Migrant Workers and Cross-Border Labour Protection in India

Migrant Workers

Introduction

Migration of labours for work is not a new practice, it has been a long practice over the centuries that has been taking place between the countries, state, regions and over different places in search of employment to sustain their families; it is a structural feature of both domestic and global labour economics. In India, internal migration takes place for over 450 million people, while cross-border migration involves millions of migrant Indian workers working outside India in the Gulf, Southeast Asia, etc. Despite their contribution to economics, migrant workers often face legal invisibility, informal employment, and limited access to justice. The COVID-19 pandemic in 2020 exposed these conditions of the labours , leading to a renewed debate on labour protections in India.

Definitions of Migrant Workers

Under the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (“ISMW Act”), an inter-State migrant workman is any person recruited by or through a contractor in one State for employment in another. Internationally, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 (“ICMW”) defines migrant workers broadly to include any person engaged in remunerated activity in a State of which they are not a national.

Challenges to the Migrant Workers

3.1. Legal Vulnerability

Many migrant workers while getting employed or getting into the course of employment do not enter into the contract/agreement of their employment which describes the terms and conditions of their work and simply works on the basis of one-time payment at the end of the month or on daily pay basis and contractors taking advantages of unawareness of their rights which are provided to them. Many migrant workers are often illiterate and are unable to enter into the contract/agreement and simply understand their work on the basis of the pay and also they intentionally avoid to enter into such paper work because of their helplessness of understanding the terms and conditions of the contract/agreement of their employment. Irregular status between the countries, state, or even within the country often excludes workers from the sphere of the laws governing the protection of the labours. In case of dispute to the cross-border workers it is not necessary to protect the rights of the people working outside the country or in any another state because the laws governing the rights of the worker may differ from state to state or country to country and what is wrong in our law may not be generally wrong at some other place. so, it gets difficult to protect the rights of the cross-border labours and to provide the assistance that the worker may got at his place litigation is difficult. Also, the procedure for seeking the justice may be complex and rigid according to the law of land.

3.2. Wage Theft & Exploitation

Wage theft, defined as the non-payment or underpayment of legally or contractually promised wages, is a common and often normalized form of exploitation for migrant workers globally. Restrictive labour migration regimes, which tie a worker’s legal status to a specific employer, create dependency and prevent workers from changing jobs or reporting abuse, making them highly vulnerable to exploitation The COVID-19 pandemic exacerbated wage theft, with many employers taking advantage of the crisis to reduce wages, deny termination benefits, and repatriate workers without payment, leading to increased poverty and debt among migrant populations Common issues include underpayment, delayed wages, and illegal recruitment fees.

3.3. Poor Living Conditions

Migrant workers are also known to be much more likely than national workers to end up in what are often known as the ‘3D’ (dirty, dangerous and demeaning) jobs, such as construction, mining or the sex industry. Exposure to a variety of pesticides and toxic chemicals can have serious health consequences for workers. Injuries also result from the use of both mechanized and non-mechanized equipment, as well as hand tools and other environmental factors. The problem of sanitation that is generally faced by the workers living in the overcrowded places resulting in Urinary tract infections and other infections can occur from the lack of toilet facilities available while on the job and the place they resid and also, some are homeless, residing on pavements without access to basic sanitation.

3.4. Gender-Based Discrimination

Migrant workers face gender-based discrimination throughout the migration cycle, which intersects with other forms of inequality such as race, class, and migration status Gendered labour migration policies contribute to occupational segregation by favouring male-dominated fields such as science, technology, engineering, and mathematics (STEM), while undervaluing skilled work typically performed by women, such as nursing and teaching Women migrants also face specific restrictions on their bodily autonomy, including mandatory pregnancy testing by recruitment agencies before or after arrival in destination countries. Under the system like kalafa women workers often experience severe restrictions and expose to abuse. These structural barriers reflect the gendered power imbalances that exists across origin and destination countries.

Constitutional & Legal Provisions Related to Migrant Workers

1. Fundamental Rights

   4.1.1. Article 14 (Equality Before Law)
   Migrant workers, whether national or foreign, are entitled to equality before law and equal protection of laws and no person shall be deprived of their rights. Applies to both citizens and non-citizens before the law .

   4.1.2. Article 15 (Prohibition of Discrimination)
   o State cannot discriminate against any person on grounds of religion, race, caste, sex, or place of birth.
   o Migrant workers from other states cannot be denied employment opportunities by reason of “place of birth”, “religion”, “caste” etc.

   4.1.3. Article 16 (Equality of Opportunity in Public Employment)
   o Ensures interstate migrants are not denied access to public jobs on discriminatory grounds and should be given adequate opportunity.
   o Exception: Article 16(3) allows Parliament to prescribe residence requirement for certain posts (e.g., domicile-based quota).

   4.1.4. Article 19(1)(d) & 19(1)(e) (Freedom of Movement & Residence)
   o Citizens have the right to move freely throughout India and reside anywhere and can work to live their livelihood.
   o Protects interstate migrant workers’ right to seek work in any state that any person irrespective of state they belong to and can work in any part of the country.

   4.1.5. Article 21 (Right to Life & Personal Liberty)
   Judicially expanded to include:
   o Right to live with dignity
   o Right to livelihood (Olga Tellis v. Bombay Municipal Corporation, 1985)
   o Right to health & safe working conditions
   o Right to social security

   4.1.6. Article 23 – Prohibition of Forced Labour
   It prohibits the concept of forced labour in India and protects the workers against trafficking, bonded labour, and exploitation of the migrant workers which is a common risk faced by migrant workers.

2. Directive Principles of State Policy (DPSP)

   4.2.1. Article 38 – Promote welfare of people and reduce inequalities.
   4.2.2. Article 39(e) – Protect workers from abuse and ensure health & strength of labour.
   4.2.3. Article 39(f) – Ensure childhood and youth are protected against exploitation.
   4.2.4. Article 41 – Right to work and public assistance in case of unemployment.
   4.2.5. Article 42 – Just and humane conditions of work, maternity relief.
   4.2.6. Article 43 – Living wage and decent standard of life for workers in any employment.

3. Fundamental Duties

   4.3.1. Article 51(c) – it obliges the government to promote respect for international law, conventions and treaty obligations — relevant for cross-border labour protection

4. Key Legislations for Migrant Workers in India

   many laws operationalize constitutional mandates:
   4.4.1. Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
   It regulates with the recruitment of the worker, giving fair wages based on their employment, paying displacement allowance, journey allowance, and other welfare measures for interstate migrant workers employed in any employment.

   4.4.2. Contract Labour (Regulation and Abolition) Act, 1970
   Protects the rights of workers engaged in any employment through contractors.

   4.4.3. Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996
   Deals with the safety and welfare of construction workers (many are migrants).

   4.4.4. Code on Wages, 2019
   Uniform minimum wage provisions for all workers, including migrants.

   4.4.5. Code on Social Security, 2020
   Extends social security schemes to gig and platform workers and interstate migrants.

5. International Legal Framework

   4.5.1. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), 1990
   A comprehensive framework for the legal protection of migrant workers and that protects the civil, political, economic, social, and cultural rights of migrant workers and their families. India is not a member to this convention.

   4.5.2. Universal Declaration of Human Rights (UDHR), 1948
   it talks about the individuals are entitled to equality, dignity, and fundamental rights, human rights, irrespective of national or legal status.

   4.5.3. International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966
   this convention assures the right to just and favourable conditions for migrant workers, including fair wages, equal pay for equal work, safe working conditions, and the right to form trade unions.

6. ILO Conventions

   4.6.1. Migration for Employment Convention (No. 97)
   Promotes equality of treatment between migrant workers and nationals in respect of employment conditions, remuneration, and access to social security.

   4.6.2. Migrant Workers (Supplementary Provisions) Convention (No. 143)
   Addresses protection against exploitative migration conditions, combats irregular migration, and promotes equality of opportunity and treatment for migrant workers.

   4.6.3. Forced Labour Convention (No. 29) & Abolition of Forced Labour Convention (No. 105)
   Prohibit all forms of forced or compulsory labour and require member states to take effective measures for its suppression.

7. Regional and Bilateral Agreements

   4.7.1. Gulf Cooperation Council (GCC) Countries
   India is signatory to labour cooperation MoUs among all six GCC countries—United Arab Emirates (UAE), Saudi Arabia, Kuwait, Qatar, Oman, and Bahrain. These countries hold over eight million Indian workers which are mainly employed in construction, domestic work, and low-wage service sectors. These agreements often include provisions for model contracts, establishment of joint working groups, and oversight of recruitment agencies. However, they typically exclude provisions for legal enforcement, compensation for rights violations, or access to host country judicial systems.

   4.7.2. Southeast and East Asia
   India has also signed MoUs with countries in Southeast and East Asia, i.e., with Malaysia in 2009 and Taiwan in 2024, the India-Taiwan agreement, while recent, is notable for addressing the migration of semi-skilled and skilled Indian workers to industrial and manufacturing sectors which are emerging destinations for Indian migrants.

8. Regional Cooperation

   India also engages regionally with the GCC through collective consultations and with other countries under the Colombo Process and Abu Dhabi Dialogue—regional consultative processes focused on the governance of labour migration in Asia. However, these platforms have limited enforcement power and primarily serve as dialogue forums.

Policy Gaps and Reform Proposals in the Governance of Migrant Workers

The administration of migrant labours in india, both inside the country and outside the country, faces significant structural and legal challenges. These gaps obstruct the protection of migrant worker right to access to social security, and mechanisms for grievance redressal. In this context, the following policy reforms are proposed to bridge national frameworks in away that are align with the international standards.

5.1. Ratification of the International Convention on the Protection of the Rights of All Migrant Workers (ICMW) and ILO Conventions

India has not ratified the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), although being a destination country for migrant labour. Additionally, several International Labour Organization (ILO) conventions related to migrant worker protections remain unrecognised. The absence of ratification reflects a gap in the commitment to international labour standards. Ratification would act as a strong step to the protection of migrant rights and would require the merger of domestic labour laws with these international instruments, ensuring better legal safeguards for migrants. It would also help India’s standing in internatinal labour diplomacy and provide a platform in negotiating fairer bilateral and multilateral labour mobility agreements.

5.2. Strengthening the Inter-State Migrant Workmen (ISMW) Act, 1979

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act (ISMW Act), though progressive but it faces significant limitations due to its narrow applicability. It apply only where five or more migrant workers are employed—restricts its enforcement, particularly in the informal sector where small contractors and employers are predominant. This leaves a vast segment of migrant workers unprotected. To address these gaps, policy reform should focus on broaden coverage and ensure more comprehensive registration and monitoring of migrant workers. Furthermore, the Act requires updating to reflect the current realities of migration, particularly by guaranteeing portability of entitlements. Migrant workers should be able to seamlessly access essential services such as the Public Distribution System (PDS), healthcare, housing, and education, irrespective of their state of residence.

5.3. Digital Portability of Social Security through Aadhaar Integration

Portability of social security benefits is important as workers move across states. So there should be a digital framework that uses Aadhaar as a unique identifier offers a way to make this possible. By linking Aadhaar with state labour welfare boards, workers could retain access to benefits such as provident funds, pensions, and health insurance regardless of where they are currently employed. It should be integrated with platforms like the National Career Service (NCS) and the e-Shram portal, creating a comprehensive and updated database to guide policy and welfare delivery and that also include safeguards for data privacy and provisions against exclusion in cases where biometric authentication may fail and allowing Indian workers overseas to carry their entitlements with them, much like the arrangements already used in parts of Europe and North America. Such an approach would not only help mobile workers within India but also strengthen protections for Indians employed abroad.

5.4. Pre-Departure and Post-Arrival Orientation Programs

Migrants often lack knowledge of their legal rights, destination country laws, and cultural expectations. To address this, mandatory pre-departure orientation sessions must be institutionalized for all prospective emigrants, especially those traveling to countries with a history of labour rights violations. These programs should cover contract awareness, grievance redressal mechanisms, financial literacy, health and safety norms, and cultural sensitivity. Similarly, post-arrival orientation be made mandatory and should be supported by Indian embassies and local organizations in host countries. These orientation sessions should be included with access to local support networks system and emergency contacts. Collaborations with international organizations like the ILO, IOM, and UN Women can help design and deliver these modules effectively with the migrant workers, ensuring gender-sensitive and rights-based approaches.

Conclusion

Migrant workers and cross-border labour are crucial members of the workforce in India; they are a primary factor enabling growth and development in the economy. Migrant workers also confer a significant contribution in areas such as agriculture, construction, manufacturing, and the informal economy, where they perform strenuous manual labour for low compensation. Although migrant workers are essential for economic development and growth, they are often met with myriad challenges around their rights, security, and safety.

First and foremost, there is generally no legal protections in place for the enforcement of labour rights at the site of work, as labour protections and laws in India seldom reach the migrant labourers working under conditions of informal and unregulated labour; in fact, Indian labour policies are recognized to have never accounted for migrant workers. Their marginal rights are further eroded due to inadequate social safety; it is common for migrants not to have access to healthcare, education and safe housing, and of course they face extreme discrimination, harassment and exploitation, which is accentuated due to their socio-economic status and mobility.

The COVID-19 pandemic served to magnify, if not expose, these vulnerabilities in migrant work, as reverse migrations (traveling back or fleeing to communities with no protections) investigate the literally fragile conditions under which these workers live and work. These vulnerabilities demonstrated the pressing need for safety nets not only for migrant workers, but for all workers, including social safety nets that are portable and beyond boundaries, or mechanisms to protect migrant workers to address crises situations.

References:

1. Code on Wages, No. 29 of 2019, INDIA CODE (2019).
2. Code on Social Security, No. 36 of 2020, INDIA CODE (2020).
3. INDIA CONST. arts. 14, 15, 16, 19, 21, 23, 38, 39, 41, 42, 43.
4. International Labour Organization, Migration for Employment Convention (Revised), July 1, 1949, No. 97, 120 U.N.T.S. 71.
5. International Labour Organization, Migrant Workers (Supplementary Provisions) Convention, June 24, 1975, No. 143, 1120 U.N.T.S. 323.
6. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Dec. 18, 1990, 2220 U.N.T.S. 3.
7. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948).
8. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
9. Int’l Labour Org., General Survey Concerning the Migrant Workers Instruments, Rep. III (Part 1B), Int’l Labour Conf., 100th Sess. (2011).
10. Int’l Labour Org. & Int’l Org. for Migration, World Migration Report 2022 (2022).
11. Ministry of External Affairs, Gov’t of India, India’s Bilateral Agreements with GCC and ASEAN Countries on Labour Migration (2023).
12. Ravi Srivastava, Vulnerability, Insecurity and Rights of Migrants in India (Ctr. for the Study of Reg’l Dev., Jawaharlal Nehru Univ. 2020).
13. Amrita Kaur, Labour Migration in India: Trends, Challenges, and Policy Responses, 56 Econ. & Pol. Wkly. (India) 25 (2021).
14. B. Bhagat, Migration and Urban Transition in India: Implications for Development (Springer 2017).
15. Olga Tellis v. Bombay Mun. Corp., A.I.R. 1986 S.C. 180 (India).
16. Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802 (India).
17. Int’l Labour Org., Global Estimates on International Migrant Workers – Results and Methodology (3d ed. 2021).
18. Ministry of Labour & Employment, Gov’t of India, e-SHRAM Portal and National Database of Unorganised Workers (2022).
19. N. Women & Int’l Labour Org., Gender and Labour Migration: Evidence from Asia-Pacific (2021).