Asian Journal of Multidisciplinary Studies

Transcription

1 Asian Journal of Multidisciplinary Studies ISSN: (Online) (Print) Impact Factor: 0.92 Volume 3, Issue 4, April 2015 The Genesis of Labour Migration in India- with special reference to the State of Odisha. Ankur sarkar, Research Scholar, Post Graduate Department of Law, Sambalpur University, Jyoti vihar, Odisha, Abstract The migration of workers is a human phenomenon and covers a vital part of the global economy. Today there are more migrants than ever because of the Liberalization, Privatization, and Globalization (LPG) of the world economy. The migration process has deeply rooted its feature with human civilization in India since long past. The migration process in India has mostly influenced by the social structure and pattern of development. In the present study the special reference has given to the State of Odisha. Though the State is economically sound with Mines and minerals, but prevalence of small farmers having small sized land holdings, seasonal unemployment, the non-application of modern technology in agriculture in Odisha had forced the people to search for alternative sources of livelihood. People of rural areas migrate to urban areas and outside their districts and also to neighboring States for making their livelihood proper. Migration is an outcome due to the repeated disasters that strikes Odisha at regular intervals. The coastal region is more prone to cyclones, floods, whereas the western districts and southern region are vulnerable to droughts and famine and have created a vacuum in livelihoods. The manifestations of disasters are seen in the poverty, mal-nutrition amongst the children, distress sale of paddy, and property. Landless, indebtedness, and lack of livelihood, low rate of PDS system, and improper utilization of MGNREGA force the people to seek survival options in other far way places and whereas displacement is another major cause of migration in Odisha. Key words: (migration, liberalization, privatization, globalization, civilization, displacement, MGNREGA) Introduction The migration of workers is a human phenomenon and practiced in India since long past. The migration process has deeply rooted its feature with human civilization. For more than a century the only human migrations to India that were discussed at length in Aryan Invasion Theories and Aryan Migration Theories but both the theories had lost all the strength due to lack of evidence. The migration in India is mostly influenced by social structures and patterns of development. Even in the 21 st century it is widely practiced throughout India. The practice helps in getting workers in cheap and thus the employers in the country take the advantage of it. The Classical theories of migration provides that the migration is a rational decision made by an individual to move from a less advantageous situation to a more advantageous one after weighing risks and benefits. There is growing evidence to suggest that India is moving fast in the overall development by the way of structural transformation made in the year 1990 which has propelled the growth of the economy further. As a result of which the percentage of people belongs to the group of BPL category has reduced and per capita consumption has improved gradually. Inspite of that the migration process is continuing and people are migrating from rural to urban area and one State to other State due to various reasons. First of all there should be clear view regarding the meaning and character of migration that they appeared. The term migration denotes any movement of group of people from one locality to another locality and takes different forms. In case of short-duration or seasonal migrants people move for a few months in a year. According to the data source it has shown that the number of people is migrating, the figure raised from 154 million to 232 million as comparison to the year 1990 to 2013, and for many years as concern it seems to covers 3% of the world population. Historical perspective of labour migration Labour migration is not a new concept, from the literature and available records it has been ascertained with agricultural labourers existed in ancient and medieval India. But there is dearth of data with regard to numbers or magnitude of such labours was created during the British rule in India. During the said period, the flooding of India with foreign manufacturers, destroyed domestic industries, and so drove the artisan on to the land. The British introduced a system under which land revenue was assessed at high rates and was payable in cash which held individuals responsible for payment. However the prominent economic historian Mr. Sukomal Sen has remarked that, in the constructions of railways in India, first germinated the modern working class. Landless poverty issue is one of the vital factors for migration and these landless poverty stricken labourers began to migrate in various countries like British Guiana, West Indies, Mauritius, as a result of abolition of slave trade and slave system in 1807 Available online at 167

2 and 1834 respectively. There was acute shortage of labour in British Colonies and it was the Indian labourers who were sought to be introduced in the plantation of these colonies. Poverty stricken Indian labourers were exported to these Colonies. Thus, the emigrant Indian labour was another victim of brutal colonial exploitation. Throughout the 19 th century the British India witnessed a formidably growing unemployment in the ranks of the landless poor masses with the steady decline of traditional economy along with rapid growth of population. It was those destitute masses who migrated from India to overseas British Colonies as indentured labour. Available data indicate that during 1870 more than half a million labours, men, women, and children collected from various parts of India were thus exported to British Colonies. International scenario Today there are more migrants than ever because of the liberalization, privatization, and globalization (LPG) of the world economy. Globalization has created a situation which generated a worldwide phenomenon of migration of millions of workers to other countries. In the age of globalization the market competition flows high, meanwhile the people are migrated to other Countries to search for better livelihood as result of which various construction companies and private companies step forward to bring the labourer as cheap rates. The migration of labour has created a totally unregulated labour market where finance capital swing over the complete range of thing of that kind of labour relations. With all round lessening of manpower drastically reducing the job opportunities within the country, as a result of which the new entrants in the labour market have to be in search for job opportunities outside the country. Migrant workers are a vital part of the global economy. The decent working and living conditions started with international movement of workers (both men and women), to seek out opportunities in their native countries. It is true that the labour migration process provides valuable chances for many people who are unable to secure adequate means of work in their own countries or who have little choice but to leave their native land. This result also enhances the cultural, socioeconomic, civil and political structures in both countries of origin and destination. Globalization of world economy has forced millions of people to migrate in other countries to make their livelihood proper.. The migration of labour is one of the vital factors through which it becomes easier for the various corporate sectors to bring down the cost of production by way of finance capital thrust of cheap labour both within and outside the countries. However, the rights of the migrant workers are not protected in the workplace as a result of which the human costs of labour migration can outweigh the benefits and these human costs continue to be a significant concern within and outside the countries. It is very often to see that migrant workers are vulnerable to abuse by employers in the worksite, in both countries of origin and destination countries. Abuses or exploitation of labour in the working places violates the human rights range and started from making discrimination and to provide unfavorable working conditions, the employers extorting and arbitrarily detained the workers, and make deportation and violence against them, including sexual assault and murder etc. Women migrant workers are particularly vulnerable to human rights violations. The migrant workers face multiple levels of discrimination and lack of protections in place of the worksite where they engaged. There are various factors that contribute to systemic patterns of human rights violations against migrant workers, and where they suffer from less effective redress for victims, such as lower public attitudes, language barriers, and restrictive immigration regimes, poor quality of legal protection, very less figure of awareness, weak rule of law and impunity. While the human rights issues that affect the growing number of migrant workers are facing, there is a general absence of knowledge of relevant international legal Conventions and Treaties, and in many instances a lack of political propaganda or institutional capacity to apply these standards to the practical aspects of laws, policy and practice. Causes of migration under census coverage and Human Development Report The international standards most relevant to migrant workers are among the least understood of any of the core human rights treaties or ILO conventions. The process of migration thus has a constraining effect not only in structural terms, but also in the sense in which it may include abuse and exploitation, and mental agony. Poverty and search for employment have been the propellants of survival migration of people. According to census 2001, the reasons for migration have been classified into seven broad groups, viz; work or employment, business profession, education of the children, marriage, moved at birth, moved with family and others are the push and pull factors. When inter-state migration is taken into account, employment emerges as the main reason for migration. Nearly 32% of all inter-state migrants during the intercensal period migrated due to searching for employment. Intention to migrate with family or house hold as a reason also emerges as an important cause for both male and female migration in all streams of migration during the intercensal period. Nearly one billion of the worlds are estimated 6.7 billion people are on migrated. That means one in seven people are comes under the purview of a migrant. This information published in Human Development Report 2009 gives a picture that the numbers involved in Asian Journal of Multidisciplinary Studies, 3(4) April,

3 migration are large and growing. The National Commission on Rural Labour in India (NCRL, 1991) estimates more than 10 million circular migrants in the country belongs to rural areas. The above estimation includes as figures of 4.5 million inter- state migrants and 6 million intra- state migrants. The report i.e. studies and field evidences suggest that children accompanying their parents in the 0-14 age group may constitute one third of the total migrant population and put the number of migrant children below 14 years close to 6-9 million. An analysis of migration and urbanization patterns suggests a distinctly declining pattern. It can also be argued that the process of migration has an inbuilt screening system, through which the people are picking up from relatively higher socioeconomic strata. The percentage of migrants who moving in search of livelihood is decline and an increase business and mobility relating to study further confirms this proposition. In contrast, migration due to poverty has become a less important component of mobility. But at the same time in a bid to attract private capital, urban centre s have become less accommodating to the poor, restricting their entry and thereby increasing rural-urban economic inequalities. Labour Migration in Odisha In the present study special reference is given to the state of Odisha. Though the state is economically sound with mines and minerals, but the prevalence of small farmers having small sized land holdings, seasonal unemployment, the nonapplication of modern technology in agriculture in Odisha had forced the people to search for alternate sources of livelihood. People of rural areas migrate to urban areas within and outside their districts and also to neighboring States. Migration is an outcome due to the repeated disasters that strike Odisha at regular intervals. There have been near about 40 natural disasters during the period of The coastal region is more prone to cyclones, floods where as the western districts and southern region are vulnerable to droughts and famines and have created a vacuum in livelihoods. The manifestations of disasters are seen in the poverty, mal- nutritution, and distress sale of paddy, property and even children. Landlessness, indebtedness and lack of livelihood, low rate of PDS system, and improper utilization of MGNREGA force the people to seek survival options in other far way places. Displacement is another major cause of migration in Odisha. Endowed with natural resources, Odisha is the hot destination of multinational and transnational companies for mining leases and industry based on them. Mostly located in the adivasi districts, these so called developmental projects have caused large scale displacement of indigenous population. The protests too have been strong and successful in many cases where by the project have been stopped or stalled. Only negligible affected persons are absorbed in well established projects, and the other thousands displaced have no other alternative but migrate out in search of making their livelihood proper. Migrant populations overwhelmingly belong to the category of Scheduled Castes (SC), Scheduled Tribes (ST) and other backward classes (OBC). The above mentioned categories come under the purview of the poor and landless people who possess the least amount of assets, skills or education. The seasonal migrant is often linked to debt cycles and the need for money for repaying debts, through which the people are exploited and are rendered into forced labour conditions and had to migrate on seasonal basis to different states for wage employment with a contractual process at hand. Many industrial and agro industrial sectors like brick making, salt manufacturing, stone crushing, construction, fisheries, rice mills etc. run mostly on migrant labour or dadan sramik and require contribution of family labour. Especially a family consisting of father, mother and children work as a labour unit. The children who work with their family either engaged as non paid child labours or lowly paid workers. Thus, the children of migrant households get into the unrecognized labour market from an early age and get excluded from education, child protection, nutrition, and child development and participation opportunities. The recent report showed that over one lakh workers from the State of Odisha have been sent through middlemen to work in other States in It has clear from the report of Odisha Legislative Assembly that as on March 2014 estimated 1,91,001 migrant workers were sent to other States through 3,044 labour agents under Inter- State Migrant Workmen Act International standard for protection of the rights of the migrant workers In focus for this thesis there are various International Conventions and Declaration that are particularly aiming at the protection of migrant workers, which are adopted by the International Labour Organization and the United Nations (the UN) General Assembly. However, other instruments of international law are relevant for the people that qualify as migrant workers, both due to these persons being human beings, and due to their specific characteristics. Migrants and migrant workers are broad concepts and the persons falling within these in addition have other characteristics which might be relevant for a specific legal framework. Thus, within the framework of international law, multiple instruments are applicable to migrant workers. First of all as we see that, all human beings and everyone are referred to in the Universal Declaration of Human Rights, and by ratifying the general human rights instruments, i.e. the UN Covenants and the UN conventions on human Asian Journal of Multidisciplinary Studies, 3(4) April,

4 rights, States commit themselves to human rights obligations not only towards their nationals, but to all persons in their jurisdiction. These instruments are thus applicable also to migrants. Apart from the instruments there are other Conventions such as International Convention On Protection of Rights of All Migrant Workers And Members of Their Families, where Article 2(1) of the Convention on Migrant Workers defines a migrant worker: as a person who is to be engaged, or is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national. The protections those are existed in international law for migrant workers and members of their families include: The fundamental human rights that apply to all migrant workers, regardless of their status, which are set out in the core international human rights treaties and under customary international law. Various international labour conventions and standards that provide basic protections for treatment and conditions at work, which apply to all workers regardless of their migration status. In general, States are obliged to ensure that migrants receive comparable treatment and protection as nationals of the State. Whereas the Convention on the Elimination of Discrimination against Women, which inter alia obliges States to suppress the immoral trafficking in women and children, the Convention on Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, together with other international instruments of general human rights law, are also relevant and applicable to migrant workers. Apart from the United Nation Conventions, most of the Conventions and other related instruments of the International Labour Organization are applicable to the migrant workers. The ILO is an agency of the United Nations, which has a mandate on drawing up international labour standards. These international labour standards take the form of conventions open for ratifications by its Members, and guiding recommendations and declarations. The ILO conventions are nowadays regarded as part of the international human rights framework, even if most of them do not apply a language of rights, but rather one of obligations of States. To some extent, all Member States of the ILO have some obligations towards migrant workers. This was established by the ILO Declaration on Fundamental Principles and Rights at Work, which states that all members, by their mere membership of the ILO, have an obligation to respect, protect and realize the Organization s four fundamental principles, namely the freedom of association and right to collective bargaining, the elimination of compulsory labour or forced labour, the abolition of child labour in effective way and the elimination of discrimination in respect of employment and work. The concern for migrant workers is mentioned in the preamble to the aforesaid Declaration, and the principles are to be applied to migrant workers without distinction. Constitutional framework to protect the rights of the migrant workers Now we are to look at Indian scenario at a glance and it is found that the Constitution of India has conferred innumerable rights on the protection of labour. The Preamble of the Indian Constitution says about Justice of social, economic and political which can be link up with protection of the right of the migrant workers also. Except this the Fundamental Rights provisions i.e. Part III of the Indian Constitution reflects some of the basic human rights of all people. Article 14 provides about equal treatment i.e. everyone should be treated equally and nobody should be treated arbitrarily, whereas Article 15 prohibits discrimination on the grounds only of sex amongst other forms of discrimination. Article 15 (3) provides special provisions for women and children. Article 19 (1) (g) gives the right as a freedom to practice any profession, or to carry on any occupation, trade or business, and whereas Article 21 guarantees the right to life and personal liberty, Article 21A expressly mentioned that The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine, and Article 23 of the Constitution prohibits traffic in human beings and forced labour such as beggar. The second part of this Article declares that any contravention of this provision shall be an offence punishable in accordance with law. Article 24 is very important in this regard, which states about prohibition of employment of children in factories and other construction and also states that no children below the age of 14 years shall be employed to work in any factory or mine or employed in any other hazardous employment. Apart from the provisions of the part-iii of Constitution, various provisions of part-iv of the Constitution has categorically mentioned about State policy regarding the protection of the workers viz; Article 38 speaks of the promotion of welfare of every people, Article 39 (a) states about an adequate means of livelihood for men and women equally and whereas, Article 39 (d) addresses the issue of equal pay for equal work for both men and women. Article 39 (e) clearly provides, the state to ensure that its policy secures that the health and strength of workers, men and women and children are not abused and that the citizens are not forced by economic necessity to take to vocations unsuited to them. Article 39 (a) gathered strength from Article 41 by stating that within the limits of its economic capacity and development the State should make effective provisions for securing the right to work amongst other things to its entire people. Article 39A provides about "equal justice" and "free legal aid". It means justice according to law and it should reached at the door step of the Asian Journal of Multidisciplinary Studies, 3(4) April,

5 vulnerable sections. In a democratic policy it should be the main concern of the State to have a proper legal system. Article 42 is one of the important provision of the Indian Constitution which provides about just and humane condition of work and this also includes the maternity relief in the context of pregnancy, as a result of which the Government of India went on to enact the Maternity Benefit Act, 1961 which enables women in the labour force who have been employed for 160 days in a year to provide leave with pay and medical benefit. Legislative Enactment & Government policies Besides these aforesaid provisions there are so many legislative enactment and Government schemes and policies are there for the protection of the rights of the migrant workers the important one is the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (No.30 of 1979) which mainly advocated about (i) rights of the interstate workers (ii) role of the contractors (iii) role of the principal employers (iv) role of the governments, (v) social problems etc. The others relative enactments are:- Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Rules, 1980 Equal Remuneration Act, 1976 (No. 25 of 1976) Workmen Compensation Act, 1923 (No. 8 of 1923) Bonded Labour System (Abolition) Act, 1976 (No. 19 of 1976) Building and other Construction Workers (Regulation of Employment and Condition of Service) Rules, 2002 National Rural Employment Guarantee Act, 2005 (No. 42 of 2005) The government schemes and policies which directly and indirectly dealt with welfare of the migrants workers are:- National Rural Livelihood Mission (NRLM), under the Ministry of Rural Development. Citizen Charter (India, Ministry of Labour) National Employment Policy first Draft (India, Ministry of Labour) National Policy on Child Labour, 1987 National Policy on Skill Development. Protocol on Prevention Rescue, repatriation and Repatriation of Trafficked & Migrant Child labour, Role of Judiciary to protect the rights of the migrant workers Besides the aforesaid provisions, the Indian Judiciary also try to protect rights of the migrant workers through various decision e.g. In the case of Gujarat Steel Tubes v. It s Mazdoor Sabha, AIR 1980 SC 1896 Justice Bhagwati opined that right to strike is integral of collective bargaining. He further stated that this right is a process recognized by industrial jurisprudence and supported by social justice. The Supreme Court in Asiad Village Workers case has held that not only made a distinct contribution to the labour jurisprudence in India but has also sensitized the creative attitude of the judges to ensure the interest of the weaker sections in our society. In this regard the court has enlarged the contention of the fundamental rights like the prohibition of employment of child labour, forced labour, contract labour, migrant labour and etc. Regarding the abolition of bonded labour the Hon ble Supreme Court in Bandhua Mukti Morcha vs. Union of India and Ors, AIR 1984, SCR (2) 67P. 802 has issued several directions to the Central Government and State Government and various authorities for implementing the provisions enacted in various social welfare laws for the benefit of the workmen employed in the stone quarries and stone crusher in the State of Haryana. In D.K. Yadav v. J.M.A. Industries, AIR 1993 SCC(3) 259 the Supreme Court has held that the right to life enshrined under Article 21 includes the right to livelihood and therefore termination of the service of a worker without giving him reasonable opportunity of hearing is comes under the purview of violation of natural justice. The Apex Court in the case of M.C Mehta vs. State of Tamilnadu, AIR 1997 SC 699 has held that the child work in any factory or mine or engaged in any hazardous industry below the age of 14 years should be prohibited. Under Article 32 the Government of India is required to take initiative measures to ensure protection of the child from hazardous exploitation and its healthy development. In recent expressing anguish over the ill treatment of migrant workers at the hands of the contractors, the Supreme Court on 15 th July 2014 directed the legal services authority to monitor an incident involving the chopping off the right hands of two migrant labourers from Odisha by a contractor from Andhra Pradesh in December, The Court also sought within three months a report from both States explaining the Steps taken by them to prevent such incident in the future and the compensation for the labourers. Case Study The scholar had the opportunity to visit some of the village under Paikmal Block, Dist: Bargarh, in the month of June, During that visit the researcher came across certain families who have migrated to the State of Andhra Pradesh for the purpose of work in bricks kilns industry, as inform by them that they were receiving 30 rupees per head against per day work. Even they are not provided the other facilities like education to their Asian Journal of Multidisciplinary Studies, 3(4) April,

6 children, medical aid, bonus, rationing etc. and they are totally exploited by the employers. So the conditions of the migrant s workers are very miserable in the work place, and their Constitutional rights also exploited due to that reasons. Under the provisions of this Inter-State Migrant Workmen Act (1979), which was explicitly enacted to prevent migrant workers from being exploited, labour contractors are required to obtain a licence from the government concerned authorizing them to recruit and employ migrant labour from one State to another. The legal provision is that any establishment employing more than five inter-state migrant workmen is required to register under the Inter State Migrant Workmen Act. However, this Act is rarely invoked, while the vast majority of those employed in construction activities constitute migrants Conclusion However, from the aforesaid discussion it may be concluded that the rights of the migrant workers are not protected. The present study has reveals that the rights of the migrant workers are References violated due to various reasons. The employers are not yet ready to provide them the basic needs and proper facilities. The legislations and the government plans and policies are not sufficient to give the adequate means of justice to the migrant workers. Only single piece of legislation i.e. the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 provides about various rules and regulations regarding the protection of migrant workers and their families, inspite of that they are exploited at the workplace. The existing laws are not sufficient to provide proper justice to the migrant workers and their families. In the state of Odisha there is no single piece of legislation for protection of migrant workers. The State government machineries are not properly implemented in executing the policies in rural areas meanwhile the poor people are forced to migrate in urban areas and in nearest State for earning their livelihood. So the researcher suggested for legislation, Government scheme and policies for the migrant workers of Odisha. The Government policies and scheme should be framed on the basis of local needs for people of Odisha. Bhagat, R.B., Conceptual Issues in Measurement of Internal Migration in India. IUSSP 25 th International Conference, Contributed Papers, France, July A Research Study on Impact of increasing migration on Women in Odisha - by Sansristi, Bhubaneswar, page no-2 National Commission on Rural Labour in India Report, LawyersclubIndia Article: Migrant Labour-A detailed study by Ankit Kr Mishra on November Access to education, Nutrition, and Protection of Children of Migrant Workers-an assessment in three cities in Odisha- Migration information and Resource Centre (MiRC) Aide et Action South Asia. Economic and political weekly, June30, 2012, Vol XLVII Nos. 26 & 27. According to estimates of Walter Fernandes, 5.5 lakhs persons have been displaced due to different types of projects in Orissa during the period out of which only 35% are rehabilitated. Access to Education, Nutrition and protection of Children of Migrant Workers-an assessment in three cities of Odisha-Supported by UNICEF, Odisha 2012 Report of Odisha Legislative Assembly 2014, and also quoted by Ummi Denial in his article Over one lakh Odia workers migrated to other States. UN General Assembly, Universal Declaration of Human Rights, adopted by General Assembly Resolution 217 A (III) 10 December 1984 ( the UDHR ). UN General Assembly, Convention on the Rights of the Child, adopted by General Assembly Resolution 44/25 20 November 1989, entered into force 2 September 1990 (the CRC). I. Brownlie, Principles of Public International Law (Oxford University Press, Oxford, 2003) pp International Labour Conference, 1998 Declaration on Fundamental Principles and Rights at Work, adopted by the International Labour Conference at its 86th Session 18 June International Labour Conference, supra note 13, p. 72. Peoples Union for Democratic Rights v/s Union of India, AIR 1982 LLI 454, popularly known as Asiad village workers case. Supreme Court looks out for migrant workers, Times of India Report, Wednesday 16 th July Modern labour Laws and Industrial Relations by Dr. B. N. Behera, The Law House, Cuttack, 1 st Edition 2011, Page No-151. Pandey, J.N (51 st Edn.) The Constitutional Law of India, Central Law Agency, Tripathy S.N and Dash C.R Migrant labour in India, Discovery publishing House, 1 st January, Asian Journal of Multidisciplinary Studies, 3(4) April,