2. Background of the Concept
3. Laws related to Migrant Labour and the existing Procedure
4. Practical Problem in compliance by the Authorities under the Act
5. Need for making amendment in the existing law to be it more practicable and beneficial to the migrant laborers.
6. Statistics of the offices at Regional level in Uttar Pradesh.
Globalization has created a situation which generated a worldwide phenomenon of migration of millions of workers to other countries. The finance capital’s thrust for cheap labour to bring down the cost of production in an environment of cut throat competition has given a powerful impetus to the phenomenon of migration of labour both within as well as outside the country. The migration of labour has created a totally unregulated labour market where finance capital will have its sway over the entire gamut of labour relations. With all round downsizing of manpower drastically reducing the job opportunities within the country, the new entrants in the labour market have to be in search for job opportunities outside the country.
The picture above is of a slum at Transport Nagar in Lucknow showing the condition in which these poor people survive.(Clicked by Swapnil Kumar on 17th Dec 2010)There is much talk and lip sympathy shown towards migratory labour but not much is being done. Perhaps, if the migrant labour is given their due then the capitalist will not be able to compete in the world market. Hence the logic of capitalism leads to only pep talk without any meaningful action to ameliorate the distress undergone by migrant labour.
With all the migration of people from place to place in search of their livelihood there are many problems encountered by these people when they go out to work. Problems related to their accommodations, food and also related to the work condition so, there is need for a machinery that could aid the cause of these poor workers and solve their problems easily. The government has made an act viz. THE INTER-STATE MIGRANT WORKMEN (REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICE) ACT, 1979. This act deals with the employment of inter-State migrant workmen and to provide for their conditions of service and for matters connected therewith. It includes all the necessary provisions to monitor the concerned cause. But the question still lies before us- Is this law sufficient to deal with problems of various states and How far has it been able to tackle the problems related to the appropriate details of the migrants. The director general of the International Labour Organization, J Somavia repeatedly talks about “decent labour” but the labour migration has created a phenomenon of “indecent labour” which prevailed upon the ILO director general to speak about the issue of severe decent-work-deficit for the migrant labour in general.
Need for Migration
There are two explanations for labour migration. The first centres on the rational decision of an individual. An individual makes a decision, based on free will, to migrate to centres where there is a demand for labour. Migration is thus associated with urbanization and modernization, as well as with development. However, rational individual choice is not the only factor which affects labour migration in India.
The second explanation emphasizes the fact that capitalist development has always needed cheap labour. In this sense migration is analyzed as a class phenomenon and uneven development is seen as the basic cause of labour migration.
There are two important reasons for rural labour migration: (1) migration for survival and (2) migration for subsistence. The first indicates the severe social and economic hardships faced by rural laborers, a situation where migration becomes necessary to stay alive. These communities are generally landless, illiterate and drawn largely from Scheduled Castes, Scheduled Tribes and other depressed castes. The second reason for migration is also rooted in subsistence and arises because of the need to supplement income in order to fill the gaps of seasonal employment. Such communities often migrate for shorter periods and do not ordinarily travel very far from their homes.
Migration have been a regular scene witnessed in India ever since opportunities in agriculture and various fields were created by the state’s agricultural leap forward areas like Punjab and Haryana have emerged as the great center for works in agricultural fields.
There also occurred a simultaneous growth in small manufacturing, especially in urban centers like Ludhiana, Kanpur, Ahmadabad, Agra, Lucknow, etc. Large numbers of migrant labour poured in to meet the demand for factory hands, and to provide other services that were required in the growing and crowded industrial belt.
Over time, migrant labour became institutionalized in India and regular, long-term relationships between job providers and migrant laborers were established. By now, systems of migration have become regularized and various types of contractual systems have emerged. Migrant laborers have not only become an integral part of India’s economy, but also important constituents of society. But, the problem is that these constituents are continuously fighting for their survival and the brutal situation they are in, can not be expressed in words. Laws and huge plans are made for these people but all on papers, the practical situation exists as it is and one has to start from a scratch. There are provisions made for registration by any contractor who employs migrant laborers for some work but only a few records of such a registration are found at the Labour Office in Lucknow.
The concerned authorities at the office also admit to the same and state that the existing law holds very ineffective for the purpose and we need to make another law for resolution of the problems related with migrant labours to deal with problems of Uttar Pradesh.
The right for such migration has been provided to every citizen of India as a fundamental right to Livelihood (Art 21) and also Right to Freedom of profession (Art 19 clause 1 sub- clause). Being a human every person wants that his basic necessities are fulfilled and for this we need money and therefore we are engaged in some sort of work that would yield us money and thus a person migrates from place to place in search of the work that could money and is attracted to place wherever he finds suitable work. The picture shows how they live in slums at Aurangabad in Lucknow(Picture clicked by Swapnil Kumar on 17 Dec 2010).
The migration is a phenomenon that emerges out of need for food and satisfaction of once own desires and necessities.
Hopefully all the above could have made a clear idea about what migration is and how it emerges. Now, we would deal with certain terms that deal with migrant labour and the problems associated with this, in terms of law i.e. the THE INTER-STATE MIGRANT WORKMEN (REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICE) ACT, 1979.
To whom does this Act apply?
Sec 1 clause 4 states that It applies –
(a) to every establishment in which five or more Inter-State migrant workmen (whether or not in addition to other workmen) are employed or who were employed on any day of the preceding twelve months;
(b) to every contractor who employs or who employed five or more Inter-State migrant workmen (whether or not in addition to other workmen) on any day of the preceding twelve months.
What would be the ‘appropriate authority’ in reference to such matters?
Sec 2 clause 1(a) provides for its definition with categorization and states that Central Government is the appropriate government:
(i) in relation to—
(1) any establishment pertaining to any industry carried on by or under the authority of the Central Government or pertaining to any such controlled industry as may be specified in this behalf by the Central Government; or
(2) any establishment or any railway, Cantonment Board, major port, mines or oilfield; or
(3) any establishment of banking or insurance company;
And the Government of the concerned state
ii) in relation to any other establishment, which that other establishment is situated;
Who is a contractor for the purpose of this Act?
The act defines a “Contractor” under sec 2(b), 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 sub-contractor, Khatadar, sardar, agent or any other person, by whatever name called, who recruits or employs workmen.
Now we would define certain others terms that are to be specified for the purpose of making the Above definitions clear. All these are given under Sec 2 of the Act.
1. “controlled industry” means any industry the control of which by the Union has been declared by any Central Act to be expedient in the public interest;
2. “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;
3. “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;
4. “prescribed” means prescribed by rules made under this Act;
5. “principal employer” means, --
(i) the head of 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, in relation to any office or department of the Government or a local authority,
(ii) the owner or agent of the mine and where a person has been named as the manager of the factory under the Factories Act, 1948, the person so named, in relation to a mine,
(iii) the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named, in relation to a mine,
(iv) any person is responsible for the supervision and control of the establishment, in relation to any other establishment.
- “recruitment” includes entering into any agreement or other arrangement for recruitment and all its grammatical variations and cognate expressions shall be construed accordingly;
- “wages” shall have the meaning assigned to it in Cl. (vi) of Sec. 2 of the Payment of Wages Act, 1936 (4 of 1936);
- “workman” means any person employed in or in connection with the work of any establishment to do any skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment by express or implied, but does not include any such person, --
(i) who is employed mainly in a managerial or administrative capacity; or
(ii) who being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem, or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
Procedure Regarding Registration of Establishments employing Inter-State Migrant Workmen
Appointment of registering officer:
The Act defines the procedure of appointment of the Registering Authority Under sec 3. The appropriate Government may,
(a) appoint such persons, being officers of Government, as it thinks fit to be registering officers for the purposes; and
(b) define the limits, within which a registering officer shall exercise the powers conferred on him by or under this Act.
Registration of certain establishments:
Now the registration and the types of establishments that could be registered are mentioned under sec 4 of the act. The Sample of Such a registration form is being annexed as annexure No. 1.
(1) Every principal employer of an establishment to which this Act applies shall, within such period as the appropriate Government may, fix in this behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer, in such form and manner and on payment of such fees as may be prescribed, for the registration of the establishment. Provided that the registering officer may entertain any such application for registration after the expiry of the period fixed in that behalf, if the registering officer is satisfied that the applicant was prevented by sufficient cause from making the application in time.
(2) Within one month after the receipt of an application for registration under sub-section (1), the registering officer shall, --
(a) if the application is complete in all respects, register the establishment and issue to the principal employer of the establishment a certificate of registration in the prescribed form; and
(b) if the application is not so complete, return the application of the principal employer of the establishment.
What if the Registering officer does not show any response to the application for such a registration?
Where within a period of one month after the receipt of an application for registration of an establishment, the registering officer does not grant the certificate of registration applied for and does not return the application under, the registering officer shall, within fifteen days of the receipt of an application in this behalf, from the principal employer, register the establishment and issue to the principal employer a certificate of registration in the prescribed form.
Once obtained, what are the circumstances in which the registration can be revoked?
Sec 5 of the Act talks about the revocation of the registration. If the registering officer is satisfied, either on a reference made to him in this behalf or otherwise, that the registration of any establishment has been obtained by misrepresentation or suppression of any material fact or that for any other reason, the registration has become useless or ineffective and, therefore, requires to be revoked, the registering officer may, after giving an opportunity to the principal employer of the establishment to be heard and with the previous approval of the appropriate Government, revoke by order in writing the registration and communicate the order to the principal employer:
Provided that where the registering officer considers it necessary to do so for any special reasons he may, pending such revocation, by order suspend the operation of the certificate of registration for such period as may be specified in the order and serve, by registered post. Such order along with a statement of the reasons on the principal employee and such order shall take effect on the date on which such service is effected.
What if some body is found engaging migrant laborers without such a registration?
The act also makes certain provisions for the situation where some one if found engaging Migrant laborers with registration. Sec 6 of the Act deals with it and states that No principal employer of an establishment to which this Act applies shall employ inter-State migrant workmen in the establishment unless a certificate of registration in respect of such establishment issued under this Act is in force:
Provided that nothing in this section shall apply to any establishment in respect of which an application for registration made within the period fixed, whether originally or an extension under sub-section (1) of Sec. 4 is pending before a registering officer and for the purposes of this proviso, an application to which the provisions of sub-section (3) of Sec. 4 apply shall be deemed to be pending before the registering officer concerned till the certificate of registration is issued in accordance with the provisions of that sub-section.
The picture is From a brick kiln at Alamnagar in Lucknow. Our team went to interview the Labourers there and were shocked to know from Ramesh, A migrant labourer from Bihar, that How these people had been working at wages well below the prescribed Wages as per the Minimum Wages Act. On a discussion further we also came to know that no inspection has been made by any prescribed authority for last 4 years. Clicked on 19th Dec 2010 by Swapnil Kumar.
What are the liabilities of a contractor in this regard?
The act makes various provisions related to the contractors right from its licensing to certain other things that are essential for the working of this machinery of Migrant Labourers. Chapter III of the Act is dedicated to Licensing of the contractors. It states:
With effect from such date 25th June, 1987, no contractor to whom this Act applies shall,
- recruit any person in State for the purpose of employing him in any establishment situated in another State, except under and in accordance with a license issued in that behalf—
(i) if such establishment is an establishment referred to in sub- clause (i) of Cl. (a) of sub-section (1) of Sec. 2, by the licensing officer appointed by the Central Government who has jurisdiction in relation to the area wherein the recruitment is made;
(ii) if such establishment is an establishment referred to sub-clause (ii) of Cl. (a) of sub-section (1) of Sec. 2, by the licensing officer appointed by the State Government who has jurisdiction in relation to the area wherein the recruitment is made;
- employ as workmen for the execution of any work in any establishment in any State, persons from another State (whether or not in addition to other workmen) except under and in accordance with a license issued in that behalf, --
(i) if such establishment is an establishment referred to in sub-clause (i) of Cl. (a) of sub-section (1) of Sec. 2 by the licensing officer appointed by the Central Government who has jurisdiction in relation to the area wherein the establishment is situated;
(ii) if such establishment is an establishment referred to in sub-clause (ii) of Cl. (a) of sub-section (1) of Sec. 2 by the licensing officer appointed by the State Government who has jurisdiction in relation to the area wherein the establishment is situated.
- Subject to the provisions of this Act, a license under sub-section (1) may contain such conditions including in particular, the terms and conditions of the agreement or other arrangement under which the workmen will be recruited, the remuneration payable, hours of work, fixation of wages and other essential amenities in respect of the inter-State migrant workmen, as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under Sec. 35 and shall be issued on payment of such fees as may be prescribed:
Provided that if for any special reasons, the licensing officer is satisfied that it is necessary to require any person who has applied for, or who has been issued, a license to furnish any security for the due performance of the conditions of the license, he may after communicating such reasons to such person and giving him an opportunity to represent his case, determine in accordance with the rules made in this behalf the security which shall be furnished by such person for obtaining or, as the case may be, for continuing to hold the license.
- The security which may be required to be furnished under the provision to sub-section (2) shall be reasonable and the rules for the purposes of the said proviso shall, on the basis of the number of workman employed, the wages payable to them, the facilities which shall be afforded to them and other relevant factors provide for the norms with reference to which such security may be determined.
What is the procedure for obtaining such a license?
Sec 9 of the act establishes the procedure for obtaining such license. The Procedure is:
(1) Every application for the grant of a license under sub-section (1) of Sec. 8 shall be made in the prescribed form and shall contain the particulars regarding the location of the establishment, the nature of process, operation or work for which inter-State migrant workmen are to be employed and such other particulars as may be prescribed.
(2) The licensing officer may make such investigation in respect of the application received under sub-section (1) and in making any such investigation, the licensing officer shall follow such procedure as may be prescribed.
(3) A license granted under Sec. 8, shall be valid for the period specified therein and may be renewed from time to time for such period and on payment of such fees and on such conditions as may be prescribed.
What are the Duties of the contractors towards the laborers ?
The act has also established the Do’s and the Don’ts for such contractors and ensured that the working of the firm is monitored by law. Sec 12 has to deal with the Duties and other Obligations of the Contractors. It shall be the duty of every contractor, --
(a) to furnish such particulars and in such form as may be prescribed, to the specified authority in State from which an inter-State migrant workman is recruited and in the State in which such workman is employed, within fifteen days from the date of recruitment, or, as the case may be, the date of employment, and where any change occurs in any of the particulars so furnished, such change shall be notified to the specified authorities of both the State.
(b) to issue to every inter-State migrant workman, a pass –book affixed with a passport size photograph of the workman and indicating in Hindi and English languages, and where the language of the workman is not Hindi or English, also in the language of the workman, --
(i) the name and place of the establishment wherein the workman is employed;
(ii) the period of employment;
(iii) the proposed rates and modes of payment of wages;
(iv) the displacement allowance payable;
(v) the return fare payable to the workman on the expiry of the period of his employment and in such contingencies as may be prescribed and in such other contingencies as may be specified in the contract of employment;
(vi) deductions made; and
(vii) such other particulars as may be prescribed;
(c) to furnish in respect of every inter-State migrant workman who ceases to be employed, a return in such form and in such manner as may be prescribed, to the specified authority in the State from which he is recruited and in the State in which he is employed, which shall include a declaration that all the wages and other dues payable to the workman and the fare for the return journey back to his State have been paid.
(2) The contractor shall maintain the pass-book referred to in sub-section (1) up-do-date and cause it to be retained with the inter-State migrant workman concerned.
Explanation. -- For the purposes of this section and Sec. 16 “specified authority” means such authority as may be specified by the appropriate Government in this behalf.
What are the other Facilities to which a Migrant Labourer is Entitled under Law?
Wage rates and other conditions of service of inter-State migrant workman:
The wage rates, holiday hours of work and other conditions of service of an inter-State migrant workman shall,
(a) in a case where workman performs in any establishment, the same or similar kind of work as is being performed by any other workman in the establishment, be the same as those applicable to such other workman.
(b) In any other case, be such as may be prescribed by the appropriate Government:
Provided that an inter-State migrant workman shall in no case e paid less than the wages fixed under the Minimum Wages Act, 1948 (11 of 1948)
(2) Notwithstanding anything contained in any other law for the time being in force, wages payable to an inter-State migrant workman under this section shall be paid in cash.
There shall be paid by the contractor to every inter-State migrant workman at the time of recruitment, a displacement allowance equal to fifty percent of the monthly wages payable to him or seventy-five rupees, whichever is higher.
The amount paid to a workman as displacement allowance under sub-section (1) shall not be refundable and shall be in addition to the wages or other amounts payable to him.
Journey allowance etc.:
A journey allowance of a sum not less than the fare from the place of residence of the inter-State migrant workman in his State to the place of work in the other State shall be payable by the contractor to the workman both for the outward and return journeys and such workman shall be entitled to payment of wages during the period of such journeys as if he were on duty.
It shall be the duty of every contractor employing inter-State migrant workmen in connection with the work of an establishment to which this Act applies,
(a) to ensure regular payment of wages to such workmen;
(b) To ensure equal pay for equal work irrespective of sex;
(c) To ensure suitable conditions of work to such workmen having regard to the fact that they are required to work in a State different from their own State;
(d) to provide and maintain suitable residential accommodation to such workmen during the period of their employment;
(e) to provide the prescribed medical facilities to the workmen, free of charge;
(f) to provide such protective clothing to the workmen as may be prescribed; and
(g) in case of fatal accident or serious bodily injury to any such workman to report to the specified authorities of both the States and also the next-of-kin of the workman.
Responsibility for payment of wages.
A contractor shall be responsible for payment of wages to each inter-State migrant workman employed by him and such wages shall be paid before expiry of such period as may be prescribed.
Every principal employer shall nominate a representative duly authorized by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner and may be prescribed.
It shall be the duty of the contractor to ensure the disbursement of wages in then presence of the authorize representative of the principal employer.
In case the contractor fails to make payment of wages within the prescribed period or make short payment, then the principal employer shall be liable to make payment of the wages in full or the unpaid balance due, as the case may be, to the inter-State migrant workman employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.
Liability of principal employer in certain cases.
If any allowance required to be paid under Sec. 14 or Sec. 15 to an inter-State migrant workman employed in an establishment to which this Act applies is not paid by the contractor or if any facility specified in Sec. 16 is not provided for the benefit or such workman, such allowance shall be paid, or as the case may be, the facility shall be provided, by the principal employer within such time as may be prescribed.
All the allowance paid by the principal employer or all the expenses incurred by him in providing the facility referred to in sub-section (1) may be recovered by him from the contractor either by deduction from any amount payable to the contractor under any contract or as debt payable by the contractor.
It shall be the duty of every contractor and every principal employer to ensure that any loan given by such contractor or principal employer to any inter-State migrant workman does not remain outstanding after the completion of the period of employment of such workman under the said contractor or, as the case may be, in the establishment of such principal employer and accordingly every obligation of an inter-State migrant workman to re-pay and debt obtained by him during the period of his employment from the contractor or the principal employer and remaining unsatisfied before the completion of such period shall, on such completion, be deemed to have been extinguished and not suit or other proceeding shall lie in any Court or before, any authority for the recovery of such debt or any part thereof.
What are the checks that are ment to keep a check on the prohibited Migrant Labour Practices?
The law is very strict on the unfair labour practices and has made various provisions to counter such practices, as is evident from the Act itself. Besides the Government had made certain group of individuals to regularly make inspections to ensure that these practices are controlled and avoided to the best extent possible. Now we will discuss how the law goes on with regard to the Inspection and the appointment of these Inspector:
- The appropriate Government may, appoint such persons as it thinks fit, to be inspectors for the purpose of this Act, and define the local limits within which they shall exercise their powers under this Act.
- Subject to any rules made in this behalf, within the local limits for which he is Subject to any rules made in this behalf, within the local limits for which he is appointed, an inspector may. –
(a) if he has reason to believe that any inter-State migrant workmen are employed in any premises or place, enter, at all reasonable hours, with such assistants (if any), being persons in the service of the government or any local or other public authority, as he thinks fit, such premises or place for5 the purpose of—
(i) satisfying himself whether the provisions of this Act in relation to the payment of wages, conditions of service or facilities to be provided to such workmen are being complied with;
(ii) examining any register or record or notices required to be kept or exhibited by the provisions of this Act or the rules made there under, and requiring the production thereof for inspection;
(b) examine any person found in any such premises or place for the purpose of determining whether such person is an inter-State migrant workman;
(c) require any person giving out work to any workman, to give any information, which is in his power to give, with respect to the names and addresses of the persons to, for and from whom the work is given out or received, and with respect to the payments to be made for the work;
(d) seize or take copies of such register, record of wages, or notices or portions thereof as he may consider relevant in respect of an offence under this Act which he has reason to believe has been committed by a principal employer or contractor; and
(e) exercise such other powers as may be prescribed.
The points mentioned above are the powers and the duties of the Inspectors.
Besides all this the act has also made various provisions that are helpful to the laborers and also lent a support in the process of keeping the state free from all unlawful labour exploitation. These are
- For the purpose of the enactments specified in the schedule, an inter-State migrant workman shall, be deemed to be employed and actually worked in the establishment or, as the case may be, the first establishment in connection with the work of which he is employed.
- Every principal employer and every contractor shall maintain such registers and records giving such particulars of the inter-State migrant workmen employed, the nature of work performed by such workmen, the rates of wages paid to the workmen and such other particulars in such form as may be prescribed.
- Every principal employer and every contractor shall keep exhibited in such a manner as may be prescribed within the premises of the establishment where the inter-State migrant workmen are employed, notices in the prescribed form containing particulars about the hours or work, nature of duty and such other information as may be prescribed.
- Whoever obstructs an inspector or a person appointed under sub-section (3) of Sec. 20 (hereinafter referred to as the authorized person) in the discharge of his duties under this Act or refuses or willfully neglects to afford the inspector or authorized person any reasonable facility for making any inspection, examination, inquiry or investigation authorized by or under this Act in relation to an establishment to which, or a contractor to whom, this Act applies, shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both.
- Whoever willfully refuses to produce on the demand of any inspector or authorized person any register or other document kept in pursuance of this Act or prevents or attempts to prevent or does anything which he has reason to believe is likely to prevent any person from appearing before or being examined by any inspector or authorized person acting in pursuance of his duties under this Act, shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two thousand rupees, or with both.
- Whoever contravenes any provisions of this Act or of any rules made there under regulating the employment of inter-State migrant workmen, or contravenes any conditions of a license granted under this Act, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both, and in the case of a continuing contravention, with an additional fine which may extend to one hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
- If any person contravenes any of the provisions of this Act or of any rules made there under for which no other penalty is elsewhere provided, he shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both.
- Where an offence under this Act has been committed by a company, every person who, at the time the offences was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
- No Court shall take cognizance of any offence under this Act except on a complaint made by, or with the previous sanction in writing of, an inspector or authorized person and no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First class shall try any offence punishable under this Act.
- No Court shall take cognizance of an offence punishable under this Act unless the complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of the inspector or authorized person concerned. Provided that where the offence consists of disobeying a written order made by an inspector or authorized person, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.
- No suit, prosecution or other legal proceedings shall lie against any registering officer, licensing officer or any other employee of the Government for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made there under.
The laws are made for the betterment of the Migrant Workers but somewhere or the other we lack the implementation of these laws and lots of loop holes cripple the laws to a great extent. The entire set of laws that are made with a view to some how tackle the Unlawful practices that are growing day by day. Before actually going into all the areas where we find the flaws in detail let us see the Indian scenario of the Migrant labour practices.
The Indian Scenario
India has around 100 million circular migrant workers, placing its experience almost on a par with China’s. Yet migration in India faces an almost total absence of forward-thinking policies. Rejecting policies to ‘keep them in rural areas’ as unrealistic, this paper identifies the kinds of migrant support that are needed if migrants are to continue adding to economic growth as they currently do, but at lower personal cost than at present.
The following is an extract from THE HINDUSTAN TIMES daily just to show the Indian scenario in reference to Migrant Labourers and the politics therein. New Delhi, April 28, 2010
First Published: 19:47 IST(28/4/2010)
Last Updated: 19:50 IST(28/4/2010)
The government on Wednesday said there are 14 crore migrant laborers in the country based on the 2001 census emphasizing that the question was not of the numbers but welfare. Replying to a half-an-hour discussion on migration of workers, Labour Minister Mallikarjun Kharge said the government
"There are 14 crore migrant laborers in the country as per the 2001 census...The real issue is not the numbers but the welfare of the laborers," he said.
Initiating the discussion, Rajiv Pratap Rudy from the BJP wanted to know whether it was correct that 2 crore people migrate from Maharashtra to work in other states.
He also wanted to know the number of illegal Chinese and Bangladeshi migrants in the country. The BJP member also wanted to know the exact numbers of Kashmiri migrants and their living conditions.
R C Khuntia from Congress wanted the protection of migrant laborers saying that six lakh such workers are engaged in construction work related to Commonwealth Games and Metro.
Mohammed Amin from CPI-M gave the example of West Bengal saying that wherever land reforms have taken place, migration is minimized.
Kharge said the figures of 14 crore was based on the 2001 census and the figures of 2 crore for Maharashtra included inter-district and intra-district migration along with migration to cities and foreign countries.
He said a tripartite group was formed comprising representatives from migrant laborers, employees' and those from the government to look into the issue.
"The group has submitted its report. Government will examine it and has already initiated action," he said.
Convention dictates that massive capital investment is needed in rural areas (telecommunications, roads and other physical infrastructure etc) to generate livelihoods, and the Rural Development Ministry’s budget is large, at around $10 billion/yr. There is an argument for making basic infrastructure available to all, but against a recognition that the prospects for job creation in the more remote areas are limited. Even public works, are in general poorly administered and have limited impact on job availability. People’s own strategies of migrating out of these areas are therefore likely to be the most effective in delivering benefits to the poor in the short term.
Official data do not help any serious discussion of migration. The National Census indicates that 98 million people migrated permanently in the decade before 2001 – almost half (mainly women) moved for marriage reasons. The 55th round of the National Sample Survey indicates that there are 10 million (1% of the population) short term migrants in India. The difficulty of interviewing mobile households means that both NSS and Census are likely to provide serious underestimates. A rough estimate based on those sectors mainly employing migrants (textiles, construction, brick kilns, mines and quarries, domestic workers, street vending, rickshaw pulling, salt pans and prawn processing), backed up by village studies in ‘source’ areas, suggests that around 100 million workers are migrants.
Inadequate official data have reinforced ill-conceived policies on migration. Village studies indicate that the vast majority of those migrating seasonally for work are in the lower deciles of income distribution, and belong to disadvantaged groups such as Scheduled Castes (SC), Scheduled Tribes (ST) and Muslims, but are not the very poorest, who lack the capital and contacts to overcome the risks that migration poses. Migration for the poor is mainly circular owing to the desire to ‘keep a foothold’ in home areas during the agriculture season, but also to the lack of social security and barriers to settling more permanently in urban areas.
Main migration streams and shifts:
Caste, social networks and historical precedents play a powerful role in shaping patterns of migration. Well established ‘streams’ of migration exist, but exhibit highly diverse terms and conditions, returns and prospects. Our own research (Deshingkar and Farrington, eds, forthcoming) as well as other village studies show that there are two broad kinds of circular migration among poorer social strata – one kind undertaken by the poorest, least educated and most disadvantaged social groups (mainly the Scheduled Castes or dalits, Scheduled Tribes and Extremely Backward Castes). This category typically works in brick-kilns, unskilled construction, loading and unloading and agriculture (such as cotton pollination). This kind of migration may allow slow asset accumulation, but does prevent downward slides into poverty. Working conditions are not much different from bonded labour with limits on personal freedom, long working hours, debt bondage and underpayment. Children from SC and ST families are widely employed in brick-kilns, textile markets, cotton fields and tea shops, and are particularly exposed to exploitation.
Contrasting with this is the migration undertaken by slightly better off groups with more education and skills, more assets and a higher social standing. Backward Castes are heavily represented in this kind of migration, typically in small industrial units (garments, shoes and bag making, embroidery), security services, the hospitality industry, plumbing and carpentry. Although many of these jobs are in the informal sector, this kind of migration often leads to substantial remittances, asset accumulation and investment which can lead to an exit from poverty; Bihari migrants remitted Rs4.5bn in 2006 (approx US$100M) through post offices in addition to an equal or higher amount sent through electronic transfers. Oriya migrants remitted an estimated Rs20bn in 2007.
Labour market intermediaries (agents, contractors) are important in many (especially tribal) areas. Good access to information gives them an advantage over laborers. They provide labour to an employer, but also supervise, and arrange lodgings and food, allowing them to take a heavy cut of wages as commission.
In this context of highly imperfect labour markets with high (and uninsurable) risks, it is not surprising that laborers limit themselves to proven routes/streams, and newcomers tend to go only in the company of agents or established migrants. Only where migrants have become well established in a sector (for example Rajasthani cooks in Gujarat or Oriya plumbers across western India), do they strike deals directly with employers, or become agents themselves.
Why does circular migration come about?
Current and prospective rates of job creation in Indian agriculture are poor, and the non-farm rural economy tends to grow only where agricultural growth is strong (Bhalla, 2006). For large parts of the country with unreliable farming or forest-based livelihoods, migration, with all its risks, offers better returns and better prospects for raising living standards than local employment. But there are new ‘pulls’: labour intensive urban construction, manufacturing and mining, and a growing service industry attract people to distant destinations despite the risks and isolation from family that migration poses. There are also important non-economic reasons for migration which have so far received little attention.
These include escaping oppressive caste relations and restrictive family environments, and the desire to experience city life.
What are the impacts of migration?
A large number of studies have found that migration earnings are used mainly for ‘consumption’, i.e. food, clothing, house repairs, social events and religious pilgrimages. But this underplays their importance in improving family nutrition and reducing the need to borrow for essentials. Furthermore, new evidence shows that migration earnings are being invested in agriculture, small enterprise, education, health and housing all of which contribute to improving household wellbeing (Deshingkar et al, forthcoming). On the negative side, male migration from nuclear families can lead to loneliness and increased work burdens for women.
Costs and risks of Migration
Migrants are rarely full citizens in their place of work. In the formal context, they lose voting rights, as well as free healthcare and subsidized food and fuel under the Public Distribution System. It becomes less easy for them to access free education for their children. They are often regarded as illegal residents and may be subject to police harassment. Journeys to and from work can be hazardous, with cheating over tickets on public transport and the constant threat of theft. They also face discrimination more generally because they often belong to historically disadvantaged
groups such as the Scheduled Castes or Scheduled Tribes. Furthermore, women and girls from these social groups rarely receive ‘equal pay for equal work’.
Poor migrants are often employed in risky jobs – industrial accidents, exposure to hazardous chemicals, long working hours and unhygienic conditions are the norm. Especially hazardous are dyeing, other chemical industries, stone crushing, brick making, steel utensil production, and loading. Migrants are susceptible to infectious diseases because of the very poor, crowded and unhygienic living conditions (migrants are identified as high risk group by the National Aids Control Organization). They often face exclusionary processes that prevent them from acquiring new skills and moving up the job ladder.
Why does it merit policy attention?
Despite the contribution made by migrants to the national economy, most remain on the margins of society, contributing cheap labour but unable to influence their pay or working and living conditions, and without political voice, especially where they migrate to other states. Migrants are preferred over local labour by employers because they are cheaper, work harder and are not unionized. As migrants become one of the most important sources of labour across the country, services and support for migrant workers need to be seen as an essential investment for India’s development trajectory.
Yet, governments find migration an uncomfortable topic, not least where (as in India) a powerful middle class urban electorate is opposed to it. The lack of clarity in official positions on migration – often, if anything, veering towards a denial of the contribution that migration makes to the economy and prompting efforts to ‘relieve distress’ in order to keep migrants in rural areas – all mean that official support for migrants is almost non-existent. Such support as there is has been devised and implemented by NGOs.
In a political climate of ‘denial’, policy options to support migrants might best be divided into two categories: those (probably fairly minor) that can be introduced unobtrusively, possibly as part of wider initiatives (e.g. identity cards, or support to remittances as part of a wider upgrading of bank or PO services); and those that require more concerted and migrant-specific effort (e.g. ‘remote’ access to PDS benefits, education for migrants’ children and access to health and housing), and so will require major pressure if policy is to change appropriately. The work of an innovative NGO in these areas, the Aajeevika Bureau.
It is very likely that circular migration will continue to increase in India as an increasing population of young adults moves from rural stagnation to rapid economic growth in other locations. In absolute terms, China and India will have the largest increases in working age populations by 2015 (88 million and 148 million respectively) (Economist Intelligence Unit, 2006).
The demand for unskilled labour will continue to increase in services, road maintenance, construction, cable networks and coastal activities where mechanization continues to be limited despite growth. While earlier projections saw temporary migration as a precursor to permanent, and so a purely transient phenomenon, current trends indicate that a growing number of people are choosing to keep one foot in the village because of social ties, lower costs, other safety net aspects and a long term intention to pursue a better life in the village.
Proposed models of migrant support
These fall into four broad categories, most of which have operated on a limited scale to date:
1) Social Protection: This provides subsidized services related to e.g. job information and rights awareness creation. It aims to reduce poverty and vulnerability by promoting efficient labour markets, diminishing exposure to risks, and helping the poor to protect themselves against hazards and interruption/loss of income. The rationale here is that poor migrants cannot fend for themselves in a job market dominated by intermediaries and employers who are better informed and connected than they are. Nor can they pay for such services on a full cost-recovery basis immediately. The services provided will enable them to access better jobs and reduce the level of uncertainty and harassment that they face in the job market.
Like any subsidy approach, this kind of approach has attracted criticism for being expensive and economically unsustainable. However critics under-estimate the time that it takes to attract poor, risk-averse and uneducated workers into contributory schemes. While industrial worker costs may be borne by industry (see market based approach below) other poorer workers who migrate on a freelance basis and switch jobs rapidly may require more support.
2) Improving labour market performance: This model works with existing labour market patterns and offers services on a cost recovery basis. An example is mazdoor.org proposed by Samarthan, (a leading NGO in Madhya Pradesh) and the World Bank-funded District Poverty Initiatives Project (DPIP). This will provide skills enhancement and certification programmes, advice and information on jobs and help workers to link up with government schemes for insurance and workers’ funds. They intend to work within a market economics framework, i.e. recognizing that capital and labour are highly mobile and that industry locates itself where cheap labour can be accessed, but also recognizing that contracting through intermediaries means that industry does not provide workers with the welfare benefits to which they are legally entitled. Mazdoor.org plans to provide these services against payment by employers, thus keeping them within the law. A further example is provided by LabourNet, an NGO based in Bangalore which has developed a database of 4,500 migrant construction workers, with the intention of improving job information to them.
3) The Labour Union Model: This is a rights-based approach and works for better implementation of labour laws and regulation of labour flows. Some NGOs like Prayas in Rajasthan and DISHA in Gujarat believe that unionizing migrant workers will go a long way towards realizing their rights, improving their bargaining power in the market and preventing exploitation. Prayas has set up a union of cotton pollination workers, one of the main objectives being to regulate the supply of labour so as not to lower the bargaining power of the migrant. They have enrolled over 1500 recruiting agents or ‘mates’ and the Union has put out a charter of demands. In 2007 it set up around 16 manned check points at all the border crossings between Gujarat and Rajasthan in order to check movement of child labour. As a result, employers have offered a partial hike in wage rates and negotiations are continuing.
A similar approach has been adopted by the Bandhkam Majoor Sangathan (BMS) established by DISHA in Ahmedabad. Both Prayas and DISHA also advocate for the amendment of the Inter State Migrant Workmen Act which they argue is unimplementable in its current form.
4) The Rehabilitation Model: Action Aid conducts raids on brick kilns in Orissa together with the police to release bonded migrant workers and rehabilitate them. They believe that migration of this kind is akin to trafficking, where workers are lured on false promises, often borrow money from recruitment agents which they repay through punishing work schedules, their movement is restricted at the work site and wages are well below the legal minimum. Women and children are also exploited in various ways and living conditions are appalling.
These models offer much promise, but for many types of challenge faced by migrants, a combination will be needed of these kinds of support together with changes in (or better enforcement of) government legislation, and in some cases more information will be required on migrants’ needs. Of critical importance is the need to reform legislation related to food, housing, health, education and social security so that migrant workers can access schemes when ‘on the move’.
Access To Subsidized Food, Housing, Health And Education
Although at least three states have actively planned the provision of mobile ration cards (Rajasthan, Andhra Pradesh, Maharashtra) only one, namely Maharashtra, seems to have institutionalized the system within a small area. In addition, pressure from NGOs such as DISHA Foundation in Nashik have ensured that government resolutions are not forgotten when staff are transferred or when there is a change in government. Education for the children of migrants, on the other hand, has been taken up more widely through e.g. the Sarva Shiksha Abhiyan and District Primary Education Programme after sustained advocacy by NGOs and donors such as the America India Foundation.
While AIDS and TB control programmes have targeted migrant populations, there is as yet insufficient flexibility in routine health services which would allow mobile populations to claim health benefits away from their normal place of residence. Barring one or two exceptions, housing programmes aimed specifically at temporary migrants do not exist in major migrant destinations. Some benefits may accrue to migrants from the numerous slum development programmes across the country but many of these also give priority to older and well established residents.
Finally, there are still a few social security schemes that cover unorganized sector workers, including migrants. The proposed National Social Security Bill For Unorganized Sector Workers will cover many categories of migrant, but it has been given low priority and still has not been passed in Parliament.
In sum, there is a need to understand the drivers and impacts of migration better in order to move away from the common lamenting of ‘distress migration’ as a destructive and impoverishing process. The first step is to recognize that policies have hitherto been inadequate. There is also a need to understand migration properly in order to manage urban development better and appreciate the poverty reducing benefits of urbanization. Policy positions on urbanization(such as in the Jawaharlal Nehru Urban Renewal Mission) aim to clean up urban areas without any concrete plans for providing facilities to temporary residents. Likewise a better understanding of migration would also help in the formulation of more realistic rural development strategies that recognize and support multi-locational livelihood strategies, and help people to make informed choices about where they want to work without forcing them to live off local agriculture alone.
- Whilst infrastructural and other investment are still needed in the remoter, drier parts of India, these are approaching their limits in terms of productivity and employment creation.
- The movement of labour from slow to faster growing parts of the economy is inexorable, and far higher than shown in official statistics.
- Urban policies, backed by powerful urban electorates, are reluctant to recognize the economic contribution made by migrant labour; many policies, especially on housing, do not simply neglect migrants, but actively discriminate against them.
- Practical areas for migrant support include improved access to market information, skills enhancement, certification of identity, remittances, housing and continued access to health, education and social assistance whilst ‘on the move’.
- These, and more empowering types of support such as collective bargaining and release from debt bondage, are currently being tried by a small number of innovative NGOs. The results of their work merit policy attention at the highest levels.
In view of the aforesaid discussion it can be concluded that majority of the people have fear about in migration of workers, even if we are getting benefits from this migration. And also most of the people are dissatisfied with the restrictions and policies made by the government.
The following suggestions are given which may be helpful to solve the problem.
1) The Government should have to adopt easy and practical approach towards the fulfillment of basic needs of migrated labour and to encourage the NGOs in the practical approach rather they have to collect the statistical development towards their work.
All the Governmental and Non Governmental bodies have to approach the doors of the Migrated labour and to encourage them to start the ways to enlighten them about their rights and to raise their voice against the unjust if any done by the employers.
To provide facilities for the improvement of their basic needs , food , clothing and shelter and health amenities.
The authorities must give special attention for the increasing tendency of in migration of workers.
To feel them that some one is caring for them for their uplifting and betterment and not coming to cheat them.
To make them feel that they are not downtrodden but their active roll is needed for the building of Nation.
To ensure them for social and economic security in the cases of causalities Mishappening .
The benefits of all laws enforceable at present should be extended to these workers.
To guarantee the Minimum rates of wages for their work and working hours etc.
2) The authorities should take care of workers.
3) Workers should get more working opportunities.
4) The workers should get sufficient wage rate according to their work.
5) There should not be any difference in the firms for both migrated and other workers.
6) The workers should get more training facilities to improve their skills.
7) The people must be aware about the benefits of in migration.
8) The people must be aware about the problems regarding in migration of workers.
9) The government should give importance to local workers than migrated workers.
10) The government should implement more restrictions and policies regarding in migration of workers.