CRITICAL ANALYSIS OF THE EMIGRATION BILL, 2021

Workers of the world unite; you have nothing to lose but your chains

– Karl Marx

INTRODUCTION

The Ministry of External Affairs introduced the Draft Emigration Bill, 2021 (initially planned in 2019) and invited public comments and suggestions on it[1]. This bill seeks to replace the extant legislation i.e., Emigration Act, 1983.

The 1983 Act governs the regulatory framework with respect to the emigration of Indian workers for their overseas employment and seeks to ensure the safeguard and betterment of their rights and interests. The evolution of this law can be traced back to the Supreme Court Judgment in Erach Sam Kanga v. Union of India[2]wherein the Constitution bench held that emigration should be managed based on guidelines, that were laid down in the above order.

The purpose of this legislation was to prevent the exploitation of Indian nationals working overseas. Therefore, any worker seeking employment abroad requires clearance from the Office of the Protector General of Emigrants (now, under the Ministry of External Affairs) and similarly, any registration offering employment overseas must be registered under the same[3].

A WELCOMING MOVE

The 38-year-old legislation has several lacunae which the 2021 bill seeks to address, to reform the recruitment process for Indian nationals seeking contractual employment overseas. The proposed bill is a welcoming move, especially for Kerala being one of the highest contributors of approximately 19 lakh migrant workers in the Gulf Cooperation Council nations[4]. India has been crowned as the ‘largest transnational community in the world’ with roughly 18 million citizens working overseas (UAE being the largest employer at 3.5 million workers), with 48% of the total diaspora being represented by women, receiving $83 billion in remittances[5].

The draft bill has provisions for labour migration, remittances, student mobility and human trafficking. In the broader sense, the bill aims to address the various geopolitical and strategic impacts of emigration in the present day. The bill seeks to establish a 3-tier institutional framework[6]

  • The Centre proposes a Bureau of Emigration Policy and Planning, and a Bureau of Emigration Administration which shall handle daily operational matters and supervise the welfare of the workers. The Bureau of Emigration Administration shall maintain a digital database of all Indian emigrants along with blacklisted and fraudulent recruitment agencies and employers indulging in exploitative practices such as unreasonable recruitment charges, retention of passports to name a few.
  • Nodal agencies and check posts will be established under the supervision of a Chief Emigration Officer, along with an officer from the Central or State Government. Nodal committees are to be established in States and Union Territories led by the Principal Secretary as its chairperson.
  • The Central Emigration Management Authority will be established as a new emigration policy division under the Ministry of External Affairs, to resolve issues of international migrant workers, especially in the EMEA (Europe, Middle East & Africa) region.

A labour and welfare wing and emigrants’ welfare committee at the Indian Embassies and Consulates is to be established. Similarly, Sahayata Kendras will be established to oversee issues concerning overseas employment and immigration of Indian emigrants back to domestic waters. It is taxing for unaware migrant workers to obtain information about the terms and conditions of their employment, thereby having to pay more to agents or officers to extract relevant documents and/or clearances, despite having an upper limit on the service fee chargeable.

This bill also empowers authorities to punish workers, either by revoking or suspending their passports and imposing fines of up to ₹50,000, if found guilty of violating the said provisions, intending to locate workers emigrating via unregistered recruitment agencies or on tourist visas.

It is a need of the hour for recruitment agencies to conduct background checks on prospective employers, set a price ceiling on the service charges and allow governmental intervention via review of emigration clearances. The extant Act necessitates hiring via government-certified agencies however the onus of conducting investigation lies on the recruiting agencies who are generally driven by a profit motive. Consequently, the welfare of the workers is not their primary concern and the plight of the workers are exacerbated by rampant corruption between the agencies and the employers.

Media reports have often highlighted the uncanny relationship between migrant worker deaths in the Gulf countries and the cause of death being attributed to health-related concerns without any substantial evidence[7]. Years of exploitative practices have seriously impacted the welfare of the poor migrant workers in terms of underpayment of wages, poor living conditions, deception or contract substitution. In the current pandemic situation, low-skilled labours in the Gulf countries have been quarantined in overcrowded labour accommodations with negligible water and sanitation, coupled with the government’s failure to intervene and evacuate such labourers[8]. In most cases, their passports are seized by the employers, which is one such lacuna the bill aims to address.

A LONG WAY TO GO

India is a signatory to the International Convention on the Protection of Rights of Migrant Workers. Article 7 necessitates member states to respect and ensure the rights of migrant workers and labourers and prohibit discrimination on any ground[9]. The proposed bill lacks a human rights structure as the penal provisions of the bill criminalizes the already-subdued migrant worker desperately in need of work or unaware of the law. Furthermore, the workers are liable to surrender their passports if any irregularity is discovered, thereby suppressing complaints and allowing exploitative practices and spurious recruiters to operate unscathed. Progressive labour regimes such as the Philippines explicitly recognize the value and promises to uphold the dignity and basic fundamental human rights and freedoms of its Filipino workers[10]. Criminalizing the actions of the migrant worker runs contrary to the very aim of the reforms sought to be achieved.

Private Employment Agencies Convention No. 181[11] and general guidelines of the International Labour Organization states that it is the employer and not the employee who must borne recruitment expenses such as payment for visas, medical check-ups etc. Reports from World Bank shows the contrary wherein Indian migrant workers had to pay preposterous charges to the tune of $1,507 for their recruitment in Saudi Arabia[12]. When the migrants are forced to commit to such payments, they are left with marginal or no savings and are directed towards taking loans to survive. Consequently, they are pushed into the vicious cycle of debt, forced labour and exploitation.

Concerns of wage theft (non-payment of overtime), denying workers their last pay after termination, underpaying of wages, compulsory signing of ‘voluntary’ resignation form etc are unaddressed in this bill. Over 6 million migrant workers have lost their employment due to the pandemic. Profiteering out of this mass repatriation, employers are terminating workers without their legitimate wage and benefits[13].

Compared to their male counterparts, women have a restricted say in matters of employment and are more likely to be employed in neglected and informal sectors wherein sexual, physical and psychological abuses are predominant. This goes against the dignity of the workers, as promised in the international conventions

The bill does not mention any provision to assist jailed migrants overseas, rotting over the years without any legal aid from either governments and/or recruiting agencies.

CONCLUSION

Information Technology solutions should be used to reform and increase transparency in the recruitment procedure with periodic updates to the worker database, display of defaulting recruiter agencies, use of biometric or national identity cards (apart from passport) which shall be essential in safeguarding the interests of the migrant workers.

The Parliament must address the concerns raised in the proposed bill, to uphold the rights and safeguard the interests of the migrant workers employed abroad assuring them their dignity and protection against exploitative practices, as per established international standards. Ultimately, this is what Goal 8 (Decent work and economic growth) and Goal 16 (Peace, justice and strong institutions) of the Sustainable Development Goals[14] seek to achieve.

Author(s) Name: Rishabh Guha (Symbiosis Law School, Pune)

References:

[1] Ministry of External Affairs, ‘Draft Emigration Bill, 2021’ https://mea.gov.in/emigrationbill.htm accessed 05 August 2021

[2] W.P. No. 2632 of 1978 [1979]

[3] Emigration Act 1983, s 3

[4] Biju Govind, ‘New Emigration Law to replace extant Act of 1983) The Hindu (Kerala, 19 July 2021)

[5] UNDESA, ‘International Migration Highlights 2020’ (United Nations Department of Economic and Social Affairs, 15 January 2021) https://www.un.org/development/desa/pd/sites/www.un.org.development.desa.pd/files/undesa_pd_2020_international_migration_highlights.pdf accessed on 05 August 2021

[6] Emigration Bill 2021, s 3 s 7

[7] Nikhil Eapen, ‘An emigration bill that does not go far enough’ The Hindu (India, 27 July 2021)

[8] India Legal Bureau, ‘PIL filed in SC to rescue migrant workers in Gulf Countries’(India Legal, 10 April 2020) https://www.indialegallive.com/constitutional-law-news/courts-news/pil-filed-sc-rescue-indian-migrant-workers-gulf-countries/ accessed 05 August 2021

[9] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 1990, Art 7

[10] Migrant Workers and Overseas Filipinos Act 1995, s 2(c)

[11] Private Employment Agencies Convention No. 181 1997, Article 7

[12] KNOMAD, ‘Migration and Remittances’ (World Bank Group, October 2017) https://openknowledge.worldbank.org/bitstream/handle/10986/30279/129452-BRI-PUBLIC-Knowledge-Note-Add-Series-Migration-and-Development-Report-12-14-17-web.pdf accessed on 05 August 2021

[13] Rejimon Kuttappan, ‘Indian migrant workers in Gulf countries are returning home without months of salary owed to them The Hindu (India, 18 September 2020)

[14] United Nations Development Program, ‘Sustainable Development Goals’ https://www.in.undp.org/content/india/en/home/sustainable-development-goals.html accessed 05 August 2021

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