The COVID-19 pandemic and subsequent lockdown exposed the vulnerability of the informal sector workers in India, particularly of inter-state migrant workers in big and not-so-big cities and urban centres.
Before the lockdown, they were engaged in casual and contract work and some of them were self-employed doing petty economic activities. The lockdown rendered them jobless overnight. Usually, they earn just enough to subsist and few even earn less than the minimum wages. Petty economic activities are not economically remunerative, and in most cases, do not even cover basic sustenance needs.
Under such circumstances, inter-state migrant workers with very little or no savings could not survive in the urban centres beyond a few days.
These inter-state migrant workers did not have enough money to pay rents or buy food. After few days, they started to leave the cities, and in absence of public transport, started to walk back to native places on highways, some as far as 2000 kms away. The country bore witness to these ‘long marches’ during the months of April, May and even June. Many such workers perished on the way. Seeing their plight, the central and state governments began operating special trains in May-June.
As hoards of migrants emerged on the roads and highways with their families and belongings, the urban middle and elite classes discovered that large number of inter-state informal workers were subsisting right amongst them. The roadside vegetable sellers, domestic workers, construction workers, rickshaw-pullers had been managing their livelihoods right in front of their eyes.
The privileged sections of the society almost did not notice the existence of these informal workers till the point the government announced the lockdown after COVID-19 cases started spiking rapidly in March. Fair to say that the urban middle classes struggled to grasp the enormity of the issue once those pictures of people of all ages walking on highways and chaotic scenes at bus and train terminals began appearing on their TV screens in their drawing rooms.
What does the ISMW Act 1979 do?
The most prominent legislation on internal migrant workers in India is the Inter-State Migrant Workmen (ISMW) Act 1979. This law was enacted to regulate the condition of service of inter-state labourers. Its purpose is to protect workers whose services are requisitioned outside their native states. Whenever an employer faces shortage of skills among the locally available workers, the Act creates provisions to employ better skilled workers available outside the state.
A State Labour Ministers’ conference held on 21 October 1976 recommended the setting up of a small compact committee to examine pertinent issues and suggest measures for eliminating the abuses prevalent in the interstate workers’ deployment. The compact committee, which was constituted in February 1977, recommended the enactment of a separate central legislation to regulate the employment of interstate migrant workers.
The committee felt that the provisions of the Contract Labour (Regulation and Abolition) Act 1970, even after necessary amendments, would not adequately take care of the variety of malpractices indulged in by the principal employers, contractors, sardars and others, and the required facilities to be provided to these workmen in view of the peculiar circumstances in which they are working.
The recommendations of the compact committee was examined in consultation with the state governments and the relevant central ministries. Thereafter, the Interstate Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 was passed by both houses of Parliament. The President of India gave his assent on 11 June 1979.
In addition to the general labour laws applicable to all workers, the interstate workers are entitled to displacement allowance, home journey allowance (including payment of wages during the period of journey), suitable residential accommodation, free-of-cost medical facilities, right to lodge complaint with the authorities within three months of any incident or accident, and other similar provisions.
The Act mandates that inter-state migrant workers be engaged only through contractors. The home states would have recruiting agents, while host states would have contractors. Both have to take approval in their respective states. There is an elaborate process regarding these kind of documentations at both states.
The Act mandates registration of all contractors who employ or employed five or more Interstate Migrant Workmen on any day of the preceding twelve months. All contractors registered under this Act are supposed to furnish the details of workmen periodically in such forms as prescribed by state government, and maintain the registers indicating the details of interstate workers.
They are also to make available for scrutiny by the statutory authorities, issue of passbook affixed with a passport-sized photograph of the workman indicating the name and the place of the establishment where the worker is employed, the period of employment, rates of wages, and other details to every inter-state migrant workman.
The act further mandates registration of all principal employers on whose premises inter-state workers are being employed by the contractors. Employers are to maintain the registers indicating details of interstate workers and make those available for scrutiny by the statutory authorities.
Every principal employer shall nominate a representative duly authorised by him or her to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representatives to certify the amounts paid as wages. Principal employer shall be liable to bear the wages and other benefits to interstate workers in case of failure by the contractor to effect the same.
Where does the ISMW Act fail?
As per the 1991 census, nearly 20 million people migrated to other states seeking livelihood. Within a decade, the number of interstate migrants doubled to 40 million persons, as per the census figures of 2001. It is estimated that there are at present around 80 million migrants, of which 40 million are in the construction industry, 20 million are domestic workers, 12 million working in illegal mines otherwise called small scale quarries, and others.
There is an underestimation of actual number of inter-state workers, since majority of such migrations remain undocumented. It has become very difficult to map inter-state migration, because the patterns have changed significantly over the years, particularly since the 1991 economic liberalisation. Alterations in the world of work and growing informalisation changed the way inter-state migration happened during the last two decades.
This ISMW Act has a record of very poor implementation over the years across states. This can’t be fully attributed to lax implementation of labour laws in India. There are certain aspects of this particular law which made implementation further difficult.
The main crux of the ISMW Act is Section 12, which specifies duties of contractors. This section states:
“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 the 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 States; (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.”
Had section 12 been observed in reality, we would have all the information related to inter-state migrant workers in our hands, at least with respect to the majority of cases of wage employment. But migration patterns have changed. There is no record of out-migration from the host states. Migrant workers are engaged in host states beyond the scope of contract labour. Even when they are engaged as contract labour, they are shown as local workers against their local addresses.
The mechanism, as enshrined in Section 12 the Act, has become redundant. Majority of workers migrate on their own without the help from contractors. Contractors do exist in host states, but they are not required to follow the provisions of Section 12, since migrant workers are employed as local contract workers. In the process, the identities of migrant workers also get disguised and diffused in legal parlance.
The entire architecture of migration as conceptualised in the Act has undergone significant changes over the years, and in the process, Section 12 has lost relevance. Along with it, documentation of inter-state migrant workers and associated provisions of certain benefits as postulated in the Act also went into disuse. States, both home and host, found it very difficult to implement the provisions of Act.
Thus, the fact remains that inter-state migrant workers are presently bereft of any legal protection worth its name. This is because of not only poor implementation of the existing legislations, but also because of significant changes in the ways migration happen in post-liberalisation India.
Framework of migration
Migrations that happen now are mostly distress migration. In the absence of viable livelihood opportunities in rural agricultural sector (both farm and non-farm), workers move towards big and middle cities which have high concentration of industries and a sprawling urban informal sector.
Most of the out-migrations happen from Uttar Pradesh, Bihar, Madhya Pradesh, Jharkhand, Chattisgarh, West Bengal, and Odisha. Workers from these states move to the National Capital Region (NCR), Punjab, Haryana, Gujarat, Maharashtra, Karnataka, Kerala, and Tamil Nadu for work and mostly get absorbed as informal workers. Sizeable among these are construction workers and those in urban informal sectors. Most of these workers migrate with families. Women members work as domestic workers.
Migration network operate through kith and kin and through close acquaintances. Words of mouth have an important role. Barring a few established construction companies, contractors in home states do not have any significant role to play.
Contractors in host states do engage these workers as contract labour, but their migrant status remain implicit. Quite a significant number of such inter-state migrant workers are self-employed and engaged in petty economic activities in cities. Employer-employee relations do not exist and the ISMW Act is not applicable in such instances.
Economic imperative behind such migrations are to be found in occupational distribution across sectors, read with sectoral distribution of national income. In 2019, 43.21 percent of the workforce were employed in agriculture, while the secondary sector employs 24.89 percent, and the service sector employs 31.90 per cent of the workforce.
The share of Indians working in agriculture is declining, but it is still the main source of employment. Employment elasticity of the secondary sector is very low and this sector could not absorb the excess labour released from the primary sector in any significant numbers. A part of such excess labour ended up as urban informal sector in the tertiary sector, as well as workers eking out livelihoods through petty economic activities.
The sectoral distribution of income shows that approximately 18% of the GDP is from agricultural sector, 30% from industrial sector and 52 % from services sector. Given the occupational distribution, this implies that large number of workers are still stuck at primary sector, indicating huge underemployment and low productivity.
Service sector is comparatively much more productive, but without corresponding growth in secondary sector, this may not be sustainable in the long run. The service sector ground to a halt immediately after the lockdown was announced, rendering thousands of inter-state migrant informal sector stranded without any form of legal protection.
Radical overhaul needed
The migrations that happen today are not contractor-guided, as postulated in ISMW Act. The mechanism has changed significantly from mid-seventies to late-nineties and onwards. The role of contractors and agents in migrations have declined and migrations are mostly distress migrations that happen on its own through closely held networks.
Further, inter-state migrant workers keep on moving from one place to another across states in search of better livelihood opportunities. This phenomenon is described as footloose workers in literature and it is very difficult to document such migrations within the framework of ISMW Act 1979.
Essentially, it has become very difficult to capture the essence of contemporary migrations through the existing labour legislations and particularly through the ISMW Act. This particular piece of legislation needs radical overhaul to become relevant in the present context.
Views expressed are the author’s own.
Dr Kingshuk Sarkar is an independent researcher and works as labour administrator with the Government of West Bengal. He was former faculty at V V Giri National Labour Institute, Noida. He can be contacted at firstname.lastname@example.org.
Featured image: A worker in the Marakkanam Salt Pans, Tamil Nadu | Nithi Anand, Flickr
Dr Kingshuk Sarkar is an independent researcher and labour administrator with the Government of West Bengal. He earlier served as a faculty member at the V V Giri National Labour Institute, Noida and the National Institute of Rural Development and Panchayati Raj (NIRD), Hyderabad. He can be contacted at email@example.com.