, a "migrant worker" is a person who is engaged in, has
participated in, or is about to engage in a paid activity in a State in which
they are not citizens. The rights that are available to migrant workers and
their families are comparable to those found in the Declaration on the Human
Rights of Persons who are not Nationals of the Country in which they reside.
Other UN provisions may be crucial for defending migrant workers' human rights
against exploitation and discrimination based on their non-national status. The
following international conventions may make mention of these unique types of
rights. (a) International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families, 1990.
(b) Migration for Employment
Convention (Revised), 1949 (No.97),
(c) The Migrant Workers
(Supplementary Provisions) Convention, 1975 (No. 143).
(d) The Universal Declaration of
Human Rights, 1948.
(e) International Covenant on Civil
and Political Rights, 1966
(f) The Convention on the Elimination
of All Forms of Discrimination Against Women.
(g) The Convention on the Elimination
of All Forms of Racial Discrimination.
(h) The ILO Forced Labour Convention,
1930
(i) The Convention on the Rights of
the Child
(j) Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No.87)
(k) Equal Remuneration Convention,
1951 (No.100)
(l) Discrimination (Employment and
Occupation) Convention, 1958 (No. 111) (m) Minimum Age Convention, 1973 (No.
138)
V. ILO CONVENTIONS AND MIGRANT
WORKERS
The ILO has produced many conventions
that specify and safeguard the labour rights of migratory workers in addition
to the international human rights treaties. The ILO has expressly adopted two
important conventions on the rights of migrant workers:
1. Migration for Employment
Convention, 1949 (C-97)
2. Migrant Workers (Supplementary
Provisions) Convention, 1975 (C-143)
These conventions are supplemented by
two (non-binding) ILO recommendations that provide further guidance on how the
rights of migrant workers can be protected in practice:
1. Migration for Employment
Recommendation (Revised), 1949 (R-86)
2. Migrant Workers Recommendation, 1975
(R-151).
The Migration for Employment
Convention deals with international migration for employment and focuses on the
recruitment of migrants and conditions of work in the host country. Its major
provisions include non-discrimination in wages, union activities and benefits,
and social security (Article 6). The Annexes deal with private and public
recruitment, stressing that there should be a no-fee public option, the need to
provide contracts for prospective migrant workers, and that “any person who
promotes clandestine or illegal immigration shall be subject to appropriate
penalties” (Annex II, Article 13).
The Migrant Workers (Supplementary
Provisions) Convention is the first treaty to deal directly with the rights of
migrants in irregular situations. It addresses in detail issues about
“migrations in abusive conditions” and the “promotion of equality of opportunity
and treatment of migrant workers”. Article 2 requires each Member State to
“seek to determine whether there are illegally employed migrant workers on its
territory” and Article 6 calls for penalties against traffickers and the
illegal employment of migrant workers. Article 9 sets out requirements for
“equality of treatment” in wages, social security, and other benefits arising
from the past employment of undocumented migrant workers. Several other ILO
conventions also have great relevance for migrant workers. For example, the
Domestic Workers Convention, 2011 (C-189) is the most recent ILO convention and
is particularly relevant as many domestic workers are migrant women.[9]
VI. CONSTITUTIONAL RIGHTS OF MIGRANT
WORKERS
The preamble of our Constitution declares
India to be sovereign, socialist, and secular. democratic republic and secure
justice, liberty, equality, and fraternity for all the citizens of India. The
socialist character of the Indian Constitution is also emphasized in the
Preamble, which spells out the aspiration of the people to secure to all
citizens, social, economic, and political justice. Social justice enables the
courts to uphold legislation:[10]
(a) to remove economic inequalities,
(b) to provide a decent standard of
living to working people,
(c) to protect the interest of the
weaker sections of society.
The primary statute that safeguards
labour rights in India is the constitution. Numerous rights are granted to
migrant labour by the fundamental rights and guiding principles of state policy,
such as the Preamble.
Social security is of utmost
importance for the well-being of workers, their families, and communities as a
whole. It is a basic human right and a fundamental means for the creation of
social cohesion, thereby contributing to social peace and social inclusion.
Social Security protects not just the subscriber but also his/her entire family
by giving benefit packages in financial security and health care. Social
Security schemes are designed to guarantee at least long-term sustenance to
families when the earning member retires, dies, or suffers a disability. Thus,
the main strength of the Social Security system is that it acts as a
facilitator - it helps people to plan their future through insurance and
assistance.[11]
The concept of Social Security is
based on ideals of human dignity and social justice. It has been well
recognized that society has the responsibility to relieve economic distress
faced by individual members on account of contingencies beyond their control.
The Workmen’s Compensation Act, of 1923 was the only major legislation on the
subject enacted before independence. When the Constitution of independent India
was adopted, Social Security was specifically included in the Constitution.
Several Directive Principles of State Policy (Articles 38 (i), 39 (e), 41, 42,
and 43) relating to Social Security were incorporated in the Constitution.
Legislation on different aspects of Social Security was also done, along with
the introduction of various schemes. Successive five-year plans have emphasized
the need for Social Security with wider coverage and better benefits.[12]
The Constitution of India from,
Articles 14-16, 19(1)(c), 23-24, 38, and 41- 43A directly concern labour
rights.
Everyone should be treated equally
under the law, according to Articles 14 and 15, respectively. Article 16 also
grants the right to "equality of opportunity" for employment or
appointment by the state.
Everyone has the special right
"to form associations or unions" according to Article 19(1)(c).
Underage child labour in mines, factories, or "any other hazardous
employment" is prohibited by Articles 24 and 23, respectively. Article 23
outlaws all forms of trafficking and forced labour.
According to Article 38(1), the state
should generally "strive to promote the welfare of the people"
through the establishment of a "social order in which justice, social,
economic, and political, shall inform all the institutions of national
life." According to article 38(2), the state is required to "minimise
the inequalities in income" and to consider all other statuses.
Equal compensation for equal work for
both men and women is proclaimed a Directive Principle of State Policy in
Article 39(d) of the Indian Constitution. The phrase "equal pay for equal
work for both men and women" refers to equal pay for equal effort for both
sexes.
The National Rural Employment
Guarantee Act of 2005 aims to implement the "right to work"
established by Article 41. The state must "make provision for securing
just and human conditions of work and for maternity relief," according to
Article 42.
Article 43 says workers should have
the right to a living wage and "conditions of work ensuring a decent
standard of life". Article 43A, inserted by the Forty-second Amendment of
the Constitution of India in 1976, creates a constitutional right to
codetermination by requiring the state to legislate to "secure the
participation of workers in the management of undertakings".[13]
VII. THE INTER-STATE MIGRANT WORKMEN
(REGULATION OF EMPLOYMENT AND CONDITION OF EMPLOYMENT AND CONDITIONS OF
SERVICE) ACT, 1979
The technique of hiring interstate
migrant labourers, also known as dadan labour, is popular in Orissa and several
other states. In Orissa, contractors or agents known as Sardars or Khatadars
hire dadan labour from various sections of the state for work on significant
construction projects that are carried out outside of the state. While Sardars
or Khatadars agree to settle their piece-rate wages each month when they are
hired, this commitment is typically never followed. Once the worker is in the
contractor's grasp, he just demands payment for the cost of the train journey
before transporting him to a remote location.
No working hours are fixed for these
workers, and they have to work on all the days in a week under extremely bad
working conditions. The provisions of the various labour laws are not being
observed in their case and they are subjected to various malpractices. The
question of protection and welfare of Dadan Labour was considered by the
Twenty-eighth Session of the Labour Ministers' Conference held on 26th October
1976 in New Delhi. It was recommended to set up a Compact Committee to go into
the whole question and to suggest measures for eliminating the abuses prevalent
in the system. Accordingly, in February 1977, the Compact Committee was
constituted and it recommended, inter alia, that separate Central legislation
may be enacted to regulate the employment of inter-State migrant workmen as it
was felt that the provisions of the Contract Labour (Regulation and Abolition)
Act, 1970, even after necessary amendments, would not adequately take care of
the variety of malpractices indulged in by the contractors, Sardars or
Khatadars. The recommendations of the Compact Committee were examined in
consultation with the State Government and the Ministries in the Government of
India. Accordingly, the Inter-State. Migrant Workmen (Regulation of Employment
and Conditions of Service) Bill, 1979 was introduced in the Parliament.[14]
Salient features of the Inter-State
Migrant Workmen (Regulation of Employment and Conditions of Services) Act, 1979
are as –
1. This Act extends to the whole of
India. 2. This Act applies –
(a) to every establishment in which
five or more inter-State migrant workmen (whether or not in addition to other
workmen) are employed or who were employed on any day of the preceding twelve
months,
(b) to every contractor who employs
or who employed five or more inter-State migrant workmen (whether or not in
addition to other workmen) on any day of the preceding twelve months.
3. All migrant workers who are
employed individually outside their State are not covered under this Act rather
only those who are employed through contractors will be treated as inter-State
migrant workers.
4. Every contractor is required to obtain a
license from a licensing officer, appointed by the State Government, for
recruiting any person in a State to employ him in any establishment in another
State.
5. Without being registered under the
Act, a principal employer can not employ any inter-State worker.
6. The contractor is under a duty to
issue to every inter-State migrant worker, a passbook affixed with a
passport-size photograph of the workman and indicate information about the
worker, including payment, advances paid, etc. in Hindi and English and where
the language of the worker is not Hindi or English, also in the language of the
workman.
7. An inter-State migrant workman
shall in no case be paid less than the wages fixed under the Minimum Wages Act,
1948.
8. A journey allowance of a sum not
less than the fare from the place of residence of the inter-State migrant
worker in his State to ‘the place of work in the other State shall be payable
by the contractor to the worker both for the outward and return journeys, and
he/she will be entitled to payment of wages during the period of such journeys
as if he were on duty.[15]
Besides, other Acts are also
applicable to migrant workers:
1. The Employees Compensation Act,
1923
2. The Minimum Wages Act, 1948
3. The Equal Remuneration Act, 1976
4. The Contract Labour (Regulation
and Abolition) Act, 1970
5. The Child Labour (Prohibition and
Regulation) Act, 1986
6. The Payment of Gratuity Act, 1972
7. The Unorganised Workers’ Social
Security Act, 2008
8. The Building and Other
Construction Workers (Regulation of Employment and Conditions of Service) Act,
1996.
VIII. CONCLUDING REMARKS
“The saving of labour of the
individual should be the object and honest humanitarian considerations, and not
greed, the motive”. – Mahatma Gandhi
Some challenges faced by the migrant
workers in India are struggling with low wages, physical, sexual & mental
exploitation with safety and security.
The Government of India should ratify
all the relevant international covenants that respect the dignity of labour,
especially important ILO Conventions No.87.the freedom of association and
protection of the right to organize the convention, the ILO Convention 98, the
right to organize, and the 16 collective bargaining convention.[16]
Prime Minister Narendra Modi on 20th
June 2020 launched an employment scheme with an outlay of Rs 50,000 crore for
migrant workers who returned to their home states during the
coronavirus-induced lockdown. Launching the 'Garib Kalyan Rozgar Abhiyaan',
Modi said there are some people who might not appreciate the efforts of
villagers in the fight against coronavirus, but he applauds them for their
efforts. The way villages have fought coronavirus has taught a big lesson to
the cities, he added.[17]
Every worker must follow the National
Food Security Act of 2013, which mandates food security practises. State
governments should be encouraged by the Ministry of Human Resource Development
to incorporate migrant children in their yearly Sarva Shiksha Abhiyan work
plans. Under the Rashtriya Swastha Bima Yojana, Employees' State Insurance, and
the Unorganised Workers Social Security Act, all migrant workers should have access
to healthcare services.
To help migrant workers, return to
their native countries and find employment under various centrally supported
programmes that match their talents, many State Governments have acted.
Finally, we may argue that in
addition to our nation's government, several NGOs and individual individuals
must assume accountability.
[1] Article 19(1)(d) provides
for the right to move freely throughout the territory of India. This means the
right to locomotion, i.e., the right to move as per one's own choice. This
right includes the right to use roads and highways.
[2] Act No. 30 of 1979, The Inter-State
Migrant Workmen Act, 1979 was an Act of the Parliament of India enacted to
regulate the condition of service of inter-state labourers in Indian labour
law. The Act's purpose was to protect workers whose services are requisitioned
outside their native states in India.
[3]Migration,
Drop-in-Article on Census - No.8, (Accessed June 4, 2023, 9.36 am)
https://censusindia.gov.in/nada/index.php/catalog/40447/download/44081/DROP_IN_ARTICLE-08.pdf.
[4] REPORT OF THE WORKING GROUP ON
MIGRATION January 2017, (Accessed June 4, 2023, 10.16 a.m.) http://mohua.gov.in/upload/uploadfiles/files/1566.pdf
[5] n the EU context,
a worker who is employed in the frontier zone of an EU Member State but who
returns each day or at least once a week to the frontier zone of a neighbouring
country in which they reside and of which they are nationals.
[6] Seasonal
employment is temporary work to meet an organization's temporary
needs during certain times of the year. This might include Businesses that are only open
during part of each year, such as ski resorts.
[7] Promoting and Protecting the
Rights of Migrant Workers, Asia Pacific Forum, Chapter 1: The International
Legal Framework on the Rights of migrant workers and their family members, P.3,
(Accessed June 4, 2023).
https://apf-prod.s3.amazonaws.com/media/resource_file/Migrant_Workers_Rights_Manual_for_NHRIs_Yy97XUD.pdf?AWSAccessKeyId=AKIA57J6V557ISASX34R&Signature=kOgdGAdZ3kSLo86k75e%2Bd6xFQyo%3D&Expires=1686137366.
[8] United Nations Human Rights,
visited on June 4, 2023, https://www.ohchr.org/en/what-are-human-rights
[9] Promoting and Protecting the
Rights of Migrant Workers, Chapter 1: ‘The international legal framework on the
rights of migrant workers, P.8, visited on June 4, 2023, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-convention-protection-rights-all-migrant-workers#:~:text=Migrant%20workers%20and%20members%20of%20their%20families%20shall%20not%20be,as%20are%20established%20by%20law.
[10] P.M. Bakshi, The Constitution of
India, Universal Law Publishing Co.Pvt.Ltd., 1997, P.2.
[11] SOCIAL SECURITY FOR INTERNATIONAL
MIGRANT WORKERS, Addendum to Notes on Agenda Item-2 (June 4, 2023,10.10 a.m.
https://www.indianlabourarchives.org/handle/20.500.14121/190 Social Security,
Report of the National Commission on Rural Labour, Volume I,1991, p.228
(January 23, 2021, 12.17 p.m.).
[12] Social Security, Report of the
National Commission on Rural Labour, Volume I,1991, p.228 (Jane 4,2023, 10.15
a.m.).
[13] Negi, Chitranjali, Human Rights
Violations of Migrants Workers in India During COVID-19 Pandemic (June 17,
2020). Available at SSRN: https://ssrn.com/abstract=3629773 or http://dx.doi.org/10.2139/ssrn.3629773.
[14] The Inter-State Migrant Workmen
(Regulation of Employment and Conditions of Service) Act, 1979, (Accessed Jane
4,2023) https://clc.gov.in/clc/acts-rules/inter-state-migrant-workmen#.
[15] Pandey, P.K. and Mishra, Prashant,
Protection of Inter-State Migrant Workers in India - An Analysis (April 2,
2012). The Legal Analyst, Vol. 1, No. 2, 2011, pp. 34-43, Available at
SSRN: https://ssrn.com/abstract=2033466.
[16] Negi, Chitranjali, Human Rights
Violations of Migrants Workers in India During COVID-19 Pandemic (June 17,
2020). Available at SSRN: https://ssrn.com/abstract=3629773 or http://dx.doi.org/10.2139/ssrn.3629773.
[17] The Economic Times, E-Paper on Jun
20, 2020 (Jane 4, 2023, 11.02 a.m.)
https://economictimes.indiatimes.com/news/economy/policy/pm-launches-employment-scheme-for-migrant-workers/articleshow/76479291.cms.
Article Information
SOCIO-LEGAL ASPECTS OF MIGRANT WORKERS - A STUDY FROM INDIAN PERSPECTIVE
Authors: MAHANTESH G S
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
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International Journal for Legal Research and Analysis
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