An Endless Struggle: A Comprehensive Analysis of Migrant Labour Struggles in India

: Migrant workers are the workers who move from one place to another to pursue employment. Labour migration is not a new phenomenon but can be traced out right from the age of The Mauryan empire, The Gupta Empire and even in Tamil Sangam literature. The contributions of migrant workers help in the social and economic development of their destined locality of work and provide greater benefit to their origin locality through their acquired skills and remittances. Despite these advantages, the migrant workers face challenges as to their poor living conditions, exploitation, lack of job security and more. This article seeks to analyse the challenges and rights of migrant labourers, particularly highlighting the significant challenges they faced amid the COVID-19 pandemic, resulting in job losses and their eventual return to hometowns.Furthermore, the article explores the role of ILO and international conventions and the upsides and downsides of legislations particularly enacted to safeguard these rights. Lastly, the study aims to investigate potential solutions offered by The Code on Social Security, 2020, and the Occupational Safety, Health, and Working Conditions Code, 2020, to enhance the implementation of existing laws and address the concerns of migrant labourers.

Stands as evidence that the people in ancient times migrated from their home place to another in order to earn the livelihood necessities.
During the Britishers rule, British colonists introduced a concept of Indentured labour where many indians entered into a contract with the employer or the recruiter to work for a specific period at the specified area of the employer in exchange of something which supported their livelihood especially to escape from the 19th century's truculent famine.In order to perform their obligation under these contracts, they migrated to various places in India as well as in foreign colonies such as Portugal,Spain, France etc… In India, the indentured labourers are primarily recruited to work in Tea garden, Coal mines and Jute mills in Assam, Bombay and Calcutta respectively.However, this indentured labour system was abolished through The Indian Emigration Act, 1922.(7) But, even after 75 years of independence, migrant labour has continued to be a significant feature of the country's labour force.

Challenges and hardships faced by the Migrant labour:-
As per the 2011 Census, India is home to 56 million inter-state migrants, predominantly originating from the Hindi-speaking states of Uttar Pradesh, Bihar, Jharkhand, Rajasthan, and Madhya Pradesh.
Despite the migrant workers' contribution to positive developments at their workplace, their lives are still enshrouded in darkness.Because there are various challenges faced by the migrant workers in their workplace both internally and externally.In social and emotional dimensions, the migrant labourers are not fully embraced by their new community, often leading to a feeling of being treated as inferior citizens.As the migrant workers are exposed to different cultures they face various obstacles such as adapting to a new culture, overcoming language barriers, and dealing with feelings of isolation.Many migrant workers are working in unorganised sectors where there is no job security and often end up getting low wages despite working for a long period of time.Moreover, they are being exposed to hazardous working conditions and lack basic accommodation facilities with necessities of livelihood.They often face limitations in exercising their political rights, such as the right to vote.Because of their transient life, they lack proof of address, Voter IDs, and Aadhaar cards which prevent them from accessing Social assistance programs and governmental measures.
One significant problem faced by the migrant workers is "Debt bondage" where they might have borrowed money or taken an advance on their wages from an employer and become trapped in a cycle of forced labour which may also include their children, due to their inability to repay a debt.For instance, in Odisha numerous people from various districts migrate to southern states of India in order to pursue better employment with better wages which is facilitated by intermediaries.In order to celebrate "Nuakhai" festival which is celebrated to usher in the freshly harvested rice of the season, many poor workers take loans from their labour contractors and fail to repay it because of inability to earn.As a result, they migrate as a whole family including children and work to repay the loan to money lenders.The children and women are often being subjected to various mistreatment and abuses (4) It was only during covid 19 wave, the sufferings of migrant workers caught the attention of the world.Because of the outbreak of deadly covid19, India had no choice but to implement lockdown.The most adversely affected during this period were the migrant and daily wage laborers.Many workers, who harboured aspirations for the future, were abruptly compelled to return from their place of work.It led to Reverse migration.This lockdown not only made it difficult for them to get food, shelter and clothing but also they lacked the transportation facilities to return home as the entire movement across the borders had been suspended.As a result, countless migrant workers embarked on a journey of hundreds of kilometres on foot to return to their homes which garnered significant attention from media outlets.They also faced a lack of access to adequate healthcare facilities because of economic and language barriers.Observing these hardships, the Supreme Court took suo moto cognizance of the issue and issued directives to both the union and state governments to offer free shelter, food, and transportation facilities.Subsequently, the union and respective state governments implemented various measures including food and relief camps, medical aid, transportation facilities, and other forms of assistance for migrant workers.This passive approach stems from the ineffectiveness of current laws, as elaborated further in this article.

Rights of migrant labourers in India:
Constitutional rights: While our Indian Constitution doesn't explicitly address the rights of the migrant workers,it does include provisions concerning labour rights, working conditions, minimum wages, and the principle of equal pay for equal work.These measures can be broadened to encompass the welfare and safeguarding of migrant labourers as well.In the Preamble, the fundamental ideals of Social Justice and equality have been enshrined and guaranteed to each and every citizen of India regardless of their background.When it comes to the Fundamental Rights under Part 3, the key provisions that serves as constitutional safeguards for migrant labourers are, Article 14 -provides constitutional protection to migrant workers, ensuring that they have the same legal rights and protections as any other citizen or resident of India regardless of their place of birth, residence or other status.(8) Article 15 -prohibits discrimination on grounds of religion, race, caste, sex, or place of birth.It reinforces the principle of equality and non-discrimination for all individuals, regardless of their migration status.(9) Article 42 -it emphasises the state's duty to guarantee just and humane working conditions, particularly regarding maternity benefits.For migrant labourers, it highlights the necessity of suitable work environments and support, particularly for women needing maternity assistance.(18) Article 43 -it stresses the state's duty to secure a living wage and a decent standard of life to all workers.With respect to migrant labourers, it highlights the importance of just compensation and improved living standards, potentially assisting those facing difficulties with fair pay and basic living conditions.(19)

International Conventions to safeguard the rights of Migrant workers:-The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW).
It was adopted by UN General Assembly Resolution 45/158 on December 18, 1990, and came into force on July 1, 2003.It is an international legal tool intended to safeguard a highly vulnerable group: migrant workers, irrespective of their immigration status.It ensures protection without any discrimination based on various factors such as gender, race, religion, nationality, or economic status of migrant workers.The convention establishes basic benchmarks for migrant workers and their families, aiming to eradicate the exploitation of workers during the migration journey.To examine how effectively this Convention is being put into practice,it introduces the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) as outlined in article 72.This committee functions as the mechanism overseeing and evaluating the national entities and individuals accountable for enforcing the articles within the CRMW.India is among the countries that have not ratified this convention, despite 58 others having done so.

Role Of ILO in protecting the rights of Migrant labourers:-
The International Labour Organization (ILO), founded in 1919, endeavours to establish a tripartite system within its member nations.Each of its initiatives aims to promote collaboration between governments, workers, and employers who are the essential components of this tripartite structure.Its primary objectives include promoting labour rights, facilitating decent employment opportunities, bolstering social protection, and advancing discussions on work-related matters.The core dedication of the International Labour Organization (ILO) lies in advancing social justice and globally acknowledged human and labour rights.It firmly believes that establishing worldwide and longlasting peace is intricately linked with the pursuit of social justice.The main method of operation employed by ILO involves establishing International Labour Standards through Conventions and Recommendations.Conventions, being international treaties, impose legally binding responsibilities on the countries that ratify them.Recommendations, on the other hand, offer nonbinding guidance, outlining principles for national policies and actions.To date, India

Unorganised Sector and Migrant Workers:-
The unorganised sector refers to a segment of the economy where economic activities and employment relationships are not regulated or governed by formal laws and regulations.I.e., In this sector, government laws and regulations are not enforced.There won't be any fixed contracts,standardised working hours, or the social security benefits for workers because the businesses and workers under this sector operate informally.No tax is imposed in this sector and mainly consists of low skilled and inefficient workers.Unionisation is less prevalent in the unorganised sector, which restricts workers ability to collectively bargain for improved working conditions.For example, in order to form a union, there should be some organising factors among the workers such as employment contract, fixed wages, job security and other factors upon which they can make negotiations.In the unorganised sector, the absence of these criteria makes it challenging for workers to establish a union.Most of the migrant workers tend to be engaged in these unorganised sectors for the following reasons.1. Migrant workers, being largely illiterate, encounter formidable challenges in accessing jobs within organised and formal sectors that demand advanced technical expertise and skills.Communication barriers further contribute to this phenomenon.Because of this, these workers find it easy to get jobs in the unorganised sector. 2. When there are no stable income sources, people migrate from their own places to other and such kind of economic constraints compel them to seek employment in the unorganised sector for daily wages.Consequently, unscrupulous employers in the unorganised sector exploit migrant workers to the fullest extent, leaving them with meagre wages.According to the 2017-18 Periodic Labour Force Survey conducted by the National Sample Survey Organisation under the Ministry of Statistics & Programme Implementation, total employment in India, encompassing both the organised and unorganised sectors, amounted to approximately 470 million.Among this workforce, about 90 million individuals were employed in the organised sector, while the remaining 380 million were part of the unorganised sector.Workers in the unorganised sector make up more than 81 percent of the total employment in the country.The primary objective of this Act is to regulate the employment of interstate migrant workers and to establish guidelines for their service conditions and the related matters.This Act is applicable to whole of India and, • It applies to any establishment where five or more interstate migrant workers are currently employed or were employed at any point in the past twelve months,regardless of whether additional workers are present or not.• It also extends to contractors employing five or more interstate migrant workers during any day in the preceding twelve months,regardless of whether additional workers are present or not.

As per Section 2 (d), "Establishment" means 1. any office or department of the Government or a local authority; or 2. any place where any industry, trade, business, manufacture or occupation is carried on;(21) As per Section 2(e),"Inter-state migrant workman" means "any 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"(22)
As per section 2(b), Contractor with respect to an "establishment" means an individual who undertakes to achieve a specific outcome for the establishment.He can be an independent contractor or agent or employee or can act in any other capacity.This involves engagement and supply of workers to such establishments for producing the desired result.This term encompasses sub-contractors, Khatadars, Sardars, agents, or any other person who recruits or hires workers.(23)As per Section 2(g) "Principal Employer" means, 1.The head of the office or department with respect to any government office or local authority department 2. the owner or occupier of the factory or "Manager" under Factories Act, 1948 with respect to a Factory.3. The Mine owner or agent under The Mines Act,1952 with respect to a Mine.4. With respect to any other establishment, it refers to an individual who controls and supervises such establishments.(24)Understanding the mentioned provisions is crucial for comprehending this act.A careful analysis of the provisions reveals that the definitions are intentionally broad, aiming to cover almost every kind of interstate migrant workmen, employer and contractors.This expansive approach is adopted to extend the benefits provided by this act to a diverse range of individuals.According to this act, every principal employer of an establishment is required to register the establishment with the designated officer.Without such registration, the principal employer is barred from employing any interstate workers in the establishment.Hence,this Act mandates the compulsory registration of establishments.
Regarding contractors, they are obligated to obtain a licence from the relevant licensing officer under the act, and this requirement is compulsory.Without such a licence, a contractor is not permitted to recruit any person from one state for employment in an establishment in another state.This licence may include stipulations regarding the terms and conditions of the agreement or any other arrangement for the recruitment of workers, the payable remuneration, working hours, wage fixation, and other necessary amenities for interstate migrant workers, as deemed appropriate by the government.If the registration or licence acquired under this act is obtained through misrepresentation or the suppression of any material fact, the concerned officer holds the authority to revoke it, following the procedures outlined in this act.Under this act, wages for inter state migrant workmen must be paid in cash, and under no circumstances should the payment be lower than the amount stipulated by the Minimum Wages Act, 1948.Additionally, every such workmen is entitled to displacement allowances, equivalent to 50% of their monthly wages or Rs.75, whichever amount is higher and also they have a right to receive journey allowances for both their departure and return trips, coupled with wages for the duration of this journey as if they were actively on duty.Under this act, each contractor is obligated to provide a passbook to every Inter State workmen employed, featuring a passport-size photo and detailing the worker's name, the location of the establishment where they are employed, the wages payable,employment period and other relevant particulars.The workers are entitled to various additional facilities, including favourable working conditions, consistent and timely payment of wages, access to suitable accommodation, and proper medical facilities.The principal employer must designate an authorised representative to act on their behalf in their absence.Violation of any provisions under this act, where both the employer and contractor are obliged to fulfil specific duties, may result in penalties as stipulated by the Act.The appropriate government is responsible for appointing an inspector to monitor and ensure the effective implementation of the provisions outlined in this act.

Whether the Inter-State Migrant Workmen Act of 1979 is considered obsolete or ineffective?
Although the government has instituted this distinctive legislation with the intention of benefiting migrant workers, it has its own loopholes and drawbacks.It encounters significant hurdles in its implementation.According to the provisions, every principal employer and contractor is mandated to register their establishment and acquire a licence for the recruitment of migrant workers, respectively.However, in practice, many evade this responsibility by not completing the registration and licensing process.(5) Consequently, it becomes impractical to maintain records of all migrant workers, leading to the exclusion of a significant number from the purview of the act.Even when establishments are registered and licence obtained, they often provide the local address of migrant workers instead of their permanent address in their home state, further contributing to the ineffectiveness of the act.This discrepancy was particularly evident during the COVID-19 pandemic when the government struggled to assist migrant workers, leaving them unsupported and grappling with challenges ranging from accessing transportation services to receiving medical care.However,The Code on Social Security, 2020 tackles the issue of ineffectiveness in ISMW Act,1979 by introducing provisions for the direct registration of unorganised workers including migrant workers, through a national portal.

Anticipated Positive Solutions in the New Labor Code:-
The Code on Social Security, 2020 which includes The Unorganised Workers' Social Security Act 2008,comprises clauses for the registration of unorganised workers through a National Portal.As a result, eShram has been introduced which acts as a Unified National Database for Unorganized Workers.Through registration of all unorganised sector under this portal, they all come under a single umbrella like migrant workers, street vendors, platform workers etc…and it would be possible for the government to implement the social security schemes for those workers efficiently and also can share the database to other ministries thereby also helping them to extend their social security schemes to those workers.By registering all unorganised sector workers on this portal using Aadhar identification,such as migrant workers, street vendors, platform workers, etc., they will be collectively brought under a unified umbrella.This consolidation enables the government to effectively implement social security schemes for these workers and facilitates sharing the database with other ministries.Consequently, this collaboration assists these ministries in extending their social security initiatives to the same group of workers more efficiently.

Occupational Safety, Health, and Working Conditions Code, 2020
Another legislation, encompassing The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (ISMA), has been granted presidential approval as of September 28, 2020.It will come into force on the date specified by the central government on this behalf.This Act, outlines provisions for fair working conditions, minimum wages, mechanisms for addressing grievances, safeguards against abuse and exploitation, skill development, and social security.It extends its reach to both organised and unorganised workers, inclusive of migrant labourers.(20)Under this Act, "Inter-State migrant worker" means a person who is employed in an establishment and who-(i) has been recruited directly by the employer or indirectly through contractor in one State for employment in such establishment situated in another State; or (ii) has come on his own from one State and obtained employment in an establishment of another State or has subsequently changed the establishment within the destination State, under an agreement or other arrangement for such employment and draws wages not exceeding the amount of rupees eighteen thousand per month or such higher amount as may be notified by the Central Government from time to time; (20) Such a broader definition has been designed to include a wide range of migrant workers, thereby facilitating their eligibility for the extension of social security benefits such as Employees' State Insurance Corporation Scheme, Employees Provident Fund Scheme, pensions scheme etc… Key Advantageous provisions for Migrant Workers under this Act:-1.Through the One Nation One Ration Card program, a migrant worker is qualified to get the benefits of the Public Distribution System (PDS) either in his home state or in the state where he is employed.2. If the migrant worker is building and other construction workers (BOC) then he is qualified to obtain the benefits from the Cess Fund which is collected by the State Governments under the Building and Other Construction Workers' Welfare Cess Act, 1996.This is to provide security, well being and health benefits to the workers under The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.3. A toll free number is provided to address the grievances and distress of migrant workers.4. No legal proceeding shall lie against a migrant worker in order to to recover the debt which he has • Email: editor@ijfmr.com

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Volume 5, Issue 6, November-December 2023 10 incurred in the past after the completion of his employment.

Conclusion:
In conclusion, the plight of migrant workers demands urgent attention and comprehensive legal frameworks.While current legislation faces challenges, the potential positive changes introduced by the new labour codes provide a ray of hope.However, since the implementation of The New Labour Code is still pending,we need to observe and evaluate the overall effectiveness of the legislation in the future.By addressing these issues, we can aspire to create a more equitable and secure environment for this vital workforce.
14. Article 24 reads as; No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.15.Article 39-The State shall, in particular, direct its policy towards securing-(a) that the citizens, men and women equally, have the right to an adequate means of livelihood; (d) that there is equal pay for equal work for both men and women; 16.Article 39A-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.17 has ratified Conventions established by the ILO notably , Abolition of Forced Labour Convention (No.105)Equal Remuneration Convention (No.100),Discrimination (Employment Occupation) Convention (No.111) (1) Laws in India such as The Equal Remuneration Act, 1976, The Minimum Wages Act, 1948, and The Bonded Labour System (Abolition) Act, 1976,The Child Labour (Prohibition and Regulation) Act, are rooted in these conventions, ensuring equal remuneration for equal work, preventing discrimination in employment, regulating child labor, setting minimum wage standards, and abolishing bonded labor systems.These principles, when implemented effectively, play a significant role in protecting the rights of migrant workers.These principles are reflected in both fundamental rights and directive principles of our Indian Constitution.The major conventions of ILO relating to Migrant workers are 1.Migration for Employment Convention (Revised), 1949 (No. 97) This requires nations that have ratified the agreement to support international labour migration by providing a free assistance and information service for migrant workers.Additionally, it outlines the provision of adequate medical services and the ability for migrant workers to transfer their earnings and savings.(2) 2. Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) This convention focuses on the prevention of harmful situations in migration and aims at safeguarding the rights of migrant workers.It provides various ways to address clandestine and illegal migration while simultaneously enforcing the fundamental rights of all migrant workers.Unfortunately India has not ratified either of these two conventions.(2) (3) According to the 2020-21 Report on Migration in India, sourced from the Periodic Labour Force Survey (PLFS) and released by the Ministry of Statistics and Programme Implementation (MoSPI), the overall migration rate in the country stood at 28.9%.In rural areas, specifically, the migration rate was 26.5%.Among the total migrant population, approximately 10.8% of individuals migrated primarily due to employment-related reasons.(25) While examining Indian legislation, It is evident that, there are laws specifically tailored for the protection and regulation of interstate migrant workers.Notably, The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 . Article 41-The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.18. Article 42-The State shall make provision for securing just and humane conditions of work and for maternity relief.19.Article 43-The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.20.Section 2(zf) of THE OCCUPATIONAL SAFETY, HEALTH AND WORKING CONDITIONS CODE, 2020.Available from https://labour.gov.in/whatsnew/occupational-safety-health-andworking-conditions-code-2020-no-37-2020 21.Section 2 (d) of The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 states that "establishment" means-(i) any office or department of the Government or a local authority; or (ii) any place where any industry, trade, business, manufacture or occupation is carried on; 22. Section 2(e) of The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 states that "inter-State migrant workmen" means any 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; 23.section 2(b) of The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 states that "contractor", in relation to an establishment, means a person who undertakes (whether as an independent contractor, agent, employee or otherwise) to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, by the employment of workmen or to supply workmen to the establishment, and includes a subcontractor, Khatedar, Sardar, agent or any other person, by whatever name called, who recruits or employs workmen.24.Section 2(g) of The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 states that "principal employer" means,-(i) in relation to any office or department of the Government or a local authority, the head of that office, department or authority or such other officer as the Government or the local authority, as the case may be, may specify in this behalf;(ii) in relation to a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948), the person so named;(iii)in relation to amine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named;(iv)in relation to any other establishment, any person responsible for the supervision and control of the establishment.Explanation.-For the purposes of sub-clause (iii) of this clause, the expressions "mine", "owner" and "agent" shall have the meanings respectively assigned to them in clause (j), clause (e) and clause (c) of sub section (1) of section 2 of the Mines Act, 1952 (35 of 1952); 25.Ministry of Labour and Employment;Govt of India;Migration of Labour in the Country;cited on 20 JULY 2023;[Internet]; Available from Migration of Labour in the Country