Migration from Nepal to India

1. Nepalese migrant workers in India and their problemsSurendraPratap, Centre for Workers Education, New Delhi

2. Migration from Nepal to India • Nepalese citizens immigrating to India constitute nearly 68 percent of total Nepalese emigrants • 23 per cent of all Nepali households receive remittances, of which 33 per cent is only from India • An estimated 1 million Nepalese are working in India (various data sources provide conflicting figures—for example census of India 2001 reports only 261451 persons in duration 0-9 years)

6. The Peace and Friendship Treaty of 1950 • The Treaty between the two countries provide the similar rights to the citizens of the other country in its land as is available to the citizen of that country, except voting rights • Article 7 of the Treaty states : “The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement that privileges of a similar nature.”

7. Nepalese workers in India Men • Restaurant/bar workers about 60 percent---half of them below 18 years age • Security guards/Watch­men about 20 percent • Factory workers about 10 percent • The rest work in various kinds of casual jobs Women Domestic workers about 50 percent Factory workers about 10 percent House wives about 25 percent Some in various other casual jobs and a significant percentage may be in Brothels There may be about 200,000 Nepali women in Indian brothels

8. Problems of Nepalese migrant workers(based on interviews with Nepalese workers and activists of Pravasi Nepali Sangh) • Brokers often exploit women- promising a job in some country and selling them to brothels in India • While crossing the borders all migrant workers face harassment—particularly while going back home • Even if protected by 1950 treaty, they are virtually looted by security in the name of checking whatever they bring back- they are compelled to pay bribe on such grounds like bringing currency notes of 500 and 1000 that are supposedly not allowed in Nepal

9. Problems of Nepalese migrant workers(based on interviews with Nepalese workers and activists of Pravasi Nepali Sangh) • Housing problems for migrant workers is of a very serious kind. Since the majority of workers are in low paid jobs and they are unable to pay high rents, they are compelled to live in areas with semi slum type of conditions. • Generally four people share a room, no separate kitchen, no water connection, no separate toilet. They have to share a toilet and water facility with as high as 4-8 more workers • With sharp cultural diversities, there are no opportunities for mixing with Indian migrant worker neighbors, and so they are largely isolated, as is the case of workers from south India and north east India • Some times they also face discrimination in terms that landowners asking comparatively higher rents from foreign migrants, as it also happens in case of migrants from south and north east India

10. Problems of Nepalese migrant workers(based on interviews with Nepalese workers and activists of Pravasi Nepali Sangh) • Nepalese women workers and housewives face frequent incidences of sexual harassment. The problem is aggravated due to their isolation in society, and because no one comes to help them • They face discrimination in police stations and administrative offices. Politicians even if entertain them are mostly interested in brokering compromises, rather than really interested in resolving the problem • Many times, when the organizations of Nepalese migrants are able to trace and free the Nepalese women from brothels, they do not get proper cooperation and speedy action from administration and police

11. Problems of Nepalese migrant workers(based on interviews with Nepalese workers and activists of Pravasi Nepali Sangh) • Most serious problems relate to the problems in getting the ID card in India • Address proof and ID proof are the basic requirements for getting Ration card, Adhar card and other ID cards or welfare cards. The landlords are never willing to give in writing that they live in their premises, so they are never able to provide an address proof. This is common problem for inter state migrants also • After 1994, very few if any Nepalese workers were able to get ration cards. The same is the situation for issuing state domicile certificate (issued after 15 years) • Therefore, they are unable to get subsidized items from PDS shops and also denied cooking gas connection, so compelled to purchase cooking gas from black market at four times higher rate • Less than 10 percent of Nepalese migrants have any such ID cards and they are able to get benefit of such welfare schemes

12. Problems of Nepalese migrant workers(based on interviews with Nepalese workers and activists of Pravasi Nepali Sangh) • Mostly the employers also do not put their names in their enrolment registers and so they do not have the proof of employment also. • Only 10-15 percent migrant workers receive any work related benefits like ESI and PF. • Banks following the policy of KYC (Know your Customer)are not opening the bank accounts of migrant workers for lack of address proof and ID proof. Even if some workers are able to provided ESI cards for such proof, the banks are not accepting it • Because they do not have bank account, they are unable to claim their PF and ESI related benefits. Huge PF money of migrant workers goes unclaimed because of this problem. Moreover, in such situations the workers willingly give their consent to employers for no PF deductions • Interestingly, it is in these situations, the trade unions focusing only on shop-floor issues, become irrelevant for these workers

13. Problems of Nepalese migrant workers(based on interviews with Nepalese workers and activists of Pravasi Nepali Sangh) • Lakhani fire accident can be cited an example reflecting the seriousness of the problem • Many died in fire accident and death of a number of workers went unreported • Many bicycles standing at the factory gate went unclaimed, reflected clearly that bodies of tens of dead workers were not recovered • Surviving workers reported that there were many workers from Nepal, West Bengal and Assam, but was difficult to get know how about them • According to PravasiNepaleeSangh, family members of some Nepalese workers approached them after 1-2 months of incident, claiming that they were working in Lakhani, but it was next to impossible to prove it. • Most of the Nepalese workers and inter state migrant workers, who were hospitalized or dead, were neither enrolled in ESI, nor in employers roles • So a number of workers were not even recognized that they died in that fire accident

14. Problems of Nepalese migrant workers(based on interviews with Nepalese workers and activists of Pravasi Nepali Sangh) • Media generally do not take interest in general problems of migrant workers • Migrant workers get some space in media only when some sex racket is exposed etc • Even in Lakhani fire accident case the problems of above discussed migrant workers were casually mentioned in few news papers but not properly highlighted • ‘No interest’ is one problem, but more important problem is ignorance. Generally the media persons do not have orientation and knowledge of migrant workers’ problems • Moreover, there is rare if any Nepalese migrant worker in mainstream media

15. Recent Observable Trends (Based on interviews with Nepalese workers and activists of Pravasi Nepali Sangh) • During the internal armed conflict in Nepal, migration from Nepal to India increased, however later it may have reached at the earlier levels or even decreased • Most importantly, the migration of young unmarried Nepalese girls decreased significantly, because of development of better opportunities for girl education and other related initiatives

16. Recommendations • Orientation before migration of all migrating workers about their rights and informing them about migrant workers organizations in various parts of India • Indian government may issue an unique ID card to all migrant workers that may work as ID card for all purposes and acceptable by all state and private institutions across the country • Proper implementation of interstate migrant workers act and extending its benefits to foreign migrant workers as well • Construction of migrant workers hostels in all the cities and industrial areas, and financing it by progressive taxation on industries and state funding • Orientating the trade unions and other relevant organizations to give proper emphasis in organizing and addressing the problems of migrant workers in industries as well as in society • Orientating the media to understand and give proper emphasis on problems of migrant workers, and for promoting inclusion of foreign migrants in media

17. Thank You

19. Rights of foreign migrant workers • ILO’s Migration for Employment Convention No. 97 (1949), Migrant Workers (Supplementary Provisions) Convention No. 143 (1975), and the United Nations (UN) International Convention for the Protection of the Rights of All Migrant Workers and Members of their Families (1990). • None of five South Asian countries have ratified these ILO Conventions. Only Sri Lanka has ratified the 1990 UN Convention. • Bangladesh signed the UN Convention on 7 October 1998 but has not yet ratified it.

20. Other international initiatives • International Covenant on Civil and Political Rights • International Covenant on Economic, Social and Cultural Rights • International Convention on the Elimination of All Forms of Racial Discrimination • Convention on the Elimination of All Forms of Discrimination against Women • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment • Convention on the Rights of the Child • International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families • International Convention for the Protection of All Persons from Enforced Disappearance • Convention on the Rights of Persons with Disabilities.

21. United Nations Convention against Transnational Organized Crime and its Protocols: – Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime – Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime • Slavery Convention and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, Institutions and Practices Similar to Slavery • Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live • Durban Declaration and Programme of Action • Recommended Principles and Guidelines on Human Rights and Human Trafficking – Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council • Resolution of the UN Commission on Human Rights on the Human Rights of Migrants (2005) • Resolution of the UN General Assembly on Protection of Migrants (2004).

22. International Covenant on Civil and Political Rights •The right to life (article 6) • Freedom from torture or cruel, inhuman or degrading treatment (article 7) • freedom from slavery, servitude and forced labour (article 8) • the right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation (article 11) • the right to equality before the law (article 16) • freedom of thought, conscience and religion (article 18).

23. Labour Rights • ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, which elaborates on the fundamental rights of all workers including migrant workers • The Migration for employment Convention: conditions of work , non-discrimination in wages, union activities, benefits and social security, formal employment contract, etc • The Migrant Workers (supplementary Provisions) Convention: Penalties against traffickers and for the illegal employment of migrant workers • The Domestic Workers Convention, 2011

24. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1978 • Applicability: It extends to the whole of India. It applies to (a) to every establishment in which five or more Inter-State migrant workmen (whether or not in addition to other workmen) are employed or who were employed on any day of the preceding twelve months; and (b) to every contractor who employs or who employed five or more Inter-State migrant workmen (whether or not in addition to other workmen) on any day of the preceding twelve months. • Prohibition against employment of Inter-State migrant workmen without registration: No principal employer of an establishment to which this Act applies shall employ inter-State migrant workmen in the establishment unless a certificate of registration in respect of such establishment issued under this Act is in force • Licensing of contractors: No contractor to whom this Act applies shall, recruit any person in State for the purpose of employing him in any establishment situated in another State, except under and in accordance with a licence issued in that behalf

25. Duties of contractors:- (1) It shall be the duty of every contractor, -- • to furnish such particulars and in such form as may be prescribed, to the specified authority in State from which an inter-State migrant workman is recruited and in the State in which such workman is employed, within fifteen days from the date of recruitment • to issue to every inter-State migrant workman, a pass –book affixed with a passport size photograph of the workman and indicating in Hindi and English languages, and where the language of the workman is not Hindi or English, also in the language of the workman, (i) the name and place of the establishment wherein the workman is employed; (ii) the period of employment; (iii) the proposed rates and modes of payment of wages; (iv) the displacement allowance payable; (v) the return fare payable to the workman on the expiry of the period of his employment and in such contingencies as may be prescribed and in such other contingencies as may be specified in the contract of employment; (vi) deductions made; and (vii) such other particulars as may be prescribed; • to furnish in respect of every inter-State migrant workman who ceases to be employed, a return which shall include a declaration that all the wages and other dues payable to the workman and the fare for the return journey back to his State have been paid. • The contractor shall maintain the pass-book up-do-date and cause it to be retained with the inter-State migrant workman concerned.

26. Wage rates and other conditions of service of inter-State migrant workman: The wage rates, holiday hours of work and other conditions of service of an inter-State migrant workman shall, - (a) in a case where workman performs in any establishment, the same or similar kind of work as is being performed by any other workman in the establishment, be the same as those applicable to such other workman. (b) In any other case, be such as may be prescribed by the appropriate Government: Provided that an inter-State migrant workman shall in no case be paid less than the wages fixed under the Minimum Wages Act, 1948 (11 of 1948). Notwithstanding anything contained in any other law for the time being in force, wages payable to an inter-State migrant workman under this section shall be paid in cash. • Displacement allowance: The contractor shall pay to every inter- State migrant workman at the time of recruitment, a displacement allowance equal to fifty per cent of the monthly wages payable to him or seventy-five rupees, whichever is higher. The amount paid to a workman as displacement allowance under shall not be refundable and shall be in addition to the wages or other amounts payable to him. • Journey allowance etc: A journey allowance of a sum not less than the fare from the place of residence of the inter-State migrant workman in his State to the place of work in the other State shall be payable by the contractor to the workman both for the outward and return journeys and such workman shall be entitled to payment of wages during the period of such journeys as if he were on duty. • Other facilities: It shall be the duty of every contractor employing inter-State migrant workmen (a) to ensure regular payment of wages to such workmen; (b) To ensure equal pay for equal work irrespective of sex; (c) To ensure suitable conditions of work to such workmen having regard to the fact that they are required to work in a State different from their own State; (d) to provide and maintain suitable residential accommodation to such workmen during the period of their employment; (e) to provide the prescribed medical facilities to the workmen, free of charge; (f) to provide such protective clothing to the workmen as may be prescribed; and (g) in case of fatal accident or serious bodily injury to any such workman to report to the specified authorities of both the States and also the next-of-kin of the workman.

27. Responsibility for payment of wages: A contractor shall be responsible for payment of wages to each inter-State migrant workman employed by him and such wages shall be paid before expiry of such period as may be prescribed. Every principal employer shall nominate a representative duly authorized by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner and may be prescribed. In case the contractor fails to make payment of wages within the prescribed period or make short payment, then the principal employer shall be liable to make payment of the wages in full or the unpaid balance due, as the case may be, to the inter-State migrant workman employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor. • Liability of principal employer in certain cases: If any allowance required to be paid under Sec. 14 (Displacement allowance) or Sec. 15 (Journey allowance etc.) to an inter-State migrant workman employed in an establishment to which this Act applies is not paid by the contractor or if any facility specified in Sec. 16 (Other facilities) is not provided for the benefit or such workman, such allowance shall be paid, or as the case may be, the facility shall be provided, by the principal employer within such time as may be prescribed. • Past liabilities: It shall be the duty of every contractor and every principal employer to ensure that any loan given by such contractor or principal employer to any inter-State migrant workman does not remain outstanding after the completion of the period of employment of such workman under the said contractor or, as the case may be, in the establishment of such principal employer and accordingly every obligation of an inter- State migrant workman to re-pay and debt obtained by him during the period of his employment from the contractor or the principal employer and remaining unsatisfied before the completion of such period shall, on such completion, be deemed to have been extinguished and not suit or other proceeding shall lie in any Court or before, any • authority for the recovery of such debt or any part thereof.

28. Inspections: The Government is required to appoint inspectors to inspect the premises engaging interstate migrant workers and ensure the compliance of the provisions of the act • Inter-State migrant workmen to be deemed to be in employment from date of recruitment for the purposes of certain enactments: For the purpose of the enactments specified in the schedule, an inter-State migrant workman shall, on and from the date of recruitment, be dee4med to be employed and actually worked in the establishment or, as the case may be, the first establishment in connection with the work of which he is employed. • Provisions regarding industrial disputes in relation to inter-State migrant workmen: Notwithstanding anything contained in the Industrial Disputes Act, 1947 any dispute or difference in connection with the employment or nonemployment or the terms of employment or the conditions of labour, of an inter-State migrant workman may, be referred in the State wherein the establishment is situated; Or in the State wherein the recruitment of such workman was made if he has returned that State after the completion of his employment; • Contravention of provisions regarding employment of inter-State migrant workmen: Whoever contravenes any provisions of this Act or of any rules made thereunder regulating the employment of inter-State migrant workmen, or contravenes any conditions of a licence granted under this Act, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both, and in the case of a continuing contravention, with an additional fine which may extend to one hundred rupees for every day during which such contravention continues after conviction for the first such contravention.