This article has been written by Bhavya Verma from Jemtec School of Law, Greater Noida and curated by Yashasvi Kanodia from NMIMS’ Kirit P. Mehta School of Law, Mumbai.
“It is time for India to completely revolutionise its social security system and provide portability to its migrant workers,” said Junaid Ahmad, Country Director, World Bank in a discussion titled COVID-19 & The Future of Work, and facilitated by NITI Aayog Vice Chairman, Amitabh Kant.
Over the course of the 65-day lockdown, about 200 migrant workers died in road and rail accidents while on their way home. According to a report published in Hindustan Times newspaper, the demand for work jumped by 181% in May, with 36.1 million households wanting work.
Social security is a kind of natural right recognised by a legal right that acknowledges certain fundamental human rights for economically vulnerable people aimed at mitigating their sufferings and giving them a sense of place in society. India needs to revolutionize its social security system in order to respond to the new-age workforce that will arise after the COVID-19 outbreak, that has thrown millions of people out of work in addition to implementing sweeping structural reforms across industries and freeing industries such as start-ups and MSMEs from compliance, experts say. India, being the largest democracy postulates itself to be a welfare state and sadly, it is challenging for the executive to ensure that social security to everyone.
The International Labour Organization (ILO) is defined as an adopted notion of social security as it covers all measures providing benefits, whether in cash or in kind, to secure protection. The two main functional dimensions of social security, namely income security and availability of medical care is identified as essential elements of social security by the ILO Income Security Recommendation, 1994 and the Medical Care Recommendation, 1994.
Social security is different from the social arrangements as the benefits provided do not have any reciprocal obligation, like represent remuneration for work or other services delivered and it is not based on an individual agreement between the protector and provider, like life insurance contract rather it applies to wider people and has a collective character.
Articles 9 and 12 of The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognize the right to social security to everyone and list the necessary steps to be taken by the State Parties to achieve the full realization of this right. India ratified ICESCR convention on April 10, 1979 making it obligatory on the part of India to honour the said convention in its spirit and letter.
Article 23 of the Indian Constitution prohibits trafficking and similar forms of forced labour and Article 24 of the Indian Constitution prohibits child labour in factory. The Preamble of the Constitution of India establishes India as a Socialist state. According to the Hon’ble Supreme Court of India, the principle aim of socialism is to eliminate inequality of status, income, standard of living, provide decent life and to secure economic, political and social justice to all its citizens. The said objectives can be achieved by the DPSPs under Part IV of the Constitution such as under Articles 38, 39, 41, 42, 43 and 43-A. Besides these, Entries 21, 22, 23, 24 and 26 of Concurrent List i.e., Schedule VII authorizes the Government to take necessary steps for control and regulations of Commercial monopolies, trade unions, labour disputes, welfare and employment of labour to ensure protection of interest of all citizens of the country. Therefore, the Constitution ensures the citizens a political and civil right somewhat different from Human Rights.
In Orissa, Dadan Labour was in vogue which made for extremely bad working conditions for the labours. In the 28th Session of the Labour Minister’s conference, the question of protection and welfare of Dadan Labour was considered which suggested setting up a Compact Committee to dive into the whole question and suggest preventive measures in the system. Thereby, a Compact Committee was constituted in 1977 and recommended that a separate Central Legislation may be enacted as the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 would not adequately take care of the variety of malpractices. The inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Bill, 1979 was introduced in the Parliament and the same was passed as an Act in 1979. The Act requires licensing of these migrant labours at the time of joining the employment and prohibits engagement of migrant workers in the job without registration and ensures minimum wages to be paid with certain amenities.
The Unorganised Worker’s Social Security Act, 2008 came into force with an objective to provide welfare and social security to the unorganised workers and defines “unorganised sector” under section 2(m).The said Act is being considered as one of the major welfare legislations in India. Rashtriya Swasthya Bima Yojna is a scheme under the Act modelling as an alternative to universal healthcare. The scheme has faced several criticisms due to frauds and allocation of funds.
Several state governments, such as Uttar Pradesh and Madhya Pradesh, have proposed registration of migrant workers, a provision that is already in the law, and the Central Government is now planning to modernize the regulation by a new code. The High Courts of Allahabad, Bombay, Karnataka, Gujarat, Madras and Andhra Pradesh have given the lost voice to the migrant workers in this testing so far.
The Hon’ble Bombay High Court, while hearing a PIL after the death of 16 tired migrant labourers on a railway track, directed Collector from Marathwada to file a report within two weeks as to what steps could be taken for the migrant labours and asked the state to consider whether the migrant labourers can move their homes. The Hon’ble Karnataka High Court directed the government to pay transportation cost of migrant labourers while the Hon’ble Madras High Court asked the government to produce 400 Tamil workers stuck in Maharashtra and asked the Central Government questions about the measures to be taken. Andhra Pradesh HC stated that “If at this stage this court does not react and pass orders to protect the labourers, it will be failing as a protector and alleviator of suffering”.