A Legal Analysis

“They were willing to work all the time, and when people did their best, ought they not be able to keep alive?” 

–Upton Sinclair 

Two men were found dead in 2016, in a water tank at the Anna University Campus in Chennai, hired to seal off an air leakage issue. The deaths were compensated and the world went on. The recent outbreak of novel COVID-19 painted a worst picture when migrant workers had to move back to their hometowns due to enforced lockdown, reminiscent to the 1947 partition diaspora. UN while studying the impact of pandemic on migrant workers also commented that India lacks comprehensive data on the subject. Where migrant workers serve as the backbone of the nation’s economy, they lack residency rights, representative rights, identity proofs, inadequate pay and extreme vulnerability to health hazards. This fallibility of country’s governance caused the episode of April, 2020. 

The principle behind constitution of labor law, articulated by Manfred Weiss was to create an “interplay between collective self regulation and legislative intervention” to prevent the bargaining power inequality. However, the implementation seems to have failed the purpose for the unorganised sector of labor stands witness to the contrary. Several migrants died from starvation, disease, exhaustion, police brutality and unavailability of healthcare and medication. The inconsistency of labor laws with ILO standards, concerning the occupational health hazards and lack of implementation of existing proviso is accountable for the COVID-19 lockdown migration catastrophe. 

What are the risks? 

As migrant workers are engaged in 3-D jobs; dirty, dangerous and demanding; without adequate training, or equipments (at times). Migrant workers are exposed to numerous environmental hazards. They are subject to extreme weather conditions, lightening strikes, heat-related illness and death, snake bites, and tick-borne diseases etc. As per ILO reports, by 2030 the population of migrant workers in India affected by heat stress would shoot up to 5.80% from 4.31% in 1995. The exposure to harmful chemicals and pesticides also result in demise of several workers. Alongside, the physical working conditions and workplace demand, without proper equipments and training result in further life endangering occupational hazards, access to health care is the most challenging one. Migrant workers lack access to healthcare, more so the undocumented, unauthorised labor. They are poor and have limited knowledge of governmental schemes and lack personal documentation necessary for such government offered benefit registrations. It was reported that several state ration stores regard the ration cards of such migrant workers, invalid, causing starvation. Language barriers also restricts accessing health care benefits. The lockdown in lieu of COVID-19 thus exposed the lack of implementation of ISMW, exposed policy lapse, lack of social security to the migrant workers on move and poor access to governmental schemes. 

Factor responsible for staggering exodus-

India does not have exact account of migrant labor. The number of unorganised labor is huge, making it difficult to form efficient policies and take successful steps. Due to this lacunae, the sudden enforcement of lockdown under Disaster Management Act, with stringent penalties turned against the government and health of nation. The sudden enforcement of lockdown lead to employers shutting down work, leading to no wages and source of livelihood for the labor. This emergency caused remigration back to native places for which modes of transportation were not available due to lockdown suspension. The necessity of re-migration for survival lead to mass movement on foot leading to spread of COVID and many deaths of migrants due to malnutrition and unavailability of healthcare. Alongside, though multiple governmental schemes are available, however they render worthless without proper implementation and knowledge.

Laws in India- an analysis 

India have had several provisions to substantiate occupational health hazard. Te constitution of India, alongside right to life and livelihood also have directive principles of state policies tho endorse certain practices to minimise health hazards. Article 39 and 39A directs the state to formulate policies pro gender neutral right to livelihood, health and strength of workers. Article 41 provides for unemployment, old-age, sickness and disablement related assistance. Article 42 requires the workplace condition to be just and humane. Article 43 lays down that the working conditions and wages should be sufficient to lead a decent living standard with availability of favourable social and cultural opportunities.

In pursuance to the recommendations of National Commission on Labour Occupational Safety, four central labor laws came into effect; Health and Working Conditions Code, 2019 (OSHWCC), Labour Code (Wage Code) 2019, Social Security Code 2020 and Industrial Relations (IR) Code, 2020. Concerning ourselves with OSHWCC, there yet are several shortcomings. The act under section 21 provides for self-registration to curb the persisting issue of undocumented, unauthorised migrant worker. It does not consider that most of migrant workers are not literate. As per UNESCO study, 28% of migrant adult is illiterate, therefore rendering the proviso worthless.

As no internet facilities or technology is readily available with the migrant workers, they are incapable of self-registering. Section 25 though requires employers to pay for travel charges, however concerning Interstate migrant workers, the scope of the section is too narrow and specific. It does not provide for any compensation for travelling back to home-state for the workers. Alongside the code under  section 2(u)(i) (ii), 2(u) (v) and 2(zt) have very narrow scope; a narrow coverage of the list of industries to adhere to this act and office locations. It leaves out numerous economic establishment as it leaves out the sectors with less than 10 workers, with the reason of monitoring issues. Such narrow scope goes against the directive principle and ILO declaration of National Policy on Safety, Health and Environment at Workplace, 2009, to ensure fundamental human rights and safe working environment. The code also has drafting issues as it uses the word “employee” and “worker”interchangeably. 

Post the lockdown exodus in 2020, Government now in July 2021 declared a “One Nation – One Ration Card”, so that an Inter-State Migrant Worker could avail ration in any state facility, where multiple people starved to death due to denial of ration in 2020. There are yet no provisions in the code, in-line with ILO principles for employer responsibilities for interstate workers, outside workplace, such as access to healthcare and accessibility of food. 

Conclusion 

The above analysis clarifies that code still suffers from numerous shortcomings. The lack of implementation initiatives and solutions also serve as serious shortcoming. Further, central laws for inter-state regulation in itself serves as a challenge as state laws need to make further additions and changes in accordance with the code. The lockdown should have been enforced with prior notice and should’ve allowed time for migrants to return home. Also, the delay in reaction from the government post outbreak of the plight lead to further depreciation in the condition. Laws which are formulated post crises are specific, however in ways going against the motive of the code. Further efforts should be made to make workers more aware of their rights and available schemes. Efforts should also be made to ensure enforcement of the provisions under OSHWCC. With ILO and directive state principles incorporated in the code, the code can be made better and more in lines of benefitting migrant workers.  

References

1. Sinclair, U., n.d. The jungle. 7th ed. New York: Penguin Books, Chapter 10.
2. Nations, U., 2021. Researching the Impact of the Pandemic on Internal Migrant Workers in India | United Nations. [online] United Nations. Available at: <https://www.un.org/en/academic-impact/researching-impact-pandemic-internal-migrant-workers-india> [Accessed 29 October 2021].
3. Suresh, R., James, J. and R. S.j, B., 2020. Migrant Workers at Crossroads–The Covid-19 Pandemic and the Migrant Experience in India. Social Work in Public Health, [online] 35(7), pp.633-643.
4. Davidov, G. and Langille, B., 2013. The idea of labour law. Oxford: Oxford Univ. Press, pp.104, 105.
5. Kumar, S. and Choudhury, S., 2021. Migrant workers and human rights: A critical study on India’s COVID-19 lockdown policy. Social Sciences & Humanities Open, 3(1), p.100130.
6. C. Moyce, S. and Schenker, M., 2018. Migrant Workers and Their Occupational Health and Safety. [ebook] Annual Review of Public Health, pp.351-365. Available at: <https://doi.org/10.1146/annurev- publhealth- 040617- 013714> [Accessed 29 October 2021].
7. Ilo.org. 2019. Working on a WARMER planet: The impact of heat stress on labour productivity and decent work. [online] Available at: <https://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/—publ/documents/publication/wcms_711919.pdf> [Accessed October 2021].
8. Constitution of India, Article 39- Certain principles of policy to be followed by the State.—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; (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; (d) that there is equal pay for equal work for both men and women; (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 39A- Equal justice and free legal aid.—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. 
9. OSHWCC, Section 21.(1) For the purposes of this Code, the Central Government and the State Government shall collect, compile and analyse occupational safety and health statistics in such form and manner as may be prescribed. (2) The Central Government and the State Governments shall maintain the database or record, for inter-State migrant workers, electronically or otherwise in such portal and in such form and manner as may be prescribed by the Central Government: Provided that an inter-State migrant worker may register himself as an inter-State migrant worker on such portal on the basis of self-declaration and Aadhaar; Provided further that the workers who have migrated from one State to any other State and are self-employed in that other State may also register themselves on that portal. 
10. Pathak, V., 2021. Literacy levels in rural India suffer due to migration, finds UNESCO study. [online] The Hindu. Available at: <https://www.thehindu.com/news/national/literacy-levels-in-rural-india-suffer-due-to-migration-finds-unesco-study/article25541258.ece> [Accessed 29 October 2021].

Aishwarya Says:

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