Why a comprehensive legal framework to protect migrants’ rights is urgently needed
By 9 April, India had witnessed 192 deaths due to reasons related to the COVID-19—not necessarily from the virus directly—according to media reports compiled on the website of Thejesh GN, a public-interest technologist. A significant number among these casualties were migrants who died while trying to get home in the week after the centre announced a countrywide lockdown to combat COVID-19. The announcement— which just gave a notice of four hours—had predictably left migrant workers, who were surviving on hand-to-mouth jobs, without food, transportation, medicines or even a roof over their heads. While these consequence could be foreseen at the time of the announcement, the government’s response to the crisis seemed like an afterthought.
It was only on the second day of the lockdown that the government announced a relief package of Rs 1.7 lakh crore for vulnerable sections of society. On the fifth day, the ministry of home affairs issued an order under the Disaster Management Act to state and union territory administrations to restrict movement of migrants. The ministry asked states to keep all migrant workers who were going home “in the nearest shelter … for a minimum period of 14 days as per standard health protocol.” In the rush to sweep them away from public glare, the administrations of Haryana and Chandigarh hurriedly decided to convert indoor stadiums into temporary prisons. Meanwhile in Uttar Pradesh, health officials sprayed industrial disinfectant on migrants workers. These blows were delivered with condolences—on 29 March, Prime Minister Narendra Modi apologised to his “underprivileged brothers and sisters” in a radio address and said there had been “no other way” to contain COVID-19 but to place the country under a lockdown.
The home ministry’s order termed the movement of migrant workers as “a violation of the lockdown measures.” It also prohibited employers from deducting wages and declared evictions from rented housing as a penal offence during the lockdown period. These amounted to little more than an unenforced governmental advisory to employers and landlords, and several experts spoke about the need to do more in terms of providing relief. But rights-based provisions available for migrant workers remained unenforced.
These events fit the pattern in which we have engaged with migrant workers in the past. On the few occasions that the concerns of migrant workers have received public attention, they have been addressed either in terms of their share over the state’s dole, or as law-and-order problems which need to be dealt with firmly. The rights that migrant workers are entitled to, in accordance with the law, seldom make it to public discourse. This neglect of the legal framework for hiring migrant workers, at times, creates an illusion that the government is going above and beyond to provide for them.
There are about sixty-five million interstate migrant workers in India, according to estimates by Amitabh Kundu, a professor at the Research and Information System for Developing Countries. Living outside their states of origin, unable to go on leave or pay for a trip to the polling booth back home, their concerns have not received the political weightage warranted by the sheer strength of their numbers. For instance, while soldiers, government employees posted abroad and even non-resident Indians are eligible to vote by post, no such provision has been extended to migrant workers.
For many such migrants, as they cannot influence the electoral outcome of the ward of their workplace, political tribulations in their home states have much greater stakes. Yet, one is hard-pressed to find state governments debating the treatment meted out to interstate migrants in Parliament. This translates to the police having fewer reasons not to pick them up when pressurised to do so by their employers or fellow residents, the local corporator having no stake in their well-being and the major trade unions remaining largely disinterested in organising them. The place of toilers in the socio-economic hierarchy denies them the opportunity to pursue other alternatives to voting to make their voice heard—such as taking to social media, approaching those is power with more ease—as available to wealthier counterparts. By both formal and substantive markers, this crude denial of franchise to a bulk of the country’s residents raises several questions about the nature of Indian federalism and democracy.
The only legal protection available for grievances specific to migrant workers is the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, which came into force in 1980. It lays down, among other things, the contractor’s obligation to pay at least minimum wage as well as accommodation and journey allowances to the migrant workers. The law covers all establishments employing five or more interstate migrants.
In 1983, a new-found zeal for judicial activism led the Supreme Court to give the law a “broad and expansive interpretation” in the case of Bandhua Mukti Morcha vs Union of India. The court emphasised the need for doing so as migrant workers live “in a totally strange environment where by reason of their poverty, ignorance and illiteracy, they would be totally unorganised and helpless and would become easy victims of exploitation.” It clarified that while overriding powers conferred by Section 30 of the Act meant that it superseded any law, contract or standing orders to the contrary, it did not disqualify migrant workers from disqualify them from availing the employees’ state insurance, provident fund and maternity benefits.
Apart from the obligations of primary employers, contractors and state governments already contained in the law, this verdict, written by the judge P Bhagwati, also placed certain burdens on the centre to ensure its implementation. “The Central Government is therefore bound to ensure observance of various social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the Directive Principles of State Policy,” Bhagwati wrote. In another judgment—delivered in the 1982 case of People’s Union for Democratic Rights vs Union of India—the Supreme Court emphasised that profits from violating labour law should not far exceed the damages payable for such violations.
Tellingly, this law has seldom been implemented without intervention from the higher judiciary. Since late March, I have been a part of the Migrant Workers’ Solidarity, a national network for migrants’ rights that is operating a relief helpline for stranded workers. In my interactions with several legal scholars and migrant workers, I learnt that even though the organised sector enjoys some of the basic protections listed above, it has not performed any better than the unorganised sector in securing migrants’ rights. The four-decade-old law appears to be redundant—no migrant worker and few labour organisers that I spoke to had ever heard of it.
A major push towards interstate migration occurred after the law was enacted. The neoliberal reforms that were eased in after the mid-1980s led to the decadal growth in migration shooting up from 35.5 percent during 1991–2001 to 44.2 percent in the next decade. At the time, state policy was reoriented towards attracting foreign investment. Special Economic Zones—production centres where labour laws were absent in practice—were set up for this purpose at places where land and power were massively subsidised using public money. This foreign direct investment-centric path to prosperity meant that the limited manufacturing growth that took place since the mid-1980s has been concentrated in export-oriented sweatshops, such as in the textile and garments sectors. The existence of the jobs in these sectors is predicated upon keeping labour costs lower than what Bangladeshi, Indonesian or Thai competitors—South East Asia is a major hub of sweatshops—can offer. As a result, they remain extremely exploitative.
Those who were thrown off their fields by these reforms were subsequently absorbed into major urbanisation projects. Short-term migration into the construction sector swelled, making it the second-largest absorbent of migrant labour after retail trade. Outsourced domestic labour, a heavily gendered sector, would also become a major contributor to interstate migration. The nature of the unorganised sector has metamorphosed among these rapid changes. The new push factors towards migration have entrenched, rather than upset, the traditional caste and linguistic networks that form important links in the labour supply-chain.
Over the last three decades, the story of migration in India has been marked by workers being pushed into precarious living and workplace conditions as a necessity to sustain the chosen path to economic progress. By denying them basic citizenship and workplace rights, their lives have been degraded in order to force them into arrangements with employers that would otherwise be pushed back by locals. Evidence from the organised sector—such as in the advanced production centres along the Delhi-Mumbai industrial corridor—suggests that firms prefer hiring migrants and not locals, possibly to pre-empt this possibility of workers’ resistance. This has been cemented over the years as the only kind of growth trajectory conceivable.
In this pandemic, the government’s disregard for migrant workers has been clear. It seems to have few apprehensions in sending migrant labourers back to work. In an order dated 15 April, the ministry of home affairs allowed resuming select activities subject to certain conditions. Four days later, the ministry allowed stranded migrants who “wish to return to their places of work, within the State where they are presently located” to be screened and return to their workplaces.
In the initial days of the lockdown, several experts suggested providing workers in the unorganised sector financial assistance through direct-benefit transfer. While the Unorganised Workers Security Act, 2008 mandates district administrations to register unorganised workers—including migrant workers—and issue identity cards to them, no centralised database seems to exist even 12 years after the law was enacted. In mid April, A Shivaram Hebbar, the labour minister of Karnataka, said, “The government does not have data of people in the unorganised sector such as drivers, farmers, domestic help and others. If we have to deposit directly into their account, we need data.”
In what they claim are steps to restart the economy in the lockdown, four state governments have brought in emergency notifications to increase working timings to a 12-hour shift in factories. The eight-hour workday was won after close to a century of bloody workers’ struggle, commemorated as May Day. It was adopted by the International Labour Organization in 1919. According to the Factories Act, 1948, no adult worker should work for more than 48 hours in a week and within this framework no worker should be allowed for more than nine hours a day. It adds that for overtime hours, workers will be paid at the rate twice the ordinary wage rate. However, a notification issued by Gujarat—one of the four states—that increases working hours states that the “wages shall be in a proportion of the exiting wages.” The notification mentions that if wages for eight hours are Rs 80, then proportionate wages for twelve hours will be Rs 120.
Providing basic necessities and social-welfare coverage to migrants and bringing in a legal framework to affirm their democratic rights, as citizens and workers, entails counting them as migrant workers first. Creating digital profiles to provide migrants with identification documents is an urgent first step. In doing so, safeguards must be built into the law to prevent such a database from being used to increase workers’ surveillance and further regulate their movements.
The government needs to recognise the discrimination and exploitation peculiar to migrants. Cultural alienation as well as their distance from locally powerful institutions entitle them to special protections, as excluded groups from within the region are similarly entitled to. This includes protection from arbitrary dismissals by being treated on par with permanent employees, ending discrimination in housing or employment as well as being assured the right to unionise. Similarly, the cultural disassociation produced due to forced migration must be addressed by the state where the migrants’ workplace is located—the state government must provide basic literacy in the local language and familiarity with the region’s cultural life, accessible judicial remedies for mistreatment or abuse as well by ensuring sensitivity in the handling of their grievances.
The government must ramp up investment in public infrastructure, including public transportation, housing, education and access to the public-distribution system as a protected right for all migrant families. Not only is this a prerequisite to decrease the inequality between locals and migrants in their quality of living conditions and employment options available, it is also necessary to contain the regional chauvinism that migrants across states periodically encounter.
Migration has charted the course of humanity’s evolutionary history. The Constitution grants a fundamental right to “reside and settle in any part of the territory of India.” What progressive voices must push for today is for this right to be given substantive meaning. This cannot be done without correcting the interstate inequality between rates of industrialisation and employment generation, which has pushed crores of Indians to look for a livelihood away from home. It is only when this is assured that freedom of movement will become a right, instead of remaining an obligation. This will necessitate major changes in how we think of the public good, the relation between the state and the people, and the way in which financialised global production chains are restructured after the crisis. That will be nothing short of a radical re-imagination of what the last three decades of neoliberalism have peddled as being necessary for economic growth.
Niharika Maurya, a law student, provided research assistance for this article.