Human Rights Violation of Migrant Workers
“Labour is priceless, not gold”
Mahatma Gandhi
Migration, being a crucial part of human history, has shaped societies and economies with the intermixing of cultures. Millions travel interstate or abroad in search for economic opportunities and a better quality of life. Such workers are especially vulnerable to exploitation because they lack social security along with economic freedom. The ongoing pandemic has upended the lives of million migrant workers as it led to the shutdown of many businesses. India has around 40 million migrant workers and now with the loss of employment, lack of basic amenities and the looming uncertainty, it becomes important to ascertain the rights of such workers.[1] The present article attempts to throw light upon the Indian legislations governing the rights of migrant workers and the international standards dealing with the same.
1.1 Indian Legislations Concerning Migrant Laborers
Before delving into the legislation, it is important to know that the Indian Constitution, which is the supreme law of the land, also protects the rights of migrant workers. This is circumscribed under the Preamble, the Fundamental Rights [Articles 14-16, 19(1)(c), 23, 24 and 38] and the Directive Principles of State Policy (Articles 41 and 43A).[2] It recognizes the fact that the integrated development of a country is possible only when the workers have their fair share of rights.
The legislations which deal with the protection of rights of laborer including migrant workers are:
● The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979[3]
This is a key legislation which governs the inter-state migrants. It was enacted to prevent the ill-treatment of migrant workers by the contractors and to ensure fair conditions of employment. It requires the contractors to provide details of all such workmen to the relevant authority. The workers are entitled to receive the wages similar to other workers for similar work, journey allowance, displacement allowance and payment of wages during the period of journey. They are also required to ensure regular wages, providing suitable accommodation, free medical facilities etc. These requirements make it onerous for the contractors to comply with it and hence it is barely implemented. The need of the hour is to rationalize the Act and ensure that the contractors have incentives to comply with the requirements.[4]
● Unorganized Workers’ Social Security Act, 2008[5]
The Act was passed to ensure social security of the unorganized workers and to National Social Security Scheme. It mandates the Central Government to formulate schemes for life and disability cover, old age protection, health benefits or any other benefit determined by the Government.[6] One important provision of the Act is that it mandates the states to issue identification cards to unorganized workers for creating a database of migrants in different cities since over 90% of India’s workforce is employed in the unorganized sector. Such a database could have been helpful in providing relief to migrants in the current crisis, however, due to flaws in the implementation of the Act, it was not possible.
● Payment of Wages Act, 1936[7]
It was enacted in order to mandate regular and timely payment of wages by the employer to the persons employed by them. It also protects them against unauthorized deductions from wages and imposition of arbitrary fines. When the lockdown was imposed, thousands of migrant workers were forced to return home because they were not ensured payment of wages by their employers. The employers, especially in the unorganized sector, made deductions from the wages on the basis of ‘absence from duty’, disregarding the fact that production had stopped because of exigency which was backed by government notifications. The Act does not contain any provision for payment of wages in case of extraordinary circumstances like the pandemic.[8] Thus, the Act cannot ensure payment of wages in the current circumstances which adds to the plight of the workers.
● Employee Compensation Act, 1923[9]
It was enacted for social welfare that aims to mandate payment to workers in specific types of employment along with compensation for injuries resulting from accidents during the course of employment. It also provides for compensation to the dependents of the worker, in case of his death. Under Part A, Schedule III of the Act, it is mentioned that any work carrying a risk of contamination invites compensation.[10] Thus, any organisation operating during the pandemic carries the risk of having its workers contract an ‘infectious disease’ under the category mentioned above. Thus, if a worker gets infected during the course of employment, it may give rise to compensatory liability of the employer. However, it has been subject to interpretation.
[1] Madhunika Iyer, Migration in India and the impact of lockdown on the migrants, PRS, June 10, 2020
[2] Chitranjali Negi, Human Rights Violation of Migrant Workers in India During COVID-19 Pandemic, SSRN, 18 June, 2020
[3] The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, Act 30 of 1979, India
[4] K.P Krishnan, Migrant Workmen Act, 1979 must be rationalized to remove requirements which disincentivize formalization, Indian Express, May 9, 2020
[5] Unorganized Workers’ Social Security Act, 2008, Act No. 33 of 2008, India
[6] Animesh Upadhyay and Shashank Pandey, Labour Laws and Migrant Workers during COVID-19, SCC Blog, April 15, 2020
[7] Payment of Wages Act, 1936, Act 4 of 1936, India
[8] Kingshuk Sarkar, Payment of Wages and Retrenchment in Lockdown Times, News Click, May 24, 2020.
[9] Employee Compensation Act, 1923, Act No. 8 of 1923, India
[10] Animay Singh, Employee Compensation Act and COVID-19, Simpliance, June 29, 2020.