Dr.

Ram Manohar Lohiya National Law

University, Lucknow

Labour Law

Final Draft
on
“Violation of social security and health rights of migrant
workers”
2021-2022

Submitted to Submitted by

Dr. Prasenjit Kundu Alok Rao

Assistant Professor (Law) Roll No.190101015

RMLNLU 6th Semester (Batch of 2024)

1
 ACKNOWLEDGEMENT

First and foremost, I would like to thank Dr. Prasenjit Kundu, faculty Labour Law, for
creating opportunities to undertake such a valuable project. He helped me in preparing the
project through his aura and by granting his precious time for consultation, discussion and
giving suggestions over this project. He had also helped me in improving the perception
regarding the study of topic in its vast resources and in broader way. He had cleared all doubts
and uncertainty towards this project. Therefore, I want to thank him, for all his efforts and
cooperation which he conferred to me.

Lastly, I want to thank my seniors and friends who helped me throughout the research
of this project.

ALOK RAO
Semester- 6th,
Section-A,
Roll No-190101015

2
 Table of Contents
1. Table of Cases ............................................................................................................. 4

2. List of Statutes............................................................................................................. 5

3. Table of Abbreviations................................................................................................ 5

4. Research Methodology ................................................................................................ 6

 Aim & Objective ............................................................................................. 6

 Research Questions ........................................................................................ 6

 Nature & Source of Data ................................................................................ 6

5. Introduction ................................................................................................................ 7

6. Regulations concerning migrant workers in India .................................................... 8

7. Social security for migrant workers ........................................................................... 9

 Social Security contribution for Inter-state Migrant Workers ................... 13

 Need for rationalizing Migrant Workmen Act ............................................ 14

8. Migrants’ health: Current Policy and programme environment in India .............. 15

 Determinants associated with the health of migrants ................................. 16

 Judicial Review ............................................................................................. 19

9. Impact of lockdown due to COVID-19 on the migrant workers ............................. 20

10. New Developments .................................................................................................... 21

 Occupational Safety, Health, and Working Conditions Code .................... 21

11. Conclusion ................................................................................................................. 23

12. Bibliography .............................................................................................................. 24

3
 Table of Cases

S.No. Case Citation

1. A.P. Suryaprakasam v. Superintendent of Police, 2020 SCC OnLine Mad
Sangli District, Maharashtra & Ors. 1004.
2. Abhijeet Kumar Pandey v. Union of India 2021 SCC OnLine Del 1859.
3. Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161.
4. Confederation of Ex-servicemen Association v. AIR 2006 SC 2945.
Union of India
5. Consumer Education and Research Centre v. (1995) SCC (3) 42.
Union of India
6. Dr. Damodar Panda and others v. State of Orissa 1990 SCC (4) 11.
and others
7. Francis Coralie Mullin v. The Administrator, (1981) 1 SCC 608.
Union Territory of Delhi & Ors.
8. Harsh Mander and anr. v. UOI and anr. 2020 SCC OnLine SC 376.
9. In Re:Problems and miseries of Migrant Labours 2021 SCC OnLine SC 410.
10. National Campaign Committee for Central MANU/SC/0264/2018.
Legislation on Construction Labour v. UOI and
Ors.
11. Parmananda Katara v. Union of India (1989) SCR (3) 997.
12. Paschim Banga Khet Mazdoor Samity v. State of (1996) SCC (4) 37.
West Bengal
13. Shashank S. Mangal v. GNCTD 2020 SCC OnLine Del 677.
14. State of Punjab v. M.S. Chawla AIR (1997) SC 1225.
15. State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117.
16. Vincent Panikurlangara v. Union of India 1987 SCR (2) 468.

4
 List of Statutes
(1) The Code on Social Security, 2020.
(2) The Inter-State Migrant Workmen ( Regulation of Employment and Conditions of
Services) Act, 1979.
(3) The Occupational Safety, Health, and Working Conditions Code, 2020.

Table of Abbreviations

¶ Para
¶¶ Paras
AIR All India Report
Art. Article
Anr. Another
edn Edition
ILO International Labour Organization
J. Justice
Ltd. Limited
OECD Organisation for Economic Co-operation and
Development
Ors. Others
s Section
ss Sections
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
UOI Union of India
Vol. Volume
v. Versus

5
 Research Methodology
Aim & Objective
The aim of the project is to determine migrant workers’ social security and health care rights.
This project seeks to give an overview of the country’s labour law regarding migrant workers,
interstate-migrant workers and how they are violated. Following are the objectives of the given
project report:

(1) To examine various kinds of discrimination, human rights violations faced by migrant
workers concerning social security and health rights.

(2) Evaluate entitlements given to interstate migrant workers by Central and State
governments in respect of social security and health rights of migrant workers and
reasons for their inclusion/exclusion, including problems faced by them in accessing
those entitlements.

Research Questions
(1) What are the health rights/entitlements of a migrant worker?
(2) How to avail health benefits once she/he is hospitalized?
(3) How to protect social security of a migrant worker?
(4) How to extend and strengthen social insurance and health entitlements for interstate
migrant workers?
(5) What are the responsibilities of State governments, District Administrations, and local
government institutions in addressing problems related to social security and health
rights of an interstate migrant workers?

Nature & Source of Data

The nature of the study is doctrinal. It also entails analytical, critical, and descriptive studies.
Sources includes journals, judgments of various High Courts and Supreme Court.

Mode of Citation

The project follows the uniform citation of APA 6th edition.

6
 Introduction
Migration has been a significant part of human history as it has shaped societies and economies
due to the intermixing of different cultures. Movement for economic and financial purposes
has gained immense popularity over the past few decades. Millions travel from developing to
developed countries in the pursuit of economic advantages and better quality of life. Various
issues have propped up over the years regarding labour rights for migrant workers as more and
more migrant workers were exposed to exploitation.

Across the world, the violation of labour rights by employer companies is a grave concern.
Migrant workers are especially vulnerable due to the fact that they lack social security along
with economic freedom. There are certain risks involved when such workers are rendered
unemployed.

Social protection and health care of interstate migrant workers is totally neglected as significant
number of them lives in unhealthy conditions facing various health related risks. Most Indians
are unaware of a key legislation for migrant workers, specifically the Inter-State Migrant
workmen act1. This act has positive features such as requiring registration of inter-state migrant
workers by establishments engaging them and requiring contractors who outsource labourers
to these establishments to obtain a license.

A large number of them lives in labour camps and housing clusters where environment
cleanliness is not maintained. Most of the migrant workers, especially in the construction
workers, are accommodated in crowded rooms with minimum basic facilities. Access to
healthcare services for migrant workers is inadequate causing the spread of the disease.
Overtime work causes several health problems to a significant number of interstate migrant
workers. The typical life cycle of migrant workers requires special provisions for their social
security to ensure that they can adequately manage their risks. They move between States and
hence between different labour markets and social security systems, which creates specific
vulnerabilities. In addition, access to social and basic services in the new host State is often
restricted for many reasons. The lack of access to basic services and portability of social
security for interstate migrant workers raises serious concerns about their vulnerabilities. Lack
of access to rights and entitlements pose serious problem for migrant workers.

1
The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act.1979.

7
 Regulations concerning migrant workers in India
One of the most important labour rights is the right to decent working conditions and social
security. The inception of the concept of social security took place at the time of the French
Revolution, 1793.

The Indian Constitution protects labour’s rights. This aspect is circumscribed within the
Preamble, the Fundamental Rights, and the Directive Principles of State Policy under Part IV
of the Constitution. Minimum rights are guaranteed in the workplace according to the
Constitution. This enables workers and employees to translate economic growth into social
security. Integrated development is only possible if all kinds of workers have their fair share
of rights. The Preamble itself portrays that the Indian Constitution prescribes and promotes
social justice for workers.2 There are various labour specific legislations along with
government social- security schemes.

Legislations concerning migrant workers in India are:

 Inter-State Migrant Workmen (Regulation of Employment and Conditions of

Service) Act, 1979

The primary purpose of this act is to benefit migrant workmen. The framework of the
legislation is spread over 7 chapters. The legislation encompasses registration of establishments
employing inter-state migrant workmen, licensing of contractors, duties and obligations of
contractors, welfare facilities etc. that needs to be provided to the workers.

 Payment of Wages Act, 1936

The Payment of Wages Act, 1936 ensures the regular and prompt payment of wages. Untimely
payment of remuneration is a type of exploitation and in order to prevent this, legislation came
into force. The imposition of Arbitrary fines on migrant workers is also prevented.

 Employees’ Compensation Act, 1923

The Employees’ Compensation Act, 1923 is another important piece of legislation that
provides protection to all kinds of workers (including migrant workers). With the increasing
use of machinery, the need for manpower is going down. This leads to comparative poverty of

2
Ranjani, M.Right To Social Security. Legal Service India E-journal. Retrieved March 25, 2022, from
https://www.legalserviceindia.com/legal/article-86-right-to-social-security.html.

8
the workmen. Thus, workmen are prone to accidents even at the risk of losing their lives.
Therefore, in order to protect migrant workers from such hardships, this legislation was
enacted.

 Equal Remuneration Act, 1976

This legislation is proposed to achieve the ‘Equal pay for equal work’ motto amongst migrant
workers. The Act has an overriding effect on any other law or legislation or any court award,
agreement, contract of service which otherwise suggests or orders anything that violates this
motto.

 Minimum Wages Act, 1948

The primary purpose of this act is to fix, review and revise the minimum rates of wages. This
Act safeguards the interests of the migrant workers or workers engaged in unorganised sectors.
This sect of workers is especially vulnerable to exploitation owing to their illiteracy and
inability to bargain.

 The Maternity Benefit Act, 1961

This Act is intended to achieve social justice for women workers (including migrant
workers).The Maternity Benefit Act, 1961 has provisions under it that is for the wellbeing of
the women migrant workers pre and post their pregnancy.

 The Unorganised Workers’ Social Security Act, 2008

The aim of this legislation is to provide social security to the workers of the unorganized sector.
The collective term, ‘unorganized sector’ is exhaustively defined under the Unorganised
Workers’ Social Security Act, 2008 and the scope of this Act includes migrant workers.

Social security for migrant workers

The International Labour Organization is constitutionally bound to promote social security
programmes and measures providing basic income to all in need of protection. Social security
systems provide nine types of benefits as defined in the convention 3, namely, medical care,
sickness and maternity, medical care, sickness and maternity benefits, family benefits,
unemployment benefits, employment injury, invalidity, and survivor’s benefits, old age

3
No. 102. ILO Social Security (Minimum Standards) Convention.1952.

9
benefits. Therefore, social security is the very foundation of a decent society, it is the primary
source of social legitimacy. 4

In most of the developing countries there are no bilateral agreements and no national
legislation, specifying the rights of migrant workers, who do not therefore, enjoy the benefits
of social security schemes in the countries to which they have migrated countries. In the era of
globalization, there has been growing casualisation of workers, therefore, workers are
struggling for their labour rights and their dignity of life. Generally, unorganized workers, have
been suffered from the problem of unemployment, lack of social security.

Health hazards are a serious problem for the migrant workers in various sectors. Construction
and brick kiln migrant workers suffer from a number of diseases which are a result of their
occupation or working conditions. Accidents and lung diseases are common among
construction workers.5 The ILO estimates suggest that only 10 percent of the world’s workers
have truly adequate social protection.

The Government should think about the formation of a separate ministry dealing with issues
relating to the migrant worker population, and implementation of their legal, constitutional,
and human rights. Also, the court in case of Shashank S. Mangal v. GNCTD6 held that there
is a dire need for creating a mechanism for registration of migrant workers.

So far as women workers are concerned, women constitute a significant part of the workforce
in India. However, the work participation rate of women’s still very low. In 1993- 1994, the
percentage of women in the workforce was 28.6 against 54.5 for males. The work participation
rate of women is low as compared to U.S.A. 42.7 percent and Italy 53.8 percent. More than 90
percent of the total workforce of the country is engaged in the unorganized sector. Of the total
employment of women, they comprise only 4 percent of the organized sector, and 96 percent
women are employed in the so called unorganized or informal sector, which is unorganized,

4
Mishra, L. (2001). Can Globalization and Labour Rights Co-exist? Indian Society of Labour Economics, 44(1).
Retrieved March 25, 2022.
5
Varma, D., & Ravindrnath, D. (2019, March 25). Seasonal migration and health in India: Constraints for research
and practice. Retrieved March 25, 2022, from https://www.ideasforindia.in/topics/urbanisation/seasonal-
migration-and-health-in-india-constraints-for-research-and-practice.html.
6
Shashank S. Mangal v. GNCTD, 2020 SCC OnLine Del 677.

10
non-unionized, low waged and with unhealthy almost inhuman working conditions. It is true
that women labour is predominant in the unorganized sector.7

In 1997, the ILO introduced convention about sexual harassment of women workers at the
workplaces. The definition of sexual harassment adopted by ILO has been accepted by the
government of India. But the growing informalisation or casualisation or marginalization of
women at workplaces serious threats regarding the ILO convention. Women workers in
unorganized sectors are, generally, sexually exploited.

Migrant women workers are exposed to the risk of sexual harassment and exploitation. So far
as women migrant workers are concerned, women workers work in various factories, like sugar
factories, handlooms and power looms and cotton ginning mills for the nature of temporary,
seasonal, part time work8. However, migrant women workers in India, who are often in low
skilled occupations in sectors not efficiently covered by national labour laws and standards,
and vulnerable to various forms of exploitation including sexual harassment at the places of
work.

Besides, India has the largest number of world’s working children which is almost 40 percent
of the number of children in the world force. The incidence of child workers in the unorganized
sector is much higher than those in the formal organized sector.

Among four core labour standards the deplorable violation in India is practice of child labour.
Uniform labour standards in the context of child labour cannot be implemented in rural and
urban areas of India unevenness of economic development makes it difficult to apply uniform
labour standards.9

In terms of bondage labour system, bondage and servitude has been reported in the brick kilns,
store quarries, building and road constructions, agriculture and plantations, and other
unorganized sectors in different forms. The proportion of bonded labour is more among

7
Dawson, C., Veliziotis, M., & Hopkins, B. (2017). Understanding the perception of the ‘migrant work ethic’.
Work, Employment and Society, 32(5), 811-830. Retrieved March 27, 2022, from
https://journals.sagepub.com/doi/10.1177/0950017017706306
8
Women Migration in India: Evidence from Odisha.Retrieved March 22, 2022, from https://www.cwds.ac.in/wp-
content/uploads/2019/10/Women-Migrating-in-Inida.pdf.
9
Plumber, M. (2020, December 6). Child Labour And Child Marriages Increasing In Rural Areas As Children
Are Not Going To School: Karnataka High Court. Retrieved March 22, 2022, from https://livelaw-
nlul.refread.com/news-updates/child-labour-child-marriage-children-school-karnataka-high-court-166868.

11
migrant workers, who belong to backward community i.e., Scheduled castes and scheduled
tribes.

In Damodar Panda case10 it was said that “the inter-state migrant workers from outside the
State of Rajasthan and employed in the State in brick kilns are concerned, there can be no
difficulty in implementation of the aforesaid laws, including the Inter-
State Migrant Workmen Act.”

In Bandhua Mukti Morcha v. Union of India11, the court observed:- “It is the fundamental
right of everyone in this country, assured under the interpretation given to Article 21 by this
Court in Francis Mullin’s case12 ----to live with human dignity, free from exploitation. This
right to live with human dignity enshrined in Article 21 derives its life breath from the Directive
Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and
42 and at the least, therefore, it must include protection of the health and strength of the
workers, men and women, and of the tender age of children against abuse, opportunities and
facilities for children to develop in a healthy manner and in conditions of freedom and dignity,
educational facilities, just as humane conditions of work and maternity relief. These are the
minimum requirements which must exist in order to enable a person to live with human dignity,
and no State--neither the Central Government---has the right to take any action which will
deprive a person of the enjoyment of these basic essentials.”

Consumer Education and Research Centre v. Union of India13 laid down : “Social justice
which is a device to ensure life to be meaningful and liveable with human dignity requires the
State to provide to workmen facilities and opportunities to reach at least minimum standard of
health, economic security, and civilized living. The health and strength of worker, the court
said, was an important facet of right to life. Denial thereof denudes the workmen the finer
facets of life violating Art. 21.”

The abolition of bonded labour act14 was introduced to fight strictures on the freedom to work
as a legal right. The enactment failed to release this objective because it did not go beyond
addressing forms of agrarian bondage, which still lingered on the different parts of India.
Besides, the maternity benefits are not available for contract based migrant women workers

10
Dr. Damodar Panda and others v. State of Orissa and others, 1990 SCC (4) 11.
11
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.
12
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors.,(1981) 1 SCC 608.
13
Consumer Education and Research Centre v. Union of India, (1995) SCC (3) 42.
14
The Bonded Labour System (Abolition) Act.1976.

12
and employed in agriculture, construction, brick kilns and other temporary, seasonal, part time
work, because they come under the unorganized sector.15

 Social Security contribution for Inter-state Migrant Workers

With the purpose of providing social security coverage to the maximum workforce of the
organized and unorganized sectors, the Central Government enacted the Code on Social
Security, 2020 (“Code”) on September 29, 2020, consolidating all the essential elements
related to social security. When enforced, this Code will repeal and re-enact nine Central labour
legislations relating to social security, including the Employees Provident Fund and
Miscellaneous Provisions Act, 1952 (“EPF Act”), the Employee State Insurance Act, 1948, the
Maternity Benefit Act, 1961, and the Payment of Gratuity Act, 1972.

Under the Social Security Code, the scope of ‘inter-state migrant workers’ has been widened
to include those workers who move from one State for employment in an establishment in a
destination State and may subsequently change their establishment within the said destination
State, pursuant to an agreement or other employment arrangement. A wage ceiling of INR
18,000 per month has been prescribed for such workers to qualify as inter-state migrant
workers. Further, since inter-state migrant workers have also been included in the definition of
‘contract labour’, they would qualify as ‘employee’ under the Code and receive certain benefits
as employees. Therefore, going forward, employers may need to provide social security to
inter-state migrant workers at par with their other employees 16.

In the case of National Campaign Committee for Central Legislation on Construction

Labour v. UOI and Ors17 it was observed by the Court that from time to time various petitions
have been filed regarding the rights of workers in the unorganized sector including construction
workers, especially in areas of safety, occupational health and welfare measures, and series of
directions were issued pertaining to the matter regarding non-compliance with the BOCW and
Cess Act and the need for its effective implementation but neither any state government nor
any union territory administration took steps to implement the laws made by the legislation for

15
Jain, M. (2020, June 3). SC Issues Notice On Plea Seeking Urgent Release Of 187 Bonded Labourers Held At
Brick Kilns In Bihar, UP. Retrieved March 26, 2022, from https://livelaw-nlul.refread.com/top-stories/sc-issues-
notice-on-plea-seeking-urgent-release-of-187-bonded-labourers-held-at-brick-kilns-in-bihar-up-157770.
16
Dwivedi, M., & Choudhary, S. (2020, November 04). Evaluating the Code on Social Security, 2020. Retrieved
March 27, 2022, from https://www.mondaq.com/india/employee-benefits-compensation/1001268/evaluating-the-
code-on-social-security-2020.
17
National Campaign Committee for Central Legislation on Construction Labour v. UOI and Ors.,
MANU/SC/0264/2018.

13
the benefit of laborers and construction workers; thereby infringing the laborers’ right to social
and economic justice.

 Need for rationalizing Migrant Workmen Act

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act,
1979 is an Act of the Parliament of India, sanctioned to control the state of administration of
between state workers in Indian work law. The Act’s motivation is to ensure labourers whose
administrations are ordered outside their local states in India. At whatever point a business
faces a deficiency of aptitudes among the locally accessible specialists, the demonstration
makes arrangements to utilize better-talented labourers accessible outside the state.

The aftermath of the lockdown to lessen the spread of COVID-19 features the earnest need to
excuse the administrative structure for work in India. Vagrant work has been among the most
noticeably awful influences because of the lockdown. Their endeavours to leave the urban areas
before the lockdown, and the remarkable endeavours some put in to get back home, recommend
that they have low versatility to remain in urban areas without business. 18

The Supreme Court19 has directed all the States/Union Territories to register all establishments
and license all contractors under the act20 and ensure that statutory duty imposed on the
contractors to give particulars of migrant workers is fully complied with.

They become lost despite a general sense of vigilance of India’s standardized savings net, and
the administration’s reaction has demonstrated a huge hole between noble expectations
reflected in existing laws and their execution. In the quick consequence of the lockdown, state
governments were surprised by between state vagrants who were frantic to get back. Many had
lost positions, would not have the option to bear the cost of the lease, and feared to fall
genuinely sick away from their families.

In the Shashank S. Mangal v. Govt. (NCT of Delhi)21 it was observed that, collection of data
ought to be vertically integrated so that data relating to migrant workmen, from the Central
Government and the States is collected, cross-checked, maintained and is readily available,
without any time-lag.

18
Mogha, N. (2021). Inter State Migrant Workers Act: A Critical Analysis. Retrieved March 22, 2022, from
https://www.legalserviceindia.com/legal/article-2184-inter-state-migrant-workers-act-a-critical-analysis.html.
19
Re:Problems and miseries of Migrant Labours, 2021 SCC OnLine SC 410.
20
Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act.1979.
21
Shashank S. Mangal v. Govt. (NCT of Delhi), 2020 SCC OnLine Del 621.

14
The full and legitimate execution of this law would have implied that state governments had
total subtleties between state vagrant labourers coming through contractual workers inside their
states. While this would at present forget about vagrants who move across states all alone, a
huge section would be consequently enrolled because of the prerequisites of the Act. The
essential explanation behind this is by all accounts the grave consistency necessities set out in
the law. It does not just require equivalent compensation for between state labourers, yet
additionally requires other social assurance that would make their business altogether more
costly than intra-state workers.

Since the Act is scarcely actualized, it exists as another law that possibly gives lease looking
for chances to venture some government investigators while fizzling in its principal objective.
Another result of feeble usage is the nonappearance of government readiness and the
subsequent disappointment in forestalling veritable difficulties for defenceless gatherings. The
results of the lockdown are now ending up being lamentable for vagrant work22. One of the
exercises from this scene is to not let optimistic necessities become an obstacle to the
compelling assurance of the very gatherings these prerequisites are intended for.

This will require a principled differentiation among formalization and apparent social-
government assistance. While the previous tries to make individuals or exercises obvious or
“intelligible”, the last goes above and beyond. Social-government assistance insurances are
predicated upon formalization, yet resistance with cumbersome social government assistance
prerequisites can rather repress formalization. This isn’t just a result of high consistent costs,
yet besides because the state can scarcely stay aware of the errand of guaranteeing consistency
with such prerequisites, aggravated given the disincentives to consent. This has made a two-
level framework, one formal and the other casual. Those in the proper level less than 10 percent
of the workforce appreciate impressive securities, while those in the casual level get no
assurances.

Migrants’ health: Current Policy and programme environment in India

Migrant workers are among the most vulnerable sections of the society in times of both
normalcy and emergency. Struggling for a living, they are often exploited and forced to work

22
Supreme Court Directs States/UTs To Strictly Implement Inter-State Migrant Workmen Act 1979. (2021, June
29). Retrieved March 25, 2022, from https://www.livelaw.in/top-stories/supreme-court-directs-statesuts-to-
strictly-implement-inter-state-migrant-workmen-act-1979-176499.

15
and live in deplorable conditions; employers, contractors and the policymakers often overlook
their health and safety risks. Interestingly, the spread of Covid-19 pandemic has brought
renewed attention, especially among the academicians and civil society organisations to
otherwise neglected internal migrant labourers in the length and breadth of the country. The
2011 census has estimated approximately 453 million people as internal migrants who are 37
percent of India’s total population. Out of them, 10.2 percent migrate interstate or intrastate
specifically for employment purposes(Bansal 2016).23 While 88 percent of total internal
migrants move within the states (inter-district and intra-district), only 12 percent of the total
movement is interstate. Internal migrants constitute a crucial part of India’s economic growth
and poverty reduction, especially in rural areas.24

In the case of Abhijeet Kumar Pandey v. Union of India25, the Court expressed that in view
of the scale and magnitude of pandemic Covid-19, a structured response by the administration
is required so that the voiceless and the marginalized sections of the society can be given proper
and adequate relief. Accordingly, the Court directed the government to treat the instant petition
as a representation to the Chief Secretary, Government of NCT of Delhi and frame a Scheme
incorporating a structured response for the ‘home-based worker’, ‘self-employed worker’ and
‘unorganized worker, as defined under the Act, 2008, within two weeks. Additionally, the
Court directed, “While framing the scheme, the Chief Secretary shall keep in mind the prayers
sought for in the present writ petition, including the prayer for payment of ex gratia amount to
the unorganized workers and the migrant workers.”

 Determinants associated with the health of migrants

Different types of migration lead to diversified vulnerability among internal migrants. The
common determinants of health risks among migrants are the motivational factors (reasons for
migration, occupations at the source of origin) and occupation related factors. In addition, the
living conditions of migrants’ affect their health, these factors are inter-correlated, these being.

23
Bansal, S. (2016, December 02). 45.36 crore Indians are internal migrants. The Hindu. Retrieved March 26,
2022, from https://www.thehindu.com/data/45.36-crore-Indians-are-internal-migrants/article60645060.ece.
24
De, S. (2019, December 18). Internal Migration in India Grows, But Inter-State Movements Remain Low [Web
log post]. Retrieved March 26, 2022, from https://blogs.worldbank.org/peoplemove/internal-migration-india-
grows-inter-state-movements-remain-low
25
Abhijeet Kumar Pandey v. Union of India, 2021 SCC OnLine Del 1859.

16
 a) Overcrowding living conditions which facilitate increased transmission of infectious
diseases
b) Poor nutritional status (consequent lowered immunity) due to lack of food before,
during and after migration.
c) Inadequate quantities and quality of water to sustain health and allow personal hygiene.
d) Poor environmental sanitation.
e) Inadequate or no shelter without sanitation facilities.
f) Choices of occupation and working conditions.

 Policy Environment:-
Although India does not have a comprehensive policy on internal migration, fragmented
policies for the protection of migrants do exist. Indian constitution contains basic provision
relating to the conditions of employment, non-discrimination, right to work etc (for example
Article 23(1), Article 39, Article 42, Article 43) which are applicable for all workers including
migrant workers within the country. Migrants are covered under various labour laws. However,
those laws, which do exist to protect the rights of migrant workers, are widely disregarded by
employers and intermediaries because of a lack of political will to implement them, and
ignorance among illiterate migrants of their rights as workers.

Additionally, as migrants do not have fixed employers, the latter escape from their
responsibilities to provide various benefits to migrants that are mandatory under the existing
laws. These laws hold the government as well as the employers responsible for contributing
financially towards providing benefits such as basic health care, insurance, and an education
allowance for children of workers.26 The Interstate Migrant Worker act has been in force since
1979, and has great potential to address interstate migration issues, but is not implemented due
to lack of awareness among migrants as well NGOs, and the lack of willpower among
politicians and government officials dealing with interstate alliance. It is crucial to activate and
implement the available laws to address migrants’ issues related to exclusion of services.

26
What is the impact of the COVID-19 pandemic on immigrants and their children? (2020, October 19). Retrieved
March 26, 2022, from https://www.oecd.org/coronavirus/policy-responses/what-is-the-impact-of-the-covid-19-
pandemic-on-immigrants-and-their-children-e7cbb7de/.

17
However, within national health programmes and policy, currently there is little related to the
health of migrant workers.27

India has ratified many International Labour Organization’s conventions but is neither a
signatory nor ratified the Convention of Migrant Workers (CMW), which provides the formal
sanction for protection of the migrants. Similarly, UN Convention of Migrant Workers clearly
spells the global focus on the human rights of migrants, but India has not adopted either of
them and hence interests of migrants are not protected including health.

There are very few examples of government policies to support the migrant population in India.
Currently, most of migrant healthcare is in the non-governmental sector (wherever such
organizations exist). The existing central government guidelines allow all migrant children to
avail of nutritional supplementation under the Integrated Child Development Scheme (ICDS)
at destination cities irrespective of whether or not they are registered in the area. As a result,
all migrant children can benefit from the childcare centre (anganwadi) services in or near where
the migrants reside (nakas) 28. Pregnant women can also avail of antenatal and post-partum care
through these anganwadis, which will be linked to government health services. Adolescent girls
can be given treatment for anemia at these anganwadis, and, in addition, be provided life skills
and sex education through the ICDS programmes.

India runs several vertical programmes for health (funded by the central government), which
include those against diseases like HIV/AIDS, TB, and malaria. Interventions pertaining to
these programmes are often long-term and require follow-up, thus these programmes often find
it extremely challenging to maintain continuity of medical care and monitor health outcomes
in migrant populations. Currently, few government databases have data pertaining to migrants;
almost none have data over time 29. Even when this information exists, it remains confined to
the labour sector. There is need to consciously channelize this information into the health sector
and devise “tracking strategies” for improving health outcomes of migrants.

27
George, T., & Varma, P. R. (2022). Prevalence of potentially malignant oral disorders among migrant labourers.
India Migration Report 2021, 117-136.
28
Behera, M. R. (2018). Health and policy environment of internal labour migrants in India – a literature review
and future direction. International Journal of Current Research and Review, 10(19), 1-7. Retrieved March 26,
2022, from https://ijcrr.com/uploads/2530_pdf.pdf
29
Ethnic Migration Series: ‘Health has to be elevated as a human right, not charity for migrants’. (2021, July 30).
The Indian Express. Retrieved March 26, 2022, from https://indianexpress.com/article/india/covid-vaccination-
migrant-workers-healthcare-crisis-7355221/

18
We all know how poor people have to grease the system even for their legitimate dues.
Narratives from across India evidence that the State in formulating its schemes should take into
account the varied needs of the migrant worker, specially and not limited, to poverty, ill health,
and psyche. Registration of migrant workers should be mandatory30. Rations should be
provided without much formality. 31

 Judicial Review
In a plethora of decisions, the honourable Courts have held that the right to health be read in
Art 21 and laid down detailed guidelines for its effective implementation.

State of Punjab v. M.S. Chawla32 held, “It is now settled law that right to health is an integral
to right to life. Government has constitutional obligation to provide the health facilities.”

Vincent Panikurlangara v. Union of India33 held, “A healthy body is the very foundation for
all human activities. In a welfare State, therefore, it is the obligation of the State to ensure the
creation and the sustaining of conditions congenial to good health.”

When health is lost the Right to Medical Care is very essential and has been recognized by the
Courts. In Parmananda Katara v. Union of India34: “Art. 21 of the Constitution cast the
obligation on the State to preserve life. The patient whether he be an innocent person or a
criminal liable to punishment under the laws of the society, it is the obligation of those who
are in charge of the health of the community to preserve life so that the innocent may be
protected and the guilty may be punished. Social laws do not contemplate death by negligence
to tantamount to legal punishment…. Every doctor whether at a Government hospital or
otherwise has the professional obligation to extend his services with due expertise for
protecting life.”

In Paschim Banga Khet Mazdoor Samity v. State of West Bengal 35 the court said since it is
the joint obligation of the Centre as well as the States to provide medical services it is expected
that the Union of India would render the necessary assistance in the improvement of the
medical services in the country on these lines.

30
Shashank S. Mangal v. Government Of Nct Of Delhi W.P.(C) 3324/2020 and CM APPL. 11679/2020.
31
A.P. Suryaprakasam v. Superintendent of Police, Sangli District, Maharashtra, 2020 SCC OnLine Mad 1004.
32
State of Punjab v. M.S. Chawla, AIR (1997) SC 1225.
33
Vincent Panikurlangara v. Union of India, 1987 SCR (2) 468.
34
Parmananda Katara v. Union of India, (1989) SCR (3) 997.
35
Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) SCC (4) 37.

19
State of Punjab v. Ram Lubhaya Bagga36 held: “Pith and substance of life is the health, which
is the nucleus of all activities of life including that of an employee or other viz. the physical,
social, spiritual or any conceivable human activities. If this is denied, it is said everything
crumbles. Further to secure protection of one's life is one of the foremost obligations of the
State, it is not merely a right enshrined under Article 21, but an obligation cast on the State to
provide this both under Article 21 and under Article 47 of the Constitution.”

In Confederation of Ex-servicemen Association v. Union of India37 the court held that right
to health and medical aid of workers during service and thereafter, is a fundamental right of
workers. According to this Court, it can issue directions in an appropriate case to the State or
its instrumentalities or even private employers to make the right to life meaningful and to pay
compensation to affected workmen.

Human right abuses such as grinding poverty force people to migrate. Parliament seeking to
‘reform’ labour law has, introduced, The Occupational Safety, Health, and Working Conditions
Code of 2019. The code seeks to merges thirteen labour laws into a comprehensive Code. The
Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act of
1979 is one of them. However, activists are of the opinion that the safeguards given to the
migrant workers in the 1979 Act will be diluted.

A proper implementation of existing Constitutional and legislative provisions is required. They

should not remain merely paper provisions.

Impact of lockdown due to COVID-19 on the migrant workers

India’s country-wide lockdown amidst the outbreak of COVID-19 pandemic has critically
impacted the whole nation. It has led to a number of hardships to businesses and job-goers.
However, the worst affected section of society would-be migrant workers. The migrant workers
thrive on rootless existence with no proper place to stay and establish themselves. In fact,
Interstate migration is a massive phenomenon. This lockdown has completely dislocated the
migrant population38. Recently due to the sudden shut down of public transportation, thousands
of migrants were forced to walk miles in order to reach their home villages. Some migrant

36
State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117.
37
Confederation of Ex-servicemen Association v. Union of India, AIR 2006 SC 2945.
38
Mishra, P., & Gupta, J. (2021, July 20). Impact of Covid 19 on Indian Migrant Workers: Decoding Twitter Data
by Text Mining. Retrieved March 26, 2022, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8294302/.

20
workers and their children also died on their way back to their home journey. The truth is
saddening.

Migrant workers became one of the most vulnerable groups whose rights remain eclipsed due
to the lack of timely governmental action. The condition of migrant workers is already pitiable.
Each day’s economic productivity decides the number of wages they receive. Thus, during the
lockdown, since such workers became economically unproductive, they didn’t receive any
payment. With little or no savings at hand, a massive exodus of migrant workers took place.

In case of Harsh Mander and anr. v. UOI and anr39 a writ petition was filed in Supreme Court
wherein the petitioners were seeking directions for the government to ensure the payment of
wages to the migrant workers during the epidemic. In the response the court asked the
petitioners to look at the status report submitted by the government and refused to interfere in
policy matters.

Later on, petition was disposed on 21st April, when Solicitor general, Tushar Mehta filed a
status report and informed about the various measures being taken to address the issues of
migrant workers and he also highlighted the fact that a helpline has been generated where the
complaints can be logged so that the aggrieved could receive an immediate relief.

New Developments

 Occupational Safety, Health, and Working Conditions Code

The Occupational Safety, Health, and Working Conditions Code, 2020 (OSH) was introduced
in Lok Sabha on September 19 and passed on September 22. It was introduced and passed in
Rajya Sabha on September 23. According to the previous legislation, The Inter-State Migrant
Workmen (Regulation of Employment and Conditions of Service) Act, 1979, only the interstate
migrant workers hired through contractors were covered under labour laws. Therefore, the
migrant workers who travelled on their own account for employment or in search of
employment from villages to big cities were not covered under the ambit of the labour laws.

Under the Occupational Safety, Health, and Working Conditions Code, 2020 a migrant worker
is defined as the one who “has been recruited directly by the employer or indirectly through a
contractor in one state for employment in such establishment situated in another state” or “has

39
Harsh Mander and anr. v. UOI and anr., 2020 SCC OnLine SC 376.

21
come on his own from one state and obtained employment in an establishment of another state.”
The bill provides certain benefits for inter-state migrant workers. The workers have the option
to avail the benefits of the public distribution system either in the native state or the state in
which they have been employed 40. The benefits under the building and other construction cess
fund can be availed in the state of employment, and insurance and provident fund benefits are
available to other workers in the same establishment.

The government has, however, dropped a provision in the previous draft of the law which made
it compulsory for employers “to provide and maintain suitable residential accommodation” to
migrant workers “during the period of their employment.” The 2019 Bill required contractors
to pay a displacement allowance to inter-state migrant workers at the time of their recruitment,
which was equivalent to 50% of the monthly wages. The 2020 Bill has removed this provision.
A parliamentary panel has recommendations on a separate chapter on migrant workers in the
code and recommended that every state should have a helpline for migrant workers.

However, the inspection authority to assure the implementation of such law has been further
weakened by the code. The code does not provide for powers of inspectors envisaged by ILO
Conventions such as stated in Article 12 “free entry at any time and without prior notice”
Article 16 “and as frequently as possible to secure effective enforcement of laws”.

40
The Occupational Safety, Health, and Working Conditions Code, 2020. Retrieved March 27, 2022, from
https://prsindia.org/billtrack/the-occupational-safety-health-and-working-conditions-code-2020.

22
 Conclusion
Migrant workers are the most vulnerable population in the world. Their migration is out of
necessity but not a choice. Access to food is not the only solution. Giving free ration to migrant
workers does not absolve government from their larger responsibility nor does it ease the
distress of these workers. India government has always played deaf ear to the political discourse
on labour issues. Covid-19 pandemic has really uncovered the lack of government’s
commitment to protect the most vulnerable population of the country.

India needs to follow minimum international labour standards as established in International

Labour conventions. United Nations has highlighted the human rights crisis India is facing
amid this pandemic. It had called for Domestic Solidarity. Time for India to take notes on
European approach of labour policies. Their policy is majorly based on inclusion. Social
inclusion means social cohesion in which every member is drawn together as active member
of a society. They provide for migrant support measures to integrate them into the workforce.
EU divides its migrant population into fragments like high skilled workers, inter-corporate
transfers, foreign students, season workers, etc.

Provision for health insurance for migrant workers needs to be mandated nation-wide in line
with the health insurance scheme, Awaaz, rolled out by the Government of Kerala in 2017. The
health budget needs to be augmented to take into account unforeseen pandemic crisis like this
and setting up of a universal healthcare programme that benefits the deprived sections of the
country has to be the priority. To supplement these efforts, decent and hygienic living
conditions including proper waste disposal facilities, sanitation, water supply, and avenues for
recreation are necessary for the physical and mental health of this vulnerable population.
Healthcare providers should be oriented of the sociocultural background of the interstate
migrant workers and encouraged to treat them without any prejudice.

Obsolete laws such as the Inter-State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979 should be made more efficient by discarding onerous
compliance procedures and ensuring uniform labour standards. The Government should aid in
the formation of a separate ministry dealing with issues relating to the migrant worker
population, ensuring compliance by implementation under the purview of governmental
bodies. The Government should promote and provide aid to the NGO’s taking an active part
for the protection of the legal rights of the migrant workers and to build an active movement to
generate awareness about their rights, lobbying and advocacy to prevent the abuse and
exploitation of the migrant workers.

23
 Bibliography
Books:
1) Malik, P. L. (2021). Handbook of Labour and Industrial Law (19th ed.). Eastern Book
Publication.
2) Hans, A., Kannabiran, K., Mohanty, M., & Pushpendra. (2021). Migration, workers, and
fundamental freedoms: Pandemic vulnerabilities and states of exception in India.
Routledge.
3) Mishra, S. N. (2020). Labour & Industrial Laws. Central Law Publication.
4) Harikumar, P. N., Dr., & Susha, D., Dr. (2017). Social Security and unorganised labour in
India. New Delhi: Abhijeet Publications.
5) Munjal, S. N. (2019). Handbook of Compliances Under Labour Laws. New Delhi:
Bloomsbury.

Articles/Journals

1) Behera, M. R. (2018). Health and policy environment of internal labour migrants in

India – a literature review and future direction. International Journal of Current
Research and Review, 10(19), 1-7. Retrieved March 26, 2022, from
https://ijcrr.com/uploads/2530_pdf.pdf
2) Bhattacharya, R., & Menon, S. (2021, September 25). They have not returned: How
Covid 19 has impacted labour migration in the country. The Economic Times.
Retrieved.March.26,.2022,.from.https://economictimes.indiatimes.com/news/econom
y/indicators/they-have-not-returned-how-covid-19-has-impacted-labour-migration-in-
the-country/articleshow/86513113.cms
3) Dawson, C., Veliziotis, M., & Hopkins, B. (2017). Understanding the perception of the
‘migrant work ethic’. Work, Employment and Society, 32(5), 811-830. Retrieved
March 27, 2022, from https://journals.sagepub.com/doi/10.1177/0950017017706306
4) De, S. (2019, December 18). Internal Migration in India Grows, But Inter-State
Movements Remain Low [Web log post]. Retrieved March 26, 2022, from
https://blogs.worldbank.org/peoplemove/internal-migration-india-grows-inter-state-
movements-remain-low
5) Dwivedi, M., & Choudhary, S. (2020, November 04). Evaluating the Code on Social
Security,.2020.Retrieved.March.27,.2022,.from.https://www.mondaq.com/india/empl
oyee-benefits-compensation/1001268/evaluating-the-code-on-social-security-2020.

24
6) Ethnic Migration Series: ‘Health has to be elevated as a human right, not charity for
migrants’. (2021, July 30). The Indian Express. Retrieved March 26, 2022, from
https://indianexpress.com/article/india/covid-vaccination-migrant-workers-healthcare-
crisis-7355221/
7) Mishra, P., & Gupta, J. (2021, July 20). Impact of Covid 19 on Indian Migrant Workers:
Decoding Twitter Data by Text Mining. Retrieved March 26, 2022, from
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8294302/.
8) Mogha, N. (2021). Inter State Migrant Workers Act: A Critical Analysis. Retrieved
March 22, 2022, from https://www.legalserviceindia.com/legal/article-2184-inter-
state-migrant-workers-act-a-critical-analysis.html.
9) Supreme Court Directs States/UTs To Strictly Implement Inter-State Migrant
Workmen Act 1979. (2021, June 29). Retrieved March 25, 2022, from
https://www.livelaw.in/top-stories/supreme-court-directs-statesuts-to-strictly-
implement-inter-state-migrant-workmen-act-1979-176499.
10) The Occupational Safety, Health and Working Conditions Code, 2020. (n.d.). Retrieved
March 27, 2022, from https://prsindia.org/billtrack/the-occupational-safety-health-and-
working-conditions-code-2020.

25