Social Security Schemes And Migrant Workers - Legal Challenges And Opportunities
Author: LawSphereX
Category: Labour & Employment
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SOCIAL SECURITY SCHEMES AND MIGRANT WORKERS:
LEGAL CHALLENGES AND OPPORTUNITIES
Khushi Bhagat, BBA LLB, University of Engineering & Management, Kolkata
ABSTRACT
The term "human migration" describes the transfer of individuals between locations with the intention of settling there, either long-term or short-term, for a number of reasons. The Constitution of India guarantees it’s citizens the right of freedom to movement. According, to Article 19 clause (1) subclauses (d) and (e), all citizens are free to travel throughout India’s territory as well as the right to live and settle anywhere on the country, contain the core ideas of free migration. Many migrant workers in the current global context—especially women and irregular workers—are either not covered at all by social security and other social safety programs, or they are covered extremely inadequately. Migrant labourers are the lowest and most vulnerable group of workers in India since they are susceptible to a variety of health issues and do not have access to social security benefits.
Many barriers prevent migrant labourers from accessing government health treatments. Among these are a lack of confidence or mistrust of the healthcare system, a language barrier, cultural bias, living far from hospitals, not knowing where medical facilities are, and patriarchy's domination. In host countries, migrant labourers' human rights are frequently disregarded and they are frequently viewed as non-citizens. The first section of this article examines various national techniques that can be used to offer social security to migratory workers in low-, middle-, and high-income countries. These strategies include joining the social security systems of both the countries where the workers are employed and their homes.
In regards to social security and health rights, the author of this article examines the various forms of discrimination and human rights violations that Indian migrant workers encounter, along with suggestions for how society might advance these rights. Keywords: Social security, Migrant worker, Human rights, Migration, Sustainable development, Social protection.
INTRODUCTION
In general, the word "migration" refers to moving from one location to another. Due to the fact that the word "migrant" comes from the word "migration," a migratory worker is someone who relocates for work. For most Indians, agriculture is their primary source of seasonal income. These labourers migrate for a variety of reasons, including seasonal fluctuations, natural disasters, and the failure of agriculture as a result of these events, since they are unemployed during these periods. Because they are migrant labourers, they must deal with numerous challenges. These labourers, who are often referred to as "blue-collar workers," migrate to big cities in search of more lucrative employment possibilities, including Delhi, Bangalore, Mumbai, Ahmedabad, and Chennai. 1 Migration is becoming a more significant issue in our economy that is becoming more globalized.
One potential remedy for labour shortages is migration in countries of destination and typically provides access to relatively cheap labour. For nations of origin, migration offers numerous benefits, including a decrease in underemployment and the possibility of reimbursement. Interstate migrant workers receive little social protection or health treatment, despite the fact that a sizable portion of them live in hazardous environments and face several health hazards. A significant portion of them reside in housing complexes and labour camps with unsanitary conditions. The majority of migrant labourers, particularly those employed in construction, are housed in cramped quarters with the barest of amenities. Due to their inadequate access to healthcare, migrant workers are contributing to the spread of the disease.
Many migrant workers have multiple health issues as a result of working overtime. In order to guarantee that migrant workers can effectively manage their risks, specific social security safeguards are needed for their normal life cycle. They travel between States, which results in them moving between various labour markets and social security systems, giving rise to unique vulnerabilities. Because they do not have access to social security or other basic services, there are serious concerns about the vulnerabilities of migrant workers who travel across states. Lack of rights and privileges is a big problem for migrant workers. Employers of migrant labourers as well as state or federal government agencies pay little attention to providing welfare benefits to them. The current legal and social security safeguards are not well known.
Social security, welfare, and health care programs are inaccessible to migrant labourers. 2 But the social effects 1 Asst. Prof. Vidhya Shetty; “Interstate Migrant Workers in India–Vulnerability in respect of Social Security and Health Rights”; Volume-I, Issue-I; 1; (2022). 2 Jacob John, Naveen Joseph, Thomas, Megha Jacob, Neha Jacob; A Study on Social Security and Health Rights of Migrant Workers in India; October 2020.
of these increasing migratory flows are now more noticeable, especially in wealthy nations. The truth is that social security and other social safety programs are frequently unavailable to many migrants, especially women, in both their country of origin and their place of employment.3
RESEARCH METHODOLOGY
Since the goal of this article is to comprehend legislative frameworks, regulations, and their effects on migrant workers, a qualitative method is taken. The goal of the descriptive and analytical research is to outline the opportunities and legal challenges associated with social security plans as they currently exist. Secondary sources, such as books, papers, and academic journals that examine social security, labour laws, and migratory workers' rights, as well as primary sources, such as national legislation, policy studies, and government guidelines, are also consulted.
REVIEW OF LITERATURE
There isn’t many research on Indian migrant workers' access to social security. People showed bad behaviour when it came to obtaining health care, and Shwetha and Prasad (2018) found that people put off getting medical help when they were sick. Manas (2018) claims that migrant labourers in India who work across state lines are excluded from numerous social and development initiatives. As per the Working Group on Migration Report (2017) by the Government of India, migrants are vulnerable to many health risks, including infectious diseases like tuberculosis and malaria. Additionally, they are at risk for occupational health hazards like allergies, lung and kidney infections, back issues, malnourishment, and sexually transmitted diseases like HIV.
According to Simi Sunny, there aren't many social security options available to migrant workers in India in her article "Social and Economic Integration of Migrant Labour: A Policy Response. " While social security programs have been implemented in numerous nations worldwide to support vulnerable internal and transnational migrants. Milind Babar (2011) talked about the different obstacles that cross-state migrant workers face when trying to get government health care. Among these challenges are a lack of confidence or fear of the healthcare system, problems with the local tongue, cultural prejudice, a lack of knowledge about the availability of healthcare facilities, and the prominence of patriarchy. Ajoke Akinola et al. (2014) conducted 3 Wouter van Ginneken; Social Protection for Migrant Workers: National and International Policy Challenges; Volume 15 No. 2; (2013).
an ethical and human rights-based review of interstate migrant workers' access to public health services. Manoj and Viswanath (2015) investigated migrant workers' health issues. They discovered that the congested living conditions of migrant workers lead to a higher risk of infectious illness transmission. The availability of sanitary facilities is problematic. In their study "Protecting and Integrating Migrant Workers in ASEAN Social Security Systems," Marius Oliviera and Avinash Govindjee suggest that low-skilled migrant workers can be better protected and integrated into Southeast Asian social security systems. 4 Apart from the above stated literature other research work does not suggest any critical changes in reference to the rights of social welfare, economic welfare, security and health benefit that are available specifically to migrant workers.
Numerous research on the numerous issues facing migrant workers are conducted on a national and international level. Nevertheless, research on the main obstacles to the social security program and the migrant population's access to healthcare in India has not yet been conducted.
MIGRATION RELATED VULNERABILITIES
1. Difficult Living Conditions: In order to save money on daily transportation costs to get
to work, the migrants must arrange for a place to live for themselves and their family close to their place of employment. Often, they must travel from far-off native villages and homes from other states. The migrants are compelled to pay more rent due to the high demand for this type of housing, and they must live in cramped, dirty circumstances without basic services like water and sanitary facilities. People without access to accommodation spend the night on bus stations, train platforms, and city sidewalks.5
2. Problems Relating to Food: They face financial hardship in addition to food insecurity.
Migrant workers are not eligible for subsidized food in the cities where they work since their ration cards stay with their families in their home towns, making them perceived as "outsiders" who cannot use the ration cards registered elsewhere. As a result, migrants have to spend a larger portion of their income on food than the local
4 Ibid at 2.
5 Marius Olivier and Avinash Govindjee; Labour Rights and Social Protection of Migrant Workers: In search of a Co-ordinated Legal Response; 13-15 June, 2013.
impoverished. Additionally, because they lack formal local residency documents, they are unable to obtain valid gas connections, forcing them to either purchase gas cylinders at significantly higher prices or use wood as cooking fuel.6
3. Financial Problems: Because their job is largely informal, migrant workers are required
to put in long hours for pitiful wages. Because of their irregular earnings and informal work circumstances, they are dependent on their employers and lack employmentrelated security.
4. Lack of Healthcare Facilities to the Migrant Workers: In many cases, migrants are
ineligible for state-subsidized healthcare in the city's public hospitals because of their place of origin. Their primary source of income is a daily pay, therefore they also lose out on productive work time in government hospitals because of long wait times, complicated procedures, inaccessible facilities, and a "hostile environment."7
5. Absence of Social Security Benefits: Due to their reduced social security benefits,
foreign workers face difficulties. Provisions such as minimum wage regulations, sick pay, overtime, and breaks are not enforced because the employee has no legal remedy.
6. Challenges due to Cultural Differences and Discrimination: Migrant labourers
encounter difficulties stemming from cultural disparities even outside of their workplace, as their place of origin is distinct from the area of employment. Prejudice or anger of migrant workers who take employment that are available feeds the myth that residents are "sons of the land".8
MEASURES ADOPTED BY THE GOVERNMENT
The Interstate Migrant Workmen Act of 1979 was passed by the Indian government in 1979. This particular statute provides interstate migrant workers with a number of aid programs, but its administration is opaque and lacking monitoring.9 Cesses, which are imposed in compliance with the Building and Other Construction Workers Welfare Cess Act of 1996, serve as the primary source of financing for the Building and Other Construction Workers Welfare Board at a rate of one percent of the construction costs that are covered by the employer. The Central Government is the central sphere's implementing agency, responsible for upholding the different aspects of the Act. States that fall under state authority
6 Ibid at 1.
7 Ibid at 1.
8 Ibid at 1.
9 Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act; 1979; (June 11, 1979)
act as the implementing authorities. State governments must create regulations, publicize them, appoint advisory or expert panels, and designate different organizations for worker registration, payroll taxes, inspection, and appeals. They also have to form State Welfare Boards. The aforementioned BOCW Act was changed on December 29, 2017, making it easier for construction workers to register. In order to maintain the effectiveness of the Board, The financial procedures of the State Welfare Boards will be made simpler, and money for administrative and other purposes will be available. 10 The National Social Security Board will advise the federal government on the creation of social security systems for unorganized workers, according to the statute.
These programs tend to provide life insurance with provision for disablements, health benefits, maternity relief and protection from old age or any such benefit that Government might think appropriate. On August 18, 2009, the National Social Security Board was established in response to the Act's implementation. To ensure that workers can get benefits from the system, businesses and employees must register in accordance with the previously mentioned regulations. In practice, registration becomes the only way to get social security benefits, and the state must set up a beneficiary registration system that is user-friendly, quick, and effective. 11
COVID-19 AND ITS IMPACT ON MIGRANT WORKERS
Migrant labourers, a large number of whom are employed in India's unorganized industries, have faced unimaginable suffering as a result of the COVID-19 outbreak. When a sudden statewide lockdown was declared to combat the spread of COVID-19, these migrant workers were left stuck in the cities where they worked, unable to return to their home countries and without any socioeconomic or health security. Their vulnerability was exposed by pictures of desperate economic migrants attempting to return home on foot while facing several challenges such a lack of transportation, the risk of starvation and despair, fear of the COVID-19, discrimination from society, and antagonism from the government. Administrative obstacles, poor communication, and little information about immunization centres delayed the poor migrants' access to Covid-19 vaccines.
In addition, they were unable to register online for slots without smartphones. 12
10 The Building and Other Construction Workers (Regulation Employment and Conditions of Service) Act
(BOCW (RECS) Act); 1996 and the Building and Other Construction Workers Welfare Cess Act (BOCW Welfare Cess Act); 1996.
11 Unorganized Workers’ Social Security Act, 2008; (May 16).
12 Shahra Razavi; Making the Right to Social Security a Reality for All Workers; (2022); 275-280.
In addition, the Indian government has implemented several initiatives to safeguard migrant labourers in the aftermath of the outbreak. 13 Following the lockdown, the Pradhan Mantri Garib Kalyan Yojana was unveiled, providing a cash package of Rs. 1. 7 lakh crore to assist the unorganised sector workers and the poor and destitute citizens of the country. The PM SVA Nidhi Scheme was created to help almost 50 lakh street vendors restart their businesses by offering working capital loans up to Rs. 10,000 with a one-year term and no collateral requirements. Garib Kalyan Rojgar Abhiyan Pradhan Mantri: This effort, which was started in 116 districts across the nation, is to facilitate job searches for migratory workers who have returned to their home state. State migrant cell: The Migrant Workers' Cell is creating a database on migrant workers in states that have mapping.
e-Shram Portal: The purpose of this national database is to list all unorganized labourers in the country, including migratory labour. National migrant workers policy: To reevaluate labour-capital relations and incorporate migratory workers into the formal workforce, NITI Aayog has been charged with creating a draft national migrant workers policy.
SUGGESTIONS
For migrant workers to have access to entitlements and essential services, a coordinated national policy must be developed. The State is required to implement specific, tangible measures through its many ministries, particularly those dealing with labour, social welfare, health, and housing. Every State must include its panchayats, municipalities, and municipal corporations in addressing the several facets of migration-related challenges. State and Central governments may both create immigration policies for the entire country of India. It is necessary to improve and restructure certain central programs, such the Pradhan Mantri Garib Kalyan Yojna, as block grants to state governments. Additionally, the NHM14 and NDHM15 frameworks, in particular, may highlight the health needs of migrant workers as a priority for the public health care system. For interstate
13 Ibid at 1.
14 National Health Mission.
15 National Digital Health Mission.
cooperation, robust and adaptable methods are essential. India needs a system for interstate coordination, and the Interstate Migration Council can strive to ensure the welfare and safety of migrant workers. It might simplify the registration procedure for health centres and government hospitals. Establishing health camps and providing health cards is a positive step in providing migrant workers with health care services. Health cards comprising all of the personal data, including identifying information, may be provided to all migrant workers. The Indian government has announced that as part of the NDHM, every individual will obtain an ID card with all relevant information about their medical conditions. It might give migratory workers access to the advantages of several social welfare programs.
It is necessary to enforce current laws that are pertinent to the wellbeing of migrant workers who travel across state lines. To grant them access to social protection and health services, more legislation is also required. For local workers, access to and involvement in these programs is currently frequently restricted. It is advisable to pass a workable law to handle migrant workers' vulnerabilities and local community issues in host states related to interstate migrant workers. All interested parties may be consulted before laws are enacted. Enhancing mobility may motivate migrant workers to enrol in social security programs. One issue that migrating workers deal with is that their original ration cards aren't accepted in other states.
The PDS should be made available to migratory workers by allowing them to enrol and be mobile, since many of them were not covered by the National Food Security Act. The government ought to institute roving PDS, Antyodaya, and more food entitlements to tackle the problem of food insecurity. The public distribution system's mobility has been proclaimed by the Indian government. Irrespective of their employment position, all migrant labourers should be able to access portable health care services by self-registering. One of the first priorities should be to begin drafting comprehensive health legislation. Enrolling migrant workers automatically should be a feature of both state and national health insurance systems, such as Ayushman Bharat. It may be worthwhile to establish specific drug distribution facilities in regions where there is a high migratory worker population.
Municipalities and panchayats may take the lead in setting up medical camps and enrolling migrant workers from other states. These tasks can be completed in conjunction with the neighbourhood police department. Periodic special health camps should be held in collaboration with charitable hospitals. For the purpose of planning such events, the National Rural Health Mission (NRHM) program's
advantages may also be used.16
CONCLUSION
India needs to make public health and welfare services suitable and appropriate for migrant labour. Social security should be conceptually and materially enhanced by the government. Public health organizations need to encourage and develop more "migrant-friendly" services. It is vital to expand outreach programs and other mobile health services that are provided onsite and can provide migrant workers with targeted assistance. It is necessary to give priority to minimum salaries, better living conditions, food security, education, skill development, certification, and assessment, as well as health services, in order to meet the comprehensive demands of migrants. They also need to be provided with a basic income guarantee program by the government. 17 The COVID-19 pandemic has raised awareness of and increased attention to migrant workers' issues.
In the years following COVID-19, the government has made some admirable initiatives. The Prime Minister of India officially launched The National Digital Health Mission on August 15, 2020. According to reports, every Indian will obtain an ID card including all the pertinent details concerning their health issues. With this card, you could get medical services and prescription drugs. The country's healthcare system is anticipated to become more effective, efficient, and transparent with the implementation of the National Digital Health Mission (NDHM) and the Ayushman Bharat Pradhan Mantri Jan Arogya Yojana (AB PM-JAY). A few State governments and the Indian government have started new projects to establish a national migrant information system, a mobile public distribution system, and a portable social security number.
Giving these projects the adequate and sufficient attention they need to be implemented successfully will protect the human rights of all Indian migrant workers as well as the administration of justice. 18
16 Ibid at 2.
17 Ibid at 2.
18 Ibid at 5.