Authored by: Ms. Anjali Baskar
Designation: Student, School of Law - Christ University
INTRODUCTION: ABOUT THE ACT
According to news reports on May 12th, 2020, due to the coronavirus pandemic, India is currently under a nation-wide lockdown due to COVID-19 from March 24, 2020, which has unfortunately adversely affected the plight of migrants in this country. As all companies/areas of work are shut down, these workers have no source of income which means “no food, no security and no future”. These migrants have to walk thousands of kilometres back to their respective homes from Delhi, Maharashtra, Rajasthan, etc. On 8th May 2020, a goods train ran over migrants who were sleeping on tracks between Jalna and Aurangabad districts in Maharashtra. Since this horrific incident, many questions have arisen about the welfare and the legal protection rights of the migrant workers. The people who are working for the labour welfare have referred to this 1979 Act to regulate the employment and improve the working conditions of the migrant workers. However, the law is not strictly implemented. The Occupational Safety, Health and Working Conditions Code, 2019 was passed in Lok Sabha on July 23, 2019, but is still pending to be passed in Rajya Sabha. This Code has the authority to repeal 13 out of 44 labour laws related to safety, health and working conditions. The Interstate Migrant Workmen (Regulation of Employment And Conditions of Service) Act, 1979 is also be included under the 2019 new code, which has similar provisions of the 1979 Act. It anticipates the allowance of displacement and journey to the inter-State migrant workers, but the Centre of Indian Trade Unions (CITU) has highlighted the fact that the 2019 code and 1979 Act should be separate from each other and must be implemented strictly for improved conditions of the migrant workers.
· The registration of the establishments with certificates from the concerned authorities deploying the migrant labours creates a system of accountability and acts as the first layer of formalising the utilization of their labour.
· It ensures tracking provision which can be undertaken by the government about the number of workers employed by the establishments and provide a legal basis for improving the conditions of the migrant workers.
· According to this law, terms and conditions of the recruitment should be provided to the migrant workers by the contractors who are deploying the migrant workers, eg. the remuneration to be paid, working hours, determination/calculation of wages and other essential amenities.
· The rates at which wages are fixed, number of holidays, working hours and other conditions of recruitment of a migrant worker must be same as those extended to other local workmen in the same field, as long as the nature of their work is similar.
· The wages of the migrant workers should be equal to or higher than the wages mentioned in the Minimum Wages Act.
· States like Delhi, Gujarat, Haryana, Kerala, Maharashtra, Punjab and Tamil Nadu have been key destination areas for migrants. Migration that happens across state borders contributes as a key source of income for the low-income households in India, and in spite of the growing migration trend of nearly 4.5% annually between states, migrants continue to face barriers in their destination states. Even though the state governments tried to get their act together in an expedient manner with arrangements for food and shelter, it did little to alleviate the fears of the migrant workers.
· The 2nd wave of migrants took to the streets in Mumbai when the announcement was made to extend the lockdown beyond 14 April 2020 by the Prime Minister, but this time it is quite possible that the turmoil could have been driven by political influences, and the migrant worker ending as meagre pawns in the hands of the power brokers. This challenges the very efficacy of the Act and the role of the Chief Labour Commissioner in its enforcement.
· The Act did not meet the purpose for its enactment. The diaspora of migrant workers in the millions from urban areas such as National Capital Region could have been better managed it had been implemented. Apart from the ISMW Act, there are also other provisions such as the Minimum Wages Act, 1948, etc. If the recent plight of the migrant worker is observed, it is starkly evident that such provisions have proved to be inadequate to address the migrant labourers social and economic marginalisation.
· States with significant migrant labour population like Karnataka, Telangana, etc., made their own amendments to the Act. In a statistical analysis done by India Migration Now, while Kerala ranked 1st for migrant-friendly policies, Maharashtra ranked 2nd with a score of 42 out of 100 compared to Kerala’s 62, and Punjab was 3rd with a score of 40. Apart from Kerala and Maharashtra’s governments which have taken initiatives for welfare of these labourers, it is clear there is a lack of a cohesive migrant labour policy framework.
· A model for social protection must be implemented that allows for portability of services like public distribution systems, health insurance, education in order to ensure easy and equal access to migrants. There should be inclusion of migrants into the larger state level policies. The social and political rights that have evolved in India should deviate away from the assumption that people who aren’t able to get a chance are sedentary/lazy, and instead accept migration as a phenomenon so that future policy framework will fully include migrant labour issues during their formulation, as we have adopted a socialist economy.
CONCERNS AND CRITICISMS
· Social activists are worried that special safeguards given to migrant workers may be lost because of the new code’s aim of consolidation.
· The effort to combine laws with regards to safety in the workplace, health and working conditions means that many separate laws governing various kinds of workers and labourers will have to be repealed.
· The Act includes inter-state migrant workers in the definition of ‘contract labour’, but is also separately defined as a person recruited either by an employer or a contractor for an establishment situated in another state, which is cause for confusion and ambiguity.
SCOPE FOR IMPROVEMENT
· Kerala has introduced pioneering schemes such as Kerala Migrant Workers Welfare Scheme, 2010 that offers financial support for treatment of illness of migrants, education grants for their children and benefits of retirement policy given to those who have worded under the scheme for a period of 5 years. Kerala set in motion another health insurance scheme called “Awaaz” which was set up in 2017 with 2 objectives: 1. to provide health insurance coverage to migrants and 2. prepare an extensive and thorough database of migrant labourers state-wise.
· If all the states were to develop a migration policy framework which is slated to be the “need of the hour”, they should visualise beyond the framework prescribed at the central government level. There should be equal access to opportunities for in-state and out-of-state residents.
· Migrants face discrimination on account of their unique circumstances in policy areas, therefore, special policy initiatives should be framed in order to have equality with state residents. Availability of cheap and largely informal labour should not be misused or become the sole attraction of an economy in the long run. It was this informal labour force that gave their blood, sweat and tears to construct the infrastructure that has boosted the Indian economy.
· These inter-state labourers have given India everything they could for years, working for minimum wages in appalling conditions keeping costs low to make domestic industries competitive and investment friendly for generations. They indirectly, through their hard work, make sure cheap and flexible services to rich and affluent in cities in order to cope with their high-priced lifestyle. These workers are vulnerable, so they should not be exploited. We must understand the severity of the situation; the Indian economy would come to a standstill without a migrant labour workforce.
The migrant worker sector are bearing the brunt of the lockdown’s consequences. It is high time that they are starting to be treated with well-deserved respect and dignity, and thus, laws passed for their welfare levels be implemented in letter and spirit. We must be considerate and practical, by ensuring that employers and contractors have incentives to come forward and register labourers without being worried about punitive action or impractical social safety requirements. Despite the fact that the Code seeks to preserve the protections and rights given to inter-state workers, trade unions believe that it is always better to have a separate enactment, to make their concerns more explicitly heard. The unforeseeable distress and misery faced by migrant workers due to the current lockdown has recalled awareness to a beneficial legislation dedicated to their welfare, the ISMW, 1979 Act. The author’s suggestion is to use the pandemic as a lesson for states across the sub-continent to follow Kerala’s model behaviour in ensuring safety to migrant workers.