It is a hot afternoon on the dusty metalled road off the
Noida-Greater Noida expressway. The shadows cast by the tall buildings being
constructed all around are short and offer no shade. Tall grass grows in the
spaces between two construction sites, next to which is a colony of squat
tin-roofed shanties with a small shop with a mud-floor verandah. A group of men
sit there playing cards while the woman in the shop boils tea. It’s easy to
forget the city is only minutes away. It’s unsurprising that these men and
women are not visible to the city either.
The Inter-State Migrant Workmen law is directed at securing working and living conditions for a segment of the working poor—labour that moves from one state to another. The provisions of this 1979 law (and the newer Building and Other Construction Workers law) require that workers be provided temporary shelter with sanitation, clean water, facilities for food and medical support, safety gear, wage and attendance record, work certificates and crèches for children. It applies to cases where more than five migrant workers are employed through contractors and sought that both the employers and contractors be registered.
Nearly everyone, including the labour officialdom responsible for implementing the law, though, affirms that no one takes it seriously. Even as the government moves sluggishly to bring a revised law, migrant construction workers remain unaware of any protections.
Samin, one of the men in the group, has been working at construction sites for the past five or six years, he’s not exactly sure. He does not have any proof he has worked even for the past year, let alone the years before that. His wife Jainab used to stay back at home, which is in West Bengal’s Cooch Behar district, but they recently started working together at the construction site, like many of Samin’s friends and their wives at the worker’s jhuggi or colony.
When they are at the site, they leave their three children
behind in the temporary brick structure with a corrugated tin roof under the
watch of one of the older children. This company does not let children come to
the site. There is no crèche or arrangement for the children here.
Before he got married, Samin had to share the jhuggi (worksite) room with four other men. He thought bringing Jainab would afford him a little more space. Though it would not double their earning, her income would add to his. After all, a beldaar or petty wage worker hardly gets enough and he could take more money home with her working. She didn’t want to come—she doesn’t know the language and would be completely confined to the jhuggi—but she had no choice in the end. Jainab moved after having their third child, whom she still breastfeeds.
There is electric lighting after sundown, which is more than what she is used to at the village. But there are no toilets or separate bath areas for the women. The builder has also not provided a canteen. This means the women have to wake up before first light in the morning to relieve themselves in the open and then cook.
Initially, the company supplied wood for cooking, but since only a year of work is left, the workers now buy their own five-kilogram or smaller gas cylinders and refill them weekly for ₹100 a kilo at nearby shops. Not having to deal with smoky wood is a good thing but the cost is now upon the workers.
The water is brackish in Noida but this is all the workers get to drink. Some companies do get tankers for drinking water but not this one. It grows unbearably hot in the summer, resulting in a thirst that can’t be quenched, which is perhaps why people frequent the “Bangali” clinic nearby, as Samin and his friends call it, for diarrhoea medicine.
Today is an “off day” for the workers. It’s summer and work has slowed down, so many return to their village to harvest the winter crop. About 100 workers remain, though at peak the site has over 700. This flexibility is very important, say Samin and his friends at the shop run by one of the jamadars, the ones who “supply” and manage teams of workers for the main labour contractor the company recognises.
Samin’s family’s land, however, is so small that they didn’t need him for harvest. Construction work, however unreliable and far from home, is what he will probably be doing for the foreseeable future.
Getting work is like walking a tightrope. Staying in the good books of contractors or his munshis or helpers is not always enough. You need to keep your ears and eyes open: Samin only landed this job by walking over to the site and speaking to one of the contractors’ helpers. It is risky, because it’s common for an unknown contractor to fleece workers and run away.
“The company pays the contractor and if he runs away then the workers are not paid at all,” Samin’s friend explains. “If the attendance card is shown, the worker may be paid, but if not, the worker has no option but to let it go and find work elsewhere. It is hard to track down such contractors. How does one find pickpockets?”
This attendance card contains details on attendance, overtime, and any expenses paid by the contractor, his assistant or representative. Wages are paid based on these entries.
However, the risk often pays off. Samin got lucky: this company, though strict, pays well and seems to provide more facilities than his previous employer.
Nobody at the site knows if there are any laws they can use
against errant companies or contractors, though a couple of Samin’s friends
remember applications brought by an official which after filling got them card
and then a bicycle each. The cards have been
submitted for renewal by the company now, so nobody has it. At another site a kilometre away, no such registration happened though that is the older site.
For most people, “labour office” is the one run by the
company, though they know there’s a labour court somewhere. None of the petty
workers and the better-paid masons—and even the contractor (and his munshi)—at
either site have heard about the Inter-State Migrant Workmen Act, 1979, or even
the Building and Other Construction Workers Welfare Board created under the
1996 Building and Other Construction Workers law.
Their expectations are based on experience: a company should build temporary dwellings with water and electricity; provide safety gear and stand ready to pay in case of a grievous injury; the contractor should get workers on time; allow holidays without taking away their work; get work done; pay wages on time and not run away.
Akshay, brother of contractor Sanjay, knows contractors need to be licensed for the company to work with them under law, but says the workers, usually illiterate and dependent on the munshis, know nothing of this.
You could say these workers are sold to the company even before coming since they get an advance, and they have to work whatever happens for the 62–65 days they are here.
Samin’s friends from Madhya Pradesh on the other side of the
labour colony feel more secure working with a contractor (likely a jamadar)
who is their relative. For Samin, “security” lies in working with companies
known to treat labour better, preferably “limited companies”, a term workers
use to refer to big construction companies.
Still, they’re better off than the so-called “Malda workers”. Originally from Malda district of West Bengal, but now recruited from Bihar, Jharkhand and other states, they are brought for two months of contract labour. They live in the colony too but they are hardly ever there. While Samin and other workers are on an eight-hour shift with overtime an option, Malda workers are on a 12-hour shift with no leave or break except for food supplied by the contractor.
(Though the law requires overtime to be paid with double the hourly wage, the rate differs from site to site. At the sites visited, half the hourly rate was paid for overtime work.)
“You could say these workers are sold to the company even before coming since they get an advance, and they have to work whatever happens for the 62–65 days they are here,” jamadar Taufeel says. Almost every site has a group of Malda workers, though they can never be found off the worksite easily.
“They eat whatever the contractor supplies at the site, even if it’s rice, potato curry and chapatis every day,” says Arfa, the only Bengali woman who speaks Hindi in the colony.
Labour contractor Mursheed is wary of talking to outsiders in
case they report that he’s not following the law. There’s a case against him
already, making it necessary to attend hearings at Delhi’s Patiala House Court.
The company official standing next to him seems to be hearing this for the
Mursheed reveals he is not actually the contractor, more like a head mason or mistri, though he provided 14 workers and is responsible for dealing with the company on their behalf. At another site, while Samin points to Hitesh as his thekedar, Hitesh says he is only the munshi.
Akshay, whose brother Sanjay is a licensed contractor at the same site, says there are all kinds of workers and contractors—some are relatives of contractors or their assistants, some are workers the assistant brings from his village, and some are simply workers the assistant or the contractor find near the site. In each case, the licensed contractor is the one who usually deals with the company while others in the hierarchy depend on him.
Main contractors like Sanjay need a licence that comes with official and unofficial costs, which could often include bribes and renewal fees. The company can help with paperwork. Once the chain of intermediaries begins to function and workers get “supplied”, the onus of looking after them is on the person who “arranged” them. The cut, about 10 per cent, adds up to several lakhs every month, Akshay said. Hitesh and others like Taufeel say the commission fluctuates greatly because it depends on the number of workers required.
If the company gives other kinds of commission work to contractors, it’s up to them to pay what they think is right to workers, but such work is usually available only at the end of the construction, Taufeel says.
Licensed contractors, unlike their munshis, or the workers, get certificates on completing the job. Akshay says certificates help the contractor get more commissions but workers have no proof of the work actually done since their attendance cards are usually submitted at the end of the month.
Neither Mursheed nor Hitesh has ever seen any government office or official or know about any law, confirming that those dealing with workers are also sometimes ignorant about the entitlements of workers and the duties of principal employers.
Hitesh, Taufeel and Akshay concede there have been cases of contractors running away. One reason is that the company delays payments. The unwritten rule is that contractors and assistants closest to workers are the only link between company and workers. This puts the pressure of non-payment on the contractor or his munshis. So the intention of the law that licensed contractors and registered principal employers act as two sources of redress for the worker is defeated
Some companies do reimburse workers if approached and even keep an open door for complaints, such as the site where Taufeel is a jamadar. But even here, the same policy may not be available for Malda workers.
f the law and the machinery implementing it worked well, grievances could be taken to or picked up by labour offices. But workers at the second site say the only time they saw government officials was when they brought applications for the worker cards and when some came into the builder’s office and checked registers and tried to see there were no child workers. Samin can recall no such visits.
According to an activist of Disha Foundation, an organisation supporting migrant workers in western India, labour departments are so understaffed and officials so engrossed with organised sector-related work that workers in the much larger unorganised sector miss out. Ironically, while only sporadic reports of the near-complete exclusion of unorganised workers, including migrant construction workers, from labour protections appear, reports talk almost every day about the need to loosen the hold of “Inspector Raj” and rigid labour laws.
Though conditions of work vary from site to site, leave alone district to district, no state seems to have amended the rules for inter-state migrant workers or done more than paperwork.
It’s clear then that discussion and remedying the weaknesses
of the law, the 1979 Inter State Migrant Workmen Act and its Rules, and the
need to create working supports for migrant workers is hardly a priority.
Repeated rulings in court cases under the law (usually combined with the bonded labour abolition law), from 1982 to as recently as 2014, note indifferent enforcement of the law’s provisions. This is the same law used in 1982 to protest and seek to protect interests of workers engaged in building for the Asian Games and then, for the 2010 Commonwealth Games Village workers where violations were found to be rampant.
Though conditions of work vary from site to site, leave alone district to district, no state seems to have amended the rules for inter-state migrant workers or done more than paperwork, according to senior labour officials.
In Delhi and the three states of the National Capital Region, labour officials say there have been few registrations, prosecutions and convictions under this law. From February 2014 to February this year, a state as big as Uttar Pradesh had only 12 licence applications. No record of convictions is easily available.
Saying the migrant worker law is defunct, a Rajasthan labour official says the scenario was very different from the time the law was drafted. “Transport and communication has changed since the Seventies. Workers come on their own or through colleagues. This law does not cover such workers. It was never very enforceable since there are no reliable ways to track migration within states and districts,” he says.
The law was drafted to support migrant workers such as the Dadan of Odisha—bonded workers like the Malda labourers—but the administrative machinery fails them even now. As an irate Haryana labour official puts it, “You can’t legislate away the problems of the poor, backward and illiterate.”
In areas where the machinery can work, it is throttled by the need to create a perception of “ease of doing business”. For example, Uttar Pradesh—which had the maximum number of prosecutions under the law till 2004-05—brought out a new “industry-friendly” policy in 2012 to attract investment into different sectors and correct regional imbalances. A senior labour official says inspections in Uttar Pradesh now require permission from the district magistrate. There is a provision to inform the establishment in advance, making the process toothless, all in the name of promoting industrial growth.
The number of inspections across the country under the Central Labour Commission for the first nine months of 2014-15 was 61, according to a March 11 Lok Sabha reply by the labour minister. The low penalties for violating the anti-bonded labour and migrant workers laws, along with the fading interest of the state in inspection based implementation, labour officials say, deaden enforcement.
The poor integration and enforcement of related labour welfare provisions under the Building and Other Construction Workers Act, 1996 is also notable. Labour ministry data of 2014 cited by the minister in Parliament showed `14,099 crore had been collected for state-level welfare funds, of which `2,382 crore or less than a fifth was spent on welfare programmes.
The Disha activist pointed out that funds were used not to institute systematic assistance such as awareness building material, but for one-time grants or freebies (like bicycles) that serve little purpose.
Though not as strident as the calls for easing labour laws, recommendations to make them effective and widen the system to protect migrant workers are almost as old as the law itself, and have issued from the executive, the judiciary and civil society.
Many judicial pronouncements have sought to widen applicability and improve enforcement of the law, in response usually to petitions filed by organisations like Peoples Union for Democratic Rights (PUDR) and Bandhua Mukti Morcha.
In 1983, the Supreme Court clarified that the law would apply even if the contractors recruited through middlemen or “old hands” or by “sending word”; this makes the law adequate despite the changed communication system.
The Gujarat high court noted in the Rohit Vasavacia case in 1983 that “... the Courts quite often view offences relating to contravention of the provisions regarding employment of contract labour with consideration as in the case of all white collar crimes, though they are the crimes which ought to be considered grave. If the provisions of the (law) are to be complied with strictly by the contractors and principal employers, deterrence is called for and deterrence can only be by making the penal provisions much more stringent.”
In 1990, the Orissa high court laid down that officials of the state from which migrants originate should not be hindered in enforcing the law in the “recipient” state. The National Commission of Women also suggested amendments to the wording of the law that, for instance, specify the responsibilities of the principal employer more clearly.
Neither Samin nor his friends thought their ration cards were any use in the city. The same lack of awareness holds back use of schemes like state level labour welfare phones and construction workers’ welfare funds.
More bottom-up recommendations have come from non-governmental agencies under the banner of the National Coalition for Security of Migrant Workers (NACSOM), who presented them to the erstwhile Planning Commission in 2010.
he experience of the implementation of welfare boards shows that merely constituting special bodies for different segments of workers and raising funds is not enough. Awareness building through worker resource centres, not just migrant resource centres or construction worker resource centres, on the lines of Delhi’s Mission Convergence scheme (previously Gender Resource Centres) could be encouraged and tested through pilots.
Portability of schemes such as ration-card-linked food grain allowance and health insurance through Rashtriya Swasthya Bima Yojana (RSBY) is approved in letter. However lack of awareness and accessibility at ground level pre-empts their use by migrant workers.
Neither Samin nor his friends thought their ration cards were any use in the city. Most did not even know about RSBY, leave alone availing benefits where they find work. The same lack of awareness and representation holds back use of schemes like the low-cost small bank account programme, state level labour welfare phone-lines and construction workers’ welfare funds.
According to a February news report in The Economic Times, the labour ministry is working on a scheme to track internal migration to register workers on an online repository to provide social benefits. Another proposal, according to the report, is a multi-lingual national helpline number. It needs to be seen how information is collected for the tracking system.
But these good intentions are unlikely to work unless backed by awareness building, some handholding and deterrence-based regulation among the employers.
Another need relates to enforcing sanitary conditions at the worksites and dwellings provided to migrant workers. This requires coordinated work among government departments and urban local bodies where the workers work. Rural local bodies could also be given a more direct role in assisting workers with information about support systems at different destinations.
The law for migrant workers has often been criticised for its impracticability and poor enforcement over the years. Given the changed environment with better communication and newer laws, a need is felt either to amend the law or integrate it with other more comprehensive legislation. But just as the migrant traverses the rural and the urban in a complex and transitory map, support for the migrant involves not just the functioning of labour laws and administration but that of local bodies in rural and urban areas as well.