India faces a unique legal paradox thanks to the stalemate in the issuance of directions for the operation of the four new Labour Codes by the Union Government. Technically, the labour laws which have been codified into the Codes are repealed. However, the notifications of Rules under the new four labour Codes have not been issued; hence the old labour laws continue to govern the labour market and industrial relations systems in these labour market spaces.
When government agencies and the employers of these workers do not act to regulate and provide the promised benefits in the corresponding labour laws, citizens have to time and again approach the Supreme Court for securing the implementation of these rights. The provisions of each of the three above mentioned labour laws are well-known and hence they bear no reiteration here.
The COVID-19 pandemic brought these millions of hitherto ‘invisible’ workers to the fore of mainstream media and public discussion. The Supreme Court has proactively begun to take the case of the sufferings of the migrant workers in particular and the unorganised workers in general since May 26, 2020 in In Re: Problem and Miseries of Migrant Labourers. It served notices to the Union Government and state governments to submit measures taken by the governments to mitigate the workers’ plight.
In its interventions dated May 28, 2020 and June 9, 2020, it noted significant lapses and omissions on the parts of the governments (both Union and state), and issued several directions to improve the welfare of these workers. They, among others, were mainly concerned with policies and schemes available for migrant workers, and maintaining a registry of the return migrants to the home state. In its order delivered on July 31, 2020, it required all the governments to file statements detailing the implementation of the three labour laws mentioned above.
Technically, the labour laws which have been codified into the Codes are repealed. However, the notifications of Rules under the new four labour Codes have not been issued; hence the old labour laws continue to govern the labour market and industrial relations systems in these labour market spaces.
The second and most devastating wave of the pandemic struck India in March and April of last year. In the hearing held on June 11, 2021, the Supreme Court noted that even though the Union and state governments have floated various schemes for the unorganized workers, in reality, a large number of beneficiaries did not enjoy those welfare benefits. After elaborating the scheme of ISMWA, the Court noted that migrant workers could not enjoy the legislated benefits thanks to the non-provision of licenses diligently to all contractors, and the non-registration of the principal establishments. It further noted that the affidavits filed on behalf of different states and union territories (‘UTs’) do not give any facts and figures pertaining to the implementation of the ISMWA. Accordingly, it directed the governments to register the establishments and grant licenses to implement the law effectively.
In its order dated August 21, 2018 in another case, the court had directed the Union Ministry of Labour and Employment to make available the module to all States and UTs for purposes of registration of all the unorganised workers under the UWSSA. Despite this order, the Ministry did not provide the module to all states and UTs for the purpose of registration. On May 5, 2021, the Union Government issued a press release announcing that the database registration system was in an advanced state.
The court, in its order dated May 24, 2021 in In Re: Problem and Miseries of Migrant Labourers, directed the Union Government to file a detailed affidavit on the status of registration of the unorganised workers. The court was not satisfied with the government’s response. It was not impressed by its declaration that the government is committed to developing a comprehensive, dynamic and useful National Database for Unorganised Workers (‘NDUW’) including migrant workers, gig workers, platform workers, building/construction workers, domestic workers and similar other workers.
The court passed strictures on the Union Government’s handling of the development of the database of the unorganised workers in its judgment dated June 29, 2021, and it would be worthwhile to quote from it: “When the unorganized workers are waiting for registration and are waiting to reap the benefit of various welfare schemes of the States and Centre, the apathy and lackadaisical attitude by the Ministry of Labour and Employment is unpardonable.” Importantly it added that, “to provide access to the migrant workers to different Schemes of State Government and Central Government, registration is a must.” It noted purposefully that unless there is a registry of the unorganised workers, the government cannot sing praises of its achievements.
In the detailed order, the court, among other things, asked the government to ensure that “the process of registration of the unorganized labourers/migrant workers is completed at the earliest, but not later than 31.12.2021. All the concerned States/Union Territories and the Licence Holders/Contractors and others to cooperate with the Central Government to complete the process of registration of migrant workers and unorganized labourers so that the benefits of the welfare schemes declared by the Central Government/State Governments/ Union Territories be available to migrant workers and unorganized labourers for whose benefits the welfare schemes are declared.” It also directed “all the States/Union Territories to register all establishments and license all contractors under the Act, 1979 and ensure that statutory duty imposed on the contractors to give particulars of migrant workers is fully complied with.”
The Supreme Court noted that even though the Union and state governments have floated various schemes for the unorganized workers, in reality a large number of beneficiaries did not enjoy those welfare benefits.
In an exchange, Justice M.R. Shah, part of the division bench hearing the case along with Justice Ashok Bhushan, asked the Solicitor General of India (‘SG’), “You file the status report, action taken report. There was one direction about the registration of migrant workers and unorganised labourers…” The SG replied, “It will have to be filled by the respective states”, to which Justice Shah directed him also to file.
The Union Government launched the e-Shram Portal – the National Database of Unorganized Workers – on August 26, 2021 at an estimated cost of Rs. 704 crores to register unorganized workers. It is supposed to enable the government to create an NDUW, which will be seeded with Aadhaar. The NDUW will have details such as name, occupation, address, occupation type, educational qualification, skill types, family details, and so on. It claimed to be “the first-ever national database of unorganised workers including migrant workers, construction workers, gig and platform workers, etc.” The portal allows a person to register themself on it on a self-declaration basis.
The government has often mentioned the estimated number of unorganised workers in India as 380 million. My gut feeling is that it could be more than this. Since the 380 million figure is estimated from household information, it may not be close to reality. But for the latter, we need to have a complete enumeration.
The eShram is an important initiative, but since it consists of a voluntary registration procedure, all of those who are unorganised/informal would not be registering on it. Secondly, there is little incentive for the workers to register themselves, thanks to time and income lost in registration, failures of the server (I tried to register my domestic worker’s details on three occasions in vain), absence of credible and promised social security benefits, inadequate dissemination of e-Shram, and lack of incentives for employers to push the workers to register, among others. The opportunity cost of registration is much higher, say, for street vendors, given the complex and poor conditions of connectivity.
Poor dissemination drives a huge information deficit. I have checked with Uber drivers, domestic workers, and street vendors, and they plead ignorance of the same. The governments, instead of or apart from spending huge amounts on the achievements of their rule, must spend a proportionally good amount of money on popularizing the scheme.
There is little incentive for the workers to register themselves on e-Shram, thanks to time and income lost in registration, failures of the server, absence of credible and promised social security benefits, inadequate dissemination of e-Shram, and lack of incentives for employers to push the workers to register, among others.
The eligibility condition in e-Shram is that the workers must not have both provident fund and medical insurance (such as that covered by the Employees’ State Insurance Corporation). Lakhs of contract workers who work in the organised sector, and those working in small and medium establishments, may enjoy either and hence cannot register, even though by all reckoning they are ‘unorganised”.
In response to the queries posed by 11 Parliamentarians, the Union Minister of State for Labour and Employment, Rameshwar Teli informed the Lok Sabha on July 26 last year that “[the Ministry] in technical collaboration with National Informatics Centre (NIC) is in the process of developing a registration module for creating a comprehensive National Database for Unorganized Workers (NDUW) seeded with Aadhaar for all Unorganised workers including Construction Workers, Migrant Workers, Gig and Platform workers, Street Vendors, Domestic Workers, Agriculture Workers, Migrant workers and similar other sub-group of Unorganised workers. At present, the process for dry run and security audit is underway.”
It is surprising that administratively well-regarded states like Tamil Nadu, Kerala, and Maharashtra lag behind in terms of registration. Eleven such states together manage to account for 30.41 per cent of the total registrations in the country. This is a massive underestimation by any stretch of imagination. In all, around 200 million workers are yet to register, which is a huge number.
Even when e-Shram deals with migrant workers, it does not capture the circulatory migrant workers, who are far more vulnerable than one time migrants. However, e-Shram has stopped providing information on migrant workers on its website.
Table 2: Registered workers for some states (as on August 4, 2022)
These five occupations accounted for a little over four-fifths of the registered workers. Agriculture has dominated the registrations. This is both surprising and shocking. If 147 million of the estimated 199.2 million workers in the agricultural sector (estimates by economists Santosh Mehrotra and Jajati Parida in 2021), that is, close to 75 per cent of the workers in this sector have registered, that is an astonishing registration rate. Is it because these workers have already enjoyed welfare doles under the PM-Kisan scheme over the last few years?
On other hand, around half of the 51 million workers in the construction sector have registered. This may be attributed to the impressive yet inadequate level of registration witnessed over the years under the BOCWA. If so, then registrations require incentives; not mere accident policy, but something concrete, say a direct income transfer.
Alternatively, registration-led welfare schemes already prevalent in the construction sector could possibly explain the decent rate of registration under e-Shram in this sector. But it is still a puzzle that registration rates are higher in rural areas than in urban ones. Agriculture and construction together account for 61.78 per cent of registrations. Thirteen sub-categories constitute ‘miscellaneous’ category, which include street vendors, garbage and recycling collectors, messengers, porters of luggage, receptionists, front desk assistants, domestic housekeepers, stall and market salespersons, and so on.
If gig is not restricted only to transport and is widespread even in other occupations such as teachers, then we have a huge problem of even statistically isolating them.
One of the avowed objectives of the e-Shram exercise is to enumerate, and notestimate, the total number of unorganised/migrant/gig and other categories of workers in the country. Even when e-Shram deals with migrant workers, it does not capture the circulatory migrant workers, who are far more vulnerable than one time migrants. However, e-Shram has stopped providing information on migrant workers on its website.
The fact that the government does not have much knowledge of the unorganised sector, its depth and its width, is borne out by the following statement of the Labour Minister from earlier this year: “We had planned for 160 types of occupation (of informal workers). But I am pleased to tell that people from more than 400 occupations are being registered on the portal.”
Shaik Salauddin, the National General Secretary of the Indian Federation of App-based Transport Workers, informed me that in response to the Federation’s submission to the government that there is a difference between general drivers and gig drivers, the government floated “gig workers” as a separate category; later, for reasons unknown, it was removed. Maybe this was due to the number of registrations during this tenure.
The Labour Minister informed the Parliament last year that in sum, 7,29,447 gig workers had registered as on December 1, 2021. The fact that workers aged 16-18 years accounted for only 2.92 per cent of the total registrations also shows the low number of gig workers – as gig workers are more likely to be younger and in their teens.
As on August 4, 2022, 52.84 per cent male workers and 47.16 per cent female workers have registered on the website. About 65 per cent of workers self-registered themselves, thanks to their e-knowledge base. In construction, about 75 per cent of the registered workers are male workers. Female workers, unlike in other segments, might find it difficult to negotiate time-off for registrations, given their job and other domestic responsibilities. On the other hand, given the demographic profile of workers in the garment industry, 89.03 per cent of registered workers, and in case of domestic workers, 95.85 per cent of registered workers, are female.
Some questions as concluding remarks
Nearly a year is set to expire, yet the government has managed the registration of only a little less than three-fourths of the total estimated unorganised workforce of 380 million. Note that the figure of 380 million is only an estimate and not a census figure. It could be more and I dare say so that it is. The rate of registrations is dropping over the months. In recent times, I have noticed that the registrations are less than a lakh. On August 5, 56,777 workers registered. Given this reality, by when is the government desiring to complete this arguably mammoth task of registering millions of visible and invisible workers? At the rate of 0.1 million, it would take a huge time to complete even the magic number of 380 million.
It appears that e-Shram may not be having data on migrant workers. It is definitely not on its dashboard. Then, have we missed a golden opportunity to not merely enumerate them, but also provide them with suitable identities for securing reliefs and protections for them?
Both the pink press and the mainstream media have been going gaga over the Code on Social Security, 2020 affording the gig workers social security, but we don’t know their actual details as yet. Yes, they are vulnerable. But are they visible on the statistical radar as “gig workers”? This could have been handy for the litigations that are pending before the judiciary concerning gig workers. If gig is not restricted only to transport and is widespread even in other occupations such as teachers, then we have a huge problem of even statistically isolating them. Gigification of professions is the modern trend in Industry 4.0 or 5.0.
Agriculture has dominated the registrations. But do we have a law in place for them, save some relief measures like PM-Kisan? Given that occupational safety and health will soon become a universal call, agriculture cannot be devoid of regulations concerning the workers working in it. Laws regulating labour relations in this sector are the urgent need of the hour. The new Labour Codes must factor in these demands and complexities, and they cannot be implemented as they are passed.
Finally, the government must provide data on more dimensions so that its scope and the kind of registrations that take place will be transparent.
The government has a lot of ground to cover and, most importantly, cover well. So far, the numbers flaunted do not provide an encouraging picture.