Migrant Workers And State Responsibility

    Because of the extreme situations this year, migrant problems are finally being discussed at national and international platforms. Migrant workers contribute to around 4% of the global population in search of jobs and better facilities and even with a plethora of legislations Internationally and in States, the facilities they receive are worse.

    Internationally we have International Labour Organisation as the principal authority and various legislations like National Network for Safe Migration, International Convention on Protection of Rights of all Migrant Workers and their Families,2003, European Social Charter, etc.

    In India, we have 44 Labor laws and Constitutional provisions such as Article 23(1), 39, 42, 43 which describes conditions of employment, non-discrimination at the workplace, and rights of workers.

    Internationally because of the COVID-19 pandemic, migrant workers were the worst affected, they had no jobs and no shelter several workers were left stranded on the roads, Nepali workers in middle eastern countries had to pay for their tests and quarantine centers and the tickets to their countries, they now lost their jobs without gratuity or provident fund, the native countries now will have an increased unemployment rate.

    In India, workers started walking towards their native places in the absence of transport facilities.

    This article throws light on problems faced by migrants before and after COVID-19 pandemic and issues with the current legislation in India and tries to find a solution to those problems.

    CRITICAL ANALYSIS

    Lack of basic amenities such as food, proper wages, hygiene, and shelter are the problems that we all are aware of, however, the list just starts here.

    There are many variations of how a worker migrates, either a male migrates, and when this happens women and children are left unattended in many matters.

    When the whole family migrates, women have to both work and take care of the family, children are also expected to work, and are not educated because of lack of facilities.

    Pre-COVID problems

    1. Living in unhygienic conditions expose them to various diseases such as respiratory diseases.
    2. women migrants have to face gender discrimination, don’t get equal pays, no maternity leaves, or benefits.
    3. children are often malnourished or catch diseases in the early years which stops their growth. 
    4. Seasonal migrants become carriers of diseases from one place to another.
    5. They have no permanent residence because of which they can’t have details required by banks to open a bank account, which could help them in their savings.
    6. The facilities provided by the host state especially related to free medical and legal aid cannot be availed as they are not the citizens.
    7. When migrating within the country, they lose their right to vote as they are not permanent residents of a place.
    8. Not to mention the emotional damage they have to go through, they always feel like outsiders.

    Problems faced by migrants in times of COVID

    Due to the worldwide lockdown, migrants lost their jobs, they were left with no facilities to deal with the situation. Governments didn’t offer any help. They had to even pay for their tests, which should have been free considering the situation.

    Indian migrants started marching towards their native places and state and even the supreme court did not offer help initially. It was only later when migrants were killed by trains that the supreme court decided to have an opinion on the matter.

    Post-COVID

    With the economies going down, wage rates will drop,  maintaining the social distance while working means downsizing.

    With people avoiding public transport many workers who were cab or taxi or auto drivers will earn less income than they did before.

    LEGISLATIONS

    Labour is in the concurrent list in the Indian Constitution and more than 40 central laws and more than 100 state laws govern the subject. 

    Inter-state Migrant Workmen Act, Migrant Workers Protection Law of 1979, Contract Labour Act, The Unorganised Sector Workers Bill,2003 are just a few of the labor laws that are in force in India, these laws are there to ensure that migrants receive fair wages, accommodation facilities, traveling pays however these are just paper tigers

    One of the reasons could be that laws are too rigid when it comes to employers and hence they find loopholes and save themselves from the procedures. The employers demand flexibility in terms of freedom to hire contract labor, the freedom to retrench workers and close down undertakings without prior government endorsement, and the freedom to introduce technological changes that involve loss of employment. Further, they want a liberal labor inspection system and a rational and modern system of records compliance.

    Former Niti Aayog chairman Arvind Panagariya captured the complexities of India’s labor laws stating how just an additional one worker changes the law you will be governed by for example when you go from six workers to seven in a firm, the Trade Unions Act kicks in. When you go from nine to ten, the Factories Act kicks in. The biggest killer is the Industrial Disputes Act, which says that if you are a manufacturing firm with 100 workers or more, you cannot dismiss any of them under any circumstances unless you get prior approval from the government.”

    “This is rarely given and it applies even if you go bankrupt, in which case you still have to pay your workers. This has important consequences because investors are not going to enter into an industry if they can’t exit.”

    Another reasoning is improper implementation and lack of awareness of the laws.

    Union government has decided to club these 44 laws into 4 laws: 1. Wage Code 2. Industrial Safety and Welfare 3. Social Security 4. Industrial Relations. Under this Occupational Safety, health, and working conditions Code,2019 is passed by Lok Sabha but is pending in Rajya Sabha, which means it still has a long way to go before it is implemented.

    COURT’S ORDER DURING THE LOCKDOWN

    The Supreme Court of India taking the central way and balancing the fundamental right and government-imposed restrictions directed the Union and State Governments to provide the necessary support to the helpless laborers. 

    The Supreme Court of India on May 26, 2020, took suo moto cognizance of the problems and miseries faced by the migrant laborers; In Ref Problems and Miseries of Migrant Labourers. At the outset, the State/UT Governments were directed to provide information on the steps taken by them on the situation of the migrant laborers.

    Arrest And Rights Of An Arrested Person

    The Apex court ordered states and Union territories to ensure registration of around one crore migrant workers at village and block levels to determine their employability and provide jobs suitably in the home states.

    The Supreme Court of India on 9th June 2020 ordered that all the criminal cases on migrant workers for not obeying the lockdown orders and walking on streets to reach their home should be withdrawn. The Court directed the States/Union Territories to consider withdrawal of prosecutions/complaints under Section 51 of the Disaster Management Act and other related offenses lodged against migrant workers

    While different states are as yet battling on the best way to handle the pandemic Kerala turned into the toast of the universal media for the successful manner by which it handled the Covid-19 pandemic right off the bat. On May 14, The Guardian commended Kerala Health Minister KK Shailaja for her administration, calling her ‘The Coronavirus Slayer’. While lakhs of jobless, hungry transient specialists in specific states made a straight shot to return to their home states, Kerala took incredible care of them by setting up over 4,600 assistance natural surroundings dwelling about 1.5 lakh transient laborers. Furthermore, all families were sans given allocates for a quarter of a year to adjust to the lockdown. The death rate in the state is 0.5%

    CONCLUSION

    Too many rigid laws are one of the reasons that foreign investment is less in the sector, it would be easy if Union passes a central act which is flexible and is in favor of both employers or contractors and workers so that they follow them instead of neglecting them.

    Independent Board could be set-up to keep a check on employers and contractors.

    Campaigns like “Mission Kayakalp” in which U.P .migrant workers are asked to build public schools in their native states should be encouraged and implemented in other states. Free medical and legal aid should be provided to the migrants by the host state. Kerela’s model for dealing with the situation should be implemented by other states as well.

    A progressive society is one where not just the government but people are also responsible hence awareness programs/campaigns should be run by the privileged section of the society such as advocates, social workers, NGOs, etc so that workers are aware of their rights and duties. 

    ENDNOTES

    1. A study of the internal Migrant labor- issues and policies, India’s labor legislation and its Employment Relation for the next Decade, Volume-6, Issue-4, 2016
    2. A study on Issues of inter-state migrant labourers in India, International Journal of Scientific and Engineering Research, Volume-5, Issue-7,2014
    3. https://www.opindia.com/2020/06/supreme-court-suo-motu-crisis-government-lockdown/
    4. www.deccanherald.com/opinion/in-perspective/in-light-of-covid-19-kerala-model-vs-gujarat-model-858766.html

    Faiza Naved | Amity Law School, Mumbai

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