Author: Arekar Divya Dilip Sulakshana, III year of B.A.,LL.B.(Hons.) in Social Science and Language, Maharaja Sayajirao University of Vadodara, Gujarat
The upsurge of Coronavirus is alleged to be stemmed from Wuhan, China shortly emerged as a Global Pandemic due to the structure of the virus being easily transmissible. Dr. Tedros Adhanom Ghebreyesus, the Director-General of the World Health Organization proclaims a Public Health Emergency of International Concern on 30th January 2020. All the nations started to quarantine to combat the spread of Covid-19 and to curb the towering death toll as the vaccine has not been developed yet.
Considering the stance of India in this desolation, India as an emergent nation dearth a standardized health system and efficacy of public health authorities due to which the odds of escalating Covid-19 become even more substantial. To mitigate the severity Hon’ble Prime Minister Narendra Modi declared a rigorous lockdown from 25th March 2020 for the next 21 days. It restricted the movements of people and goods except for the free flow of essential commodities. Some Activists and NGO approached the Supreme Court challenging the order dated 24th March 2020 issued by the Ministry of Home Affairs (MHA) to be abrupt and violate the fundamental rights of indigenous people and migrant workers. It is considered to be a felicitous action taken by the Central Government. If the lockdown was announced, chaotic circumstances would have emerged causing a high risk of transmission of Coronavirus. A National Health Emergency was declared and as such Necessity non-habet legem (Necessity knows no law).
Even after an order was issued over restrictions on movements due to no means of livelihood and sustenance, the migrant workers were compelled to travel on foot, cycle by whatever means available, to cover interminable distance ranging between 135 km to 1500 km or even more to their hometowns. An Inter-State Migrant workmen is a person who gets recruited by a contractor in one state under an agreement for employment in an establishment in another state, whether with or without the knowledge of the principal employer concerning such establishment. [1] Most of these migrant workers belong from Jharkhand, Uttar Pradesh, Bihar, West Bengal, Odisha from places of work in Rajasthan, Delhi, Maharashtra, Gujarat so forth. The Government authorities requested them to be where they were by assuring necessary reliefs but as no immediate relief was provided some of them voluntarily leapt faith in a desperate attempt to reunite with their families.
The manner in which a huge chunk of migrant workers were returning home from unplanned urban areas having an inefficient housing plan for the one who uplifts the metropolitan cities infrastructure was soon left on their faith. Frantically, the adversities that India faced is not new and can be dated back to the event of the plight of people during the partition in India in 1947, the Spanish flu of 1981, Surat plague (Black Death) 1994. The abrupt effect of the whimsical decision was evident when no immediate relief was aided, induced by political apathy to address the proper adjudication of the grievances of the migrant workers whose freedom was curtailed at the beset of uncertainty witnessing many on the brink of starvation. Urbanization has accentuated the economic disparity that the Nation is trapped in making it challenging to surpass the discriminatory outlook towards the migrant workers by treating them indifferently in the public domain. Delineating an antithesis illustration which can clarify the effect of economic inequality prevailing in the society is when on 5th April 2020, Hon’ble Prime Minister Narendra Modi urged the citizens across the nation to lit diyas for 9 minutes to rule out the darkness as a fight against COVID-19, the rich and the middle class were lighting up diyas whereas the migrant workers were making their way underneath the moon and stars.
Further amplifying a traumatic effect, cases of harassment started to emerge when it was reported in Uttar Pradesh that the migrant labour who were returning to their hometown was made to sit on toes and sprayed disinfectant in such a quantity that it gave an impression of a chemical bath (sodium hypochlorite solution). The humiliation caused due to social exclusion results in stigmatization, considering them to be vulnerable, attributed by their social satire where the prospect of a dignified life becomes even more unachievable.
The Finance Minister Nirmala Sitaraman announced a free ration for stranded workers. The deaths of migrant workers did not stop regardless of the relief packages provided. The causes of death were heart stroke, starvation, dehydration, etc. due to travelling on foot long distances in summer. On 1st May 2020, the Central Government decided to run the Shramik Special Labour Train. Unlock India commenced from 8th June 2020 after 74 days of lockdown.
In the Monsoon Session of Parliament, the Lok Sabha MPs (Member of Parliament) raised a question about the number of migrant workers death and compensation offered to them upon which the Minister of State for Labor and Employment, Labor Minister Santosh Gangwar replied that state-wise data was unavailable and hence the question of compensation does not arise. A rational query becomes apparent as to all intents and purposes that is to be held accountable to maintain death records of migrant workers who travelled during the lockdown. A legitimate answer to the proposed question is acquirable under “The Registration of Birth and Death Act 1969”. Typically, the death record of citizens is maintained under the “Civil Registration System”. RBD Act provides that the Registrars are appointed for each local area within the jurisdiction of the Municipal, Panchayat, or other local authorities.[2] Sadly no such data was recorded.
India is a Federal Nation; the executive powers are divided amidst the State Government and the Central Government. A joint Jurisdiction exists over the enactment of laws about the welfare of labourers following the Indian Constitution [3]. Labour falls under the concurrent list (List III, Schedule VII). The entire adversity that transpired shall have been ward off to a certain extent if only “The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 30 of 1979 would have been executed effectively. This act envisages a mandatory registration of inter-state migrant workers and establishments with a certificate of registration from the concerned authority that shall assist the Central and State Government to verify the number of workers employed by regulating their conditions and services. A successful application of this act would have meant that the State Government had complete details of the migrant workers coming through contracts within their states, which in turn during such circumstances would have to facilitate the State and Central Government to make arrangements for food and transportation without disturbing a lot of calculations. This act does not consider migrant workers who moved across the states willingly, a large segment would be automatically registered due to the provisions of this act. Let us know in brief the history behind the enactment of this Act.
In Odisha and some other States, Dadan Labor was prevalent as an infamous exploitative system of employment of Inter-State migrant labour that got recruited by Contractors/Agents called Sardars/ Khatadars for labour outside the state, mainly in construction projects. While recruiting, the Khatadars used to promise to pay wages as per piece rate which shall be settled at the end of every month but never fulfilled those promises. Under the pretext of such fake promises the innocent workers used to get in the claws of the Khatadars who took them to far-off places on railway fare only and later on exploited them as no working hours were fixed, no holidays and working under extremely unhygienic conditions.
Finally on 26th October 1976 (New Delhi), Twenty Eight Session of the “Labor Ministers Conference” was held to resolve the issue of Dadan Labor. A compact Committee was constituted to advise measures for eliminating the abuses prevalent in the system. Upon the recommendations of the Compact Committee, a Bill was introduced in the Parliament. The Bill got the approval of the Parliament on 11th June 1979 and “The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1976 came into effect. [4]
The Act aims to regulate the employment and working conditions of the interstate migrants. This act applies to an establishment employing 5 or more than 5 inter-state workmen in an establishment. As per this act, a principal employer is prohibited to employ inter-state migrant workmen in an establishment unless a certificate of registration of such establishment is issued [S. 6]. Every contractor must furnish the obligatory details to the specified authority in the Home State and the Host state within 15 days from the date of recruitment [S. 12 (1) (a)]. The establishment must register the employment of, the inter-state migrant workmen with registering officers appointed under the Central Government or the State Government depending on the location of the establishment. Similarly, it is the duty of every contractor who proposes to recruit the inter-state migrant workmen to obtain a license from the concerned authority. The contactors are duty-bound to provide a passbook to every workman employed which states out the details of employment [S. 12 (1) (b)]. This provision gives protection against human trafficking or other fraudulent activities.
An inspector who is appointed by the appropriate Government has reasons to believe that any inter-state migrant workmen are employed in any premises/place may enter at all reasonable hours with such assistants (if any) [S. 20 (2) (a)] to satisfy himself whether the provisions of this Act concerning the payment of wages, condition of service or facilities to such workmen are being complied with [S. 20 (2) (a) (i)]. India has ratified ILO (International Labor Organization) convention NO. 81 which emphasis on the Labor Inspectors right to enter premises freely without prior notice to ensure compliance of Labor laws.
The Inspector may examine any person found in such premises to determine whether such person is an inter-state migrant worker. The wages offered to the migrant workers will be payable from the date of his recruitment and will be entitled to a displacement allowance and a journey allowance in addition to his wages [S. 20 (2) (b)]. A person who is offering work to any workman may give information which is within his/her power as regards to the names, addresses of the persons to, for and from whom the work is given out or received and payments made for the work [S. 20 (2) (c)].
Any person who is required to produce any document or to give any information to an inspector shall be bound to do so within the meaning of section 175 and section 176 of the Indian Penal code 1860 [S. 20 (4)].
If any person refuses or willfully neglects to afford the inspector or authorized person any reasonable facility for making any inspection, examination, inquiry or investigation under this Act concerning an establishment or a Contractor to whom this Act applies, shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two thousand rupees or with both [S. 24 (1)].
If any person willfully refuses to produce any register or other document or does anything which he has reason to believe is likely to prevent any person from being examined by an inspector or any authorized person acting in pursuance of his duties, shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two thousand rupees or with both [s. 24 (2)].
Any person who contravenes any provision or rules, regulating the employment of inter-state migrant workmen or contravenes any condition of a license granted under this Act shall be punishable with imprisonment for the term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. In case of a continuing contravention, with an additional fine which may extend to, one hundred rupees for every day during which such contravention continues after conviction for the first such contravention [s.25].
If the Central and the State Government had effectively executed the above-mentioned provisions in the true spirit of the law, fewer hardships and sufferings shall have been faced by the inter-state migrant workers. Reasons for the failure of the rigorous implementation of this act can be due to equal pay for inter-state workmen and social protection along with other benefits which makes employment even more expensive as the cost of hiring becomes much higher than hiring a similar labour force from within the State. Over time, the labour laws must be amended to ensure clarity that captures the stipulation of emerging forms of labour. The Second National Commission on Labor 2002 found existing legislation to be complex, with archaic provisions and inconsistent definitions, and recommended consolidation of Central Labor Laws for transparency and uniformity. In 2019, The Ministry of Labor and Employment introduced 4 Bills on Labor Codes to consolidate 29 Central laws. These codes regulate – (1) Wages (2) Industrial Relations (3) Social Security and (4) Occupational Safety, Health and Working Conditions.[5]
Consideration shall be given to evaluate current challenges by looking at alternative integrated and innovative approaches to address the needs of workers, to achieve adequate protection by having an appropriate framework, compliance with and strong enforcement of the law by building up effective social dialogue in coherence with international standards, national laws and regulations. Finally, open-ended questions are not desirable to conclude by underscoring the importance of having effective enforcement mechanisms, reforms are undertaken in democratic consultation wherein it is quite easy to say that more resources are required for labour welfare but the question is about the appropriateness of the regulatory framework which is to be moulded in a way that ensures their effective use. To this end, India shall stop taking issues at its face value and keep up with a holistic approach that assures comprehensiveness, cohesiveness and better use of its pre-existing tools.
[1] The Inter-State Migrant Workmen (Regulation Of Employment And Conditions Of Service) Act, 1979, Section 2 (3) (e)
[2] The Registration of Birth and Death Act 1969, s.7
[3] The Constitution of India, art 246
[4] The Inter-State Migrant Workmen (Regulation Of Employment And Conditions Of Service) Act, 1979, available at https://www.indiacode.nic.in/bitstream/123456789/13209/1/the_inter-state_migrant_workmen_regulation_of_employment_and_conditions__of_service_act_1979.pdf (last visited on October 18, 2020)
[5] Overview of Labour Law Reform, available at https://www.crackias.com/news-details.php?news_id=14333&page_no=1 (last visited on October 20, 2020).
Author's Biography
Arekar Divya Dilip Sulakshana is an autodidact person, engrossed in probing the Socio-Legal aspect of society with a notion to make changes for our advancement with an upbeat of evaluating the situation from a different perspective which shall create great opportunity. She firmly upholds the belief that success comes to those who manifest the destiny they desire.