In case of privatization of public work contracts, the contractors prefer mechanization and the practice of importation of labour from the 'nakas' where casualized migrant labour congregate. Rarely do they practice local hiring. Where limited local hiring still happens for public works projects the shifting of such projects under EGS has meant a large decline in the wage levels, in most cases to less than half the market wage rates. (According to the GOM 2002 Human Development report, the average wage per day on EGS works in 2001-2002 was Rs. 45.28, while the average daily wage for unskilled labour in the market is between Rs.70-Rs. 80.

The prescribed minimum wage in the schedule is much higher e.g. for construction work is Rs. 128/day. This drop in wages effectively makes local State projects based employment unsustainable as adequate income generation mechanisms for adivasis thus forcing an out migration from their villages.

The co-terminus relationship of the growing insecurity of livelihoods on the one hand and the factors of continued drought, the low productivity of land and the food distribution infrastructure is notable. The 1970s and 80s saw considerable efforts mainstream agricultural production and increase the yield based on green revolution technology through subsidised seeds, fertilizers and pesticides etc. However, this last decade has seen a significant drop in such subsidies.

The conditions of continued drought that have persisted over the last two years has meant that all prevalent stocks of food grain that an adivasi family would otherwise use, deplete, forcing those with small to medium holdings to operate in a survival mode. The contribution of the primary sector to the state domestic product was already as low as 21.2 per cent and after a decline to 17.7 per cent in 1997-98 it stands today at 14.5 percent while the number of persons dependent in agriculture is 65 per cent. In 2000-2001 the share of the primary sector to the average annual growth of per capita state income fell to minus 11.8 percent. (EGS report.) This figure would be much higher for tribal blocks.

The EGS has the distinction of being the largest as well as the oldest public works programme in the developing world (Human Development Report 1993). However the actual functioning of the scheme in tribal areas leaves a lot to be desired. Works are not planned and started on time forcing starving tribals to migrate. A standard excuse by the administration is that there is no demand for EGS works however every year tribal blocks witness demonstrations of unemployed labourers demanding work. A cursory examination of EGS records at the tribal block level often shows labour presence to be in excess of the man days planned for, which means less work at lower wages for shorter periods. Often only one member of a family is provided work which is in contravention of the law and work lasts for a period as short as 2-4 days. In the last 15 years there has been no registration of workers in spite of specific provisions in the law. (EGS report).

Aspects of adivasi migrant labour work

Adivasi migrant labour is employed in a whole host of industries where a combination of low to no wages, deplorable working conditions and complete failure of the law creates conditions of exploitation hitherto unknown in independent India. Salt pan works, brick kilns, fishing boats and sugarcane cutting are some of the most prominent industries in which adivasi migrant labour finds seasonal employment. As was said above very little survey data exists on the conditions of such workers. Data used in this segment of the report draws from one detailed survey of Salt Pans in Raigad district, Maharashtra, where a total of 51 salt works were studied by the Additional Labour Commissioner as directed by the High Court, Mumbai in response to a Public Interest Petition filed to ameliorate conditions of work in salt pans and rampant practice of non payment of earned wages migrant tribal workers subjecting them to seasonal bondage. In addition some data is drawn from the Salt Commissioners records and a Labor File report.

According to the Salt Commissioner's record, there are a total of 178 salt works in the State of Maharashtra in Thane, Mumbai, Raigad and Sindhudurg districts. These salt works cover a land area of 19,650 acres, producing 1.5 lakh tones of salt valued at Rs. 9 Crores. As per a Labor File report 90% of the labour employed in these 178 salt works are adivasis. Of these salt works, 51 were surveyed in Raigad district in accordance with the orders of the High Court in WP 343 of 2002. The findings of the survey are shocking.

It was found that of the 51 salt works surveyed, 38 paid less than 50% of the prescribed minimum wage. All 13 of the salt works that were found to be paying minimum wage were small works that only employed '2 or 3' local labourers and therefore paid minimum wage. In other words, close to 75% of the salt works surveyed, all of which employed only adivasi migrant labour were found to be in gross contravention of the law. The survey also concluded that 'the working conditions of the tribal migrant salt workers are excessive'. Further, the assistant labour commissioner Raighad attested on affidavit that 'it is difficult to ascertain the working hours of the day' and 'that none of the owners/conductors/lease holders has provided safety equipment'. The failure of the law to enforce minimum wage requirements and proper working conditions was also duly acknowledged by the survey: The survey noted that a total of 26 prosecutions were lodged against employers for unfair labour practices in salt works in Raighad district which had been disposed off with fines totaling Rs. 23,600. This works out to approximately to Rs. 900 per employer while the gain to the employer not paying minimum wages is in the range of lakhs of rupees.

The affidavit of the Assistant Labour Commissioner admitted with the survey in the High Court noted that the 'ACL office is already overburdened' and therefore 'unable to proceed as per the law'.

Other important facts that can be gleaned from the survey are that the employers do not maintain any records and workers are often denied payment of earned wages; under conditions of migrant labour it is difficult to prosecute and recover any wages. The case above and details uncovered by the survey are indicative of the predicament of adivasi migrant labour in the salt pans of Thane, Raigad and Sindhudurg. The conditions in other industries employing seasonal migrant labour such as sugar cane cutting, fishing and brick kilns are similar.

Practices of adivasi migrant labour

The practice of migrating out for work among adivasis has various inflections to how it is constituted, in large part depending on the initial conditions that create the necessity to migrate out for work. For instance, among those adivasi communities where lack of local employment creates conditions where there is a cash shortage but where the families have not entirely run out of food stocks etc, the tendency is for individual members to migrate out for short periods so as to generate cash supplements to support their family. This form of work is often referred to as 'for cash migration' (dhandhyala). In sharp contrast, when adivasi families are reduced to abject poverty with no food stocks or other resources to even tide over the short term, the whole family tends to migrate looking for survival. This form is referred to as 'migration to survive' (Jagayla).

The former group though vulnerable has some buffer food stock, but require to migrate for cash particularly to ensure medical aid incase of illness in the family. In families with some buffer food stock, it is the men who migrate for shorter periods, women without young children also migrate, but the aged and mothers of young children stay behind. In the latter, Jagayla type situation the cycles of exploitation are more often far worse and continually cascading into new crises. In these cases, the family moves from its village and the specific work place and type of work is something it has little control over because of the need to survive. Often the levels of exploitation, non payment of wages, harassment and sexual violence forces them to migrate further to a new place, often abandoning the claims over earnings they may have had. Each such new place puts them in a more vulnerable situation producing a cycle of newer and sharper crises.

Often the levels of exploitation, non payment of wages, harassment and sexual violence forces them to migrate further to a new place, often abandoning the claims over earnings they may have had. Each such new place puts them in a more vulnerable situation producing a cycle of newer and sharper crises.

Within both these forms of work, there are further distinctions on how work is structured. In the case of seasonal employment, often contractors/agents who serve the ownership of the above mentioned industries enter adivasi villages during cultivation season and extend consumption loans to those families that are in dire need of money to be repaid by work in the ensuing season. The season of work stretches over 6 to 8 months. Wages are fixed in terms of a lump sum amount - an oral agreement (thar) to be paid at the end of the season after deducting the consumption loan advances taken during the period of work and a fixed deduction for the leave taken. During this entire period the worker is paid paltry advances for survival and earned wages are only paid at the end of the season. The lump sum payment is approximately half the prescribed minimum wage. As for the conditions of work, there are no fixed hours, no weekly offs, no safety gear etc. If a worker leaves employment mid season due to illness or some other reason then he/she usually forfeits the earned wages.

The contrasting case where bondage doesn't fix a worker to one employer is the practice of casualized seasonal work, where a worker migrates during the non agricultural season to nearby urban centers and participates in the daily wage labour naka market and waits to be picked up by an employer. The situation of these workers is most precarious and vulnerable. Despite the severe exploitation, tribal migrant labourers consider seasonal bondage in salt pans and brick kilns preferable to seasonal casualized labour as they are assured of continuous work and daily food.

The occupations to which tribals migrate as casualized labour are on sand excavation sites, as lorry hamals, for building construction, roads, cable laying, quarry works, as casual labour in factories. The wages for these works are marginally higher than in occupations of seasonal bondage. However, there is no assurance of continued work and no work often means no food. The workers assemble at fixed spots (nakas) in urban centers where the contractors seek them out and take them for work. Sometimes workers are picked up and transported to far off places outside the district/state. During the last two years the numbers of these workers has grown exponentially due to the drought. In addition a large number of tribal migrants from Gujarat and Madhya Pradesh have joined the casual unorganized workers ranks in Maharashtra.

As a result of this growing work force of disaggregate workers the actual wage rates have fallen by Rs. 20 to 25 during the last year. (for e.g. Work for which the market wage rate was Rs. 100 last year now fetches Rs. 70 to 80)

Though many of these employments are scheduled the given wage rate is always below the minimum wage rate. The growth of the market is not in proportion with the growing number of migrant workers and competition to get work is intensifying. This translates to the phenomena of people migrating for longer periods and earning less. In significant ways, it would not be incorrect to say that a good part of the infrastructure for the new economy, such as cables and roads, are being put in place based on such migrant labour, and migrant labour subsidizing the costs of liberalization and globalization.. But the lowering of actual wage rates is the least of the problems of this massive disaggregate work force. They are totally at the mercy of unscrupulous contractors who pay them paltry advances to meet their food expenses with a promise to settle their dues on completion of the work. The workers have no clue as to the principal employer and it is not uncommon for the contractor, who is often a fly-by-night operator, to disappear once the work is done without paying the earned wages. Each year lakhs of migrant workers trek back home after two or three months of work simply because they do not even have the money to pay for their fare.

The failure of regulation

Any understanding of the causes for the continuation of such unyielding and hyper exploitative practices is impossible without an examination of the infrastructure that is in place to regulate and monitor employment and remunerative practices of employers. The said infrastructure is both by way of State institutions and laws that are meant to together constitute an apparatus of regulation.

Almost all labour in the brick kilns, salt pans, sand excavation and fishing boats is 'forced labour'. The law is clear on this point. The payment of wages is an absolute condition of employment. In the Peoples Union for Democratic Rights (PUDR) v. Union Of India, the Supreme Court has held that requiring workers to work for less than Minimum Wages is 'forced labour' as contemplated in Article 23 of the Constitution. 'Forced Labour' is a criminal offence and an atrocity under 3(1)(vi) of the Prevention of Atrocities on Scheduled Caste/Scheduled Tribe Act 1989 and the Sub Divisional Magistrate has been specifically empowered to prevent atrocities under the rules framed under the Act. However, the critical aspect of the criminal justice system's relation to adivasi migrant labour lies in the fact that criminal matters such as non payment of wages and sexual harassment are never treated as criminal offenses by the law enforcement mechanism.

The Labour Commission was set up with a mandate to adjudicate disputes between workers and employers so as to protect the workers from undertaking lengthy and expensive legal battles. The commission is perceived as a 'conciliatory' body wherein conciliation is understood as both sides giving up some of their claims with scant consideration for the stipulation of the law. In the case of migrant worker, the office of the Labour Commission is supposed to inspect and monitor their conditions of work. However, the sheer scale of migrant labour, its disaggregation and the employers determination to obstruct any inspection makes the task overwhelming. In addition the internal corruption with the commission makes it very difficult to secure any meaningful justice through this mechanism.

The Labour courts are notorious for their backlog and for the length and cost of the procedures. However, what works as the most effective deterrent for adivasi migrant labour in using the labour court system is the requirement that all cases must be filed at the place of work rather than the place of home. This effectively means that a worker has to travel back to his original place of work numerous times to pursue the case. Protective Legislation such as Minimum Wages Act, Workmen's Compensation Act, Interstate Migrant Labour Act, Abolition of Contract Labour Act are all followed in breach. Further, in the odd case where the worker does get an award after a prolonged legal battle, the award is rarely implemented.

There still are many employments which have not been included in the list of Scheduled employments and industries where the minimum wage has not been revised or has been fixed much below the going market wage. For instance, the agricultural Minimum Wage in Maharashtra is much lower than that of most other states. With the absence of a normative justice framework for redressal of complaints and with the Labour Department having failed abysmally in its task to protect migrant workers there is little negotiation space for this already marginalized section of the workforce.

The most effective deterrent for adivasi migrant labour in using the labour court system is the requirement that all cases must be filed at the place of work rather than the place of home. This effectively means that a worker has to travel back to his original place of work numerous times to pursue the case. In every tribal area the Integrated Tribal Development Project has been set up for the welfare needs and development of the tribal people. There is a need to empower the ITDP Department to protect the rights of migrant tribal workers. As the Revenue department is the license issuing authority for many rural industries, if suitably empowered, it can be effective in the recovery of the wages of unpaid workers. Non Payment of Minimum Wages should be made a cognizable offence and be brought under the purview of Section 374 of the Indian Penal Code as Unlawful Compulsory Labour. The redressal of complaints like non payment of wages and sexual exploitation should be done at a government office nearest to the place of residence of the worker and not necessarily the site of employment. There ought to be regulation of the unfair labour practices through the presence of a labour inspector at all 'nakas' from where casual labour is recruited with a display board of Minimum Wages for different employments and provision should be made for registration of migrant labour with the Gram Panchayats. There is also a need for Mobile Labour Courts or additional powers to be given to the Court of the Judicial Magistrate First Class to try labour matters.

The phenomena of adivasi migrant labour is positioned to grow rapidly over the next decade unless a series of corrective/preventive measures are taken. Such measures can be conceptualized at either end of the phenomena of migrant labour and the very creation of such a 'disaggregated' labour force that is fragmented, disempowered and highly marginalized is minimised. However, simultaneously efforts to create a new and aggressive regulation mechanism that seeks to discipline the ownership of said industries is needed.

Shiraz Bulsara and Priyadarshini Sreenivasa
Combat Law, Volume 2, Issue 5
December-January 2003/4

Shiraz Bulsara and Priyadarshini Sreenivasa are activists of the Kamgar va Mazdoor Sangh, a union of unorganised workers.