Labour Law Final

RIGHTS OF MIGRANT LABOUR
CHAPTER I
INTRODUCTION
1.1. Introductory
There are two explanations for labour migration. The first centres on the rational decision of an
individual. An individual makes a decision, based on free will, to migrate to centres where there
is a demand for labour. Migration is thus associated with urbanisation and modernisation, as well
as with development. However, rational individual choice is not the only factor which affects
labour migration in India. The second explanation emphasises the fact that capitalist
development has always needed cheap labour. In this sense migration is analysed as a class
phenomenon and uneven development is seen as the basic cause of labour migration.
1.2. Social Security and Migrant Worker

Social security is dynamic conception which is considered in all advanced countries of the world
as indispensable national programme to strike at the roots of poverty, unemployment and
deceased. A scheme of social security for workers is not only desirable, but also an essential
prerequisite for the growth of healthy and efficient industrial life of the worker.1
The employees state insurance act 1948, which provides for social security of the worker
namely:
1. Sickness Benefit
2. Medical Benefit
3. Maternity Benefit
4. Disablement Benefit
5. Dependent Benefit
6. Funeral Benefit.
The Basic concept of social security that the members of community shall be protected by
collective action against social risk causing undue hardships and privation to individuals whose
private resources can seldom be adequate to meet them. The concept of social security is based
on ideal of human dignity and social justice. The underlined idea behind social security measures
1
Gurdeep Singh, Migrant Workmen and the law, Deep and Deep Publication, New Delhi, 2002, p.264
1|Page HUMAN RESOURCE LAW PROJECT 2010
is that a citizen who has contributed or is likely to contribute to his country welfare should be
given protection against certain hazards.
1.3. Human Rights of Migrant Workers

Human rights are the basic rights of all individuals. They are inherent rights of the individuals
which they got by birth. They are inalienable rights means these rights are not transferable. The
Constitution of India envisions in its Preamble, the basic rights like Justice, Liberty, Equality and
fraternity are assured to every citizen to secure the dignity of the person, fraternity among the
citizen for unity and integration of the union. The UDHR declares the dignity of individual as
inalienable human right, economic empowerment, cultural pursuits and education, employment,
food, clothing and shelter as basic to human dignity. The ICSECR 1966 elongated the rights
ensured in UDHR and fastened the duty on the members states to implement them.
1.4. Aim and object of Study

The thrust of the book is to highlight the Entitlement of Migrant Labour and examine whether
they are able to avail it in reality. This is analyzed in the context of the massive influx of migrant
labour from Bihar and U. P. to north western India particularly to the state of Punjab.
No heuristic study so far appears to have been conducted in this area. The problems of Migrant
workmen are multifarious as well as magnitude. This topic under study is a step in ameliorating
the condition of migrant workmen; the avowing for the all around welfare of migrant workmen,
thus prescribing, promoting and achieving socio-economic justice for the weaker segement of
the society. The system of employment of migrant workmen is not only complex but also an
exploitative. Mostly prevalent in state of Punjab. Since all does not appear to be well with the
system therefore it was inspired to undertake in-depth study of this topic particularly through the
technique of social sciences research methodology applied in legal sciences research in order to
know the functional approach of the topic.
CHAPTER II

INTERNATIONAL PROSPECTIVE
2.1. Introductory
Human Rights of Migrant Worker includes excerpts from the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families, the Migration
for Employment Convention (Revised) (No. 97), the Migrant Workers (Supplementary
Provisions) Convention (No. 143), the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and
Political Rights, the Convention on the Elimination of All Forms of Discrimination Against
Women, the Convention on the Elimination of All Forms of Racial Discrimination, the
Convention on the Rights of the Child, the ILO Forced Labour Convention (No. 29), the ILO
Freedom of Association and Protection of the Right to Organize Convention (No. 87), the ILO
Equal Remuneration Convention (No. 100), the ILO Discrimination (Employment and
Occupation) Convention (No. 111), and the ILO Minimum Age Convention (No. 38).2
"States Parties undertake ... to respect and to ensure to all migrant workers and ... their families
within their territory ... rights ... without distinction of any kind such as sex, race, colour,
language, religion..., national, ethnic or social origin, nationality ... or other status.... Migrant
workers and members of their families shall be free to leave any State, including their State of
origin...; ... shall have the right at any time to enter and remain in their State of origin.... No
migrant worker or member of his or her family shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.... No migrant worker ... shall be held in slavery or
servitude...; ... shall be required to perform forced or compulsory labour.... Migrant workers and
members of their families shall have the right to freedom of thought, conscience and
religion...; ... shall have the right to equality with nationals of the State concerned before the
courts and tribunals...; shall not be subject to measures of collective expulsion.... Every migrant
worker and every member of his or her family shall have the right to recognition everywhere as a
person before the law...; ... shall enjoy treatment not less favourable than that which applies to
nationals of the State of employment in respect of remuneration ... overtime, hours of work,
weekly rest, holidays with pay, safety, health, termination of the employment relationship ...
2
http://www.pdhre.org/rights/migrants.html, visited on 25th Oct, 2010.
minimum age of employment.... States Parties recognize the right of migrant workers ... To take
part in meetings and activities of trade unions.... With respect to social security, migrant workers
and members of their families shall enjoy in the State of employment the same treatment granted
to nationals in so far as they fulfill the requirements provided for by .. applicable legislation....
Migrant workers and members of their families shall have the right to receive any medical care
that is urgently required for the preservation of their life or the avoidance of irreparable harm to
their health on the basis of equality of treatment with nationals of the State concerned.... Each
child of a migrant worker shall have the right to a name, to registration of birth and to a
nationality...; ... shall have the basic right of access to education on the basis of equality of
treatment with nationals of the State concerned...."3
2.2. International Conventions

2.2.1. International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families, 2003
"Each Member ... undertakes to apply, without discrimination in respect of nationality, race,
religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that
which it applies to its own nationals in respect of the following matters: ... remuneration, ...
hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum
age for employment, apprenticeship and training, women's work and the work of young
persons; ... membership of trade unions and enjoyment of the benefits of collective
bargaining; ... accommodation; ... social security (... legal provision in respect of employment
injury, maternity, sickness, invalidity, old age, death, unemployment....)"4
2.2.2. Migration for Employment Convention (ILO No. 97), 1949

"Each Member ... undertakes to respect the basic human rights of all migrant workers.... Each
Member ... undertakes to ... pursue a ... policy designed to promote and to guarantee ... equality
of opportunity and treatment in respect of employment and occupation, of social security, of
trade union and cultural rights and of individual and collective freedoms for persons who as
migrant workers or as members of their families are lawfully within its territory.... Each Member
shall ... formulate and apply a social policy ... which enables migrant workers and their families
3
Ibid
4
http://www2.ohchr.org/english/law/cmw.htm, visited on 25th Oct, 2010
to share in advantages enjoyed by its nationals while taking account, without adversely affecting
the principle of equality of opportunity and treatment, of such special needs as they may have
until they are adapted to the society of the country of employment; ... take all steps to assist and
encourage the efforts of migrant workers and their families to preserve their national and ethnic
identity and their cultural ties with their country of origin, including the possibility for children
to be given some knowledge of their mother tongue; ... A Member may take all necessary
measures ... and collaborate with other Members to facilitate the reunification of the families of
all migrant workers legally residing in its territory...."5
2.2.3. Migrant Workers (Supplementary Provisions) Convention (ILO No. 143), 1975
"No one shall be held in slavery or servitude.... Everyone has the right to freedom of peaceful
assembly and association.... Everyone has the right to work, to free choice of employment, to
just and favourable conditions of work and to protection against unemployment. Everyone,
without any discrimination, has the right to equal pay for equal work. Everyone who works has
the right to just and favourable remuneration ensuring for himself and his family an existence
worthy of human dignity, and supplemented, if necessary, by other means of social protection.
Everyone has the right to form and to join trade unions for the protection of his interests.
Everyone has the right to rest and leisure, including reasonable limitation of working hours....
Everyone has the right to a standard of living adequate for the health and well-being of himself
and his family ... and the right to security in the event of unemployment, sickness, disability ... or
other lack of livelihood ...."6
2.2.4. Universal Declaration of Human Rights, 1948

"The States Parties ... recognize the right to work, which includes the right of everyone to the
opportunity to gain his living by work which he freely chooses or accepts.... The States Parties ...
recognize the right of everyone to ... just and favourable conditions of work which ensure ... fair
wages and equal remuneration for work of equal value without distinction of any kind...; a
decent living ...; safe and healthy working conditions; equal opportunity for everyone to be
promoted ...; rest, leisure, and reasonable limitation of working hours .... the right of everyone to
form trade unions and join the trade union of his choice ... for the promotion and protection of
5
http://www.ilo.org/ilolex/cgi-lex/convde.pl?C097, visited on 25th Oct, 2010.
6
http://www.ilocarib.org.tt/projects/cariblex/pdfs/ILO_Convention_143.pdf, visited on 27th Oct, 2010.
his economic and social interests...; the right to strike... the right ... to social security.... Children
and young persons should be protected from economic ... exploitation. Their employment in
work harmful to their morals or health or dangerous to life or likely to hamper their normal
development should be punishable by law.... States Parties ... recognize the right of everyone to
an adequate standard of living for himself and his family...."7
2.2.5. International Covenant on Economic, Social and Cultural Rights, 1966

"No one shall be held in slavery .... No one shall be required to perform forced or compulsory
labour.... An alien lawfully in the territory of a State Party ... may be expelled ... only ...in
accordance with law.... All persons shall be equal before the courts and tribunals.... The right of
peaceful assembly shall be recognized.... Everyone shall have the right to freedom of association
..., including the right to form and join trade unions.... All persons are equal before the law and
are entitled without any discrimination to the equal protection of the law.... In those States in
which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall
not be denied the right, in community with the other members of their group, to enjoy their own
culture, to profess and practice their own religion, or to use their own language...."8
2.2.6. International Covenant on Civil and Political Rights, 1966

"States Parties shall take all appropriate measures ... to ensure, on a basis of equality of men and
women, ... the right to work as an inalienable right of all human beings; the right to the same
employment opportunities...; the right to free choice of profession and employment, the right to
promotion, job security and ... training; the right to equal remuneration ... and to equal treatment
in respect of work of equal value...; the right to social security...; the right to protection of health
and to safety in working conditions, including the safeguarding of the function of
reproduction....."9
2.2.7. Convention on the Elimination of All Forms of Discrimination Against Women, 1979
"States Parties undertake to prohibit and to eliminate racial discrimination ... and to guarantee
the right of everyone, without distinction as to race, colour, or national or ethnic origin, to
7
http://www.un.org/en/documents/udhr/, visited on 28th Oct, 2010
8
http://www2.ohchr.org/english/law/ccpr.htm, visited on 25th Oct, 2010
9
http://www2.ohchr.org/english/law/cescr.htm, visited on 25th Oct, 2010.
equality before the law ... in the enjoyment of ... the right to freedom of peaceful assembly and
association...; the rights to work, to free choice of employment, to just and favourable conditions
of work, ...to equal pay for equal work, to just and favourable remuneration; the right to form
and join trade unions...."10
2.2.8. Convention on the Elimination of All Forms of Racial Discrimination, 1969

"The child shall be registered immediately after birth and shall have the right from birth to a
name, the right to acquire a nationality.... States Parties shall ensure that a child shall not be
separated from his or her parents against their will.... [A]pplications by a child or his or her
parents to enter or leave a State party for the purpose of family reunification shall be dealt
with ... in a positive, humane and expeditious manner.... States Parties shall respect the right of
the child and his or her parents to leave any country, including their own, and to enter their own
country.... States Parties recognize the rights of the child to freedom of association and to
freedom of peaceful assembly.... the right ... to a standard of living adequate for the child's
physical, mental, spiritual, moral and social development.... the right of the child to education,
and ... shall ... make primary education compulsory and available free to all.... States Parties
agree that the education of the child shall be directed to ... the development of respect for the
child's parents, his or her own cultural identity, language and values, for the national values of
the country in which the child is living [and] the country from which he or she may originate....
In those States in which ethnic, religious or linguistic minorities ... exist, a child belonging to
such a minority ... shall not be denied the right, in community with other members of his or her
group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use
his or her own language.... States Parties recognize the right of the child to be protected from
economic exploitation and from performing any work that is likely to be hazardous or to
interfere with the child's education, or to be harmful to the child's health or physical, mental,
spiritual, moral or social development.... States Parties shall ... provide for a minimum age ... for
admissions to employment...; provide for appropriate regulation of the hours and conditions of
employment...."11
2.2.9. Convention on the Rights of the Child, 1989

10
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm, visited on 28th Oct, 2010.
11
http://www2.ohchr.org/english/law/cerd.htm, visited on 28th Oct, 2010.
The Convention on the Rights of the Child is the first legally binding international instrument to
incorporate the full range of human rights—civil, cultural, economic, political and social rights.
In 1989, world leaders decided that children needed a special convention just for them because
people under 18 years old often need special care and protection that adults do not. The leaders
also wanted to make sure that the world recognized that children have human rights too.12
The Convention sets out these rights in 54 articles and two Optional Protocols. It spells out the
basic human rights that children everywhere have: the right to survival; to develop to the fullest;
to protection from harmful influences, abuse and exploitation; and to participate fully in family,
cultural and social life. The four core principles of the Convention are non-discrimination;
devotion to the best interests of the child; the right to life, survival and development; and respect
for the views of the child. Every right spelled out in the Convention is inherent to the human
dignity and harmonious development of every child. The Convention protects children's rights
by setting standards in health care; education; and legal, civil and social services. By agreeing to
undertake the obligations of the Convention (by ratifying or acceding to it), national
governments have committed themselves to protecting and ensuring children's rights and they
have agreed to hold themselves accountable for this commitment before the international
community. States parties to the Convention are obliged to develop and undertake all actions and
policies in the light of the best interests of the child.13
2.2.10. ILO Discrimination (Employment and Occupation) Convention (No. 111), 1958
"Each Member... undertakes to pursue a ... policy ... to ensure the effective abolition of child
labour and to raise progressively the minimum age for admission to employment or work to a
level consistent with the fullest physical and mental development of young persons.... The
minimum age ... shall not be less than the age of completion of compulsory schooling and, in any
case, shall not be less than 15 years.... The minimum age for admission to any type of
12
http://www.unicef.org/crc/, visited on 28th Oct, 2010.
13
Ibid
employment or work which by its nature or the circumstances in which it is carried out is likely
to jeopardize the health, safety or morals of young persons shall not be less than 18 years...."14
2.3. International Declaration

“Great importance must be given to the promotion and protection of the human rights of persons
belonging to groups which have been rendered vulnerable, including migrant workers, the
elimination of all forms of discrimination against them.... The World Conference on Human
Rights urges all State to guarantee the protection of the human rights of all migrant workers and
their families. The World Conference ... considers that the creation of conditions to foster greater
harmony and tolerance between migrant workers and the rest of the society of the State in which
they reside is of particular importance....”15
2.3.1. Vienna Declaration, Part II, Paras. 24, 33 and 34

"Countries receiving documented migrants should provide proper treatment and adequate social
welfare services for them and their families, and should ensure their physical safety and
security .... Countries should guarantee to all migrants all basic human rights as included in the
Universal Declaration of Human Rights.... Objectives ...: To ensure the social and economic
integration of documented migrants ... and their equal treatment before the law; ... To eliminate
discriminatory practices against documented migrants, especially women, children and the
elderly; ... To ensure protection against racism, ethnocentrism and xenophobia; ... To promote
the welfare of documented migrants and members of their families.... Special efforts should be
made to enhance the integration of the children of long-term migrants by providing them with
educational and training opportunities equal to those of nationals.... Governments, particularly
those of receiving countries, must recognize the vital importance of family reunification and
promote its integration into their national legislation in order to ensure the protection of the unity
of the families of documented migrants.... Objectives ... To address the root causes of
undocumented migration;... to prevent the exploitation of undocumented migrants and to ensure
that their basic human rights are protected...." 16
14
http://www.ilo.org/ilolex/cgi-lex/convde.pl?C111, visited on 28th Oct, 2010.
15
Supra note 2
16
http://www.unhchr.ch/huridocda/huridoca.nsf/(symbol)/A.CONF.157.23.En?OpenDocument, visited on 28th Oct,
2010.
2.3.2. Copenhagen Declaration, 2002

"There is need for intensified international cooperation and national attention to the situation of
migrant workers and their families. To that end: ... Governments of receiving countries are urged
to consider extending to documented migrants ... and ... their families ... treatment equal to that
accorded their own nationals with regard to the enjoyment of basic human rights, including
equality of opportunity and treatment in respect of religious practices, working conditions, social
security, participation in trade unions and access to health, education, cultural and other social
services, ... equal access to the judicial system and equal treatment before the law....
Governments ... are urged to cooperate in reducing the causes of undocumented migration,
safeguarding the basic human rights of undocumented migrants and preventing their
exploitation.... Governments should ensure that documented migrants receive fair and equal
treatment, including full respect of their human rights, protection of the laws of the host society,
appropriate access to economic opportunities and social services; protection against racism ...;
and protection from violence and exploitation.... Special efforts should be made to enhance the
integration of the children of long-term migrants by providing them with educational and
training opportunities equal to those of nationals.... Governments of receiving countries must
ensure the protection of migrants and their families, giving priority to programmes and strategies
that combat religious intolerance, racism, ethnocentrism, xenophobia and gender
discrimination...."17
2.3.3. Copenhagen Programme of Action, Paras. 63 and 77

"The Platform for Action recognizes that women face barriers to full equality and advancement
because of such factors as their race ... language, ethnicity, culture ... or because of other
status.... Additional barriers also exist for ... displaced ... immigrant ... and migrant women,
including women migrant workers.... Actions to be taken: ... Ensure the full realization of the
human rights of all women migrants, including women migrant workers, and their protection
against violence and exploitation; introduce measures for the empowerment of documented
17
http://www.visionoffice.com/socdev/wssdco-4.htm#Commitment%203, visited on 28th Oct, 2010.
10 | P a g e HUMAN RESOURCE LAW PROJECT 2010
women migrants...; facilitate the productive employment of documented migrant women through
greater recognition of their skills, foreign education and credentials, and facilitate their full
integration into the labour force.... Ensure that internally displaced women have full access to
economic opportunities and that the qualifications and skills of immigrant and refugee women
are recognized.... Establish linguistically and culturally accessible services for migrant women
and girls, including women migrant workers, who are victims of gender-based violence.
Recognize the vulnerability to violence and other forms of abuse of ... women migrant workers,
whose legal status in the host country depends on employers who may exploit their
situation...."18
CHAPTER III
NATIONAL PERSPECTIVE
3.1. Indian Constitution
The Constitution of India is one of the most rights-based constitutions in the world. Drafted
around the same time as the Universal Declaration of Human Rights (1948), the Indian
Constitution captures the essence of human rights in its Preamble, and the sections on
18
http://www.un-documents.net/poa-wssd.htm, visited on 30th Oct, 2010.
Fundamental Rights and the Directive Principles of State Policy. The Constitution of India is
based on the principles that guided India's struggle against a colonial regime that consistently
violated the civil, political, social, economic and cultural rights of the people of India. The
freedom struggle itself was informed by the many movements for social reform, against
oppressive social practices like sati, child marriage, untouchability etc. Thus by the mid-1920s,
the Indian National Congress had already adopted most of the civil and political rights in its
agenda. The movement led by Dr. B. R. Ambedkar against discrimination against the Dalits also
had an impact on the Indian Constitution.19
In spite of the fact that most of the human rights found clear expression in the Constitution of
India, the independent Indian State carried forward many colonial tendencies and power
structures, including those embedded in the elite Indian Civil Service. Though the Indian State
under Jawaharlal Nehru took many proactive steps and followed a welfare state model, the
police and bureaucracy remained largely colonial in their approach and sought to exert control
and power over citizens. The casteist, feudal and communal characteristics of the Indian polity,
coupled with a colonial bureaucracy, weighed against and dampened the spirit of freedom, rights
and affirmative action enshrined in the Constitution.20
There are four specific trajectories of human rights discourse in the Indian context:
1. Civil and Political Rights,
2. Rights of the Marginalized (such as women, Dalits and Adivasis),
3. Economic, Social and Cultural Rights, and
4. The Right to Transparent and Accountable Governance.
Though each of these trajectories is interconnected, they were promoted by different sets of
actors (often with varying ideological affiliations) at different points in time. There has always
been tension and lack of mutual appreciation between those who promoted civil liberties and the
left-oriented groups who worked towards the structural transformation of socio-economic
conditions and consequently of the State.21
19
http://www.boloji.com/perspective/256.htm, visited on 30th Oct, 2010.
20
Ibid
21
Ibid
The leaders of India's freedom struggle fully realized that in the new dispensation following
political freedom, the people should have the fullest opportunities for advancement in the social
and economic spheres and that State should make suitable provision for ensuring such progress.
The framers of the Indian Constitution borrowed the idea of enacting the Directive Principles of.
State policy (DPSP) from the Irish Constitution. The Indian Constitution was adopted on 26
November 1949 by the Constituent Assembly and brought into force on 26 January 1950. The
Preamble of the Indian Constitution declares India a Sovereign, Socialist Secular Democratic
Republic and sets out main objectives of the Constitution to secure justice for all citizens, social,
economic and political. The Indian Constitution envisages a democracy, which ensures freedom
under the law and the dignity of the individual. Part III of the Indian Constitution enumerates the
fundamental rights and Part IV sets out the Directive Principles of State Policy. Where the
former guarantees fundamental rights to the individual, the latter gives direction to the State to
provide economic and social rights to its people in specified matters together, they constitute the
conscience of the Constitution.22
The justiciability of fundamental rights is itself guaranteed under the Indian Constitution. In
particular, by virtue of Articles 32 and 226 of the Constitution the responsibility for the
enforcement of the fundamental rights lies with the Supreme Court to the High Courts. The
forty-second Amendment of the Indian Constitution has added Part IV A, which deals with the
fundamental duties of the citizen. This separation of fundamental rights and Directive Principles
of State Policy emphasizes the fact that they are in their nature and effect essentially different.
The Directive Principles of State to secure a social order for the promotion of the welfare of the
people; (Article 38) (b) certain principles to be followed by the State, namely, equality of men
and women, right to an adequate means of livelihood; and equal pay for equal work for both men
and women; (Article 39) (c) right to free legal aid (Article 39 A); (d) organization of village
panchayats (Article 40); (e) right to work, to education and to public assistance in certain cases
{Article 41); if) provisions for just and humane conditions of work and maternity relief (Article
42); (g) living wage (Article 43); (h) participation of workers in management of industries
22
Manoj Kumar Sinha, Enforcement of Economic, Social and Cultural Rights-International and National
Perspectives, Manak Publicatoin Pvt. Ltd, New Delhi, 2006, p.26

(Article 43 A); (i) uniform civil code for the citizens (Article 44); (j) provision for free and
compulsory education for children (Article 45); (k) promotion of educational and economic
interests of Scheduled Castes, Scheduled Tribes and other weaker sections (Article 46); (I) duty
of the state to raise the level of nutrition and the standard of living and to improve public health
(Article 47); (m) organization of agriculture and animal husbandry (Article 48); (n) protection
and improvement of ,environment and safeguarding of forests and wildlife (Article 48 A); (0)
protection of monuments and places and objects of national importance (Article 49); (p)
separation of judiciary from executive (Article 50)and (q) promotion of international peace and
security (Article 51).23
Policy enunciated in Part IV of the Indian Constitution are nothing but principles of Raj Dharma
(duty of the State). Article 37 of the Indian Constitution specifically echoes, as the principles laid
down are fundamental in the governance of the country. The word fundamental in part III of the
Indian Constitution is the word "rights" are legally enforceable, and the word fundamental in the
governance of the country in part IV of the Constitution, which are not legally enforceable.
Fundamental rights are backed by legal sanctions, Directive Principles of State Policy are left to
the sense of the duty to those charged with the governance of the country.24
Soon after the commencement of the Indian Constitution the question was raised regarding the
Directive Principles of State Policy before the Court in State of Madras v. Champakam
Dorairajan,25 Das, J. had expressed that the Directive Principles of State Policy have to conform
and run subsidiary to the Chapter on fundamental rights. By this decision the implementation of
economic, social and cultural received setback. However, the Supreme Court in M.H. Qureshi v.
State of Bihar,26 I propounded the doctrine of harmonious construction, and the doctrine of
integrated scheme in I.C. Golak Nath v. State of Punjab.27
23
Id, p.27
24
Id, p.28
25
AIR 1951 SC 226
26
AIR 1958 SC 731
27
AIR 1967 SC 1943
The Indian judiciary accepted the primacy of the Directive Principles of State Policy through the
25th Amendment of the Indian Constitution. Other agencies of the government, legislature and
the executive rarely advocated the subordination of the Directive Principles of State Policy to
fundamental rights. Thus, the view that the Directive Principles of State Policy are inferior to
fundamental rights, relying on the views of the Constitution maker and Courts is not correct. The
Directive Principles of State Policy is now no way subordinate to the fundamental rights, which
is firmly established by the Indian judiciary subsequently and also equally recognized by the
government.28
3.2. National Labour Legislations

The first legislation to touch Contract Labour System is Contract Labour (Regulation and
Abolition) Act, 1970. This Act defines 'contractor' as folIows:-
"Contractor", in relation to an establishment, means a person who undertakes to produce a given
result for the establishment other than a mere supply of goods or articles of manufacture of such
establishment, through contract labour or who supplies contract labour for any work of the
establishment and includes a sub-contractor. The main employer on whose behalf and for whom
the workmen are employed through agency of the contractor is called "Principal Employer" and
by legal fiction, Principal Employer also is saddled with liabilities of an Employer, mainly for
ensuring proper payment of wages and proper working conditions.29
The next legislation in the line is Bonded Labour System (Abolition) Act, 1976 which has taken
care to see that workmen are not allowed to give forced labour. In fact, some bonded workmen
in the construction industry, brick kilns; stone quarries etc. have been liberated and set free and
given cash and transport expenses to go to their native places. As is the characteristics of migrant
labour, they again drift towards the old places of work and take employment as there is no
gainful employment at their native villages and no satisfactory scheme of rehabilitation for them.
However, the above legislation did not protect migrant labour and prevent their exploitation. In
Orissa these inter-state migrant labour are known as Dadan Labour. Dadan Labour is recruited
28
Supra note 22
29
Subhash C. Bajaj in K.Gopal Iyer, Distressed Migrant Labour in India, Kanishka Publishers, New Delhi, 2004,
p.267
from various parts of the state through contractors or agents called Sardars Khatedars for work
outside the state in large construction projects. This system is exploitative and prevalent not only
in Orissa but other states also. Promises made by the Sardars at the time of recruitments are not
usually kept. Once the worker comes under the clutches of the contractor, he takes them to a far
off place on payment of fare only. No working hours are fixed for these workers and they have
to work on all the days in week under extremely bad working conditions. The provisions of the
various labour laws are not being observed in their case and they are subjected to various
malpractices.30
Among others, the following Central Labour Laws are applicable to this category of inter-state
migrant workmen:
(i) Payment of Wages Act, 1936
(ii) Minimum Wages Act, 1948
(iii) Workmen's Compensation Act, 1923
(iv) Employees Provident Fund Act, 1952
(v) Industrial Disputes Act, 1947
(vi) Maternity Benefit Act, 1961
(vii) Contract Labour (Regulation & Abolition) Act, 1970
(viii) Bonded Labour Systems (Abolition) Act, 1976
Other than the above national legislations the legislature has also enacted inter-state legislation.
The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act,
1979 was enacted and it became law on 11th June, 1979 and was brought into force from 2nd
Oct. 1980. These legislations have discussed and provided the migrant labourers various rights
and impose obligation on the principle employer. In next chapter I am going to deal with human
rights of migrant workers.
30
Id, p.268
CHAPTER IV
HUMAN RIGHTS OF MIGRANT WORKERS
4.1. Introduction
The human rights of migrant workers and their families include the following universal,
indivisible, interconnected and interdependent human rights:
a) The human right to work and receive wages that contribute to an adequate standard of
living.
b) The human right to freedom from discrimination based on race, national or ethnic origin,
sex, religion or any other status, in all aspects of work, including in hiring, conditions of
work, and promotion, and in access to housing, health care and basic services.
c) The human right to equality before the law and equal protection of the law, particularly
in regard to human rights and labor legislation, regardless of a migrant's legal status.

d) The human right to equal pay for equal work.

e) The human right to freedom from forced labor.
f) The human right to protection against arbitrary expulsion from the State of employment.
g) The human right to return home if the migrant wishes.
h) The human right to a standard of living adequate for the health and well-being of the
migrant worker and his or her family.
i) The human right to safe working conditions and a clean and safe working environment.
j) The human right to reasonable limitation of working hours, rest and leisure.
k) The human right to freedom of association and to join a trade union.
l) The human right to freedom from sexual harassment in the workplace.
m) The human right to protection during pregnancy from work proven to be harmful.
n) The human right to protection for the child from economic exploitation and from any
work that may be hazardous to his or her well-being and development.
o) The human right of children of migrant workers to education.
p) The human right of migrants and their families to reunification.
4.2. Migrant labour and Human Rights violation

4.2.1. Harassment during Travel
The migrant labourers visit Punjab as seasonable labourers on a large scale during the peak
agricultural seasons which consisted of wheat harvesting, paddy transplantation and paddy
harvesting. During the end of 70s and early 80s, 3-4 lakh migrant labourers used to migrate to
Punjab for agricultural work. Majority of them came from North Bihar via two routes; they
boarded the train at Muzaffarpur and came to Punjab via Delhi but bulk of them travelled from
North Bihar via Gorakhpur Lucknow and then boarded the train to Punjab. Most of the migrants
used to get down at Ludhiana station. During the peak season the trains carrying the migrant
labourers were fully packed up inside and a large number of them also travelled on the rooftop of
the trains. The over bridges through which the trains passed, had objects including mettle wires
hanging which used to hit their heads and caused injuries.31
31
K.Gopal Iyer in K.Gopal Iyer, Migrant Labour and Human Rights in India, Kanishka Publishers, New Delhi,
2003, p.41
Apart from such accidents there was also harassment and exploitation of the migrant labourers
by the railway authorities in connivance with the railway police. As soon as the train stopped at
Ludhiana station, a team of ticket collectors and policemen would round off the groups of
labourers on one pretext or the other, search them throughly to the point of making them nude in
a secluded room. The labourers were not left with even a small amount of money for bus fare to
reach from the railway station to the villages of their earlier familiarity. The hapless migrants
were further sold to the farmers who waited outside the station with their tractors and trolleys.32
4.2.2. Bondage among Migrant Labourers

The study reflected that bulk of migrant labourers who migrated from North Bihar to places like
Ludhiana, Patiala etc. were subjected to human rights violations which as earlier pointed out
included harassment during the time of their travel and extortion at the railway stations in
Ludhiana. However, a small section of migrant labourers also migrated to the districts of
Hoshiarpur and Jalandhar who were mainly from the Chotanagpur area of South Bihar which is
now a part of Jharkhand State. Here the tribals from Ranchi district migrated sometimes alone
and sometimes with their wives. The labour migration from North Bihar was predominantly
male selective. The tribal migrant labourers were engaged as attached labourers in Hoshiarpur
district and a sizable number of them were working in Tanda Block of the district. The farmers
of Punjab and their recruiting agents had contact with their counterpart’s ill Ranchi and secured
help in recruiting the tribal labourers. The ability of the tribals to work hard attracted the
attention of the Hoshiarpur farmers. The contractors in Hoshiarpur had their agents at Ranchi
who operated through their sub agent at the village level. They were subjected to physical, social
and economic bondage. They were made to work for 12-16 hours a day and were locked at night
to prevent them from running away. During the initial few months they were given two times
meals but paid no wages as landlords spent money for buying them from the recruiting agents.33
32
Id, p.42
33
Id, pp.42-43
CHAPTER V
CASE STUDY
5.1. Introduction
It is difficult to estimate the exact number of workers who migrate from V.P. and Bihar to
Punjab; however, these two states supply large number of workers employed in different sectors
of agriculture and Industry of Punjab. According to the All India Brick Kilns and Tiles
Manufacturers Federation, New Delhi, there are 50,000 brick kilns all over India employing, on
an average, 100 workers (as per muster rolls) per unit. According to a moderate estimate given
by the trade unions such as Lal Jhanda Punjab Bhatta Mazdoor Union (LJPBMU) which are
organising workers in the brick industry, till 1998, there were around 1.3 lakh migrant workers
working in 2,500 brick kilns in different districts of Punjab.34
In comparison to their home states, the economy of Punjab is much better. Employment
opportunities arising out of industrialisation and modern agricultural practices attracts labourers
34
J. John & Nasir Ateeq in K.Gopal Iyer, Migrant Labour and Human Rights in India, Kanishka Publishers, New
Delhi, 2003, pp.79-80
mainly from industrial underdeveloped states. However, migration to Punjab in search of

employment is not free from difficulties. Their problems start the moment they enter the railway
station to catch the train to Punjab as they are generally ignorant about the legal provisions
meant to protect their rights for which they have to pay heavily in terms of money and
harassment meted out to them by police, railway police, conductors, hawkers and vendors, post
office employees, etc. Further, in Punjab, they are subjected to harassment by their employers as
well as contractors who recruit them. Most of the time, they do not get wages for the extra work
they do, and often face non-payment of regular wages. The government is apathetic and does not
look into the problems involved in the implementation of laws such as the Inter-State Migrant
Workmen Act (1979), Payment of Wages Act (1936), Workmen's Compensation Act (1923),
Minimum Wages Act (1948), Equal Remuneration Act (1976), Child Labour (Prohibition and
Regulation) Act (1986), Bonded Labour System (Abolition) Act (1976), Factories Act (1948),
etc., the provisions of which could be invoked to safeguard the rights of migrant workers.
Organisational efforts among the migrant workers are sporadic, inconsistent and ineffective. The
poor implementation of laws leaves the migrants at the mercy of the contractors and the
proprietors. Often these workers mutely endure worst forms of social, humiliation and economic
exploitation. Physical torture and mental agony are regular features of their life. In the present
era of liberalisation and globalisation when the state is withdrawing from the social sphere, the
situation for these destitute sections of the workforce is bound to deteriorate further.35
The objectives of the study were to understand the status of migrant workers in Punjab and to
identify the factors constraining the social, political, economic and cultural freedom of the
workers.
5.2. Migrant labour in brick kiln of Punjab

Bricks are indispensable component of each and every construction activity. These are made of
clay and other minerals, which are processed into a workable consistency, formed to standard
sizes and fixed in a kiln to make them strong, durable and attractive. Bricks are inexpensive
building materials. Their low cost and structural versatility have led to their wide use for walls,
floors, pavements and other structures. Because of basic characteristic of the industry, brick kilns
35
Ibid
are always observed to be located on the outskirts of cities, towns or near places of construction
activity. As the production and processing in the industry has to be done in the open, its
continuance depends on climatic conditions. The work being sensitive to rainfall, the industry
stops functioning during the rainy season and therefore seasonal in nature. Though the brick
industry is several thousand years old, even today it is highly labour intensive. So far as India is
concerned, it mostly depends on the rural migrant labour.36
5.3. Migrant Palledars of Punjab

With 100 kg filled bags on their backs, Palledars can be seen in Anaj Mandis, Godowns of FCI,
CCI, MARKFED, PUNSUP, Civil Supplies Department of Punjab Government, Warehouse
Godown of Central and State Government allover Punjab. They can especially be seen loading
and unloading bags of paddy, wheat, fertilizer, cement, cotton and cotton bails at Rice Shellers
and Railway heads. Their number is not exactly known but roughly they are more than two
lakhs. No serious studies about them had been so far undertaken by any Government or non
Government agency. They are very important segment of our economy. If the population of
agriculture workers is not included, they form about ten per cent population of working-class.
Substantial section of theirs is organized under various Trade Unions. Majority is still un-
organized lot.37
Who are these Palledars? From where they come? The beginning of Palledari class can be traced
from setting up of Anaj Mandis at the end of nineteenth century AD when British started regular
Anaj Mandis for procurement of agricultural raw material for their factories. In these Anaj
Mandis the farmers were proud sellers, the Arhatiyas were the middle men working for absentee
merchants, the menial jobs of unloading and unloading, winnowing, cleaning etc. of agricultural
commodities brought by the farmers was the fate of the erstwhile menial (Kammis or Kamins)
castes of Punjab. In today is a nomenclature their origin is from the Scheduled Castes and
Backward classes of Punjab. Mostly they are Ravidasis, Mazahbi, Balmikis, Ad dharmis. A
negligible number of Gujjars migrated from sub mountaneous areas are also here. Recently
36
Id, pp.78-79
37
Chander Shekhar in K.Gopal Iyer, Migrant Labour and Human Rights in India, Kanishka Publishers, New Delhi,
2003, p.306
migrated labour from D.P., Bihar, Madhya Pradesh, Haryana and even from Rajasthan have
joined this work.38
Why these persons have joined this class of workers? The reasons are obvious. The job is
menial. Naturally menial castes could only be expected to do this job. With the origin of
commodity production, i.e. "every thing for the market and every thing from the market", the
traditional trades e.g. shoe making, weaving, tanning, roap making had started becoming
unremunerative. This pushed the existing artisans out of their trades. Before the commodity
market, the relationship of these trades was direct with the consumer. The commodity market
pushed these menial classes or castes out of their trades. Relationship of these trades was based
on manufacturing. The traditional trades had become insufficient to absorb them. The
mechanized farming is also responsible for pushing them to this job. With the expansion of cities
and factories, these castes should have been diverted to industrial worker. But due to lack of
foresight of the rulers, there was no channel for them to become industrial worker.39
Push factors are the main reasons for the Punjabi menial workers to become Palledars. The pull
factors which have attracted the Inter State migrant workers from other States are better wages,
better social conditions in Punjab. However, the migrant workers are also from the menial castes.
Punjab farmers have adopted cash crop pattern. They produce almost their entire produce for the
market. The agricultural produce in the Mandis is wholly for trade out of Punjab State. The
supply outside the state is not possible directly from the Mandis. The agricultural stock is to be
kept preserved for sufficient time. This necessitates need for god owns and rice shellers in large
numbers. Stocking of paddy in the god own attracted rice shelling. Transport of paddy from rice
shellers and re-transport of rice back to godown and onward to rail-heads, is necessary
concomitant of this process. Palled are necessary for this job. The Palledars have therefore
become indispensable for working of the Mandis, loading from the- Mandis and unloading in the
godowns.40
38
Id, pp.306-307
39
Ibid
40
Id, p.308
In this agrarian economy and marketing in Punjab, Palledars cannot be dispensed with. In the
absence of the Palledar class the whole process of agricultural marketing, processing of
agricultural commodities in the mills, and the onward transporiation of rice and other finished
and semi finished products, will come to stand still. It must not be forgotten that the supply of
feriilizer from rail heads to god own and godowns to outlets also depends upon palledars. In nut
shell the present system of agricultural marketing, supply of agricultural products outside Punjab
and reaching of input i.e. feriilizers and pesticides are unthinkable without the palledars. They
adopted this job as seasonal labour but now it is their main stay. They, therefore, deserve to be
studied as independent class of workers.41
Constitution of India, like for all the citizens of India, in Article 21 provides right of life. This
right is fundamental and is guaranteed under Article 32 of the Constitution of India. There are
directions to the State under the Directive Principles enumerated in our Constitution for ensuring
decent working and living conditions of all citizens. Despite this constitutional guarantee, this
class is still outside the purview of Minimum Wages fixed by the State government. There is no
standard for determination of their wages. The rates for their wages vary from 14 paise to Rs.
2.70 per bag stacking. This disparity of 14:270 or roughly 1:19 is outrageous. This does not
mean that wage rate of Rs. 2.70 per bag is higher. This is only rational. What is outrageous is 14
paise per bag for stacking a 1 KG bag from unloading from the truck and stack in the godown
right up to 16th layer of the bags. To compare it with the transporting baggage by the coolies at
railway stations and bus stand, the coolies get Rs. 5.00 per bag of 20 KG for transporting it from
railway platform to outside railway station.42
There is violation of human rights also. Safety measures in their job and at work place are never
taken care of. Large number of the deaths occurred on jobs for lack of safety standards. There is
no insurance against accidents. National holidays, or holidays on festivals, is unthinkable for
them. They are not provided even weekly rest. The International Labour Convention bears no
meaning for them. Under the Employees State Insurance Act, the workers in Punjab are expected
to be ensured statutory medical facilities. But even basic medical facilities are not provided to
41
Ibid
42
Ibid
them. They are also not provided house-sites and houses under Indira Awas Yojna. To form an
association or say Union is fundamental right of every citizen. Even officers of All India Service
have formed their associations. But the palledars have a long list of human sacrifices for
achieving this constitutionally guaranteed fundamental right to for their Unions.43
Although the palledars are engaged on the job directly but they are paid through middle-men
called contractors. The share of funds for Palledari is much bigger than they actually paid wages
to them. This money which does not reach the worker is a source of neglect for the welfare of
the palledars. The money so drawn on their wages account, are not paid to them and is divided
amongst the bureaucrats and the contractors. Sometimes the politicians also become co-sharers
in this loot. This is one big factor entailing losses to the public sector undertakings.44
There is law abolishing and regulating contract labour work system. This law is not implemented
for this class. Whenever the palledars through their Unions or associations become active for
enforcement of this law and for removal of their grievances and for better wage structure, the
contracts resist them with force of their own. Very often the local Police, and administration
openly sides against these palledars. Large numbers of killings have taken place during these
processes. It is noteworthy that only the palledars had to face criminal trials while the contractors
or the killers always got Scot free. There is another aspect of their agony. This is the legal
defense in law court. The services of Free Legal Aid are unknown to them. The lawyers
defending them raise demands of lakhs of rupees from them. The pretext for the huge legal fee is
not the legal work done but the number of workers involved. The Legal Aid Service Authority is
yet to reach them. The District and Session Judge of the concerned district is the Chairman of the
Legal Aid Authority. It seems revolutionary step when a Palledar will think of approaching the
District and Session Judge for legal help. As already stated the palledars' origin is from
Scheduled Castes and Backward Classes. The biased socio-approach of the authorities is also
responsible for their neglect. Even the Department of Welfare of Schedueld Castes has not
thought of them. Vested interest and indifferent attitude of the higher authorities has also their
role. Adhocism in the administration has also to share the blame equally.45
43
Id, p.309
44
Ibid
The Trade Unions are democratic process for solution of workers problems. The involvement of
the Trade Unions in this process is not only desirable but a necessity. In the absence of a
responsible Trade Union, the workers can go astray and in fit of agitation and anger may be
provoked to commit serious crime leading to loss of life and property of the State. The modem
democratic approach in the administration has made the administration cost oriented. Apart from
the duty of administration to uplift this class socially, there is the question of maintenance of law
and order. While democratic solution of their problems will not cost the administration
financially, the breakdown of the law and order will prove too costly to the State. The State will
have to recruit more policemen, more law courts and of course more jails. After spending on
more police, more courts and more jails, the State will feed them in Jails. Obviously, the choice
is to treat them with justice and compassion before provoking them to break law for getting
justice.46
There is large number of Trade Unions working in this class. Trade Unions are not working with
democratic and social vision. They work simply as middle persons where as there are very few
work with clear perspective. This perspective is better service condition, better working
conditions, and raising their living standard. This can only be achieved by ensuring them social
security benefits. The Trade Unions have vital role to play as Non Government Organizations in
this field. The conscious level of concerned executives officers must be raised to the level so as
to understand importance ·of implementation of statutory guarantees to them. This can only be
done by higher moral and ethical standards in the administration. It is expected that the State
Planning Board and the Department of Scheduled Castes of Punjab Government will also come
forward for their rescue as Scheduled Castes.47
5.4. Causes and Trends in Migration

Although every migrant has a different story behind his moves, there are some broad patterns in
it. The literature survey given above helps us in identifying the main cause and consequences of
45
Id, pp.309-310
46
Ibid
47
Id, pp.310-311
migration. With some exceptions the aggregated picture gives the following as the main causes
of migration in form of push and pulls factors.48
Push Factors:-
(i) Decline in the per capita share in resources such as agricultural land and stagnating
agriculture, change in technology, exhaustion of mine, timber or other resources and
closure of certain industries in some of the regions.
(ii) Reduction in employment due to mechanization.
(iii) Social, political or religious discrimination.
(iv) High fertility and control over mortality resulting in high population growth not
matching with the resources.
(v) Natural calamities such as cyclone, drought, earthquake and epidemic etc.
Pull Factors:-
(i) Availability of cheap land, labour and other resources, higher wages, employment and
better transport.
(ii) Opportunities for education, better standards of life, marriage freedom in faith,
religion and political both and company of ones own people. Better climatic conditions
and safety and security.
(iii) Low pressure of population, better health and recreational facilities for retiring
population.
5.5. Problems of Migration

The complication of the migrant workers issue provides a fertile ground for problems to arise.
The problem areas can be classified under the following:
5.5.1. Sending country inadequacies

Despite the enormous support by the migrant workers to the economy, the governments of the
sending countries appear to be ill-prepared to deal with the problems that face their migrant
workers. Bureaucratic red tape in processing documents for would-be migrant workers has been
a cause for the resort to illegal recruitment agencies. Inadequate orientation as well as
preparation of the migrant workers for the new environment and systems that they will be
48
http://www.unescobkk.org/fileadmin/user_upload/shs/SocialTransf/India.pdf, visited on 30th Oct, 2010.
moving in characterize government programs. Inability to stop illegal recruitment activities is

also present. Support by sending countries' consulates in receiving countries has not been
satisfactorily extended to those in need.49
5.5.2. Receiving country restrictions

Many receiving countries maintain strict regulatory measures against migrant workers. This
stance is premised on their fear of having migrant workers becoming permanent residents. Those
migrant workers considered as having low skills are not welcomed to stay longer than their
employment contract will allow. They are considered to be added burdens to the social security
systems of these countries. The discriminatory treatment of migrant workers maintained by the
general public of receiving countries is yet another ground for regulation. In some ways, the
opposition posed by the local labor unions against the importation of workers also contribute to
maintaining a regulated stance toward migrant workers. In many cases, migrant workers endure
restrictions such as limited period of stay after employment contract has lapsed or has been
abrogated, prohibition against seeking new employment under the existing visa, prohibition
against marrying citizens of receiving countries, deportation of woman migrant workers in case
of pregnancy, and short period visas. In both cases of legal and illegal migrant workers, the
governments of receiving countries accept the benefits of the work done but deny the workers
the corresponding job security. The "trainee" visa is another example of how receiving countries
can exploit migrant workers.50
5.5.3. Organized exploitation

The presence of migrant workers who entered the receiving countries without proper visas or
even passports is mainly due to crime syndicates which prey on people desperate in finding work
abroad. The syndicates extract money from the would-be workers and receive payment from
companies who would need the workers. The syndicates are more pervasive in the sex industry.
Women are induced, tricked or forced to work in the sex industry proliferating in the
entertainment circuits of Japan, Taiwan, Hong Kong, Thailand, and Macau. Some are lured into
prostitution through mail bride system.
49
http://www.hurights.or.jp/asia-pacific/no_04/02migrantwand.htm, visited on 30th Oct, 2010.
50
Ibid
Those without legal permission to work are exploited by employers who keep them in "3D"
(dangerous, dirty and difficult) jobs that do not provide appropriate compensation for and
protection from the nature of the work being done.51
5.5.4. Social and family consequences

Migrant workers suffer from the separation from their own families and communities. New and
indifferent environment cause worries and anxieties. Women who are separated from their
families suffer even more. The families left behind are reportedly not getting a better treatment
either. Materialistic and consumerist values develop, children grow up without proper guidance,
spouses become unfaithful - all creating problems that negate whatever economic benefits are
obtained from working abroad. The psychological, familial, social and economic costs are quite
high for the migrant workers whose primary aim in the first place is a better and more
financially-secured life.52
Other than the above discussed problems there are many other drawbacks of migration which are
as follows53:
a) International migrants from the country face two specific kinds of problems – the first
pertaining to the legal process of migration and the second related to their living and
working conditions. Some major problems encountered by the migrants in their countries
of employment include: premature termination of job contracts, changing the clauses of
contract to the disadvantage of the workers, delay in making payments, violation of
minimum wage standards, forced over-time work without returns and confiscation of
passport and other legal documents.
b) In the case of most intra-state and inter-state unskilled and semi-skilled migrants, migrant
labourers run high risks of exploitation for they are exposed to large uncertainties and
lack access to information and knowledge, thus making it very difficult for them to
switch jobs in case of dissatisfaction with the current employer. Because of their option-
51
Ibid
52
Ibid
53
http://www.iomindia.in/migration_in_india.html, visited on 30th Oct, 2010.
less situation, these labourers lack bargaining power and thereby fail to negotiate
reasonable pay scales and fair working conditions with the contractors.
c) Most migrants live in open spaces, make shift shelters or illegal settlements, which lack
the basic infrastructure and access to civic amenities. They have no local ration cards
which can provide them their food at subsidized rates through the Public Distribution
system. They are highly prone to occupational health hazards and vulnerable to
epidemics including HIV/AIDS.
d) Since the migrants are mobile, their children have no crèche facilities or access to
schooling. They do not come under the purview of either the local government or the
NGO PROGRAMMES for they do not belong to that particular region. So citing the
problem of monitoring, most agencies leave them outside the scope of development
intervention.
e) In India, labour migrants are largely found in the developed states, the traditional
migrant-receiving states, typically, coming from underdeveloped regions of the country
and being comprised primarily of the most marginalized sectors of society, namely the
Tribals and the Scheduled Castes (SCs). These migrants are entirely without legal
protection or social security. They are “invisible”, and are not acknowledged and are
denied access even to basic amenities in most of the cases. They have no identity in the
places where they live and no voice in the places they have left behind.
f) Migration offers a very fertile ground for traffickers. In India, migrants who leave their
homes in search for better employment opportunities and marital prospects, fall easy
preys to traffickers for want of adequate information. India performs all the three roles of
being a country of origin, transit and destination in the process of trafficking. At a
country level, India is ranked high in the citation index as a country of origin and
destination and is ranked medium in the citation index as a country of transit (Trafficking
in Persons – Global Patterns, UNODC). Alongside cross-border trafficking, internal

trafficking of women, children and men for purposes of sexual exploitation, domestic
servitude, bonded labour, and indentured servitude too is widespread.
CHAPTER VI
CONCLUSION AND SUGGESTIONS

6.1 Human Rights Questions
While many migrant workers have returned home safe and much better off economically, there
are a significant number of them who have suffered without redress.
Men migrant workers suffer from the exploitation of their employers through changes in contract
of employment, non-payment of wages, unhealthy working conditions, long working hours, and
exposure to unnecessary risks. Even worse situation occurs for the illegal migrant workers who
are almost under the total control of exploitative employers. Physical injuries sustained at work
or inflicted upon them by the employers have been reported.
Women migrant workers who work as domestic help tell of psychological, sexual, and other
physical abuses by the employers. They are sometimes deprived of agreed amount of salary as
well as other benefits such as day-offs, and medical treatment. Those who are in the
entertainment industries are exposed to syndicates which force them into prostitution. Physical
injuries, and even death for some, have occurred. The suffering extends outside the workplace as
the migrant workers become targets of discrimination by the host community. Treated as
occupying low social rank, they have problems of getting access to social, medical, legal and
cultural institutions that can help assuage their alienation and depression borne out of oppressive
working conditions.54
54
http://www.hurights.or.jp/asia-pacific/no_04/02migrantwand.htm, visited on 30th Oct, 2010.
Governments are likewise violating human rights as the police and immigration authorities
arrest, detain and sometimes summarily deport them without due process of law. There are
reported cases of abuse by the immigration authorities causing physical and psychological
suffering for the migrant workers in their custody. There are also inadequate government
policies, facilities and programs to protect the rights of the migrant workers.
The basic conditions that create the need for migrant workers and the corollary industry that
highly benefits from the labor trade lead to human rights violations. Labor as a commodity
becomes subject to trading that eventually bargains away rights, benefits and services for the
migrant workers. Low regard for women place them either in risky, difficult jobs or in the sex
industry. Trafficking in women, an illegal component of migration, suits this economic scheme
of things.
The slow ratification of the United Nations Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families (1990) and the lack of enforcement (in case
they have been ratified) of relevant ILO conventions by most Asian countries is a telling sign of
the general resistance to protecting the rights of migrant workers.

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RIGHTS OF MIGRANT LABOUR

1.2. Social Security and Migrant Worker

1.3. Human Rights of Migrant Workers

1.4. Aim and object of Study

2|Page HUMAN RESOURCE LAW PROJECT 2010

2.2. International Conventions

2.2.2. Migration for Employment Convention (ILO No. 97), 1949

2.2.4. Universal Declaration of Human Rights, 1948

2.2.5. International Covenant on Economic, Social and Cultural Rights, 1966

2.2.6. International Covenant on Civil and Political Rights, 1966

2.2.8. Convention on the Elimination of All Forms of Racial Discrimination, 1969

2.2.9. Convention on the Rights of the Child, 1989

2.3. International Declaration

2.3.1. Vienna Declaration, Part II, Paras. 24, 33 and 34

2.3.2. Copenhagen Declaration, 2002

2.3.3. Copenhagen Programme of Action, Paras. 63 and 77

13 | P a g e HUMAN RESOURCE LAW PROJECT 2010

3.2. National Labour Legislations

HUMAN RIGHTS OF MIGRANT WORKERS

17 | P a g e HUMAN RESOURCE LAW PROJECT 2010

d) The human right to equal pay for equal work.

4.2. Migrant labour and Human Rights violation

4.2.2. Bondage among Migrant Labourers

mainly from industrial underdeveloped states. However, migration to Punjab in search of

5.2. Migrant labour in brick kiln of Punjab

5.3. Migrant Palledars of Punjab

5.4. Causes and Trends in Migration

5.5. Problems of Migration

5.5.1. Sending country inadequacies

moving in characterize government programs. Inability to stop illegal recruitment activities is

5.5.2. Receiving country restrictions

5.5.3. Organized exploitation

5.5.4. Social and family consequences

30 | P a g e HUMAN RESOURCE LAW PROJECT 2010

CONCLUSION AND SUGGESTIONS

32 | P a g e HUMAN RESOURCE LAW PROJECT 2010

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