CHALLENGES OF LABOURERS INCLUDING MIGRANT WORKERS AND THE UNORGANISED SECTOR
Author: Nidhyasri.R, V Year of B.A.,LL.B from Chennai Dr. Ambedkar Government Law College.
Migrant workers are people who move from one place to another with the view of getting employed for their livelihood, it can be from one country to another or within the state or within states. Unorganised Sectors are those whose legal status is not standard and the rules and regulations are often not followed and the labourers will be exploited on several bases. Over 93% of the Indian workforce is categorised as unorganised sector workers. These workers are the most vulnerable section as their migration is not out of choice but a compulsion for their daily grain. International Labour Organisation has enacted conventions to protect migrant labourers and Indian Legislation espoused the Inter-State Migrant workmen (Regulation of Employment and Conditions of Service) Act, 1979 and The Unorganised workers social security act, 2008. Even if they have certain legislations that govern their rights, it is the least practised and a dead letter. The lack of quality education of the labourers abides the fundamental cause of their exploitation such as bargaining, minimum wage, physical and sexual, working hours more than 12 hours per day, etc. This paper encounters the legal challenges faced by this particular set of people.
KEYWORDS: Migrant Workers, Labours, Vulnerable Section, Unorganised sector, Exploitation, Labour Laws.
Every person in this democratic country is ascertained by rights and duties. Under the constitution of India, many pieces of labour legislation have been enacted to protect labourers or migrant workers and provide them with basic rights. Almost the law covered every challenge faced by workers. The migrant workers are the people who do unskilled labour moving from one region to another either for temporary or seasonal work for the upliftment of their livelihood and to provide for their family in their home country.
Migrant workers contribute up to 10% of India’s GDP1. These workers form a major contribution to the Indian Economy as they provide service for the development of the migrated state but the rights of those who help in development are often refused by means of wage theft, retrenchments, and lack of social security, employer accountability, mobility issues, and huge social discrimination. Migrant workers often work in unorganised sectors such as textiles, manufacturing, construction, hotel transportation, services or domestic work. Unorganised sectors are enterprises which are all unincorporated and owned by an individual or group of self-employed workers who engage in providing services or production and sales of goods such as small-scale industries which provide unbranded goods, agriculture, business or trade etc.
MIGRANT WORKERS RIGHT’S IN INDIA
Millions of migrant workers are working in the big cities of India. These workers are invisible and their voices often do not reach the government. These workers often waive their fundamental rights and become rightless nor do they claim any rights for themselves. The rights of this kind of labourer are not even a spoken topic. During the period of the pandemic that is COVID-19, the whole system of India was shaken off and reverse migration happened and lots of people migrated overcoming immense hardships, hurdles and odds. Thus, during that period the invisible people suddenly became visible. There is a lack of comprehensive official data on migrant workers until now. There are 454 million migrants in the country, 60 million of whom are inter-state labour migrants2.The data on migrant workers are taken only by means of railways which is the larger mode of transportation.
Labour fall under the concurrent list of the Indian constitution, 1950. Thus, enabling both the centre and state to enact laws on that particular subject resulted in numerous pieces of legislation for the protection of the rights of labours but those only enforce some basic and minimum protection to migrants. The major problems arise when those legislations are only applied in terms of employment to the organised sector which forms only 17% and the excess of 83% is unorganised sectors. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 was enacted to regulate the condition of services of interstate labourers. Under the Act, the element of registration of contractors and employment is a huge challenge in ensuring proper implementation. The Act stipulates at least 5 workers in an establishment to be able to avail the provisions of the act. Therefore, domestic workers coming from interstate and working in the houses cannot get the provisions of this act.
CRISIS FACED BY LABOURERS
The term ‘Migrant workers’ has been defined by the united nation as a ‘migrant worker who is engaged or will engage in any kind of remunerated activity provided by some other state with a view of getting wages in which he is not a citizen’. International Organization for Migration (IOM)has differentiated two major classes of migrant workers that are economic migrants and labour migrants. Economic migrants will be in a large group and their objective will be to invest whereas labour migrants will migrate with the aim to get employment opportunities.
In India, the catastrophe faced by the labourers is in large mainly in view of the fact that India’s dilapidated structure where there the solution for the complication is delivered temporarily and under no circumstances an indissoluble and enduring resolution is besotted. The dilemma is characterised by insufficient wages, irregular and unorganized employment conditions, lack of financial security and a constant struggle to make ends meet for survival and livelihood. According to the 2011 census, the movement of migrant workers is recorded as 4.5 crores in India3. The contribution of these workers toward small-scale businesses, industries and enterprises increased the significant growth of the economic level of India but the socioeconomic condition of these labourers is at bargained basement and has been aggravated in the past COVID situation.
INTERNATIONAL LABOUR ORGANISATION ON MIGRANTS
International Labour Organisation (ILO) has played a consequential role in the upliftment of working conditions for labourers. The International labour standard will protect the worker and provide freedom of association, equal pay for equal work, safe working conditions, abolition of forced labour and sex-based discrimination, employment protection, provision of social security, protection of migrant workers, elimination of sexual harassment of women workers and others. ILO enacted 11 fundamental conventions which it considers to be fundamental to protect the minimum labour standard and 4 governance conventions for governing the work of fundamental conventions.
There are four categories:
Right to freedom of Association and collective bargaining
Elimination of forced labour
Elimination of child labour
Elimination of discrimination in matters of occupation and wages
It is the constitutional duty of every country to provide basic security to its citizens such as medical facilities, maternity benefits, unemployment benefits, employment injury benefits, and survivor’s benefits. In the report of Rodger of ILO in 2001, it is extracted that only 10% of the total migrants in the world get adequate social security4. Most workers don’t even have basic facilities such as drinking water, toileting facilities and shelter. The enactment of The Factories act, 1948created an obligation for the employer to provide workers with drinking water, urinal facilities and bathing facilities irrespective of their nationality. The women migrants’ condition is worse than men in fact they are abused and the working condition they sustain is worse. Most women migrate for the reason of being in unity with their families.
The official census shows that more than 300 million female workers are there in India and over 96% of workers according to the year 1971 census work in the unorganised sector5 and the working condition is unhygienic where the basic necessities of woman are not met. According to Acharya 1987, Sardamoni 1995, and Teerink 1995reports noted that women are mainly abused when they are migrated.
According to the survey report of the National Statistical Office(NSO) from the year 2019first Time Use Survey (TUS) mentioned that 38.2% of persons who were the age of six years or above were engaged in employment and related activities. As per the study, 57.3 per cent of males were engaged in employment and related activities while the proportion was 18.4% for females in the country.17 Overall 53.2% of participants in the survey were engaged in unpaid domestic services for household members. The proportion of females in the category was higher at 81.2 %compared to 26.1% for males. The proportion of females engaged in unpaid domestic services for household members in rural areas was higher at 82.1% compared to 79.2% in cities6. The struggle endures by this particular class of people is immense.
LABOUR CODES IN INDIA
In India, Labour codes are considered to be efficient by seeing up from above it is believed to be obeyed and safeguarding the rights of the labourer but the actual class of workers at the ground level are suffering even now. The legislation which was enacted before 2019 were 29 labour acts which all were formulated and repealed in 2019 and became 4 major labour codes namely, The Code on Industrial Relations, 2020; The Code on Social Security, 2020; The Code on Wages, 2019; and The Code on Occupational Safety, Health, and Working Conditions, 2020 (OSH Code).
The Code on Wages, 2019 was enacted with the intention to include the unorganised sector within it as the employers in there doesn’t provide proper wage to them and if 96% of the workforce work in them then it to the development of the economic condition and the socio-economic condition of the labours. Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (‘ISMA’)is still in operation as The Code on Occupational Safety, Health, and Working Conditions, 2020 hasn’t been enforced. The primary drawback is that the law is enacted according to the need of society but the implementation of those enactments, rules and regulations are not strict, it is casual. Modern codes make a strict obligation to follow the law based on fixed and contract labour.
The OSH code provided provision for only inter-state migrants and the intrastate workers are left out. Both inter and intra-state workers go through the same abuse and vulnerabilities. The OSH act provides benefits to workers who earn below Rs.18,000 considering the low socio-economic workers. It is expected from the labour codes that it will improve the living standards of ground-level workers but is often considered to be in favour of the upper or capital workers. This code only provides the working hours and conditions for some professional work and thus discriminates against other classes of workers. The voices are raised by trade unions and labour activists against the living condition and legal conflicts faced, it is time to provide them with a proper code and rights insisted in it after the big crisis of covid.
The code on social security, 2020 excludes a large number of workers as it only includes enterprises where the workers are above 10 and provides benefits such as pension and medical insurance benefits to only such enterprises. Benefits like Provident funds, Pension benefits, and medical insurance benefits are only available to those who earn above a certain as may be notified by the government. The provisions are not applicable to the rest of the workers even if their livelihood is at stake.
LEGAL PROVISION UNDER INDIAN CONSTITUTION
‘Right to equality’ is enshrined under Article 147 of the Indian Constitution. This right is unfortunately denied to this kind of worker. The principle of “Equal pay for equal work” is breached head longingly. This principle was elaborated and argued in State of Orissa v. Balaram Sahu8 where there was contention on the entitlement of equal pay by the daily wage, casual workers in the State of Orissa for undertaking the same responsibilities and duties as the permanent employees. The Supreme Court elaborated on this point of law by upholding the dissimilarity between the duties and responsibilities of casual workers and permanent employees. The Apex further emphasized the qualitative difference under Article 14 of the Indian Constitution. However, the Court made it clear through the judgement that the State must ensure that minimum wages are prescribed and paid to workers in an attempt to bring socio-economic parity.
Article 19 is enshrined with various rights within it. The ones which relate to migrant workers are Article 19 (1) (e) which specifically provides for the right to reside and settle in any part of the territory of India read with Article 19 (1) (g)which allows any person to practise any profession, or to carry on any occupation, trade or business9. At present, the workers are forced into a dreadful situation to migrate and work to earn daily household and grain because of their low economical background.
In the course of action, it is noted that these workers are even suffering for their daily food, Shelter, clothing, medical facilities and healthy living condition which implies the violation of Article 21 which imparts the “No person shall be deprived of his life or personal liberty. except according to the procedure by law”10. The scope of Article 21 has evolved several times through various judgments and it has been expanded. In the case, Kharak Singh v. State of Uttar Pradesh11 expanded the phrase personal liberty to include more than mere animal existence. In Delhi Development Horticulture Employee's Union v. Delhi Administration12, the petitioner was a daily wager and he claimed his right to livelihood under Article 21 of the constitution of India. Wherein the Apex court stated that at the time the state has no uniform policy to enforce the right to livelihood under part III of the constitution so it laid on Directive Principle of State Policy Article 4113 under part IV of the constitution which implies legislation to make effective provision for securing the rights of the workers according to the capacity of its economic resources within the limits of development.
Directive Principles of State Policy (DPSP) Article 36 – 51. Article 3914 endeavours to secure the rights to livelihood, the principle of equal pay to equal work and the prevention of workers and children from forcible abuse. Article 41 stipulates that, in cases of unemployment, old age, sickness and disablement, secure citizen’s right to work, right to education, and right to public assistance. Article 42 allows making provisions for just and humane conditions of work and maternity relief. Article 4315 dispenses law to secure a living wage, a decent standard of living and social and cultural opportunities for all workers16. Article 44 provides to secure for all citizens a uniform civil code throughout the country17. Even though these principles are not enforceable in a court of law the landmark judgements such as Minerva Mills Ltd. & Ors v. Union of India, equal weightage has been given to both fundamental rights and DPSP. The DPSP creates a direct obligation to the states to provide the workers and citizens with adequate livelihood, unbounding which will result in the violation of Article 21 of the Indian constitution.
The major number of the population is working in the informal sector where the labourers become invisible so their cry for justice. Adequate measures have to be taken by both central and state governments for welfare. Even if the labour codes have been enacted, it hasn’t been into force and has been lacking in some divisions. The poor state of these workers is being the same as during the colonisation period and it has been exposed severely only during the time period of the pandemic where lots of lives were lost due to the economic situation. Exposing the inefficiency of the laws and policies concerning this section of the population.
Due to the Industrial revolution labour laws have been evolving for better working conditions and better livelihood for workers it doesn’t mean that the past evolution has made the policies and laws flawless and effective.
Due to Covid, the world has lost N number of populations and even the economic condition of a developed country has been weak in such cases, populous country such as India suffered a great deal in the medical sector. Thus, this kind of situation taught us the severity of migrants’ health and condition and it is the duty of the legislature to enact laws which will be potential and well equipped with provisions according to the present and the crisis that will arise in the future status of the country. If proper planning is made and policies are made born then it will lead to a positive way toward labour. It is highlighted that even though there exists a plethora of legislation on the protection of labour rights still there exists a gap between fundamental rights and the legal framework on labour rights.
The labour laws concern those who have Aadhar for their benefit under the legislation, those who don’t have the knowledge about this will be left out and thus discrimination will happen. To overcome this condition each state government, have to submit data on labourers who work below the poverty line and make sure the benefits are absolute for them.
The Periodic Labour Force Survey Report (2018-19) indicates that 70% of regular wage or salaried employees in the non-agricultural sector did not have a written contract, and 52% did not have any social security benefit.18 Also as per the NITI Aayog, the existing labour laws framework does not encourage the growth of labour-intensive sectors as a matter of scheme or arrangement. These laws need to be reviewed in such a manner that it introduces an element of incentive for greater labour absorption.19 The four labour codes dwell in the past as they don’t address the modern and futuristic crises such as disputes related to Automation and Robotics, Artificial Intelligence-powered workforce, and Bio-engineering, which could hinder the rights of the workers in future.
The purpose of this research is to discover the ultimate, crucial hardships faced by the workers at ground level belonging to both organised and unorganised sectors. It is concluded that the labour laws in India should be made attainable for the working sectors and the concentration should not be only on the growth of the economic level of the nation but also on proper pre-planning and enactment of laws and if that enactment affects the mass society, then it has to pre suggested to be removed before implementation. If an act is for the good of the citizens, then it must be implemented as soon as possible as no such delay must happen for the betterment of the society.
1.Monika Chaudhary, How to protect India’s invisible migrant workers?,EAST ASIA FORUM (JAN.2, 2021, 10:04 AM), https://www.eastasiaforum.org/2021/01/29/how-to-protect-indias-invisible-migrant-workers/
2.Monika Chaudhary, How to protect India’s invisible migrant workers?,EAST ASIA FORUM (JAN.2, 2021, 10:04 AM), https://www.eastasiaforum.org/2021/01/29/how-to-protect-indias-invisible-migrant-workers/
3.Madhunika Iyer, Migration in India and the impact of the lockdown on migrants, (10 June 2020, 10:00am), https://www.prsindia.org/theprsblog/migration-india-and-impact-lockdown-migrants
4.ILO Global Estimates on International Migrant Worker, https://www.ilo.org/wcmsp5/groups/public/@dgreports/@dcomm/@publ/documents/publication/wcms_808935.pdf (Oct..9, 2022)
5.Rekha Pande, A cross Cultural study on the life of women,58-87 (Tokyo Women’s Christian University, Japan)
6.The Economics Times, https://economictimes.indiatimes.com/industry/miscellaneous/nsos-time-use-survey-report-shows-invisiblization-of-female-labour-as-unpaid-caregivers/employment-related-activities/slideshow/78428872.cms ( 10. Oct, 2022)
7.INDIA CONST. art. 14.
8. State of Orissa v. Balaram Sahu, AIR 2008 SC 5165.
9. INDIA CONST. art 19.
10. INDIA CONST. art 21.
11.Kharak Singh v. State of Uttar Pradesh (1963) AIR 1295, 1964 SCR (1) 332 (India).
12. Delhi Development Horticulture Employee's Union v. Delhi Administration, AIR 2010 SC 6645.
13. INDIA CONST. art 41.
14. INDIA CONST. art 39.
15. INDIA CONST. art 42.
16. INDIA CONST. art 43.
17. INDIA CONST. art 44.
18. Ministry of Statistics and Programme Implementation, Periodic Labour Force Survey Report (2018-19) (10. Oct, 2022)
19. Niti Aayog, Employment (Vision 2020), https://www.niti.gov.in/planningcommission.gov.in/docs/reports/genrep/bkpap2020/32_bg2020.pdf (10. Oct, 2022).