Inter-State Migrant Workers Deprived of Labour Rights
J S Majumdar
IN February 2021, union labour minister Santosh Gangwar tabled in parliament NITI Aayog’s draft ‘National Policy on Migrant Labour’, framed ostensibly “as a response to the Covid fallout on the migrants”. The report states that about one crore migrant workers began their long journey back home after the sudden lockdown announced by the prime minister on March 24, 2020. As fallout of this lockdown – sudden loss of jobs and income, lack of accommodation and food, total stoppage of rail and road transportation – lakhs of inter-state migrant workers started walking on road and rail tracks, some of them with families and infants. Hundreds of them died on way, not due to Covid infection, but as fallout of the unprepared lockdown and in absence of immediate relief. The reports and visuals in print, electronic and social media stirred the conscience of the people across the country.
Utilising this huge public sympathy across India for the migrant workers after their lockdown tragedy, the union labour minister announced in parliament on February 8, that the draft policy on migrant workers is in response to the “demands from a cross section of states, experts and civil society.” This claim of the government is totally false. The lockdown was announced on March 24, 2020; the tragedy of migrant workers walking back home was widely reported and the people protested in April-June against government’s insensitivity in arranging transport for them, refusing to provide free ration, cash transfer to the needy despite repeated demand by the trade unions and other sections. Instead, the Modi government removed the existing meagre legal protection of the inter-state migrant workers by repealing the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Migrant Workers Act) in September 2020. And, now in February 2021, the Modi government is responding to the migrant workers owes and tragedies!
Along with the three anti-farmer farm laws, the three anti-worker labour codes – both in favour of the corporates – were steamrolled in parliament without putting the bills for vote in the midst of opposition’s protest against the farm bills and boycott of the houses. In one go, the three farm bills and three labour codes were adopted in Lok Sabha on September 17, in Rajya Sabha on September 20; and the president gave assent on September 27 2020. In 10 days, three farm bills and three labour codes became acts replacing many (29) existing labour laws, which came into existence in pre-Independence and since Independence through years of workers struggles and sacrifices. Through these, crores of the peasants and the workers of the country, vast majority of Indian population, are being subjugated before the foreign and domestic corporates for the Modi government’s project misleadingly named as ‘Atmanirbhar Bharat’ in post-Covid ‘New India’.
HOW & WHAT LEGAL
One of the three labour codes, adopted in September 2020, is the Occupational Safety, Health and Working Conditions Code, 2020 (OSH Code). Through Section 143(1) of this OSH Code, the Migrant Workers Act has been repealed along with 12 other labour laws for sector-wise workers. With this, the meagre legal protection of migrant workers has been removed.
Apart from general application of labour laws, there were certain specific provisions for the migrant workers on mandatory basis in the now repealed Migrant Workers Act which include –
1. (i) Ensuring payment of equal wages for similar work by other workers or minimum wages under the Minimum Wages Act 1948 whichever is more; (ii) Displacement allowance; (iii) Home journey allowance including wages during journey; and (iv)Suitable residential accommodation and medical facilities free of charge.
2. Putting responsibility on the contractors, recruiting migrant workers, which include (i) Compulsory registration in both - source state and destination state; (ii) To submit within 15 days detailed particulars to both governments in prescribed forms about the migrant workers and of the appointing establishment; (iii) Maintaining registers with details of the migrant workers; and
(iv) Most importantly, to issue to each migrant worker a pass book in English, Hindi and in state language with his photo giving particulars of (i) name and place of the establishment; (ii) period of employment; (iii) rate of wage and mode of payment; (iv) payable displacement allowance; (v) return fare payable; (vi) deductions made, if any etc; and
(v) Reporting about fatal accident or serious injury of migrant worker to both the governments and to the next of kin; and (vi) Liable for the prescribed punishments for violations committed under this Act.
3. For the employer in the establishment (i) Registration; (ii) Maintaining registers indicating the details of interstate workers; (iii) contractor’s responsibility of payment of wage and allowances under supervision of principal employer and, in case of failure by the contractor, the responsibility of the principal employer; and (iv) Liable for the prescribed punishments for violations committed under the Act.
IN OSH CODE
Part II of OSH Code includes some provisions for the inter-state migrant workers. Ruling dispensation claims that the provisions of the Migrant Workers Act have been subsumed in the OSH Code. This claim is also false. All the above provisions of the now-repealed Migrant Workers Act have been removed except the following provisions.
1. Migrant workers Act had the provision of minimum threshold of 5 migrant workers in an establishment / contractor where the Act applied. In the OSH Code the minimum threshold of the migrant workers has been raised to 10 for the establishment / contractor. It means that migrant workers in the vast majority of the small industrial and service establishments will be out of any protection of labour laws.
2. OSH Code retained following revised and diluted provisions of Migrant Workers Act:
• Vague ‘suitable conditions of work’ for migrant workers;
• Similar wage-related and other benefits applicable to other workers;
• Only lump sum amount for to and fro journey to home state;
3. OSH Code additionally provides PDS benefit to migrant workers in either of the states; free helpline and arrangement for study of the migrant workers.
Now, the Modi government claims to have responded to the migrant workers’ miseries in post-lockdown situation and, accordingly, NITI Aayog drafted the National Policy on Migrant Workers. The policy document has four segments as priority issues (i) ‘Ensuring political inclusion’; (ii) Setting up inter-state coordination mechanism; (iii) a ‘migration wing’ in each state’s labour department; (iv) source state and destination state to work with each other.
Actually, there are only two segments – one is about ‘political inclusion’ of the migrant workers and the other is about inter-governmental coordination. Nowhere in the draft policy document have migrant workers’ labour rights and industrial-relation matters been envisaged.
MIGRANT WORKERS AS
VOTE BANK FOR BJP
The whole exercise seems to be ‘ensuring political inclusion’. Other than voting there is no political inclusion for migrant or any other section of the workers. Accordingly, the draft policy document framework noted - to establish mechanism to “enable voting” so that political inclusion will “enhance accountability of political leadership towards welfare of migrant workers of their respective states.”
As per the 2011 census, total number of internal migrants in India is 45.36 crore or 37 per cent of the country’s population including inter-state and intra-state migrants; and the total workforce was of 48.2 crore people of which the Economic Survey pegged the size of the migrant workforce at roughly 20 per cent or over 10 crore in 2016.
NSSO surveys and economic survey show that there are a total of about 65 million inter-state migrants, 33 per cent are workers. Add street vendors, not included in the workers data, that would mean there are 12 to 18 million migrant workers.
Prof. Amitabh Kundu estimated that four states account for 50 per cent of the total migrant workers in the country – Uttar Pradesh-25 per cent, Bihar-14per cent, Rajasthan-6 per cent, and Madhya Pradesh-5 per cent.
This huge number of migrants is the target of RSS-BJP as a potential vote bank. Therefore, NITI Aayog prepared the draft national policy for providing voting facilities for them.
On March 13, 2019, The Hindu reported huge social media campaign about ‘online voting’ arrangement for the NRIs in the 2019 general election though Indian voting system has no provision of e-voting. On this, the Election Commission of India (ECI) had to give a public clarification and lodged complaint with the Delhi Police asking it to track down those spreading the “fake news”.
Same ECI addressed a letter to the union law ministry on November 27, 2020 proposing that necessary amendments be made in the Conduct of Election Rules, 1961 “at the earliest” to allow NRIs to vote through “electronically-transmitted postal ballot system (ETPBS)”; and, further wrote that the ECI is “technically and administratively ready to extend this facility to the elections of legislative assemblies of Assam, West Bengal, Kerala, Tamil Nadu and Puducherry”, reported Times of India on December 2, 2020.
On December 4, 2020, the CPI(M) wrote to the ECI protesting against such unilateral decision and demanded to “call all-party meeting before proposing any change in voting procedures” as has been the practice since Independence. Taking cue from the proposal of ECI for the NRIs to vote through ETPBS, the ruling dispensation targeted the huge number of migrants within the country for similar voting system for them. Hence, it is this draft National Policy on Migrant Workers.
The working group under NITI Aayog has shed lot of crocodile tears for the migrant workers in the draft policy framework stating that the Migrant Workers Act are not being implemented in true spirit by the state governments; they have miserable working conditions at wages far below the prevailing local wages; the vested interest of labour departments in collusion with the principal employers / contractors is the main stumbling block to implement this Act. The draft blamed the trade union movement for the “The existing gap in the unionization of migrant workers is also an important reason for the precarious nature of their employment.” But what is the attitude of the government towards unionisation of migrant workers and registration of the migrant workers’ unions? The government is the main stumbling block in this regard.
On the one hand the BJP government blames the state governments, labour departments and trade unions for the plight of the migrant workers and on the other, its OSH Code deprives the migrant workers whatever benefits were provided by the earlier Inter State Migrant Worker’s Act and removes most of them from legal protection
Draft policy document also says about the programmes such as MNREGA and State Rural Livelihood Mission, meant to check out-migration of tribals and that this also failed.
The draft policy also calls upon the employers to be transparent about their value chains and formalize work contracts with migrant workers and for a “rights-based” approach rather than hand-outs and cash-transfers. It is good to hear that.
But, after identification of the root causes of migrant workers tragedies, hiding the Modi government’s action in removing migrant workers’ statutory legal protection and sanitization work; NITI Aayog’s draft policy document talks only of the voting right of the migrant workers! After these, who would dare to oppose the political empowerment of the migrant workers in exercising their voting rights electronically? The rest has been left to ‘Jio’ to manage.
The trade union movement cannot allow the Modi government to play with the tragedy of migrant workers. There is need for the trade union movement for urgent and effective intervention to take the migrant workers issues in objective direction.
The trade unions should immediately raise and pursue the following demands for inter-state migrant workers -
1. Union labour ministry to hold meeting with trade unions for preparing National Policy on Migrant Workers;
2. Restore Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; and
3. Effective implementation of the Act by the governments of both resource and destination states;
4. Election Commission to hold all party meeting for facilitating vote by migrant workers in the Parliament and Assemblies elections.
The trade unions should also effectively intervene to pursue these demands at the central and state levels, and organise the migrant workers in both – the resource and destination states.