NO DATA ON MIGRANT WORKERS' DEATHS: WHO IS TO BLAME, THE GOVERNMENT OR THE 1979 LAW?


 Introduction

The Central Government's refusal to compensate the families of the migrant workers who lost their lives on their way home during the 6 months nationwide lockdown has sent shockwaves across the country. The monsoon session, being the first Parliamentary session since lockdown, was conducted on 14th September 2020 and the Central Government was questioned and criticised for its ineptness, inhumanity and denial. When 10 Lok Sabha MPs posed questions related to the death of the migrant workers, the minister of state for labour and employment, Santosh Singh Gangwar replied, "No such data maintained. The question does not arise in the view of above." In response, Rahul Gandhi tweeted, "If you have not counted, have the deaths not taken place?" Congress MP AdhirRanjan Chowdhury called the Central Government a "no data government".

 The Exodus and the Government's Response to it

According to a news piece from the Times Of India, it is estimated that there are about 4 crore interstate migrants in India and about 75 lakhs had travelled to their native state as of May 2020. Less developed states like Bihar, Uttar Pradesh, Jharkhand, Chhattisgarh and Odisha are the main source of out-migration of workers. Migrant workers travel to the more developed states of Delhi NCR, Maharashtra, Gujarat, Karnataka, Kerala and Tamil Nadu in search of job and employment opportunities. Such migrant workers are engaged in construction, factories, textiles, transport, agriculture, domestic work, informal sector and casual employment. Women migrate not only due to employment but also due to marriage.

In the nationwide lockdown that was announced by the Central Government in March, lakhs of migrant workers left their host states to return to their native states due to job losses, unemployment, lack of food and shelter. The Central Government jumped in response through the National Disaster Response Fund, Stranded Workers Action Network, Pradhan Mantri Garib KalyanYojana, Garib Kalyan Rojgar Abhiyan and Shramik Special Trains.

The Garib Kalyan Rojgar Abhiyan was a scheme to tackle the impact of the Covid - 19 pandemics on the migrant workers in India. However, the scheme did not contain a provision to register and record the deaths of migrant workers. The Wire, a news and media agency reports that it had filed RTIs in 18 zones of the Railways. It was found that the Railways had recorded at least 18 deaths on the Shramik Special Trains. The Wire has accused the Central Government of refusing to disclose such data to the Parliament. The Central Government is now facing backlash for not disclosing such data as it will then have to pay compensation to the migrant families, such disclosure will lead to shame and embarrassment and will further lead to a negative impact on the upcoming elections. Anindita Adhikari of the Stranded Workers Action Network (SWAN) has also said that there is double-speak on the part of the Central Government since the ministry of finance announced relief packages of Rs. 8 Cr while the ministry of labour and employment said it had no data. An overwhelming number of migrants travelled in private vehicles and on foot. Deaths that occur on road, in quarantine shelters and shelters for migrants are registered and recorded by the police of the respective State Governments. The Central Government must collect data on such deaths and collate it in order to take further necessary compensatory steps and measures.

 Legal Aspect of the Exodus: The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979

Currently, there are 44 labour laws in India. The labour law that seems the most applicable to the migrant workers in the backdrop of the Coronavirus pandemic is the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. The Act was enacted to regulate the terms of service of interstate migrant workers in their host states. It was introduced in order to make provisions for suitable working conditions, fixed working hours, fixed minimum wages and other necessary securities and amenities.

The following sections of the Inter-State Migrant Workmen Act form the crux of the Act in the backdrop of the Coronavirus pandemic and the nationwide lockdown:

S. 4(a): This section provides that the Act applies to every establishment that employs five or more inter-State workmen.

S. 4(b): This section provides that the Act is applicable to every contractor who employs five or more inter-State workmen.

S. 12: This section provides for the duties of contractors.

(a)       This subsection provides that the contractor shall furnish the particulars to the native state of the migrant worker and if any change occurs in the said particulars, such change shall be furnished to both the native and the host states.

(b)       This subsection provides that the contractor shall issue to every migrant worker, a passbook affixed with a passport size photograph of the worker and indicating in Hindi and English languages, and where the language of the worker is not Hindi or English, also in the language of the worker,

(i) the name and place of the  establishment of employment,

(ii) the period of employment,

(iii) the rate and mode of payment of wages,

(iv) payment of displacement allowance

 S. 16: This section provides for the duties of the contractor in connection with "Other facilities":

S. 16(c): This subsection provides that the contractor shall ensure suitable working conditions to the migrant worker having regard to the fact that they are having to work in a State different from their native State.

S. 16(e): This subsection provides that the contractor shall provide the migrant worker with the prescribed medical facilities, free of charge.

S. 16(g): This subsection provides that in case of a fatal accident or serious bodily injury, the contractor shall report to the specified authorities of both the native and the host States and the next of kin of the migrant worker.

 The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979: An Antiquated Law?

 There are a number of loopholes and shortcomings in the Act which make it rather difficult to implement and enforce in the scenario of the Coronavirus pandemic and lockdown.

 A sizable portion of the migrant workers in India is engaged in the informal sector. The work and employment in the informal sector are not always bound by employment contracts. There exists no employer-employee relationship. There may be establishments and contractors which may happen to employ less than 5 migrant workers. In such a case, as per S. 4(a) and (b), the Inter-State Migrant Workmen Act, 1979 becomes entirely inapplicable. During the Coronavirus pandemic and lockdown, the establishments and contractors that had employed less than 5 migrant workers are not legally bound by the Act. The Act also does not take into account workers such as vendors, street hawkers, and casual daily wage workers.

 The work and employment in the informal sector are not always bound by employment contracts. Even if the migrant workers are engaged in contract labour, they are shown as local workers with local addresses. This makes the contractors evade their duties and prevents the migrant workers from exercising their rights under S. 12 of the Act. Had S. 12 been implemented during the exodus of the migrant workers in the Coronavirus pandemic and lockdown, the Central and State Governments would at least have data of the migrant workers who had left for their native states.

 S. 16(g) does not provide for the registration and recording of the death of the migrant worker due to loss of job or employment, loss of shelter or starvation.

In case of such death of the migrant worker, S. 16(g) does not provide for compensation of the next of kin of the migrant worker, either by the contractor or the State or Central Government.

 Conclusion

 The Inter-State Migrant Workers Act, 1979 has not been implemented properly. The poor implementation of the Act cannot be blamed only on the overall sub-par execution on part of the executive authorities. It has a lot to do with the work culture of migrant workers that has undergone a paradigm shift in the last four decades. Such a change makes the Act difficult to implement and execute.

 The catastrophe of the exodus of the migrant workers and the loss of lives led the Central Government to consolidate and amending 13 labour laws including the Inter-State Migrant Workmen Act, 1979 under one Code, that is, The Occupational Safety, Health and Working Conditions Code, 2020.

 The Central and State Governments had no real mechanism to control and regulate the movement of the migrant workers because of outdated and poorly framed laws, rules and regulations. Having said that, we are discussing the loss of human life here. The Government should have shown some respect and humanity and held itself accountable for the death of poor, homeless, jobless workers who formed a majority of the most vulnerable sections during the Coronavirus pandemic and lockdown.

References and citations

 ●   The Inter - State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 https://indiankanoon.org/doc/62576675/

●      Kingshuk Sarkar, "Blame this archaic 1979 law for Modi govt's lack of data on migrants' death", (The Print, 23rd September, 2020) https://theprint-in.cdn.ampproject.org/v/s/theprint.in/opinion/blame-this-archaic-1979-law-for-modi-govts-lack-of-data-on-migrants deaths/508536/?amp_js_v=a2&amp_gsa=1&amp&usqp=mq331AQFKAGwASA%3D#aoh=16010187839041&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Ftheprint.in%2Fopinion%2Fblame-this-archaic-1979-law-for-modi-govts-lack-of-data-on-migrants-deaths%2F508536%2F

●    Dheeraj Mishra, "RTI Shows the Government Did Collect Data on Death of Migrant Workers During Lockdown" (The Wire, 17th September, 2020) https://m-thewire-in.cdn.ampproject.org/v/s/m.thewire.in/article/rights/centre-indian-railways-lockdown-deaths-migrant-workers-shramik-special-rti/amp?amp_js_v=a2&amp_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=16010204685956&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fthewire.in%2Frights%2Fcentre-indian-railways-lockdown-deaths-migrant-workers-shramik-special-rti

●      ArfaJavaid, "What is the Inter - State Migrant Workmen Act of 1979?" (Jagran Josh, 12th May, 2020) https://m-jagranjosh-com.cdn.ampproject.org/v/s/m.jagranjosh.com/general-knowledge/amp/migrant-workers-protection-law-1589300556-1?amp_js_v=a2&amp_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=16010190553740&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fwww.jagranjosh.com%2Fgeneral-knowledge%2Fmigrant-workers-protection-law-1589300556-1

●Occupational Safety, Health and Working Conditions Code, 2020 (Wikipedia) https://en.m.wikipedia.org/wiki/Occupational_Safety,_Health_and_Working_Conditions_Code,_2020

Author -

Vishakha Bhandakkar, student at New Law College, Bharati Vidya peeth (Deemed University) Pune.

 

Comments

Popular posts from this blog

MEDIA AS THE FOURTH PILLAR OF DEMOCRACY – FREEDOM OF PRESS

INDIAN MEDIA: YELLOW JOURNALISM VS AUTHENTIC JOURNALISM

The factories Act, 1948: Health, Welfare and working hours of adult’s.