Migrant Labourer Crisis
The Migrant Worker
With the advent of the novel coronavirus, India, like most
other countries, instituted a lockdown where citizens were required to stay
inside their houses and all economic activity save for essential services was
suspended. Although these conditions of the lockdown have been partially
lifted, the impact of the lockdown was disastrous for the economy. One
particular section of the economy, namely the migrant workers were particularly
disastrously affected. In this essay, I shall discuss the issues that these
labourers have been facing along with suggestions for instituting a regulatory
framework which offers better protections for them.
Migrant workers are those people who migrate from their
hometowns to larger cities in order to work and earn money due to greater
access to opportunities within the large metropolitan cities. These workers
usually take up daily wage jobs such as, factory/construction worker, domestic
household worker, fruit vendor etc. According to a 2013 UNDP research paper,
migrant workers contribute to about ten percent of the GDP of India. India’s
2017 Economic survey, shows that nearly one-fifth of its labor force is migrant
workers. During the pandemic with a total ban on contact, most of these workers
lost their jobs, were left stranded with no food, money or shelter in a foreign
town. There was little to no state support provided to these workers and their
employers left them for dead. The only logical solution in their minds was to
try and walk back home, in search of food and shelter. They work in dangerous
conditions with no health insurance while being a major contributor to the
economy and when they needed the state and their employers to help them, no one
came to their rescue.
The
primary hurdle to devising a regulatory framework for these workers is the lack
of data on these workers. In fact there is no report that conclusively shows
how many migrant workers we have within India right now. The 2011 census[1] puts
the number at approximately 13.9 crores. To put that in perspective that’s
roughly ten percent of our population. The success of any policy or regulatory
framework depends on designing it to suit specific needs. In the case of
migrant workers, we ought to attempt to
create a framework which ensures that this particularly vulnerable group of
people is protected, in that they have access to capital which allows them to
provide for themselves and their families. Given that we lack adequate data on
the number, nature and conditions of these workers, designing a policy which
suits their specific needs is always going to be challenging. However, while
this inhibition on a specific framework for these workers exists, they are
covered under the labour law regime of India today. With
respect to migrant workers, this regime is primarily composed of four laws,
namely, Inter State Migrant Workmen(ISMW) Act,
Building and Other Construction Workers(BOCW)
Act, Contract Labour Regulation and Abolition(CLRA)
Act and Unorganized Workers Social Security(UWSS) Act.
The
ISMW Act requires the
contractors to provide suitable accommodation during the period of
employment and pay allowance for the return journey[2]. If
this allowance is not paid by the contractor then the principal employer[3]
is responsible for its payment[4].
However, while these provisions exist, they weren’t complied with during the
pandemic. Many migrant workers had decided to travel back to their hometown
during the lockdown on foot rather than live in the city where they were
employed. While it is clearly stated in the ISMW Act that the employers are
obligated to provide an allowance for their return journey, this was not the
case. This was due to two reasons, poor implementation and awareness. There was
no system of checks and balances to ensure that these migrant workers get the money
they deserve to go back home.
The BOCW act aims to provide better and safer working
conditions for the workers, such as, provide occupational health centers at
sites engaged in scheduled activities[5] even
ensure regular medical check-ups of workers engaged in operating cranes,
transport equipment etc. Additionally, employers/contractors (including
government agencies) are required to pay 2% of the cost of construction as cess
(which is to be utilized towards extending welfare benefits to the construction
workers). As per reports, there are around 200 million construction workers
which are not registered under the BOCW Act.[6] [7] The
Supreme Court had previously directed State Governments to conduct a social
audit of compliance with the BOCW Act and the BOCW Cess Act.[8]
Social audits undertaken by State Governments revealed a lot of troublesome
findings. Firstly, middle men duped ineligible
workers to register under the scheme, and then pocketed the benefits intended
for the workers.[9]
Second, a large sample population was eligible for benefits under various
Government schemes, but were not aware of their eligibility and hence did not
apply. Finally, assessing officers did
not keep track of the construction work undertaken by public sector
undertakings/ Government departments resulting in short fall in the quantum of
deposits deposited in the state welfare fund.[10]
Despite all these schemes and protections, migrant workers
are still in economic distress. Along with this, the migrant workers are
unaware of the benefits provided to them by the government. Therefore, the
constructive solution to address the needs of the migrant worker is not to
create a new framework but rather to strengthen the existing one. There are
quite a few ways to achieve this. The
first way would be to increase awareness amongst the migrant workers about the
various schemes and benefits that exist for them by holding seminars within
their hometowns so that their family members are informed and can thus help the
migrant workers. This would also eliminate the time constraints that migrant
workers otherwise face. Once migrant workers are aware about their rights, they
can demand them. For example, if the workers knew about the various obligations
of the state and the employer then they would’ve been able to extract those
benefits by registering under these various schemes. The Supreme Court has also
recognized the importance in this regard and stated that registrations under
this legislation can be increased only by raising awareness amongst the
construction workers.[11]
However, this is not enough. The contractors need to be put
under a positive obligation to make sure that the workers are registered under
these various schemes provided by the government. For example, the government
should conduct audits of the various contract work that is being carried out
and ensure that the migrant workers that have been registered under these
schemes and to also ensure that the various obligations have been fulfilled by
the contractors, such as safe working conditions, provision of housing etc.
Logically, the contractors have no incentive to follow the BOCW act since it
requires them to endure certain costs for safety of its workers and an
additional 2% cess. This law needs to be enforced by making sure various fines
are associated with not following it or a certain ban is associated such that
if a contractor is found to violate any obligation they can be blacklisted for
a specific period of time. This ensures that the contractors follow the rules
set out by the government which ensure the workers are not exploited.
In the end, we need to remember that the migrant worker
accounts to a large part of the population of India. They have been exploited
and not been given the respect and resources they deserve to live and support
their families, which was visible from the effects of the lockdown. The
government needs to implement its welfare schemes much more efficiently to
ensure that these workers do not get exploited.
[1] Census (2011), Primary Census
Abstracts, Registrar General of India, Ministry of Home Affairs, Government of
India, Available at: http://www.censusindia.gov.
[2]Section 15 of the Inter-State Migrant Worker’s (Regulation
of Employment and Conditions of Service) Act, 1979 read with Rule 22 of the
Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Central Rules 1980.
[3] ‘Principal
Employer’ means; (a) in relation to government office / department, the head of
the office / department; (b) in relation to a factory, the owner or occupier of
the factory and the manager of the factory named as such under the Factories
Act, 1948; (c) in relation to a mine, the owner or agent of the mine and the
manager of the mine named as such; and (d) in relation to any other
establishment, any person responsible for the supervision and control of the
establishment.
[4] Rule
45 of the Inter-State Migrant Workmen (Regulation of Employment and Conditions
of Service) Central Rules 1980.
[5] Provided under Schedule IX of the central rules formulated
under the BOCW Act.
[6] We understand that only 350 million
construction workers, out of a total of 510 million are registered under the
BOCW Act. The Migrant Labour Mess, Kaushik Deka, India Today, June 8, 2020.
[7] A recent study conducted by the NGO
Jan Sahas, reveals that approximately 94% of the construction workers surveyed
were unregistered. Available at: https://www.thequint.com/news/india/covid19-lockdown-economy-impactconstruction-workers
[8] National Campaign Committee for Central Legislation on
Construction Labour (NCC-CL) Vs. Union of India (UOI) and Ors (2018(3)BomC
R347).
[9] Available at:
http://www.nirmana.org/Documents/BOCW_social_audit_
report-udaipur_Rajasthan.pdf. This audit report is prepared by Aajeevika Bureau
which was selected on the basis of the recommendations of the subcommittee set
up by the Ministry of Labour.
[10]Page 52 of the Compliance Audit report available at:
https://cag.gov.in/
sites/default/files/audit_report_files/West_Bengal_General_and_Social_
Sector_2_2014_chap_3.pdf
[11] National Campaign Committee for
Central Legislation on Construction Labour (NCC-CL) Vs. Union of India (UOI)
and Ors (2018(3)BomC R347).
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