Blame this archaic 1979 law for Modi govt’s lack of data on migrants’ deaths

Instead of having no numbers at all, the Modi government could have come up with some data by collating those that are available in the public domain.

A migrant family walk to their village in UP amid the nationwide lockdown | Photo: Arun Sharma | PTI

The Narendra Modi government’s reply in Parliament that it had no data on death of migrant workers during the lockdown seems harsh and insensitive, but a deeper analysis would reveal that the government, indeed, has no legal mechanism to keep track of such developments. Not just in times of pandemic, even during normal times, the government is oblivious to the happenings of the labour market in the informal sector. 

Indian Union Muslim League’s K.Navaskani and Congress’ Balubhau and Adoor Prakash asked the government if it had provided any compensation/economic assistance to the victims’ family. To this, the Union Ministry for Labour and Employment in a written reply said: “No such data is maintained”, and that the answer to the question on compensation “does not arise” since there is no data. When asked if it has done any assessment of job losses among migrant workers due to the Covid-19 crisis, the government again replied, “No such data is maintained”.

The architecture of inter-state migration has changed significantly over the last three decades. India enacted Inter State Migrant Workmen (ISMW) Act 1979 in late seventies. The context and premise on which the ISMW Act 1979 was formulated, underwent fundamental changes in later decades. In the present scheme of things, migrations are not mentored as such by contractors in home or host states. Migrations are set free and happen because of the human quest for finding employment elsewhere. The State does not have a mechanism to monitor or regulate migration as such. So, migration is a voluntary phenomenon in a deregulated labour market.

The legislation lacuna

The ISMW Act 1979 has a record of very poor implementation over the years across states. This can’t be fully attributed to overall lax implementation of labour laws in India. There are certain aspects of this particular Act that made its implementation further difficult. The main crux of ISMW Act 1979 is Section 12, which specifies duties of contractors. It states that “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 and implemented in reality, we would have all the information related to inter-state migrant workers at hand, at least with respect to majority of cases of wage employment. But migration patterns have changed a lot and 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 of the ISMW Act 1979 has become redundant. Majority of workers migrate on their own without the help of 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 ISMW Act 1979, has undergone significant changes over the years and Section 12 has lost its relevance. The documentation of inter-state migrant workers and associated provisions of certain benefits as postulated in the Act have also gone into disuse. States, both home and host, find it very difficult to implement the provisions of the ISMW Act 1979.

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 that have concentration of industries and sprawling urban informal sector. Most of the out migrations happen from states such as Uttar Pradesh, Bihar, Madhya Pradesh, Jharkhand, Chhattisgarh, West Bengal and Odisha. Workers from these states move to Delhi-NCR, Punjab, Haryana, Gujarat, Maharashtra, Karnataka, Kerala, Tamil Nadu and mostly get absorbed in the informal sector. Sizable among these are construction workers. Most of these workers migrate with families. Women often work as domestic workers.

Migration network operates through kith and kin and through close acquaintances. Word of mouth has an important role to play. Barring 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 remains implicit. Quite a significant number of such inter-state migrant workers are self-employed and engaged in petty economic activities in big cities. So, the employer-employee relations do not exist and the ISMW Act 1979 is not applicable in such instances.

What the govt could have done

Under such circumstances and given the prevailing pandemic situation, from the techno-legal perspective, it is not surprising that government did not come up with data regarding death of migrant workers. Moreover, the central government is not the appropriate agency with respect to informal sector labour and can skirt this issue from a strict legal point of view. Labour is a subject in the concurrent list and the matter of the informal migrant workers fall under the respective states’ jurisdiction. However, here we are dealing with an unprecedented human tragedy and deaths of migrant workers were widely reported in all forms of media. Government could have shown a bit more empathy and come up with data by collating those from the public domain. We are discussing human lives here, not mere loss of property or inputs in production function. Human lives deserve a better consideration, particularly in times of crisis.

Kingshuk Sarkar @Kingshuk0804 is an independent researcher and works as labour administrator with the Government of West Bengal. He was a former faculty at V V Giri National Labour Institute, Noida. Views are personal.