WOES OF THE MIGRANT FORCE

A LEGAL ANALYSIS OF THE UNPRECEDENTED

MIGRANT CRISIS DURING COVID

A STUDY BY AZB & PARTNERS

AUGUST 2020

Executive Summary

The COVID-19 crisis has brought to fore the plight of India’s socially and economically most vulnerable citizens, and the gap between welfare measures and their implementation / effectiveness at ground level. AZB & Partners has put together a detailed study (click here to read or download the study) on the issue and this is an executive summary of the study as well as the action points that originate therefrom.

1. EXECUTIVE SUMMARY

2. ANALYSIS OF APPLICABLE LEGAL FRAMEWORK

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Four key legislations (CLRA Act, ISMW Act, BOCW Act and UWSS Act) primarily regulate migrant / contractual labour in the private sector. Despite multiplicity of laws and onerous compliance obligations on the private sector which need to be addressed and simplified, none of these laws place a positive obligation on the employers to bring labourers under the formal banking system or obtain Aadhaar cards. There is a need to create and increase awareness amongst the labourers about their rights and benefits available to them. At the same time, especially when the industry is feeling the economic impact of COVID, comfort should be given to the industry to ensure that there is no heightened risk of absorption as that would discourage deployment of contingent workforce. Any employment opportunity, including ad hoc opportunities, should be fully utilized.

3. PROMINENT WELFARE INITIATIVES

The study provides an overview of the various schemes which the Central Government has introduced for the less privileged citizens of India and assesses their effectiveness with respect to the migrant workforce. It appears that many of the schemes do not contemplate migrant labourers as beneficiaries and may not provide relief to them.

The implementation of the MGNREGA scheme and benefits linked to ration cards are limited to the states in which they have been issued. A MGNREGA job card entitles the holder to a job in the limits of the rural area (which must be within a specified radius of where the applicant resides). The distribution of grains to a ration card holder is limited to the State which has issued the ration card. These severe territorial limitations cause difficulties for migrant workers and limits their ability to receive benefits on a pan-India basis. The Central Government has recognized this limitation, and is working towards establishing the ‘One Nation, One Ration Card’.

5. LIMITATION OF MAHATMA GANDHI NATIONAL RURAL EMPLOYMENTGUARANTEE ACT, 2005 (MGNREGA) & THE CURRENT RATION CARD SYSTEM

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The Central Government has released series of notifications pursuant to which provision of benefits under various Central Government schemes such as MGNREGA, and the National Food Security Act, 2013 (NFS Act) are contingent upon linking of Aadhaar Number to the respective bank accounts of the beneficiaries. Approximately 15.5 crore people do not have an Aadhaar Number. To the extent such persons are the intended beneficiaries of various schemes, they would be unable to avail the benefits. For successful linking of Aadhaar number to bank accounts, it is required that every detail provided in the Aadhaar records matches with the details provided under the job/ ration card. Practically, at villages this is often not the case, as there are minor inaccuracies in spelling the name, mismatched mobile phone numbers etc. leading to unsuccessful Aadhaar linking. If any detail does not match, the linking will not be successful. The study provides detailed analysis and statistics on how successful this has been in the case of MGNREGA and the NFS Act and highlights the need for remedial action to enable this linking.

6. LIMITATIONS OF AADHAAR LINKING

4. MIGRANT LABOURERS FALLING OUTSIDE THE PURVIEW FORMAL BANKING SYSTEM

When the Government stepped in to aid these migrant workers, a practical difficulty arose in the provision of benefits as many migrant labourers were outside the formal banking sector. This appears attributable to (i) lack of awareness about welfare schemes; and (ii) lack of documentation which impedes their participation in the formal banking set up. The study discusses, amongst others, the documents required to open a bank account. While a wide range of documents may be used to open bank accounts, the migrant crisis has brought to light that a significant portion of our population still does not have bank accounts or do not use the opportunity (to be a part of the formal set up) effectively.

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BASED ON THE KEY CONSIDERATIONS HIGHLIGHTED ABOVE, WE HAVE IDENTIFIED THE FOLLOWING POINTS FOR CONSIDERATION AND NEXT STEPS

ACTION POINTS

STEPS FOR CONSIDERATION KEY PLAYERS

A. General

1. Given the varying estimates of the migrant labourer population, undertake a detailed census to ascertain the number of people working as migrant labourers in the country.

Central and State Government

2. Consider fewer / streamlining compliances and focus on self-certification and self-declaration regime.

Rather the focus should be on identifying compliances which would help people get into the formal banking set up, obtain Aadhaar and encourage linking of bank accounts.

3. Provide for a positive obligation on the contractor and principal employers to provide necessary assistance to labourers to (a) obtain other officially valid documents (OVD); (b) open bank accounts and to (c) ensure their Aadhaar is linked with their bank accounts.

4. Undertake a detailed field analysis to: (a) assess whether the most vulnerable section of society actually have the documents required to obtain officially valid documents (OVD) and if they can obtain these documents easily; (b) the difficulties faced by them in obtaining these documents; and (c) why the poorer sections of society continue to not use bank accounts despite having the documents.

Central and State Government in collaboration with non-government organizations (NGOs), institutions such as government schools and centres in rural areas and villages and private players.

5. Given the low level of registrations, undertake registration drives to increase registration of labourers and workers under the BOCW Act and the UWSS Act.

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B. Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (“BOCW Act”)

1. Reconsider the broad definition of ‘building and other construction work’ and link the applicability of the BOCW Act to commercial activity. If workers engaged in the construction of residential premises are sought to be covered, the compliances should be simple and there should be increased awareness amongst the public.

Central and State Government in collaboration with policy think tanks and law firms.

2. Provide more clarity with respect to what are the constituents in the computation of ‘cost of construction’ under the BOCW Act (of which 1% is required to be paid as cess), in order to ensure that this does not remain open to interpretation.

3. Ensure that payments to the BOCW welfare funds are undertaken for public sector and governmental works thereby increasing contribution to the cess fund significantly.

4. Reconsider the obligations under the BOCW Act which, in some instances, are not even possible for the contractor and/or principal employer to comply with, for instance, the obligation to provide accommodation and canteen facilities, irrespective of the nature and scale of construction work being undertaken. Rather, focus should be on obligations that positively contribute to workers coming into the formal banking set up and increase their ability to receive benefits from the Government in times of need.

5. Undertake audits to ascertain the utilization of the BOCW welfare funds collected by the BOCW welfare boards and assess if there has been misappropriation of funds. These gaps should be plugged.

Central and State Government in collaboration with private auditors

C.Contract Labour (Regulation and Abolition) Act, 1970 (“CLRA Act”) & UnorganisedWorkers Social Security Act, 2008 (“UWSS Act”)

1. The threat of absorption under the CLRA should be mitigated, especially in the post COVID-19 scenario and hiring of contingent workforce should be encouraged even if such opportunities are ad hoc/ temporary.

Central Government

2. Increase effective implementation of UWSS Act and formation of State Social Security Boards.

Central Government and State Governments

D. Opening of Bank Accounts

1. Create wider awareness about the ability to submit self-declaration in case the current address of a PMJDY account applicant does not match the address mentioned in the Aadhaar card and ensure that a clarification to this effect has been specifically provided for in the FAQs of each commercial bank.

State & Central Government in collaboration with banks, NGO & private players

2. Clarification with regards to whether or not ‘simplified measures’ are still available to open a PMJDY accounts and whether the identity cards/letter contemplated are being issued to migrant workers.

Central and State Government

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E. Aadhaar card and & Aadhaar Linking

1. Conduct another registration drive in order to achieve 100% Aadhaar saturation.

Central & State Government in collaboration with panchayats, NGOs institutions such as government schools and centres in rural areas and villages and private players.

2. Detailed field surveys and drives to assist in sorting out discrepancies in order to (i) reduce the number of non-functioning MGNREGA card; (ii) reduce non-seeded ration cards, which have not been linked to Aadhaar Card; and (iii) improve linkage between Aadhaar, bank account and mobile numbers.

F. MGNREGA & Ration Card

1. Employment guarantee scheme similar to MGNREGA may be considered for urban areas as well.

Central & State Government in collaboration with policy think tanks and law firms

2. Conduct greater registration drives in order to ensure more ‘One nation one ration cards’ are issued especially to migrant labourers who have been identified as not being covered by the NFS Act.

Central & State Government in collaboration with panchayats, NGOs and private players.

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