GRFDT

Divya Balan, Assistant Professor, International Studies.FLAME University, Pune

Migrant workers are among the most vulnerable sections of the society in times of both normalcy and emergency. Struggling for a living, they are often exploited and forced to work and live in deplorable conditions;employers, contractors and the policymakers often overlook their health and safety risks. Interestingly, the spread of Covid-19 pandemic has brought renewed attention, especially among the academicians and civil society organisations to otherwise neglected internal migrant labourers in the length and breadth of the country.The 2011 census has estimated approximately 453 million people as internal migrants whoare 37 percent of India’s total population. Out of them, 10.2 percent migrate interstate or intrastate specifically for employment purposes(Bansal 2016).[1] While 88 percent of total internal migrants move within the states (inter-district and intra-district), only 12 percent of the total movement is interstate (De 2019).[2]Internal migrants constitute a crucial part of India’s economic growth and poverty reduction, especially in rural areas (Deshingkar and Akter 2009).[3]According to Bhagat (2016), internal migration helps to transfer agricultural surplus labour to the non-agricultural sector of the economy and offers more opportunities of increasing income and convergence of welfare than international migration in the Indian context.[4]

However, in the mainstream public discourse around migration in India, overseas Indians have received more considerableattention and praise for their remittance contribution to the economic and infrastructural development of the country. Celebrated as the cultural diplomats, theyare beneficiaries of a host of positive action measures such as the e-migrate system, OCIScheme, National Pension Scheme for NRIs, Indian Community Welfare Fund, Scholarship Programmes for Diaspora Children, Mahatma Gandhi Pravasi Suraksha Yojana, PravasiBharatiyaBimaYojana, PravasiBhartiya Kendra, PravasiBharatiya Divas Conferences, voting rights for Indian citizens abroad etc., to mention a few.[5]Moreover, when the rapid spread of coronavirus was reported globally as well as nationally, the Indian Government was swift in responding to the needs of the NRIs by opening a centralised control room, arranging evacuation flights, issuing travel advisories and risk profiling them on return before the travel ban.But it was only after the Delhi AnandVihar incident and similar occurrences of interstate migrant workers trying to flee on foot to their faraway homethat the governments – both central and states - woke up to the hardshipsfaced by these foot soldiers amid the Covid-19 crisis and the lockdown that followed.

The pandemic has exacerbates the existing vulnerabilities of these migrant workers in the rural and urban economic centres of India. While most of the intrastate migrants could return back home before and during the lockdown as the inter and intra-district travel ban was moderate and easier to bypass; it was the interstate migrants who were affected more and got stranded in the host states without a job or any means of livelihood due to lockdown.Forced to leave their home states due to lack of livelihood options, the blue-collar interstate migrant workers fill the deficit in certain labour-intensive sectors of the economy which the local population prefer not to take up including construction, manufacturing, transportation, brick kilns, mining and quarrying, and agriculture (Abbas and Varma 2014).[6] Thus, they make sure that the economy sustains its growth uninterruptedly and the society thrives with the dynamism of a better future for its people.Despite all the positive outcomes of this migration, these 18.5 million interstate labourers (as per 2011 census) are often neglected and excluded not only from the social life of theirhost states but also from policiescrucial for theirwelfare. Relative inaccessibility to health care, social entitlements, housing, and formal financial and banking services, as well as the non-portability of social security benefits,make these casual floating labourers mostly in the country’s informal sector worst affected by the vicious circle of distress and marginalisation.[7]Hence, concrete policy interventions are pertinent to guarantee the human and labour rights of the, otherwise faceless and voiceless, interstate migrant workers.

Government Interventions and Labour Laws

Article 19 (d), (e), and (g) of the Indian Constitution states that “all citizens have the right to move freely throughout the territory of India; to reside and settle in any part of the territory of India; and to practise any profession, or to carry on any occupation, trade or business.” In the Directive Principles of State Policy, Article 39 explicitly states that “the citizens, men and women equally, have the right to an adequate means to livelihood;” and that “the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.” Article 43 further directs “the State to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.”[8]These provisions are the constitutional basis for the rights and welfare of the interstate migrant workers along with the legislations enacted by the Ministry of Labour and Employment (MOLE).

MOLE was established to protect the interest of the workers in organised and unorganised sectors as well as to promote their welfare by providing social security and creating a safe and healthy work environment for them. The ministry has enacted about forty-four labour laws related to payment of wages and minimum wages, employees’ compensation, social security benefits, conditions of employment, occupational safety and health of workers, the formation of trade unions, etc. Since, constitutionally, labour is a concurrent list subject; the State Governments are also competent to enact legislations and implement labour laws.[9]

Several legislations were enacted that are directly and indirectly related to the migrant labour of which the most direct being the Inter-state Migrant Workers (Regulation of Employment and Conditions of Service) Act, 1979. Though limited by their scope and implementation, other relevant acts are the Minimum Wages Act, 1948; the Contract Labour (Regulation and Abolition) Act, 1970; the Bonded Labour System (Abolition) Act, 1976;the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996; the Unorganized Workers’ Social Security Act, 2008 etc., to name a few.[10]In 2009, the MOLE declared the National Policy on Safety, Health and Environment at Work Place to eliminate the incidence of ‘work-related’ injuries, diseases, fatalities, disaster and loss of national assets.The National Policy by recognising a “safe and healthy working environment as a fundamental human right” states that “without safe, clean environment as well as healthy working conditions, social justice and economic growth cannot be achieved” in the country.[11] This goes contrary to the fact that migrant workers often live in unhygienic, overcrowded and unsafe conditions in worksites, slum areas or street payments where social distancing is a luxury in the current times of Covid-19 pandemic. The Policy elaborates only on work-related injuries and diseases, and so was the case with all the labour laws.The scenario like the current spread of a pandemic and the vulnerability of workers to ‘non-occupational’ health hazards, especially the semi-skilled and unskilled migrant labourers in the informal sectors, is not addressed in any existing labour laws.

A Structural Analysis of the Act of 1979

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979[12] while lays down the employment conditions of the migrant contract workers provides for minimum wages as per state regulations, journey allowance, displacement allowance, residential accommodation at work sites, and other welfare measures for migrant workers employed in the formal sector (Kumar and Singh 2018: 19).[13]Chapter 5, Section 16 (e) of the Act directs every contractor employing interstate migrant workmen “to provide the prescribed medical facilities to the workmen, free of charge.” However, by putting the responsibility solely on the contractor who could be unwilling or non-committal to provide such benefits to theinterstate workers for his own petty profit-making interests makes the Act ineffective. After all, no explicit provisions have been stated in the Act about the compensation to the workers in the event of a breach of the provision of benefits other than delegating to the principal employer to pay wages or other allowances to the migrant workers under Section 17 (4).Instead of distributing benefits through the contractors, who are often blamed for the ill-treatment of the workers, the government can grant benefits directly through local government structures, for instance.

Furthermore, as mentioned earlier, health and safety of the interstate migrants, as in the case of other labour laws, are thought-about onlyin terms of occupational hazards like a fatal accident or serious bodily injury while at work. Provisions to provide protective clothing to the workmen and to report to the states’ authorities and also the family of the workman are specified under Section 16 (f) and (g), but these provisions are definitely not adequate and effective to deal with a situation of an outbreak and the spread of an infectious disease or the like.Even though, migrant workers are exposed to these diseases while at work/workplace, whether to treat a pandemic like Covid-19 as an occupational hazard is a grey area right now in the labour laws.

The diversity in the measures adopted and implemented to contain the Covid-19 spread at the state level itself is illustrative of the fact that spontaneous and short term centralised approaches are not always equipped to deal with ground realities of each state and ensure the health and safety of especially the migrant workers in the absence of concrete legislations at the centre, state and local levels of governance. Contractors and employers were directed to take necessary steps to contain the spread of coronavirus disease in their worksites and camps under the National Disaster Management Act, 2005 invoked by the Central Government as well as the Epidemic Diseases Act, 1897 invoked by the various state governments. It is noteworthy to mention that the timely response of civil society organisations has been more proactive in the pandemic situation, with them often stepping in to fill the gaps in the public delivery of relief measures.

The 1979 Act has several such inherent gaps; yet another significant lapse is that this law excludes those interstate migrants working in the informal sector as well as in those small scale establishments with less than five migrants. There are a significant number of self-employed interstate migrants as retail traders or street vendors who do not come under the purview of this Act. Also, not all migrant workers are recruited by a contractor since the stream of interstate migration is often facilitated by kinship networks as well, and the Act does not recognise such interstate workers as migrant labourers. Limited applicability of the Act is further evident by the fact that it omits the welfare of almost half of the interstate migrant population, women migrants,who are working in private spaces as domestic workers, who are equally vulnerable in medical emergency scenarios.Thus, the Act fails structurally to provide the intended health and safety benefits to migrant workers.

Inadequacy of the Labour Laws

Major weaknesses of the labour laws related to migrants workers stem from the nonexistence of accurate data on internal migration. Census data is not sufficient enough to capture the trend and pattern of internal migration, and so is the case with the National Sample Survey Organisation (NSSO) data. If empowered, the office of the Chief Labour Commissioner can easily collect more accurate data than the Census or the NSSO since it is stipulated in Section 57 (1) of the Act of 1979 that “the Deputy Chief Labour Commissioner (Central) or the Inspector or any other authority under the Act shall have powers to call for any information or statistics in relation to migrant workmen from any contractor or principal employer at any time by an order in writing.”However, an effort towards that was never taken or left entirely at the discretion of the contractors to register the workers under the Act. A comprehensive data of the migrant workers is a prerequisite to formulate and implement evidence-based policies and social benefit measures for their welfare. As the migrating population is one of the vulnerable populations to infectious diseases, strengthening prevention and intervention approaches will be a critical factor in controlling the spread of Covid-19. However, several media reports substantiate that the state governments are struggling to reach out to migrant workers stranded all over the country amid the ongoing lockdown in the absence of a database.[14]This invariably limits the government responses, and needless to say, institutional neglect, travel bans, and abysmal conditions in worksites, temporary camps and shelters amplify their sufferings and risk of inadequate access to food or health care, particularly so in the current medical emergency.

Also, since several of the labour laws are overlapping, for instance, the migrant workers are covered under the Contract Labour (Regulation and Abolition) Act, which itself has several structural gaps in it, contractors take it as an excuse not to register them under the 1979 Act to avoid dual registration, dual compliance procedures and the additional cost.To remove the structural inadequacies of some of the labour laws, amendment legislations and/or judicial pronouncements are introduced; however, their potential to provide beneficial rights to labourers, especially interstate migrants, are still insufficient owing to the non-committal and faulty implementation in most cases (Kumar and Singh 2018: 30-31). Oversight of safe working conditions and health outreach to workers in informal sectors thus is a continuing story of migration and labour governance in this country. In 2019, the Lok Sabha referred the labour code on Occupational Safety, Health and Working Conditions prepared by the MOLE to the standing committee on labour for consideration. The code was prepared by amalgamating thirteen existing labour laws to regulate the working conditions and safety standards across sectors by setting up a National (as well as State) Occupational Safety and Health Advisory Board. Chapter 11 (Part I) of the draft code is specifically on ‘provisions for contract labour and interstate migrant worker’. However, interestingly, this section yet again did not mention any specific provision for the health and safety of contract and interstate migrant worker.[15]

Similarly, interstate labour migrants are often excluded from various important health policies in India, such as the National Health Policy (2001)[16]or the National Health Mission of the Ministry of Health and Family Welfare as these policies are generic in scope. They rarely recognise the specific health needs of migrants as a group, and separate initiatives for migrants are hence not included.While employment can assure economic security and thereby access to health care to the migrants family at the source states, lower and irregular wages, precarious and unregulated work, occupational hazards, infectious diseases and social exclusion in the host states can affect the very physical and mental health of the migrant workers which are rarely addressed resolutely in the labour and health policies of the country. Migrant workers face unique health problems associated with malnutrition, a poor overall health status, lesser access to preventive and curative health services, higher mortality and morbidity rates (Akinola, Krishna and Chetlapalli 2014: 232)[17] as well as due to theirsubstandard living and working conditions, highriskof infectious and sexually transmitted diseases, cultural practices like open-air defecation and emotional stress related to the migration to an unfamiliar sociocultural landscape.The healthcare accessibility is lesser among them either because of an absence of or large distance from healthcare centres and anganwadis, language barrier or because of the discrimination against migrantgroups (De Haan 2011: 398, 401).[18]Also, the perception that migrants are competitors for the already scare and overstretched healthcare and other welfare services in a state results in their blatant disregard and exclusion.At present, most of the migrant health services are provided by civil society organisations like Disha foundation in Maharashtra or AajeevikaBureau in Rajasthan (Behera 2018: 3).[19]

Conclusion

Even though the primary objective on the Indian labour laws is to ensure the welfare of the workers, vague and evasive government structures, lapses in the labour laws themselves and theprocedural delays in implementation, lack of strict compliance and monitoring mechanisms in place and general insensitivity to the sufferings of the rural and urban poor is the gravest problem Indian democracy is grappling with even after seven decades of independence. Poor labour governance can impact not only the socio-economic development negatively but also the workers’ health and safety. As suggested by Akinolaand others (2014), key ethical principles such as non-discrimination and equity in healthcare delivery need to be ensured along with efforts to mitigate the negative health and safety impacts of migration. Malnutrition and nutritional diseases can be checked to an extent by introducing Aadhaar-based portable social entitlements such as access to the Public Distribution System in the host states. Provision for health insurance for migrant workers needs to be mandated nation-wide in line with the health insurance scheme, Awaaz, rolled out by the Government of Kerala in 2017. The health budget needs to be augmentedto take into account unforeseen pandemic crisis like this and setting up of a universal healthcare programme that benefits the deprived sections of the country has to be the priority (D’Silva 2014: 2).[20]To supplement these efforts, decent and hygienic living conditions including proper waste disposal facilities, sanitation, water supply, and avenues for recreation are necessary for the physical and mental health of this vulnerable population.  Healthcare providers should be oriented of the sociocultural background of the interstate migrant workers and encouraged to treat them without any prejudice.

Spontaneous interventions to deal with complex emergencies have to be backed by long term institutional policy responses. The Covid-19 pandemic strongly posits the need for an exclusive and comprehensive legislation on health and safety, both occupational and otherwise, of the migrant workers in India. Such a migrant-inclusive public health policy framework needs to be complemented with reforms in the existing labour laws, including the 1979 Act. Finally, policy failure is not only due to the gaps in the legislation always but also because of the lapses in the policy-implementation at all levels. Hence, collaborative policymaking and committed implementation need to be embedded in the migration governance system. It is high time to have a realistic and inclusive internal migration policy for the country.