- A PROJECT on Exploitation of Indian Migrant Workers in the Gulf vis--vis Indian

Emigration Law- A quest for viable solutions

Submitted by: Chirag Indulia

TABLE OF CONTENTS
Ch. No 1 2 3 4 Introduction Indian Diaspora in GULF and emigration trends:Problems Faced by Indian Emigrants in GULF Current Policy regime governing international labour migration from India 5 Suggestions for improving the policy framework to safeguard the interests of migrant labours Conclusion Bibliography 18-19 20 16-17 Topic Page No. 4-5 6-8 9 - 12 13 - 15

Chapter-I Introduction
All countries in the world have experienced some degree of international migrations. The number of countries that are the source or destination of sizable international migration has been rising. Increasing globalization and integration of international economy facilitated by communication and transport revolutions have been contributing to this trend. As a result of the communication and transport revolution it is easier now to know about and pursue the opportunities abroad. Policy makers need statistics on migration to maximize its positive potential and minimize its potential negative effects. In the absence of required statistics, the magnitude, types and impacts of the migratory flows are not well known or understood. Migration is a complex socio-political and economic phenomenon and therefore, the needs for migration related data are far-reaching. These needs include immigration control, labour employment, trafficking and smuggling data, health and skill assessments, remittance flows, etc. International migration has also had considerable impacts on demographic structures, expenditure patterns, social structures and poverty levels. Impacts include reducing population growth; enhancing the dependency burden within households; increasing consumption expenditures and reducing poverty levels.

The IOM/United Nations World Migration Report 2000 observes: Voluntary migrants include people who move abroad for employment, study, family reunification, or other personal factors. Forced migrants leave their countries to escape

persecution, conflict, repression, natural and human-made disasters, ecological degradation, or other situations that endanger their lives, freedom or livelihood1

During the past few decades international migration has taken new strides in India. Hundreds of thousands of Indians are emigrating every year to the developed countries in search of better quality of life and higher income. Many are quitting their regular jobs for the greener pastures abroad. Emigration from India is not a new phenomenon. For centuries Indian workers have been emigrating to join the labour force of several countries. Indian migration in the modern times can be traced back to the 18th century when the slavery was abolished and the colonial rulers required labour to work on plantations. Emigration towards the Middle East is basically oriented to labour and servicing occupations on a contract basis. This type of emigration flourished as a result of economic boom due to hike in oil prices after 1973.The rapid economic growth in the oil exporting countries of Middle East led to an increase in the construction activity to create infrastructure. The heavy demand for skilled and unskilled labour was fulfilled by the foreign labour, as the local population was not adequately trained to satisfy the increasing needs of labour market. This motivated many skilled and semi-skilled workers from several countries, including India, to go there in search of better economic gains. By the mid 1980s India was the second largest supplier of manpower to the countries of Middle East. The effect of economic liberalisation in India is visible on the labour migration from 1992 onwards, as it again jumped to more than 400 thousand per annum. One striking feature of labour migration from India is that more than 90 percent of the migrants go to the Middle East.2

http://193.134.194.11/public/english/protection/migrant/download/imp/imp57e.pdf World Migration Report 2001 (http://www.iom.int)

Chapter-II Indian Diaspora in GULF and emigration trends:-

Entire gulf region is sparsely populated, Saudi Arabia being the only Gulf country with relatively large population of almost 28 million. As for the others, the corresponding figures range from barely half a million to about 3.5. Foreign nationals are not permitted to own any business or immovable property in the Gulf Countries. They are required to make a local citizen or entity a majority even if sleeping partner in their enterprises. The Indian Diaspora in the Gulf consists entirely of "non-resident indian citizens" (Or NRIs). A conservative estimate of their number in the Gulf region, based on figures supplied by the Ministry of Labour and by Indian Missions in that area would be at least 6 million. Their numbers make impressive reading even in terms of their percentage of total population in the countries where they reside: Country- Indian Migrants population (1999)- percentage of national population Bahrain - 130,000 (20%) ; Kuwait - 200,000 (13%); Libya - 20,000 Oman - 450,000 (15%); Qatar - 100,000 (24%); Saudi Arabia - 1,500,000 (7%) UAE 900,000 (30%); Others - 130,0003 Semiskilled unskilled workers still account for about 70% of the Indian migrants; while white-collar workers are in the neighbourhood of 20% and professionals (doctors, engineers, architects, bankers and charted accountants) have a 10% share of the total.

http://indiandiaspora.nic.in/diasporapdf/chapter4.pdf (Excerpts from the Report of High Level

committee submitted to Govt of India)

Interactions and contacts of Indian migrants with the local people are limited and mostly of a formal and impersonal nature. They are naturally drawn to their compatriots of a similar social status or background. A large number of Indian associations are thus to be found throughout the region, which are based on commonalities such as place of origin, religion, language or profession. As many as a hundred such associations engaged i cultural and recreational activities exist in Kuwait and UAE, while relatively smaller numbers exist in Saudi Arabia and Oman. The Indian Art Circle in Kuwait has even constructed an auditorium with a seating capacity of 1200 persons, in which regular cultural programmes and seminars are organized, and sometimes also performances by invited Indian artists. The professional Indians and some of their white-collar workers are the only ones who qualify to have their families with them due to the high basic income norms set by the Gulf Governments. To enjoy such a privilege in the UAE, for instance, the monthly earnings of an NRI must be no less than 4000 Dirhams (ca. Rs. 48000), or Dirhams 3000 plus accommodation. In Kuwait, the qualifying minimum is even higher, namely, Kuwaiti Dinars 400 (Rs. 56000) per month.4 The Indian migrants have taken the initiative of setting up a large number of schools throughout the region which follow the Indian curriculam and thus meet the educational needs of their children. There are no less than 38 such schools in UAE, 15 in Oman, 9 in Kuwait and 7 in Saudi Arabia which are run and managed by Indian professionals. The living and working condition of the unskilled and semi-skilled Indian workers in the Gulf leaves much to be desired. A majority of these NRIs are young males. More than half their numbers have invariably gone from Kerala, while the remaining persons have mostly been from Andhra Pradesh, Goa, Karnataka and Tamilnadu. Over 60% of them have had little formal education. On arrival in their country of destination in the Gulf, they are usually fed and housed in barrack-like tenements and engaged as labour on construction projects. Most of them are unmarried. Out of a total of 294,000 Indian residents in Kuwait, about 113,000 of them are domestic servants, and, of them, about 49,000 are housemaids. There have been cases of Indian women who were recruited as cooks or housemaids and were driven to desperation because of the ill

Ibid.

treatment and molestation that they were subjected to. In view of the serious problems faced by housemaids, the Govt. of India had suspended their emigration to Kuwait in June 1999.

Emigration Trends

There are about five million Indian workers all over the world. More than 90 per cent of these are in the Gulf and Southeast Asia. In 2006 about 6.77 lakh workers went from India with emigration clearance. Out of these, 2.55 lakh went to UAE, about 1.34 lakh to Saudi Arabia, about 76,000 to Qatar and 36,000 to Malaysia. Tamil Nadu, Kerala, Andhra Pradesh and Uttar Pradesh are the leading sourcing states. The number of emigration clearances granted by the eight offices of the Protector of Emigrants was 4.66 lakh in 2003. Now it is 8.09 lakh.5 The total number of Indian workers in the United Arab Emirates' private sector is currently between 1.2 million and 1.3 million, according to the latest figures. Indian workers in the country represent some 50 percent of the labour force in the private sector, according to a report.6

The number of Indians in the Gulf is estimated to be about four million. In Kuwait, 48 percent of the Indians were working in the unorganised sector (43 percent in Saudi Arabia). The minister also said that according to information received from Indian missions in the Gulf, there were 1,116 Indian prisoners in Saudi Arabia, 825 in the United Arab Emirates, 111 in Kuwait, 86 in Bahrain and 32 in Qatar.7

The annual number of semi- or unskilled Indian workers going to the gulf countries more than quadrupled between 1999 and 2007, from about 160,000 to 777,000. Those

5 6

http://www.tribuneindia.com/2008/20080803/spectrum/main1.htm http://www.overseasindian.in/2006/aug/gulf-index.shtml 7 Ibid

going to the gulf countries in 2007 made up 96 percent of all workers requiring an emigration clearance check.8

Chapter-III Problems Faced by Indian Emigrants in GULF: Human rights in the Middle East are often reported to be a cause of concern among many outsider observers, governmental and non-governmental. However, the state of human rights varies from nation to nation. For example, Jordan and Bahrain have a good progressive human rights record. Other nations like Syria and Saudi Arabia have been known for their very repressive regimes that have no consideration to human rights. There are some issues prevalent in most Middle Eastern countries, often due to their common Islamic background.

Indian migrant workers, make up a majority of the resident population of the UAE. They lack rights associated with citizenship and face a variety of restrictions on their rights as workers.9

It is common practice, although illegal, for employers in the UAE and Saudi Arabia to retain employees' passports for the duration of the employment contract to prevent expatriate employees from changing jobs. On termination of an employment contract, certain categories of expatriates are banned from obtaining a work permit in the country for six months.10

8 9

http://www.migrationinformation.org/Profiles/display.cfm?ID=745#7 Human Rights Watch - Building Towers, Cheating Workers: Exploitation of Migrant Construction Workers in the United Arab Emirates http://www.hrw.org/sites/default/files/reports/uae1106webwcover.pdf 10 http://www.khaleejtimes.com/DisplayArticle08.asp?xfile=/data/theuae/2009/January/theuae_January458.x ml&section=theuae

Employment agreements are sometimes ignored on arrival of labour in the GULF and skilled workers are forced to work as unskilled persons.11

Work hours are usually much longer than the generally recognised 8 hour daily.12 Medical facilities are inadequate and, in some cases, almost non-existent.13

Workers typically arrive in debt to recruitment agents from home countries and upon arrival are often made to sign a new contract in English or Arabic which pays them less than had originally been agreed.14

There have been cases of Indian women who were recruited as cooks or housemaids and were driven to desperation because of the ill treatment and molestation that they were subjected to. It appears that unscrupulous agents had managed to send them out under false pretences.15

Visa and travel costs are typically added on to the original debt, and thus within hours of their arrival, workers often find that their debt-repayment time has increased significantly, possibly by years.16

In September 2003 the government of UAE was criticised by Human Rights Watch for its inaction in addressing the discrimination against Asian workers in the emirate.17

During the months of July and August, when the mercury soars to unbearable limits, UAE records a spate of cases where laborers are hospitalized due to heat strokes and cramps. Heat exhaustion or heat stroke is preventable if one takes precautionary

11

http://indiandiaspora.nic.in/diasporapdf/chapter4.pdf (Excerpts from the Report of High Level

committee submitted to Govt of India)

12 13

Ibid. Ibid. 14 http://www.ingentaconnect.com/content/mnp/ijgr/2008/00000015/00000001/art00004;jsessionid=utxuestt 1d9p.alexandra 15 Supra, note 11 16 Information obtained by my friend working in Saudi Arabia. 17 Dubai: Migrant Workers at Risk (Human Rights Watch, 19-9-2003) http://www.hrw.org/press/2003/09/migrant091903.htm

measures. The most important of which is not to expose oneself to the sun from eleven in the morning to five in the evening.18

The BBC reported in September 2004 that "local newspapers often carry stories of construction workers allegedly not being paid for months on end. They are not allowed to move jobs and if they leave the country to go home they will almost certainly lose the money they say they are owed. The names of the construction companies concerned are not published in the newspapers for fear of offending the often powerful individuals who own them."19

In December 2005 the Indian consulate in Dubai submitted a report to the Government of India detailing labour problems faced by Indian expatriates in the emirate. The report highlighted delayed payment of wages, substitution of employment contracts, premature termination of services and excessive working hours as being some of the challenges faced by Indian workers in the city.20

There are few recreational opportunities for the labour class of our migrants. Concerns for their families left behind in India, difficult living and working conditions, insecurity of jobs has often led to depression and melancholia, leading in suicide in extreme cases. Shepherds and agricultural workers have to work in remote area with minimal or no contact with the outside world, this often results in serious psychological problems.

Suicides by Indian expatriates in the UAE rose three-fold between the years 2003 and 2008, with 75 per cent of the deaths attributed to debts, according to statistics compiled by the Consulate-General of India in Dubai. The statistics indicated that there were 40 suicides by Indian expatriates in 2003, 70 in 2004, 84 in 2005, 109 in 2006 and 118 in 2007. In 75 per cent of the cases, the cause of suicide was depression

18

Anjana Sankar, Law banning construction work in afternoons urged, Khaleej Times, June 10, 2005, & Human Rights Watch, Volume 18, No. 8(E) 19 "Workers' safety queried in Dubai", by Julia Wheeler, BBC News, September 27, 2004, http://news.bbc.co.uk/2/hi/middle_east/3694894.stm 20 "Indian government gets report on problems of Indians in UAE"

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related to accumulation of debts. Of the remaining 25 per cent, 15 per cent of suicides were a result of domestic strife and 10 per cent due to job-related.21

In March 2006 NPR reported that workers "typically live eight to a room, sending home a portion of their salary to their families, whom they don't see for years at a time." Others report that their salary has been withheld to pay back loans, making them little more than indentured servants.22

Achieving redress with the authorities, namely the Ministry of Labor, is hard for many workers as the majority hails from India, Pakistan, Bangladesh, and Sri Lanka, and cannot speak either Arabic and English. Also, claims can drag on in the labor courts for months by which time the unpaid laborers have little option other than acceptance of whatever settlement is given.

21

Debt Main Cause of Rise in Suicide Cases Among Indian Expats: Study. http://www.highbeam.com/doc/1G1191933417.html 22 "Dubai Economic Boom Comes at a Price for Workers" by Ivan Watson, NPR, March 8, 2006 http://www.npr.org/templates/story/story.php?storyId=5250718

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Chapter-IV Current Policy regime governing international labour migration from India
The overseas employment policy regime in India mainly addresses temporary and contract migration. The most important policy instrument, the Emigration Act 1983, deals with the emigration of Indian workers for overseas employment on a contractual basis and seeks to safeguard their interest and ensure their welfare. Prior to the Act of 1983, the Emigration Act of 1922 governed the migration of Indians across national boundaries. The main purpose of this Act was to regulate and control the recruitment and emigration of unskilled agricultural workers. The Rules of the Act stipulated procedures for emigration and the steps to be taken by the foreign agents in India for the welfare of such emigrants. According to the Act, emigration of unskilled workers involved notifications for specific countries. However, since no such notification was issued by the government, the emigration of unskilled workers progressively declined between 1923 and 1947. The Act did not specify any regulations governing the emigration of people with technical qualifications or professional expertise and therefore permanent migration to the industrialized countries, which began from the 1950s, was hardly regulated or monitored by the policy regime in India. The migration boom to the Middle East during the mid 1970s exposed the limitations of the 1922 Act in safeguarding the interests of workers emigrating for employment. This period witnessed the emergence of a large number of illegal recruiting agents who employed exploitative practices, including extortion and fraud. Workers with low skills and incomes suffered most. It was in this broader context the Emigration Act, 1983 was introduced with a view to alleviate the problems associated with emigration of unskilled and skilled workers.

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Salient Features of the Emigration Act, 1983:The Emigration Act, 1983 governs emigration of citizens of India. The salient features of this Act are as under:

(i) No Indian citizen (unless exempted) can leave India for taking up abroad work as defined in the Act without obtaining a certificate of emigration clearance from the Protector of Emigrants.

(ii) An emigrant worker can be recruited for a job in a foreign country either by a recruiting agent registered under the Act or by an employer, subject to his being permitted to do so under the Act.

(iii) No prior scrutiny of applications for registration of agents is required. Registration of recruiting agent has been made subject to an affidavit, an undertaking and an amount of security which shall not be less than rupees one lakh. When a certificate issued to a person has been cancelled, he shall not be eligible to make any application for another certificate until a period of two years from the date of such cancellation.

(iv) The decision of the specified authorities in regard to cancellation, suspension and rejection of permits, registration and other matters are appealable to the Central government.

(v) Taking into account the concern expressed at various forums on the matter of exploitation of emigrants by recruiting agents and employers, provision has been made for offences of this nature and punishment by way of imprisonment up to a period of two years and fine up to two thousand rupees have been provided in the Act.

(vi) The Central government has the power to prohibit emigration to any country in the interests of the general public, etc. prohibit emigration due to outbreak of epidemics, civil disturbances, etc. in a country or prohibit emigration of any class or category of persons.

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Government measures and programmes for better migration management Whereas provision regarding entry, regulation and prevention of foreigners into India and Indian citizenship are found in the Constitution, the Citizenship Act 1955, the Passport Act 1967, the Criminal Procedure Code and other regulations, there has been no systematic legal policy framework to deal with emigration out of the country. Despite the debates, discourses, and perspective, the Government of India does not have any comprehensive policy on labour migration or overseas employment, whether for skilled or unskilled workers. However, the paradigm of policy stance in India could be said to have moved over time from one of restrictive regime, to compensatory, to restorative, to developmental.21 The Emigration Act, 1983, which replaced the earlier 1922 Emigration Act, has been designed mainly to ensure protection to vulnerable categories of unskilled, and semiskilled workers, and women going abroad to work as housemaids and domestic workers. Under the Act, it is mandatory for registration of all Recruiting Agents with the ministry.23 The governments role has been perceived as that of a facilitator in finding gainful employment to maximum number of persons, again a major development concern since Indias independence, whether within or outside the country. The newly formed Ministry of Overseas Indian Affairs, constituted in 2004, has taken the initiative to amend the Emigration Act, 1983, and introduce a number of measures. In addition, there are various other proactive programmes that are in the pipeline of the MOIA, including benchmarking of the best practices of other progressive sending countries like the Philippines and Sri Lanka.24 Overseas Indian, the house journal of the Ministry has been launched in five languages with an eversion also being made accessible. Of all the government measures and programmes in India, the Overseas Citizenship of India (OCI) the dual citizenship is an important landmark in redefining the contours of a migration policy in the new millennium. This measure seems to be relevant mainly to the highly skilled migrants to the developed countries. A second measure, that Indian citizens abroad would have the right to exercise their votes from abroad, is primarily meant for the Indian workers in the Gulf those who send large remittances back home but can never hope to become naturalized citizens of those countries because of restrictive regimes there. However, it is still too early to gauge the impact of these two measures as they are in their infancy.

23 24

GOI, MOIA, Annual Report 20056

Ibid.

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Chapter-V Suggestions for improving the policy framework to safeguard the interests of migrant labours
1. Effective measures should be instituted by the Ministry of Labour to prevent malpractices by recruiting agents in India. There are many unscrupulous ones among them who exploit the prospective innocent emigrants and extract hefty sums from them as a fee for obtaining the necessary visa and work permits for them. They tempt them with exaggerated and sometimes even false promises of attractive jobs on offer. 2. Appropriate agencies to be set up by state governments, even at the district level, to advise prospective Indian workers about their rights and obligations. Such agencies should devise means to ensure that they are not exploited by recruiting agencies in India and by prospective foreign employers. Counselling should be given by such agencies about the dangers of even getting inadvertently used as drug peddlers, as this can attract capital punishment. 3. Government should negotiate a Standard Labour Export Agreement with all the Gulf countries prescribing such things as a minimum wage, free housing, medicare, a weekly day off, a limit on daily working hours, overtime allowance rates, return air tickets and compensation for on the job death or injury. 4. The practice of employers taking into their custody the passports of their employees immediately on their arrival should be discontinued. This practice renders our workers helpless. 5. The consular officers in our Missions in the Gulf countries should pay frequent visits to the labour camps to acquaint themselves with the difficulties faced by Indian workers. 6. Periodic meetings should be hold by the officer dealing with community welfare in each mission with his opposite member in the host countrys Labour Ministry to resolve problems as they arise, without entailing recourse to Labour Courts.

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7. The tenure of employment is uncertain in Gulf countries. Our workers should therefore be given financial assistance and otherwise assisted in their resettlement through training or alternative employment, in the event of their services being summarily terminated and their being compelled to return to India. 8. Employers in Gulf countries sometimes refuse to comply with the normal system of financing the return fare of their labour to India at the termination of their contractual period. On the other hand, the prospective Indian emigrant has to deposit with the Protector of Emigrants a sum equalant to the cost of repatriation to India. This amount should be transferred to the relevant Indian Mission, so that it can be utilised in the event that an employer reneges on his responsibility. 9. Indian women are being recruited to work in Gulf as cooks, housemaids, governesses for children, etc. As local labour laws do not apply to domestic help, they often end up becoming victims of physical violence, molestation, and even sexual abuse. Government should devise measures to protect Indian women from such humiliation.

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Conclusion
The Ministry of Overseas Indian Affairs (MOIA) is drafting a new emigration legislation to safeguard the interests of Indians settled abroad, union Minister of State for Planning and Parliamentary Affairs V.Narayanasamy on March 25, 2010 said. Promising to pursue a pro-active policy to transform the emigration system and empower emigrants through systematic interventions of the MOIA, he said the government is doing its best to protect the Indian emigrants from unscrupulous elements. We can hope that this legislation will protect the interests of Indians settled abroad. India has taken steps to eradicate the mistreatment of its nationals working in the Gulf and to combat the illegal recruitment of Indian workers. India signed separate labor pacts with the UAE, Kuwait, Qatar and Jordan and now in talks with Malaysia, Bahrain, Oman and Yemen (Asian Migration News, 30 June 2007)25. In 2007, India imposed a ban on the deployment of all low-skilled women below 30 years in a bid to stop increasing cases of exploitation and to curb sex trafficking of Indian women.26 These steps have helped curbing some of the evils like trafficking of the Indian Women as these women are mature enough to handle tricky situations. But still there is a need for many reforms as the legislations relating to emigration are not sufficient enough.
The four Core Labour Standards were embodied in the ILOs June 1998 Declaration on Fundamental Principles and Rights at Work. They are considered as fundamental human rights and freedoms that are universally applicable regardless of state ratification or non-ratification. This is because they are regarded as part of customary international law. These are complemented by a range of other standards relating to workers that apply in accordance with state ratification.

25 26

http://www.adb.org/documents/books/ADO/2007/IND.asp http://smc.org.ph/ama/country-data.php?id=IN&fileid=55

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These are as follows: 27 1. freedom of association and the effective recognition of the right to collective bargaining (ILO Conventions 87 and 98) 2. elimination of all forms of forced or compulsory labour (ILO Conventions 29 and 105), 3. the effective abolition of child labour (ILO Conventions 138 and 182), and 4. the elimination of discrimination in respect of employment and occupation (ILO Conventions 100 and 111).
UAE and Saudi Arabia (also other Gulf countries) despite their membership of the ILO since 1972 and 1976 respectively, has not ratified the two ILO Conventions that protect the first set of these core standards those relating to freedom of association and the effective recognition of the right to collective bargaining, ILO Conventions 87 and 98. The significance of this component of the four core standards to ensuring effective enjoyment of all four core standards by migrant workers in these countries cannot be overestimated. Labour standards in these countries can be uplifted through a human rights framework and a business rationale for maintaining a sustainable trade and investment environment in such countries. The legal, normative and policy framework for the protection of the rights of migrant workers should gradually be brought into line with international standards in these countries with the help of ILO and UN. The United States, the European Union and Australia also have an important opportunity to urge the UAE, Saudi Arabia and other Gulf countries to address their failure to protect workers rights, as they negotiate free trade agreements (FTAs) with the them. At a minimum, they should condition any agreement on labor law reform in the Gulf, that explicitly allows workers to form trade unions and to bargain collectively with their employers, and establishes sufficient protections to adequately safeguard these rights.

The Indian government should build diplomatic pressure on the Gulf nations to drop archaic practices governing migrant workers. Further the new emigration related legislation is awaited and new innovative reforms for the protection of Indian Emigrants are welcome.

27

http://www.ilo.org/public/english/standards/norm/index.htm

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Bibliography
Web Pages: http://indiandiaspora.nic.in http://www.iom.int http://www.tribuneindia.com http://www.overseasindian.in http://www.migrationinformation.org http://www.khaleejtimes.com http://www.hrw.org http://www.ingentaconnect.com http://news.bbc.co.uk www.indembassyuae.org http://www.highbeam.com http://www.npr.org http://www.ilo.org www.moia.gov.in Articles: Dubai Economic Boom Comes at a Price for Workers" by Ivan Watson, NPR, March 8, 2006 "Workers' safety queried in Dubai", by Julia Wheeler, BBC News, September 27, 2004, Law banning construction work in afternoons urged, by Anjana Sankar, Khaleej Times, June 10, 2005 Building Towers, Cheating Workers: Exploitation of Migrant Construction Workers in the United Arab Emirates, Human Rights Watch

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Statutes: Indian Emigration Act, 1983

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