24 National Legislative Framework for the Rights of the Migrants

LEARNING OUTCOMES

  • To give students an overview on the issues relating to migrants in the context of Human rights through national legislative framework protecting the rights of the migrant groups.
  • Give students a simplified presentation on the judicial interventions and directions pertaining to the protection of migrant rights.
  • To enable the students to understand the use of legal remedies in human rights violations of the migrants.

INTRODUCTION

Migrants often face human rights violations, discrimination, and exploitation even though migrants contribute to economic growth and human development in both home and host states. Migration has been an important tool for the migrants and their families to improve their standard of living and realize their human rights. The State’s role is to protect the human rights of all individuals including the migrants. Since the recent past, rampant human rights violations have been taking place which is a growing human rights challenge. Every government in the State/Country has the obligation to ensure that the migrants do not face hardships through violence, racism, exploitation etc.

A human rights approach to the migrants plays an important role to help them from the difficult situation of marginalisation and making them disadvantaged groups. Even though migrants with the country do have the sovereign right to get the benefits they are entitled to, they need to avail the respect, protection and also fulfil the human rights of all individuals in the State. It is also for the migrants from outside the country regardless of their nationality or origin if they have legally entered the region.

Human rights violations against migrants in the form of physical, sexual and economic exploitation and many a times there are no laws enacted to protect the rights of the migrants. In this context let us see what the rights are available for the migrants under the Indian system.

3. CONSTITUTIONAL PROVISIONS

The Constitution of India is most essential reference that needs to be made regarding the right of the migrants in India. After the partition of India there were number of migrants in India and Pakistan and hence in the Constitution, legal status was given to the migrants under the following:

Article 6: provides citizenship rights to migrants from Pakistan provided either of the person’s parents or any of his grandparents were born in India.

Article 7: Special provisions made regarding the citizenship rights of persons who migrated to Pakistan but returned to India subsequently.

Under the Article 15 of the Constitution, it categorically states that no individual shall be discriminated on the grounds of religion, race, caste, sex or place of birth which is applicable to the migrants as well. Article 19 (1) (d) & (e) grants citizens to move freely throughout the territory of India and to reside and settle in any part of the territory of India, thereby movement by the individual within the country is a constitutional right and this right is in addition to the right to personal liberty guaranteed under article 21 with reasonable restrictions in the general interest of the society. However this is limited to the migrants coming from other country to reside with restrictions.

Every migrant migrates with the intention to live with human dignity in a healthy environment; the Constitution provides guarantees rights to the migrants which can be learnt from the following table:

 

4. LEGISLATIVE PROVISIONS

Even though Constitution has some reference to the rights of the migrants under certain provisions, there is no major legislation enacted to protect the migrants living all over the country. As per the census of 2001, 98,301,342 million people moved for various reasons within the country out of which 14,446,224 million migrated for reasons of employment.

4.1 Legislative framework applicable for Inter State Migrants

One of the most important sectors which provide employment for these migrant workers in search of jobs is the infrastructure sector. Such an employment attracts a few welfare legislations like The Building & Other Construction Workers (Regulation of Employment & Conditions of Service) Act, 1996, The Contract Labour (Regulation & Abolition) Act, 1970 and The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 which have been enacted for the welfare and benefit of migrant labourers. But the lack of awareness of these workers accompanied by the absolute disregard about the welfare these labourers by the authorities of the State ensure unchecked exploitation of these workers violating all the legislations.

Government of India in 1979 enacted a special legislation for the Inter State Migrant Workers known as ‘Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979’. Under this law some of the special provisions and safeguards have been entitled for the interstate migrant workers apart from other labour legislations which is common for all are as follows:

  • All recruiting agents recruiting five or more persons in a State for the purpose of employing him in any establishment situated in another State are required to obtain a licence from the licensing officer of the originating State.
  • Registration of all principal employers/contractors employing migrant labourers.
  • Licensing of contractors – no contractor can recruit any migrant labourers without obtaining license from the appropriate government.
  • Issue of passbook affixed with a passport-sized photograph of the workman indicating the name and the place of the establishment where the workman is employed. The period of employment, rates of wages, etc. to every inter-state migrant workman.
  • Payment of minimum wages fixed under the Minimum Wages Act, 1948.
  • Payment of equal wages for inter-state migrant workmen performing similar nature of work along with the local labourers.
  • Payment of journey allowance including payment of wages during the period of journey which should be equal to the fare from the place of residence of the interstate migrant workman covering the cost of outward and return journey and wages during the journey period.
  • Every interstate migrant workman is entitled to a displacement allowance equal to 50% of the monthly wages payable to him or Rs. 75/- whichever is higher; this will be in addition to the wages or any other amount payable to him;
  • Providing for suitable residential accommodation.
  • Providing for medical facilities free of charge.
  • Providing for protective clothing.
  • Every contractor employing inter-state migrant workman that in case of fatal accident or serious bodily injury of such workman to report to the specified authorities.
  • The principal employer must nominate a representative to be present at the time of disbursement of wages to the migrant workman by the contractor.
  • Both the Central and the State Governments are required to implement the provisions of the 1979 Act in their respective jurisdictions.

However this act is not applicable to a migrant who comes on his own because the definition of the Act says “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”. [Sec 2 (3) (e)]

There are other labour laws complements in safeguarding the rights of the migrant workers which include the following:

4.2 Legislative framework applicable for emigrants

Under the India system emigration or employment abroad is taken care through a regulated system, which is mainly addresses temporary and contract migration. The Emigration Act, 1983 is the most important policy instrument that governs the emigrants who are also the citizens of the country who move to other countries basically for employment purposes. This law seeks to safeguard the interest and ensure the welfare of the emigrants from India. The enactment of Emigration Act, 1983 was to facilitate recruitment of Indian workers abroad on best possible terms and to regulate the conditions of employment. Some of the major features under the Act include:

  • Act has put in place definite structures for regulating the flows of unskilled and semi-skilled labour.
  • Under section 22 of the Act, all Indian citizens seeking to migrate for employment purposes must obtain emigration clearances from the Office of the Protector of Emigrants(POE), Ministry of Overseas Indian Affairs (MOIA). The POE while granting the emigration clearance, is required to examine the employment contracts to ensure that the terms and conditions are neither discriminatory nor exploitative and that provisions for travel, wages and working and living conditions are in conformity with the prescribed norms.
  • The POE is the registering authority
  • No person to function as recruiting agent, commence or carry on the business of recruitment except under and in accordance with a certificate issued in that behalf by the registering authority taking into account, inter-alia, the recruiting agent’s financial soundness, trustworthiness, adequacy of premises, and experience in the field of handling manpower export and after obtaining security fixed under the Act, in order to protect the emigrants from exploitation.

This Act tries to prevent emigrants from recruiting agents and sub agents who over charge and cheat them in the process of recruitment. However such problems are continuing in one way or the other. The recruiting agents indulge in visa trading and often poor migrants who consider migration as the only option for economic upliftment get trapped in such situations.

The Act prohibits sub-agents/commission agents from the system who play a major role which becomes unidentified and poor migrants are cheated and pushed into most exploitative occupations. We can see most recruitment offences reported in India are committed by these middlemen and broker agencies who work for the recruiting agents but they are not accountable for such violations. The Act in its current form is mostly regulatory in nature, which does not focus on other issues regarding the welfare of migrant workers and their families. Further, the MOIA over the years has initiated special measure to protect the emigrants through schemes and other indicatives which is discussed in Module 5.

5. LANDMARK CASE LAWS AND JUDICIAL OBSERVATIONS ON THE RIGHTS OF THE MIGRANTS

The Supreme Court and the various High Courts from time to time have given landmark judgments to protect the rights of the migrant workers. Courts have looked into social welfare of the marginalised and the plight of the poor workers in number of cases. Some important judgments we need to search on the issue of migrants are mostly refers to the migrant workers issues were continuous violation of their rights, claims and entitlements have been taken away and the courts have intervened to help the migrants to get what they have been deprived of.

In the most of the cases the Hon’ble Courts have observed that the State is under constitutional obligation to see that there is no violation of the fundamental right of the workers, majority of whom are migrants belongs to the weaker section who been deprived of minimum wages, better working and living conditions etc. exploiting by the employers and contractors. The courts have put the onus on the Central and the State Governments to ensure the observance of various social welfare and labour laws enacted are implemented for the purpose of securing with the Fundamental Rights and the Directive Principles of State Policy.

The poor migrant workers hardly able to approach the courts for relief on account of poverty or disability or socially and economically disadvantaged position and through Public Interest Litigations and suo motto basis cases have been brought to the courts. The following cases mentioned below Courts issued a number of directions to the concerned authorities and the contractors for the exploitations migrant workers face and gearing up the governmental machineries to observe and implement the labour laws meant for the welfare of the migrant workers.

6. SUMMARY

This chapter helped to get an overview on the issues relating to migrants in the context of Human rights through national legislative framework protecting the rights of the migrant groups. Even though there is limited interventions made in India in enacted laws for the migrants groups they have been significant development in bring new dimensions in protecting the interest of the migrants specially we looked at the judicial interventions which has given landmark judgments in uploading the rights of the migrant groups. The module also gives number of legislative solutions for the learners through legal remedies which can be implemented whenever there he/she finds human rights violations inflicted on the migrant groups.