Restrictive Scope of the Definition of Migrant Worker

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The Inter-State Migrant Workmen Act: Remedies for Resolving Drawbacks & Closing Implementation Gaps **George kurian & Anurag Bhamidipaty Introduction It was in pursuance of the socialist welfare objective that the Indian Parliament framed a law relating to the migrant workmen who otherwise would be excluded from the welfare mechanism of the government and not provided with the fundamental right of equality before law and equal opportunities for growth. The proper framing and implementation of labour laws inclusive of laws relating migrant workers is sine qua non for a vibrant India with equal opportunities for growth for all. The exploitation of the migrant workmen has become common in the present years with the growing tension among the two groups so formed i.e. the native workmen and the migrant workmen. This has even proved fatal for some of the migrant workmen in some states where there is a clash of interests and the migrant workmen seen as minority. The exclusion of non- contracted migrant workmen from The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, The right to vote, The problem of cultural lag, The needed changes to be brought about in the Public Distribution System, Inclusion of the Migrant workers into the Trade Unions, Equality in Wages are some of the issues which have been addressed henceforth. Restrictive Scope of the Definition of Migrant Worker The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979) defines an inter State migrant workman as a person who is recruited by or through a contractor in one state under an agreement or other arrangement for employment in an establishment in another state, whether with or without the knowledge of the principal employer in relation to such establishment. 1 According to the above stated definition given by the Act it only recognises those workmen who have been brought to the new state by only registered contractors and not otherwise. Thus the Act does not apply to those workers who migrate from one state to another on their accord, with the implication being that about millions of 1 S 2 (e) 151

migrant workers remain as invisible figures who are exploited by the employers and other xenophobic individuals. For instance take the case of the migrant workers employed in Nasik: The migrant labour system in Nasik is very different to the kind prevalent in other cities. Here, no labour contractors go to villages and fetch workers. The workers come on their own, usually with their entire families. 2 These workers are not covered under this Act and hence cannot avail of any of the benefits available to those workmen who are brought to the workplace by contractors. The recognition of the workman under this Act enables and entitles them to a number of reliefs which have been elaborated in Chapter V of the Act. The stated conditions of service, provision of wages to be paid only in cash, displacement allowance and journey allowance are some of the benefits conferred by the Act. Thus it is necessary that the definition in the Act is suitably modified to accommodate those workmen who have come to the receiver states by their own means. Parity In Wages Paid To Regular & Migrant Workers On account of the highly diminished bargaining powers of migrant workers and their increased vulnerability towards exploitation, the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act of 1979 has specifically provided for the fixation of minimum wages at the rate laid down by the Minimum Wages Act of 1948. 3 The Act also provides that the wage rates and other conditions of service of an inter-state migrant workman employed in an establishment shall be similar to those of the other workmen employed in the same establishment and performing the same or similar kind of work. 4 Now the objective behind determining the wages of migrant workers in accordance with the Minimum Wages Act is to remove any disparity in the payment of wages to regular and migrant workers engaged in similar kind of work. This objective is also in consonance with the Equal Remuneration Act of 1976. 2 Aparna Pallavi, Food Passport for Migrants, WFS, Nov 6,2005. 3 S 13 (1) 4 S 13 (1) (a) 152

However employers do not desist from discriminating regular and migrant workers when it comes to payment of wages. The employers continue to pay migrant workers at rates much lower than the minimum wages fixed by the appropriate authorities with no opposition from any quarters. This is because the migrant workers do not complain for their remuneration is much higher than what they would receive in their native places for performing a similar quantum of work. In the long run, these workers toiling at reduced rates replace the native labourers as employers find it much easier to discriminate these unorganised sets of workers moving in from alien lands. Consequently, these workers are isolated from the native workers and the trade unions spearheaded by the natives for the collective welfare of workers. Thus, with no individual or trade collective willing to oppose the discriminatory attitude of the employers, it continues unchecked. Moreover, there is a lack of clarity on the applicability of the doctrine of Equal Pay for Equal Work in India. Even though this principle has been embraced wholeheartedly in legislations such as the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act of 1979, the Contract Labour (Regulation and Abolition) Act of 1970 and the Equal Remuneration Act of 1976, its applicability in real world cases is not absolute if one would go by decided cases. Whereas the Supreme Court has repeatedly stated that daily wage employees performing the same functions as regular employees at sanctioned posts cannot be denied the same salary and conditions of service 5, it ruled, in the case of State of Haryana & anr. vs. Tilak Raj & ors. 6, that the same rule cannot be invoked in every case. Thus there arises the need to specify the exceptional situations wherein this principle cannot be applied so as to clarify the applicability of the rule. On account of these circumstances that hinder the operation of migrant worker welfare centric laws, it is imperative that the Government authorities appointed under this Act or other specially empowered authorities take proactive measures for the successful implementation of the provisions of the Act. The inspectors appointed under Section 20 of the Inter State Migrant Workmen Act should assume a proactive role towards fulfilment of their duties that include examination of workplaces and 5 H.L. Kumar, Labour Problems and Remedies at 374 (7 th ed. 1996) 6 2003 LLR 823 (SC) 153

registers maintained at such places, interviewing migrant workmen and performance of other acts by which the government can satisfy itself that the provisions of the Act are being complied to. Trade Unionism And Migrant Worker Welfare It has been universally recognised that trade unions and other labour welfare collectives play a prominent role towards protection of the rights of workers and improvement of their conditions of work. A string of legislations and UN Conventions including Convention Concerning Freedom Of Association and Protection of the Right To Organise have dealt with various provisions pertaining to the functioning of such organisations. These trade collectives bring the workers together and present their demands and concerns to the concerned employers and governments. Thus their basic purpose is to enhance the bargaining powers of the individuals through collective bargaining and oversee the protection of their rights and other benefits conferred by law. The role of these trade unions assumes heightened significance in their case as this unorganised and mobile group is excluded from the benefits of obsolete state policy responses and protective measures. These trade collectives can bring the highly mobile and disorganised migrant workers together and perform functions, such as those envisaged in Chapter III of the Trade Unions Act of 1926, by which their rights and legitimate claims are enforced. These trade unions therefore bridge the gap between the disadvantaged workers and those government sponsored welfare measures by acting as intermediaries that bring about the co-ordinated implementation of these programmes and can contribute towards the collective welfare of these highly vulnerable groups constantly targeted by large corporations and the urban economy. However the native trade unions which spearhead the cause of the workers fail to include the migrant workers in their organising strategies. In certain places these trade union activists threaten migrant workers so as to extort money. 7 This policy of exclusion and exploitation could be attributed to many factors such as apprehension of native workers that they will be replaced by the incoming migrants, socio-cultural gap and lack of political participation of migrants. Rajiv Khandelwal, founder of 7 Trade Unions Exploiting Migrant Labour, The Hindu, Kochi Edition, August 23, 2010 154

Aajeevika Bureau which provides welfare services to migrant workers, opines that trade unions ignore the migrants as they do not represent significant political gains for them. 8 This is because these migrants though large in number are incapable of exercising their voting rights. A study spearheaded by Aajeevika Bureau indicated that only 10 % of the migrant workers possessed voter IDs at the destination and only 8 % had voted at the destination. 9 Most of these workers faced difficulties in getting a voter ID as they failed to submit a proof of domicile or identity. The correlation between political inclusion of the workers and their welfare cannot be ignored. It is imperative that the government take steps towards ensuring the migrants their right to vote at their workplaces. It is only with their political empowerment can we see them getting absorbed by native trade unions who will further their cause. However there are certain other alternatives to native trade unions that can bring about the political inclusiveness of migrant workers. These include collaborations between trade unions in sender and receiver states, establishment of consulates in receiver states and so forth. Providing the Benefits of the Public Distribution System (PDS) PDS is the food security system established by the government in order to feed the poor sections of society. This system provides the weaker sections of society with food products such as wheat, rice, sugar and kerosene at subsidized prices. The use of ration cards facilitates the exchange whereby the families get exact quantities of food grains by presenting the ration card at the Public Distribution Shops. The migrant workmen who come from their native place to the place of work generally don t posses a ration card at their place of work which leaves them with no opportunity to avail the food products at the subsidized rate. One of the most important problems is the inability of the workers to transfer the ration card from their native place to the place of work. 8 State, markets and civil society have failed migrant workers, Infochange News, accessed at http://infochangeindia.org/livelihoods/features/state-markets-and-civil-society-have-failed-migrantworkers.html 9 Political Inclusion of Migrant Workers and Their Access To Basic Services Workshop Proceedings accessed at http://www.aajeevika.org/political%20inclusion%20of%20migrant%20workers.pdf 155

There are many reasons for this, such as: (a) only some members of the family may migrate, but there is only one ration card per family and it is not possible to obtain separate ration cards for migrating family members; (b) most migrants migrate in their youth, when there is a very high possibility that they still live in a nuclear family consisting of their parents and other siblings, with their names being part of the ration card assigned to the family; (c) the procedures for obtaining a ration card are cumbersome, and even more so when transfer is required; (d) there is an inherent bias in the administrative system against the poor population.. This, in turn, results in a system unwilling to facilitate the need for identity in the place of destination; (e) their temporary status and the uncertainty of permanent residence at the destination point discourage the authorities from doing the work required to issue ration cards. 10 This problem of no identity at their work place leaves the migrant workers stranded as, in case of relief programs providing compensation for their houses collapsed, the money so provided, cannot be transferred to any account. This leaves them with no savings when they return back to their native place which places them in the same place as before. There were several efforts and suggestions made by people to bring about a change in the functioning of the PDS. Intelligentsias in Nashik generally believe that One category of people who inevitably get left out by the Public Distribution System (PDS) is migrant workers. As they do not live in their native place, they are not able to access facilities specially meant for the poor. It was this thought, and also the realizations that these people aid the development of the city by providing cheap labour, and hence deserve a better life, that we started working for ration cards for migrant workers." 11 Initially when the officials in Nasik decided to take up this process there was ignorance shown on the part of the PDS officials back i.e. 2005. Effort was again made in 2005,and,this time a number of migrants along with NGO s were able to bring about important changes in the system, but was restricted to only a certain 10 Darshini Mahadevia, The Poverty and Vulnerability of Migrant Workers In India, accessed at http://www.iomindia.in/images/the%20poverty%20and%20vulnerability%20of%20migrants%20in% 20India.pdf 11 Aparna Pallavi, Food Passport for Migrants, WFS, Nov 6,2005. 156

region. In September 2005, 50 migrant workers from different parts of Maharashtra were issued temporary ration cards for four months. The duration of these cards can be extended on demand. 12 This was the first time the migrants were issued temporary ration cards in India. One of the important changes by which the migrant workmen could be included into the umbrella of the PDS system is by bringing structural changes in the system. This can be introduced by providing the workmen with a facility if roaming ration cards. This is a mechanism by which the migrant workmen could avail the benefits of the system from anywhere in the country. Also the introduction of the UID (Unique Identification Number) will enable the government to pay compensation to the effected people (here migrant workmen) by transferring the amount to the number. This will solve the problems which were faced by the migrant workmen in the 2001 Gujarat earthquake where the government had no record of the migrant workforce which led to the workmen receiving no compensation. The other mechanism which needs to be introduced is to replace the existing system of a family based ration card; whereby one family has one ration card is thatit should be replaced by a single ration card for each person which will also help the government in achieving the goal of including the migrant workmen into the umbrella of the PDS. Bridging the Cultural Gap Due to the spread and diversity of cultures within the country and the sheer distance between the Northern and Southern states of the country, the challenges and difficulties experienced on migrating from one state to another is equivalent to that of migrating to a different country. As the sheer geographical distance between the states increases, the cultural as well as linguistic factors varies to increasing extents and the socio-cultural gap acts as the major reason for the migrants exploitation and exclusion from the society. 12 ibid 157

Let us examine the state of Kerala which receives migrant workers from many neigbouring as well as distant states According to the Census 2001, 1.3 per cent of the population of Kerala are migrants (by place of birth) from other states. The largest number of in-migrants in the state is from the neighbouring state of Tamil Nadu. Significant number of migrants also came from Karnataka. While 67.8 per cent of those who have migrated to Kerala from other states had their place of birth in Tamil Nadu, 13.5 per cent had their place of birth in Karnataka. Other regions from where people have migrated to Kerala include Maharashtra (4.5 %), Andhra Pradesh (2.3 %), Pondicherry (2.1%), Uttar Pardesh (1.4 %) and West Bengal (1.0%). 13 Though the migrants come to Kerala with the incentives of a higher pay and better job facilities, they are exploited by the employers who do not pay them the stipulated minimum wages and trade unions who commit atrocities such as extortion of money and the like.. The passing of the years has not made much of a difference to the problems faced by the migrant workman and the condition still remains miserable in certain parts of the state. The most important problem cited by these migrant workers in Kochi is that they had to quarrel sometimes with the local people in the work site or in the place where they wait for work. Few of them reported blackmailing or physical torturing by local people. Language barriers were reported by some of the respondents. A small section also reported that lack of information about accessing public services is a major problem they face in Kochi. 14 The problems faced by migrants from farther states of Maharashtra, Gujarat and Orissa are aggravated because of the increased cultural gap between the states. The exclusion of migrant workman from the society by the natives leaves the former making small groups and existing with fear of an attack by the majority. This fear has achieved the status of reality in states of Tamil Nadu where this adage has proven to be fatal for some of the migrants from the states of Bengal. Tamil Nadu has more than 10 lakh migrants, doing jobs that local workers shun because of poor pay and 13 Surabhi K.S. & Ajit Kumar, Labour Migration To Kerala: A Study Of Tamil Migrant Labourers in Kochi, accessed at http://csesindia.org/admin/modules/cms/docs/publication/16.pdf 14 ibid 158

dangerous working conditions, but they are easy targets of prejudices against north Indians'. 15 The north Indian factor which has come up in the recent times has made the migrants face a lot of problems. The migrants from the states of Bihar and other North Indian states are not only seen as criminals but also are considered being the prime suspects and reasons for disruption of peace in the society. The term North Indian as described by the native people the workers who had landed in Tamil Nadu for working, slowly steadied their roots here and later started indulging in many crimes, many of which are dastardly and grave ones 16. This hatred among the natives and the far off migrants is a result of the differences based on religion, language and a different regional background. The rise in temper due to small frictions which take place at the work place or at the place of stay makes the migrant workman vulnerable to a number of difficulties and attacks by the local people. Though the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 provides for equality in wage rates and other conditions of service of inter- state migrant workmen the cultural aspect makes enforcement of the migrants rights all the more difficult. A sense of fear of decrease in employment opportunities for the natives causes resentment among the people making them act rudely and resorting to activities injuring the migrants. Also a feeling of insecurity among the natives with respect to their religion being transformed or being manipulated makes the migrants from farther places a minority which could be attacked by a mob of natives. These sorts of problems arising out of cultural differences can be addressed only in the long run with active involvement of NGOs and civil society. The native workers and the local populace should be made aware of the benefits accruing to their home state because of the migrant workers contribution. 15 Accessed at http://www.thehindu.com/opinion/op-ed/article2974594.ece 16 ibid 159

Conclusion The interstate migration phenomenon is a natural consequence of supply and demand forces operating in the labour market. It undoubtedly contributes to the growth of the economy of sender as well as receiver states and therefore it is necessary that the government take efficacious measures to address the challenges that arise due to migration of labourers. It is true that there exists many national as well as state legislations which seek to address the problems faced by the migrant workers. However many of them are obsolete pieces of legislation as they suffer from gaps in the implementation part. Unless the government take cognisance of these deficiencies, some of which have been elaborated in this paper, the problems of the migrants will remain unresolved, and in the long run, the productivity of migrant labour shall decline. 160