Legal

Plea Regarding Protection Of Migrant Workers

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This Blog is written by Ved Prakash Amrit from Central University of South Bihar, Gaya. Edited by Srishti Tiwari.

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INTRODUCTION

A migrant is “any one that lives quickly or for good in an exceedingly country wherever he or she was not born” Migrants leave one place for an additional in search of a good living or higher education, to flee abuse, or just to be near to family or friends. Migration is associate degree ancient and natural human response to hunger, deprivation, abuse, war, or natural disaster. Migrants square measure classified supported their intent and therefore the manner during which they enter a country. Tourists, business travellers, students, temporary staff, asylum seekers, refugees, permanent residents, and undocumented migrants all square measure a part of the worldwide migrant population. The problems of migrant workers have become important in several developing countries of the planet. The method of theorization of migration began within the nineteenth century. It’s been mentioned by several researchers, who have emphasised social and cultural, distant and economic factors as causes of migration. Migration of labour started in Asian nation throughout the amount of British colonial rule. It had been aimed toward meeting the necessities of capitalist’s development each in Asian nation and abroad. The labour was moved from the boondocks to the sites of mining, plantation and many factories. It was recruited from the agricultural areas and controlled in such a way that ladies and youngsters remained within the villages whereas males migrated to the trendy sector.

COVID-19’S EFFECT ON INDIAN MIGRANT

India’s nationwide lockdown amidst the COVID-19 pandemic has critically dislocated its migrant population. Lacking jobs and money, and with public transportation shut down, hundreds of thousands of migrants were forced to walk hundreds of miles back to their home villages – with some dying during the journey. During the prevailing COVID pandemic conjointly, several migrant staff used all possible suggests that to achieve their destinations. Several of them are but stuck at borders, as well as state, district and at national border areas. These are the foremost marginalized sections of the society. Who are captivated with daily wages for his or her living, and in times of such distress want sympathy and understanding of the society. Immediate issues featured by such migrant employees relate to food, shelter, Healthcare, worry of obtaining infected or spreading the infection, loss of wages, concerns about the family, anxiety and worry. Sometimes, they additionally face harassment and negative reactions of the area people. One hundred and ninety eight migrant worker lost their lives in road accidents throughout the lockdown period, in line with information compiled by the Save LIFE Foundation, a road safety nongovernmental organization. Migrant workers, killed during their efforts to go back home. “Since the lockdown began, nearly 200 migrant workers have lost their lives while walking, cycling back home, traveling in HMVs and LMV commercial vehicles, and in mass fatality crashes involving state-organised buses. In this process, numerous migrants died of exhaustion, accidents or other complications that arose in the course of their journey, which happened to be a reality check for the judiciary, who then decided to take cognizance of the issue when a plea was made in the Supreme Court to protect the rights of vulnerable migrants, which was, to dismay, rejected.

PLEA FOR MIGRANT WORKERS

A plea has been filed within the Supreme Court seeking direction to authorities to permit migrant employees across the country to come back home once conducting necessary COVID-19 tests and conjointly organize their safe surpass providing necessary transportation. The plea filed by Jagdeep S Chhokar, former director in-charge of Indian Institute of Management, Ahmedabad, and Gaurav Jain, a lawyer, said those migrant workers who test negative for

COVID-19 must not be forcefully kept in shelters or away from their homes and families against their wishes.

A petition was filed within the Supreme Court seeking directions to the Central government and alternative authorities involved to pay compensation to the family of all the migrant staff who died, or were gashed throughout the lockdown. The petition, filed by advocate Reepak Kansal, sought directions to the respondents – concerned Authorities/ Department/ Governments – to build up coordination and ensure health facilities to injured migrants worker at their respective place. “The Supreme Court should also pass appropriate order directing the respondent (UoI) to save the migrants labourers from atrocities of police/security agencies during this nationwide COVID lockdown crisis,” it said.

A plea has been filed in the Supreme Court on Friday seeking a direction to the Centre to ask all District Magistrates in the country to identify stranded migrant workers and provide shelter, food to them before ensuring their free transportation to native places in view of the early morning’s tragic incident at Aurangabad in Maharashtra in which 16 such workers were mowed down by a goods train.

A PIL has been preferred in the Supreme Court seeking directions to local administrations and police authorities pan India to identify displaced migrant workers and equip them with basic amenities during subsistence of the national lockdown. The plea has been moved by a lawyer Nachiketa Vajpayee and filed by Advocate Deepak Prakash. It takes into account the hardships faced by migrant workers who have found themselves in dire straits with their fundamental rights being violated across the country.

STATUTORY PROVISIONS

Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 is an Act of the Parliament of India enacted to regulate the condition of service of inter-state labourers in Indian labour law. The Act’s purpose is to protect workers whose services are requisitioned outside their native states in India. Whenever an employer faces shortage of skills among the locally available workers, the act creates provision to employ better skilled workers available outside the state. The recommendations of compact committee had been examined in consultation with the state governments and the relevant central ministries, Interstate Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 was passed by both houses of Parliament and President of India gave his assent on 11-06-1979. This Act makes provision for availing with the onsite services of interstate workers by the contractors / establishments to overcome only the temporary shortage of required skilled workers in a state. The purpose of this act is not to encourage interstate migration of workers against the interests of local workers as the principal employers would have to incur more cost in deploying interstate workers.

Occupational Safety, Health and Working Conditions Code, 2019:

Pursuant to the Report of the Second National Commission on Labour on the ‘Occupational Safety, Health and Working Conditions of the Workers’, the Ministry of Labour and Employment (“Ministry”) has introduced the ‘Occupational Safety, Health and Working Conditions Code, 2019’ (“Code”) in the Lok Sabha on July 23, 2019.

The Code simplifies, subsumes and transforms the provisions of 13 existing central labour legislations, including, inter alia, the (i) Factories Act, 1948 (“Factories Act”), (ii) The Contract Labour (Regulation and Abolition) Act, 1970, (iii) The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, and (iv) The Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981, etc. (collectively, “Current Laws”).

HIGHLIGHTS OF THE BILL

1) The Code seeks to regulate health and safety conditions of workers in establishments with 10 or more workers, and in all mines and

2) It subsumes and replaces 13 labour laws relating to safety, health and working conditions. These laws include: Factories Act, 1948; Mines Act, 1952; Dock Workers Act, 1986; Contract Labour Act, 1970; and Inter-State Migrant Workmen Act, 1979.

3) Establishments covered by the Code are required to register with registering officers, appointed by the central or state

4) Welfare facilities, working conditions and work hours for different types of establishments and workers will be prescribed by the central or state governments through

5) The Code sets up occupational safety boards at the national and state level to advise the central and state governments on the standards, rules, and regulations to be framed under the

6) The Code creates special provisions for certain classes of establishments such as factories, mines, dock workers, and constructions workers. These include separate provisions on licenses, safety regulations, and duties of employers.

CASE LAWS

Alakh Alok Srivastava v. UOI

This case was filed by an Advocate practicing in the Supreme Court (Petitioner- in-Person), seeking immediate action to safeguard the rights of migrant workers, and also seeking directions for the state to provide them with essential necessities like food, drinking water, shelter and medical help.

Facts:- In the PIL, the petitioners claimed that the migrant workers were severely affected by the 21-day nation-wide lockdown ordered by the Government in view of the global pandemic caused by Coronavirus Disease. It was contended that due to this, the daily wage workers were severely affected as their means of livelihood had come to a sudden halt. With no help coming from the Government, and instigated by fake news circulated on social media, there was a mass exodus of the migrant workers from their work place to their native villages/ towns all across the nation. Hence the petitioner prayed for a direction to the UOI to immediately identify the moving/stranded migrant workers and shift them to the nearest government shelter homes or accommodation and provide them with proper food, clean drinking water and medicines under medical supervision, in a dignified manner.

Vide the Amendment Application, Petitioner subsequently also sought following: (i) reliefs regarding a composite plan for rehabilitation of aggrieved workers, such as free transportation, one month statutory wage to each migrant, one month free ration, after the lockdown was over; (ii) Sought setting up of a “Migrant Labourer Crisis Management Board as a Common Gateway” for the supervision and monitoring of the welfare measures to avoid such crisis in the future; (iii) Also sought establishment of a 24-Hour Multi-Lingual Call Centre as a pivotal point for providing accurate information and effective grievance for redressal to migrant workers in a crisis situation in future.

Held: – The Supreme Court expressed its satisfaction at the steps taken by the Central Government and implementation by State Governments, to curb the spread of Corona Virus (COVID-19) as well as to provide basic amenities like food, drinking water, medicines to the migrants. With regard to reporting of fake news, taking note of Section 54 of the Disaster Management Act, 2005 (provides for punishment to person who circulated false alarm) and Section 188 of the Indian Penal Code (prescribes punishment for disobedience to an order promulgated by a public servant) the Court indicated that (i) all concerned shall comply with the directions, advisories and orders passed by the Union of India in the interest of public safety, (ii) stressed on the duty of the media to be more vigilant and responsible and ensure that unverified news capable of causing panic is not disseminated; (iii) UOI directed to start issuing daily bulletin through all media avenues including social media and forums to clear the doubts of people.

Harsh Mander & Anr. v. Union of India

This case was filed by social activist, Mr. Harsh Mander and Ms. Anjali Srivastav, an RTI activist, represented by Mr. Prashant Bhushan (Advocate), whereby directions were sought seeking immediate payment of minimum wages to migrant workers and the self-employed poor suffering due to the nation-wide Corona-virus lockdown. This petition was filed pertaining to the order issued on 29.03.2020, whereby the Ministry of Home Affairs directed all employers to pay wages to the migrant workers, and for their landlords to not evict them. The PIL contested this and claimed that this was an insufficient measure, and the Central and State Authority should ensure the wages to be paid to the migrant workers at the place they were at, during the lockdown. This petition was listed on 03.04.2020 before Justice L.N. Rao and Justice Deepak Gupta.

Facts: – The PIL relying on the Fundamental Right To Life under Article 21 of the Indian Constitution, claimed that the nationwide lockdown ordered by the Central Government, led to loss of jobs for the migrant workers which resulted in panic driven situation of mass migration of workers from their work place to their hometowns/ villages. Mr. Prashant Bhushan further contented that (i) in view of no work, Migrant workers need money to send back to their families back home; (ii) that more that 4 lakh migrant workers were living in shelter homes which was contrary to the social distancing policy announced by the Centre, (iii) that the food being served at shelter homes was inedible. After perusing and examining the status report filed by the state, Mr.Bhushan (i) raised his concerns about safety of about 15 Lakh migrant labourers over- crowing at shelter homes for food; (ii) expressed his concern over availability of ration at the shelter homes set up for migrant workers; (iii) Referring to steps taken by countries like Germany, Italy and France in providing financial aid to poor people, Mr. Bhushan questioned failure of Indian Government in following suit.

Held: – During the hearing, the Court opined that they are not an “expert” body in dealing with crisis health management and that policy decisions were the prerogative of the Government and listed the matter. During the course of arguments, the Court opined that if the Court passes all the directions that are being sought for in the petition, it will amount to Court running the Government. However, due to missing pages pertaining to the amount of money transferred to accounts of poor people, Court asked the State to place on record the missing pages and adjourned the matter.

ANALYSIS

The plea to protect migrant workers was made in good faith and with the required legal backing. However, it is essential to understand that implementation of these laws practically is a daunting task, often impossible to complete. With thousands of labourers and migrants travelling through the country, it is a herculean task to keep a mob that large from doing so without resorting to violence. Applying violence would fix the issue on an immediate basis, but would create a sense of distrust and fear among labourers, who may not co-operate with authorities completely. The clandestine nature of these labourers, given their frequent movement to seek work also makes it difficult to trace and identify these individual as they carry little or no identity proof, making it very hard to trace them. Moreover, the fact that these migrants have little or no awareness of the law makes them vulnerable to exploitation as they are unaware of the benefits and securities that they are entitled to. The fact that state governments are allowed to decide on the matter of the movement of migrant labourers creates great confusion for those who wish to travel to their homes as it often involves routes that traverse multiple states, each with their own set of rules and regulations, making it an epicentre of bureaucratic entanglement. A person moving from Mumbai to Varanasi would have to travel through Maharashtra, Madhya Pradesh and Uttar Pradesh, each with a requirement of travel passes and medical certification, making it a hassle for labourers to arrange for all the paperwork. The conditions in labour camps and shelters in many parts of the country also stand to be inhumane, with labourers not being paid or suppled with necessities. This simply furthers the frustration of the migrant class to move back to their hometowns by any means available. The government lacks adequate infrastructure to facilitate the movement of all the labourers swiftly. Although Trains and buses ply, they are limited, both in terms of capacity and destinations, owing to social distancing norms, limiting the number of travellers who can travel at a time on such modes of transport, which makes the process of moving back a time-consuming one. One viable alternative for the government to protect these labourers would be to set up shelter spots along the routes these migrants walk across. These shelters could be Schools, government buildings or large tents which provide food, water and shelter to those in need. It must comply with social distancing norms and also provide medical aid to those who require it as heatstroke and other similar incidents are common in precarious situations such as these.

CONCLUSION

The growing pace of economic economic process has created additional migrant workers than ever before. State and increasing impoverishment have prompted several workers in developing countries to hunt work elsewhere. In industrial countries, demand for labour, particularly unskilled labour, has increased. As a result, scores of employees and their families trip countries apart from their own to search out work. The driving factor constituting the mass movement of labourers on highways can largely be attributed to the trust deficit among the labourers as they don’t trust the government’s intentions or are in denial of losing their livelihood. The government must not resort to empty words to gain the trust of migrant labourers, rather they must do so by showing actual commitment with food programmes or actual cash transfer. Lastly, it is essential to acknowledge migrants as an asset of a state as they bridge the labour deficit of a particular state. It is important to ensure their safety and needs to help them overcome their vulnerabilities so as to prevent restlessness and resentment to the loss of livelihood.