India’s new labour codes fail migrant workers whose vulnerability was highlighted by lockdown crisis

The images of devastation faced by migrant workers in the aftermath of the Covid-19 lockdown imposed in March shook the conscience of the nation: the scale of the problem and the severity of the distress pushed this hitherto invisible population into the spotlight of public and policy attention.

More than 75 days into the lockdown, after the crisis had almost entirely played itself out, the government announced measures in the form of Shramik trains for workers to get to their home states and temporary ration supplies at their work locations. While these measures were helpful in providing immediate relief, the more systemic, structural reasons that precipitated this crisis in the first place – of informal work relations and exclusion from social protection – were completely ignored.

The revised labour codes passed by Parliament this week could have been a valuable opportunity for the government to make amends and provide dignity and meaningful social security to the millions of migrant and informal sector workers who had endured severe calamity. Instead, the labour codes weaken protection and accountability in ways that are likely to jeopardise the future of this highly vulnerable workforce.

State apathy

First, the provisions of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, have been subsumed into the Occupational Safety, Health and Working Conditions Act.

The need for a separate legislation that addresses the complexities of issues faced by migrant workers has been a long standing demand of groups working within this marginalised community. This demand has been primarily driven by the administrative, fiscal and political implications that their myriad types of movements and work arrangements have on labour and social policies. Indeed, these were the very issues that manifested in migrant workers being expelled from their jobs and homes, left to fend for themselves without access to food and wages in the wake of the lockdown. The recent calamity of such unprecedented proportions was an opportunity to understand the specific vulnerabilities of migrant workers and collect nationwide data on their precarity.

Instead, the state displayed its apathy by arguing that it had no data on migrant worker deaths or the closure of Micro, Small and Medium Enterprises during the lockdown. The fact that pervasive starvation, homelessness and unemployment was not thought of as sufficient grounds to enact a separate legislation for migrant workers, or at the very least, strengthen the existing Inter-State Migrant Workmen Act is a matter of great concern.

Second, a preliminary analysis of the provisions of Chapter XI, Part II of the Occupational Safety, Health and Working Conditions Code that pertains to migrant workers reveals that it is completely silent about those migrants who move within state borders or intra-state migrants. The Census 2011 data shows that 88% of internal migration – involving 39.6 crore Indians – moved within state boundaries. Twenty one per cent of such men and 2% of such women were labour migrants, although several studies, including the government of India’s Working Group on Migration have suggested that the Census grossly underestimates internal migration.

Evidence from the ground suggests that the vulnerabilities faced by intra-state migrants are not mitigated by remaining within state borders. For instance, migrants from Dahod, Gujarat, travel to Ahmedabad to perform hazardous construction while living in the open without access to water and sanitation. Despite being subject to exclusion and alienation in urban labour markets, based on class and ethnicity, intra-state migrants have been completely left out of the scope of the Code.

It needs to be acknowledged that the definition of inter-state migrant workers as per the new Act does widen the ambit beyond those who are recruited by contractors alone. It now includes any worker who has migrated on their own to another state, including self-employed workers. The Act provides for their registration on a portal that the Central government and the state governments have been mandated to set up.

However, the exact mechanism through which this will be operationalised and how the responsibilities related to registration would be implemented between the various governments (origin, destination and Centre) have not been clarified. There is no clarity on how the database will accommodate the heterogeneity of internal labour migration. They include daily-wage workers without a fixed employer; those employed in micro, survivalist enterprises; groups of workers who regularly move with a single contractor across states; self-employed workers, home-based workers, and more.

Falling through the cracks

The wage structures, employer-employee relationships, and required protections and securities are different for all these groups that cannot be addressed through a single imagination of data. If not spelled out in adequate detail and provisions clearly designed to ensure accountability, the registration of these workers are likely to fall through the cracks, as experience from earlier legislations such as the Unorganised Worker Social Security Act 2008 has shown us.

Moreover, the Central and state governments share the responsbility of maintaining a database of such registration. Over the last few months, we have witnessed a race to the bottom of labour protection when several states, including Uttar Pradesh, Gujarat, Rajasthan, and Himachal Pradesh suspended most labour laws in the guise of improving “ease of doing business”. It is unclear how states will be required or incentivised to maintain data on migrant workers.

It is true that migrant workers largely fall into the informal sector, for which provisions have been put into place in the Code on Social Security. However, these are tokenistic, and the Code continues to drive the wedge between formal and informal sector protections. For instance, under the Maternity Benefit Act, organised workers are entitled to 26 weeks of paid maternity leave at full wages, protection from dismissal, provision for a worksite crèche, in addition to a cash entitlement.

Under the Code on Social Security, however, maternity benefits only apply to registered factories, mines, plantations, and shops and establishments, which mostly have thresholds of 10 workers. As a result, unorganised sector workers, who are often found at smaller units and worksites, would be excluded from these benefits, having to rely instead on schemes like the Matrutva Vandana Yojna, which provides Rs 5,000 in cash but no protections from arbitrary dismissal or provision for paid leave.

Even the protections specifically put into place for migrant workers – minuscule as they are – only apply to establishments employing ten or more inter-state migrants. First, this threshold is twice as high as the threshold of five mentioned in the Interstate Migrant Workmen Act, 1979, implying that the government has drastically reduced coverage.

Second, while the 2019 version of the Occupational Safety, Health and Working Conditions Code stipulated that protections like displacement allowance, equality of working conditions, accommodation, medical facilities and evaluation would be provided independent of the number of migrant workers onsite, the 2020 version does away with this exemption, even for the portability of Public Distribution System (ration card) benefits. In other words, bare minimum provisions are subject to the increased threshold limit.

Regardless of the threshold magnitude, however, such categorisations are arbitrary and disconnected from reality. For instance, a mapping by Aajeevika Bureau of an industrial suburb of Mumbai revealed that the manufacturing units there employ six workers on average, and the employers, who also performed manual labour on the shopfloor, are migrants themselves. The government’s own data from the sixth Economic Census of 2013-’14 suggests that only 30% of India’s employment is in establishments of six or more employees. Who is accountable for the millions of workers in those worksites employing less than the threshold of ten stipulated in the Code?

The so-called migrant worker crisis during the lockdown was neither solely the product of the pandemic nor of (im)mobility. Rather, it was rooted in the systematic destruction of labour protections for hundreds of millions of informal workers over the last three decades of India’s economic growth. Without savings or social security in addition to being compelled to work hundreds or thousands of kilometers away from their homes – there was little left to do other than take to the streets and highways to protest this injustice.

By destroying labour protections (a large number of which are Constitutionally guaranteed to all citizens), the state has institutionalised the vulnerability of an already marginalised section of the population.

Divya Varma and Raghav Mehrotra work at Aajeevika Bureau, a nonprofit organisation that provides services and security to communities dependent on labour migration in India.

Kavya Bharadkar works at the Centre for Labour Studies in the National Law School of India University. The CLS focuses on labour law and policy research concentrating especially on the concerns of the unorganised sector.

Aajeevika Bureau and CLS are affiliated with the Working Peoples’ Charter, a network of more than 150 provincial, local organisations of informal workers.