Migration, Vulnerability, and Protection: Changing Labour Law Regime in Contemporary India

ABSTRACT

This article undertakes a socio-legal analysis of India’s changing labour laws and situates migrant workers within the broader context of the changing relations between state, capital, and labour amid the reforms that were introduced in 2019–2020. It illustrates the precarity of migrant workers and the possibility of their legal exclusion from the revised labour codes, especially in the context of the COVID-19 pandemic-led lockdowns. The new codes reduced the number of establishments under regulation and diluted provisions that can hold contractors and employers accountable, which increases the scope for exploitation of workers and has serious implications for the rights of migrants. The labour law reforms, we argue, appear to have favoured capital in its relations with workers and have increased the degree of informality in a wide range of industries. Inter-state migrant workers may find themselves excluded from protective provisions that hold employers accountable for their treatment and this may make them more vulnerable in the informal sector. The article concludes that this push by the state to boost the ‘ease of doing business’ via precarious forms of employment and whittling away the protections of inter-state migrant workers may be far more detrimental than expected.

KEYWORDS:

• Migrant workers
• labour law reform
• informality
• legal exclusion
• capital–labour relations
• India

Acknowledgements

We would like to thank the member NGOs of the India Working Group against Trafficking for their assistance in collecting the primary data and for sharing on-ground insights. We would also like to thank the participants in the following two conferences (where previous versions of the article were presented) for their useful feedback: 39^th International Labour Process Conference, 2021 and the National Conference on ‘Understanding Marginalisation in Neo-Liberal Governance’, 2020 at the Tata Institute of Social Sciences, Tuljapur. An earlier version of Section 3 of this article (on legal analysis) was published as a policy brief under the Pandemic Studies Unit of the Foundation for Agrarian Studies, Bengaluru (available at: http://fas.org.in/wp-content/uploads/2020/12/Migrant-Worker-Covid-19.pdf). We are grateful to the FAS-PSU for useful comments and suggestions. We thank the editors of this journal and Srikanth Ravishanker for providing constructive edits. The views expressed are solely those of the authors and in no way represent the interests of organisations that helped in data collection or were involved in other capacities.

Disclosure Statement

The authors report that there are no competing interests to declare.

Notes

^1. Since migration and trafficking follow similar processes, victims are manipulated through false promises of livelihood and are at risk of exploitation (Ghosh, 2009). The major source regions for trafficking are Assam, Bihar, Eastern Uttar Pradesh (UP), Jharkhand, Odisha, Northern West Bengal, and Chhattisgarh. Some of these destinations are the carpet industry in Eastern UP, brick kilns, garment factories, and construction sites across India, small-scale industries such as bangle-making in Rajasthan, traditional embroidery in Delhi, and power-loom sheds and diamond ateliers in Gujarat.

^2. Conjugated oppression or cumulative deprivation implies that these workers are not just at the bottom of the hierarchy from a class perspective (economic poverty) but also oppressed further via caste, tribe, ethnicity, and gender. So the scheduled castes and tribes are situated on the lowest rung of India’s socioeconomic order (Lerche & Shah, 2018).

^3. Unfreedom here is used in the Marxist sense, implying an ‘inability on the part of a worker personally to commodify/recommodify their own labour-power’ (Brass, 2011). It is not a static concept but rather is situated along the freedom–unfreedom spectrum based on the context. On the vulnerabilities associated with the lives of workers in urban sectors such as textiles, handlooms, construction, and dhabas, see Jayaram and Varma (2020). For an account of what he refers to as ‘neo-bondage’ in employer–worker relations, see Breman (2010).

^4. All partner NGOs use an action-based approach with migrant workers belonging to vulnerable communities to address the issues of human trafficking, bondage, and safe migration.

^5. Various laws had requirements relating to the maintenance of multiple registers, registration with multiple authorities, and different definitions for common terms such as ‘wages’ and ‘workers’.

^6. Self-certification by establishments implies that such units can self-declare in front of government officials of the Class II rank and be certified and protected from routine labour department inspections.

^7. The ease of doing business refers to the policy imperative repeatedly used by the Government of India in its policy documents, public, and parliamentary statements on the reform of the labour laws.

^8. The National Institute for Transforming India (NITI) Aayog is the key public policy think tank of the Government of India.

^9. The panchayat is a statutory unit of local self-governance at the village level in India.

^10. Jharkhand had enacted a scheme of red and green identity cards for migrants with insurance coverage incentives that helps with financial assistance in case of injury (including permanent disability) and keeps track of migrant workers. For examples from Odisha and other similar initiatives on workers being registered and tracked through the panchayat, see GoI (2012).

^11. For a detailed exposition of theories and conflicting perspectives on the capital/unfreedom link, see Brass (2011). For fieldwork-led accounts (and review of studies) of the compatibility between capitalism and bondage, see Breman (2019).