CENTRAL UNIVERSITY OF SOUTH BIHAR

School of Law & governance

Subject – Human Rights Laws
Topic – Human Rights of Migrant Workers

Submitted to:
Mrs. Poonam Kumari

Submitted By:
Kumar Ankit
B.A. LL.B (H)
10th Semester
CUSB1613125023

1|Page
Acknowledgement

I owe a sincere thanks to many people who helped me and guided me in

writing of this project. My deepest thanks to my course instructor Mrs.
Poonam Kumari Mam for guiding and helping me at every stage during the
completion of this project with sincere attention and care.

Again, I would like to thank all mighty and my friends for supporting me in
whole process of this project completion. At last, my deep sense of gratitude
also goes to my friends, institution and every single person who are related
with this project in any way and without whom this project would have been a
distant reality.

Kumar Ankit

2|Page
Contents
Introduction ............................................................................................................................................. 4
International Human Rights and Labour laws ........................................................................................ 5
The rights of Migrant workers in India ................................................................................................... 6
 Migrant’s condition in India’s Demography .......................................................................... 7
Legal framework of Migration in India .................................................................................................. 9
Conclusion ............................................................................................................................................ 10
Recommendations ................................................................................................................................. 10
References ............................................................................................................................................. 11

3|Page
Introduction

An estimated 281 million people, approximately 3.6% of the world’s population, currently
live outside their country of origin, many of whose migration is characterized by varying
degrees of compulsion. An increasing number of migrants are forced to leave their homes
for a complex combination of reasons. Human rights violations against migrants can include
a denial of civil and political rights such as arbitrary detention, torture, or a lack of due
process, as well as economic, social and cultural rights such as the rights to health, housing
or education. The denial of migrants’ rights is often closely linked to discriminatory laws and
to deep-seated attitudes of prejudice or xenophobia.1

Human migration is a significant aspect of social science and the oldest action against
poverty. However, there has been a significant difference in the migration process of
developed and developing countries. While in India the migration is more induced by push
factors like penuriousness, unemployment, regional disparities, family movement, marriage,
natural calamities, etc. unlike of those in developed nations are more pull factors like
prosperity, safety, freedom, etc.

Migration and regional disparities are strongly interlinked and the volume of migration
within a given territory varies with the degree of diversity of areas included in that territory,
diversity of people, and the difficulty of intervening obstacles, and fluctuations and checks
in the economy. Migration is a reason for helping billions in getting rid of poverty, improving
health, education, income, and conflict and the decline in migration leads to a less-flexible
economy. Low migration was one of the reasons for the slow recovery of the economy from
the 2007–’08 financial crisis.

1
https://www.ohchr.org/en/issues/migration/pages/migrationandhumanrightsindex, last visited at 19:11p.m.
0n 16-04-2021.

4|Page
International Human Rights and Labour laws

The ideals of universal human rights are one of the most paramount political legacies of the
20th century. Fundamental human rights do not make any distinction between people
predicated on nationality and locality. According to Locke, a foreigner (migrant) cannot be
denied local protection and homage due to and from all. The fundamental rights have anti-
utilitarian implicative insinuations and they cannot be gainsaid by the government even if it
is required in the general interest. These rights accentuate individual security and autonomy
and their base reposes on the pillars of human dignity, equity, equal rights, equal concern,
and equal reverence. This unique concept of man having innate and inalienable rights
against the state is often manifested in debates and discussion over the rights of migrants,
poor’s, and non-nationals. Migrants often suffer from a sense of alienation while they work
in different states and this was recently seen during their mass exodus during the
nationwide lockdown in the wake of COVID-19 pandemic.

This intrinsical and inalienable right of migrants often gets superseded by the laws derived
from the sovereignty of the state. If immigration laws and policies cannot be imposed
without resulting in the breach of a migrant’s rudimental rights, such laws and policies are
presumptively illegitimate. The migrant holds right against a state of destination even if
their status is not identically tantamount to the status of the members of that state. Human
rights are distinct from other rights in the sense that they apperceive extraordinarily special
rudimental interests. These incipient types of rights gained prominence when Article 1 of
the 1948 UDHR declaration affirmed, “all human beings are born free and equal in dignity
and rights”. Similarly, the Preamble to the UN Charter additionally calls for tenaciousness to
reaffirms faith in fundamental human rights. The ILO constitution declares that “all human
beings irrespective of race, creed or sex have right to pursue both their material salubrity
and their spiritual development in conditions of liberation and dignity, of economic security
and equal opportunity”. The workers and migrant rights movement are so old that in some
ways they even antedate the modern human rights movement. With the establishment of
the International Labour Organization (ILO) in 1919, the efforts to standardize the workers
and migrants’ rights gained momentum. To date, ILO has developed and passed many
conventions of which eight (8) are core conventions that talk about the fundamental rights
of labourers.2

2
https://www.ilo.org/wcmsp 5/groups/public/—europe/—ro-geneva/—ilo-brussels/documents/genericdoc
ument/wcms_177275 last visitedat 19:27 p.m. on 16-04-2021.

5|Page
The rights of Migrant workers in India

Millions of people move-from-to-and within India, but while dealing with these migrants the
human attribute goes missing. However, India has numerous laws and constitutional
provisions related to labour and migrant rights. For instance; the fundamental rights
available to the migrants are exhibited in Article 14 of the Indian constitution which holds
that everyone is equal before the law; Article 15 prohibits the state from discriminating
against citizens; Article 16 confers the right of equal opportunity for employment under a
state 2019); Article 19(1) (c) confers the right to form associations and unions; Article 21
guarantees protection to life and personal liberty; Article 21 A provides for free and
compulsory education to all children in 6–14 age groups; Article 23 of the Indian
constitution prohibits all sorts of trafficking and forced labour; Article 24 prohibits child
labour and makes it illegal to employ a child under 14 in a factory, mine, or any other
hazardous work; Article 38(1) of the Indian constitution directs the State to strive to
promote the welfare of the people by securing and protecting social order for the
promotion of the welfare of the people; Article 38(2) directs the state to strive to minimize
income inequalities in the country; Article 39 (d) of the Indian Constitution provides that the
state should strive to ensure equal pay for equal work for both men and women; Article 41
of the Indian constitution directs the states to strive to ensure the right to work for its
citizens which was attempted to put into practice through the introduction of “Mahatma
Gandhi National Rural Employment Guarantee Act-200500,(MGNREGA)- a scheme that aims
to provide at least 100 days of employment guarantee to every adult member of a rural
household who volunteer to do unskilled manual work; Article 42 directs the state to work
for providing secure, just, and humane working conditions and for maternity assuagement;
Article 43 directs the state to ascertain that workers are having the right to a living wage
and good working conditions that include a decent standard of life and full delectation of
leisure and convivial and cultural opportunities; and Article 43 A of the Constitution directs
the State to work on legislation that would secure the participation of workers in the
management of undertakings, establishments, or other organizations engaged in any
industry.

Apart from the provisions laid down in the Indian constitution, there are also laws meant to
protect the interest of Indian migrant workers of which one is the Inter-State Migrant
Workmen Act-1979 (ISMW). This Act was amended in 2017 and now it is known as the Inter-
State Migrant Workmen (ISMW Regulation of Employment & Conditions of Services) Central
(Amendment) Rules, 2017. The ISMW Act regulates the employment of inter-state migrant
workmen and makes provision for their conditions of service and matters connected
therewith. The act makes it mandatory for the labour contractors to obtain a license,
register his migrant workers with the government authorities, and arrange the issue of a
passbook to record the identity of the workers. The Act also outlines the guidelines related

6|Page
to the wages, accommodation, medical facilities, protective clothing, etc to be provided to
the workers by the contractor. The other important Indian laws meant to protect the
interest of workers are: Trade Union Act-1926 that defines law related to registration of
trade unions and provisions related to registered trade unions; Payment of Wages Act-1936
ensures that wages be paid in cash and not in kind to employed persons within the
prescribed time limit; Industrial Dispute Act-1947 provides for the investigation and
settlement of industrial disputes; Minimum Wages Act-1948 provides for fixing minimum
wage rates in certain employments; Payment of Bonus Act-1965 provides for payment of
minimum bonus of 8.33% of salary to workers working in enterprises employing 20 or more
people; Contract Labour (Regulation and Abolition) Act-1970 regulates the employment of
contract labour in certain establishments and to provide for its abolition in certain
circumstances and for matters connected therewith; Equal Remuneration Act-1976 provides
for payment of equal remuneration to men and women; Child Labour (prohibition and
Regulation) Act-1986 prohibits the child under 14 years of age from being employed in
certain employments; Unorganized Workers Social Security Act-2008 provides for social
security and welfare of unorganized workers; Maternity (Amendment) Bill-2017 provides for
26 weeks of paid maternity leave to women employees who have worked in an
establishments for at least 80 days in past 12 months; and Mahatma Gandhi National Rural
Employment Guarantee Act-2005 provides for 100 days of guaranteed employment in every
financial year to unskilled workers of rural India. Thus, it is apparent that there is no dearth
of laws to protect the interests of migrants and workers in India, however, the main issue
relates to the implementation of those laws.

Even after so many laws, the migrants and labourers are poor and exploited and completely
dependent on the mercy of employers and contractors. India is a founding member of ILO
and since 1922; it has been a permanent member of this world body. It has also ratified six
out of eight core fundamentals of ILO but it has not ratified the convention No.87 & 98 due
to governance-related issues. The Employees ‘and Employers’ Sodalities shall be sanctioned,
in compliance with this Convention, to draw up their constitutions and laws, to nominate
their members openly, to coordinate their administration and operations, and to devise
their programs. Furthermore, the convention urges the public bodies to forbear any
interference that might restrict or obstruct the legitimate exercising of that privilege.

 Migrant’s condition in India’s Demography

Migration has a high potential to ameliorate human development and some studies
validate that migration is a foremost passage out of penuriousness. However, in
India the inter-state migrants are still not treated opportunely and the policies are
not made aiming to integrate the migrants with the process of development. The
decision to migrate in India is mainly affected by both ‘push’ and ‘pull’ factors but
the gamut of migration research in India is mainly dominated by the ‘Rural Push’
theory. The analysis of Census-2011 shows that migration in India is mainly driven by

7|Page
 factors like employment, marriage, education, movement with family, natural
calamities, and other factors but, marriage and employment are the two primary
reasons for migration, with marriage being the most sizably voluminous reason.
However, the reason for migration varies by gender as, among men, employment is
the main cause of migration whereas, among women, marriage is the main cause of
migration.3
Thus migration in India is induced by both penuriousness and prosperity. India has
an astronomically immense migrant population as every third person in India is a
migrant. As per the 2011 census, migrants constitute 455.8(approx.) millions of
India’s 1.21 billion (approx.) populations which is 37.68 percent of the total
population. This includes inter-state migrants and intra-state migrants. Out of 455.8
million migrants, 67.93% are women and 32.07% are men.

3
https://www.censusindia.gov.in/2011-common/census_2011.html. last visited at 19:52 p.m. on 16-04-2021

8|Page
Legal framework of Migration in India

The first law relating to emigration was the Indian Emigration Act, 1922. This was replaced
by the Emigration Act, 1983 because the parameters of India’s migration policy had changed
and there was an urgent need to draft an appropriate legislation to meet the growing
requirement of migrant workers in the Gulf countries.

The Emigration Act, 1983 reflected the ethos of an independent India, which was concerned
with the welfare of its migrant population. The primary focus shifted from control to
protection of those who could not protect themselves. It was, therefore, befitting that the
topmost official under the 1922 Act – the Controller-General of Emigrants – was re-
designated as the Protector-General of Emigrants in 1983. Since most of the migrants
generally fell in the workers’ category, it was appropriate that the subject of emigration and
the office of the Protector- General were both transferred to the Ministry of Labour from
the Ministry of External Affairs.

The Act applies to a restricted category of persons, who go abroad for ‘work’. It largely
covers ‘migrant workers’, plus a few other categories, such as nurses, secretarial and
hospitality staff etc. Thus, the Act was meant to cover those who were not educated enough
to protect themselves, and thereby minimize the exploitation of workers in search of
greener pastures. Under the Act, migrants can take any of three routes in seeking
emigration clearance from the Protector of Emigrants, in whose jurisdiction they fall. They
could process the case themselves, through a recruiting agent or through an employer, who
in turn, can do so himself or use a recruiting agent. Theoretically, it is not necessary to take
the help of a recruiting agent, but this channel is frequently used, both by the individual and
the employer, and these middlemen have become an essential part of the migration
process.

9|Page
 Conclusion and Recommendations

Conclusion
Migration is conventionally not taken positively in India and migrants face arduousness in
having access to health care facilities, ration facilities, and other amenities. There exist
discrepancies in India’s pandemic and emergency replication strategies that need to be
discussed imperatively. The strategy, which increases the inclusion of all components of the
internal migrant community in society, especially children and women, should be more
humane. It is withal recommended that before introducing any legislation that could impact
the life of the masses, the public needs to be taken into confidence. It is paramount to avert
sudden policy decisions that can affect the lives of sizably voluminous masses. Cognizance
on the need to prioritize internal migration in policymaking additionally needs to be
incremented. In Indian society, there is a further need to alter the derogatory perception
towards internal migrants.

Recommendations
The main recommendations flowing out of the above scenario would broadly focus on
awareness, enforcement of law and involvement of trade unions and civil society. It would
be important in these cases to take stock of the stage of implementation of various
international activities (seminars and conferences) on migration, with a view to determining
those proposals which have been implemented or are feasible to be implemented and then
prioritizing them for implementation by different bodies – government, employers, trade
unions, civil society, ILO etc.

10 | P a g e
References

 Websites:
1.) https://www.ohchr.org/en/issues/migration/pages/migrationandhumanr
ightsindex
2.) https://www.ilo.org/wcmsp 5/groups/public/—europe/—ro-geneva/—
ilo-brussels/documents/genericdoc ument/wcms_177275
3.) https://www.censusindia.gov.in/2011-common/census_2011.html

 Articles:
1.) Migrant workers and human rights: A critical study on India’s
COVID-19 lockdown policy, by Shailendra Kumar Sanghamitra
Choudhury
2.) Migrant workers and human rights(out-migration from South Asia),
edited by Pong-Sul Ahn

11 | P a g e