MIGRANT LABOUR RIGHTS DURING THE PANDEMIC

MIGRANT LABOUR RIGHTS DURING THE PANDEMIC

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OVERVIEW

  • Introduction
  • Principle ILO Conventions relevant to migrant workers
  • Some major Indian Labour Legislations
  • Issues relating to Labour Laws
  • Fundamental Rights crushed
  • Issues relating to Indian Labour Laws
  • Steps to be taken
  • Conclusion

INTRODUCTION

  • 1st may is celebrated as labour day. It is dedicated to those people who actually do the work, actually create the roads, build houses, infrastructure, etc. these are the people who execute the vision of industrial growth, infrastructure growth and much more. But unfortunately they are excluded from the socio-economic welfare, overall development with equality goal. These are the real workforce engaged in creating the wealth generating assets and more than 80% of the economy is because of these workers. They can’t be and should not be ignored. The novel corona virus pandemic which started in Wuhan in China and was brought in India by those who can afford air travel.  Alas, the worst sufferers are those who can’t even afford rail or road travel. I am talking about those who were not showered with flowers, who were not praised via claps and who were not greeted with lights but those who were fighting not only the devastating and fatal COVID, but also fighting economically, socially, physically & mentally. I am talking about Migrant Workers and their plight, their problems and of course their rights which are brutally crushed.

With the recent changes in legal provisions for labour in the states of UP, MP and Gujarat, two questions acquire importance. The first is the relationship between law and labour. We need to ask why the political leadership felt it necessary to change labour laws when complaints and expectations hinged on the demand for adequate food, systematic cash transfers and other measures of immediate relief.

  • Struggling with low wages, physical and sexual exploitation with safety and security are some of the challenges faced by the migrant  workers in India and more specifically the unorganized sector.
  • According to UN General Secretary, Ban Ki-moon statement “Migration is an expression of the human aspiration for dignity, safety and a better future. It is part of the social fabric, part of our very make-up as a human family”.
  • Although, the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 was enacted to regulate the condition of service of inter-state labourers in Indian labour law but this is the least implemented Act among all the legislations

PRINCIPLE  ILO  CONVENTIONS  RELEVANT  TO  MIGRANT  WORKERS

Migration for Employment Convention, 1949

Equality of Treatment (Social Security) Convention, 1962

 Social Security (Minimum Standards) Convention, 1952

And many more……..

SOME MAJOR INDIAN LABOUR LEGISLATIONS

  • Labour falls in the Concurrent List (List 3)  of the Indian constitution and there are many laws enacted by the Centre and the states.
  • There are four major central legislations, that form the core of labour laws in India.
    • Factories Act, 1948: The main objectives of this act is to ensure safety measures on factory premises, and promote the health and welfare of workers.
    • The Shops and Commercial Establishments Act, 1961: It aims to regulate hours of work, payment, overtime, a weekly day off with pay, other holidays with pay, annual leave, employment of children and young persons, and employment of women.
    • The Minimum Wages Act, 1948: It sets the minimum wages that must be paid to skilled and unskilled labours.
    • Industrial Disputes Act. 1947: It relates to terms of service such as layoff, retrenchment, and closure of industrial enterprises and strikes and lockouts.

ISSUES RELATING TO LABOUR LAWS

Creating an Enabling Environment for Exploitation

  • The immediate suspension of labour laws by the states is far from being called a reform as it will strip the labour of its basic rights and also drive down wages.
  • As for the suspension, most of the provisions under the Factories Act, 1948 and the Industrial Disputes Act,1947 would mean workers in factories may be denied basic working facilities such as cleanliness, proper ventilation, drinking water, canteens, and restrooms.

Counter Productive Step

  • These steps are far from pushing for a greater formalisation of the workforce.
  • This move will in one go turn the existing formal workers into informal workers as they would not get any social security.
  • Also, there will be no way for any worker to even seek grievance redressal.
  • Resulting fall in wages will further depress the overall demand in the economy, thus hurting the recovery process.

Forced Labour

  • Article 23 of the Constitution prohibits “forced labour”.
  • The Supreme Court, in case PUDR v. Union of India (1982), held that “the word ‘force’ would mean any condition arising from the compulsion of economic circumstances which leaves no choice of alternatives to a worker.
  • Thus, the suspension of labour laws by several states reduces the bargaining power of labour, their right to negotiate and hence may turn them into Forced Labour.

Against the International Commitments

  • These amendments in labour laws are the spirit of the International Labour Organization’s ‘Employment and Decent Work for Peace and Resilience Recommendation, 2017’.
    • It requires states to ensure marginalised groups “freely choose employment” while rebuilding after any disaster.

FUNDAMENTAL RIGHTS CRUSHED

This crises crushed Articles 14, 15,17,19 & 21 of the Indian Constitution.

The Supreme Court agreed to hear a petition on behalf of the migrant workers on 30 March. The Court asked the central government to file a status report with respect to the situation of migrant workers. In its report, the central government stated that the migrant workers, apprehensive about their survival, moved in the panic created by fake news that the lockdown would last for more than three months. The court added that it was satisfied by the government response thus far.

An plea requesting payment of minimum wage was rejected by the Court on 21 April, on the grounds of workers already being provided free meals.[91]

On 16 May, the Supreme Court rejected a PIL to direct the District magistrates to identify and provide free relief and transport to the migrant workers, stating that it was the responsibility of the state governments. Speaking about the workers killed sleeping on the Aurangabad railway tracks, the Court stated that it could not have been prevented. Further, the central government stated that inter-state transport had already been provided to the migrants and requested them to wait their turn instead of choosing to walk

On 26 May, the Supreme Court admitted that the problems of the migrants had still not been solved and that there had been “inadequacies and certain lapses” on the part of the governments. It thus ordered the Centre and States to provide free food, shelter and transport to stranded migrant workers. Hours before this ruling, senior lawyers from Mumbai and Delhi wrote a strongly-worded letter to the Court, regarding its “self-effacing deference” towards the government thus far.

ISSUES RELATING TO INDIAN LABOUR LAWS

Complex Set of Laws

  • There are over 200 state laws and close to 50 central laws, and yet there is no set definition of “labour laws” in the country.
  • The multiplicity and complexity of laws make compliance and enforcement difficult and lays the foundation for corruption, rent-seeking and exploitation of workers.

Inflexible Laws

  • Indian labour laws are often characterised as “inflexible”.
  • It has been argued that firms (those employing more than 100 workers) dither from hiring new workers because firing them requires government approvals.
  • This has constrained the growth of firms on the one hand and could not improve the job prospects of the workers.

Applicability of Labour Laws

  • A large number of workers that are engaged in the unorganized sector are not covered by labour regulations and social security.
  • At present nearly 83% of India’s workers are part of the informal economy.
  • Thus, the current framework of labour laws falls short of securing the interest of all the labourers.

‘Walking back home’ from urban and industrial centres, which has been widely called ‘reverse migration,’ allowed the worker-migrants to script themselves back into the narrative of the nation. This crisis is a product of the immediate concern due to the pandemic, but it exposes long-term patterns and some structural fissures that remained hidden under the powerful narratives of ‘development’ as encapsulated in political campaign phrases such as ‘Shining India,’ ‘Achche Din (Good Days)’ and ‘Sabka Vikaas (Growth for All),’ the last two used aggressively by the Modi government.

STEPS TO BE TAKEN

Short-Term Step

  • With respect to Covid-19 pandemic, the central and state governments in India should follow what most governments have done across the world.
    • The government should partner with the industry and allocate a percentage of the GDP towards sharing the wage burden and ensuring the health of the labourers.

Long-Term Steps

  • The government has proposed four labour codes:
    • Labour Codes on Wages
    • Labour Code on Industrial relations
    • Labour Code on Occupational safety, health and working conditions
    • Labour Code on Social Security and Welfare
    • These should be passed by the parliament as soon as possible.
  • Labour laws applicable to the formal sector should be modified to introduce an optimum combination of flexibility and security.
  • Make the compliance of working conditions regulations more effective and transparent.

CONCLUSION

If the law is there, then why was it not implemented? If the migrants are entitled to a dislocation allowance then why was it not given to them? In fact, why were even the monies due to them not paid? If the contractor who hires them is to be licensed then how did he disappear deserting them and leaving them to fend for themselves? Why were health facilities and other basic amenities not provided? If even some of this would have happened, then we may have been able to hold back these workers from embarking the journey back home. The answer is that the Act is in many ways obsolete and hardly enforced anywhere. One may wonder, how is that even possible, but that is the harsh reality. For now, and understandably, these migrants have no faith in the system and are justified to look at us with doubt. In due course, and let us manage our expectations on the time-line, when their measly savings, if any, are exhausted, chances are the migrants will eventually be compelled to return to the same cities where their dreams turned to nightmares. They may even be the ‘bigger person’ and forgive us for how we treated them. But let us not forget what happened. It will be a reflection of our moral compass if, going forward, we as a nation and as a society, in our own microcosm, don’t treat our labour force with the respect they deserve. Or extend to them the protection which our laws and the legal system must give them. If extending to them fair and equitable treatment sounds reeking of concepts from public international law or just too utopian, can we at least be humane. Or is that also expecting too much?

Written by:- Tanveet Kaur

Pursuing B.A.LL.B. from G.G.S.I.P.U.

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