Something is Better than Nothing: Enhancing the protection of Indian migrant workers through Bilateral Agreements and Memoranda of Understanding

Abstract

India’s has had an impressive record recently in negotiating bilateral Memoranda of Understanding (MOUs) and Memoranda of Agreement (MOAs) on emigration of Indian workers, and social security agreements for Indian workers with a number of destination countries. The study undertakes a review of MOUs and MOAs on migration of Indian workers entered into by the Government of India with destination countries in the Gulf Cooperation Council (GCC) states, Jordan and Malaysia. The findings however, have broader relevance in the context of similar MOUs by other Asian origin countries. The study fails to find any concrete evidence that the MOUs and agreements on labour migration have contributed to improved governance of labour migration between India and concerned destination countries or significantly improve the protection of low-skilled Indian workers in the major destinations - the Gulf countries and Malaysia. The author argues that this is to be expected given that the MOUs contain only general provisions and leave out major issues of governance and protection. There has been no publicity and awareness creation on the MOUs signed, or any concrete follow on the provisions of MOUs after initial signing. The Joint Commissions proposed in the MOUs for monitoring and follow up of these agreements are virtually non-functional or non-existent. Above all, the lack of enforcement and monitoring mechanisms, and the continued predominant role of the private sector employers, and recruitment agencies and sponsors in hiring and control of workers mean that the MOUs have hardly any impact on the situation of the average low and semi-skilled Indian migrant worker. In all countries surveyed abuse and exploitation of Asian migrant workers including those from India has not changed. This should however, not imply that India is better off without MOUs. The existence of MOUs has a political value, and they have provided a firmer foundation for the country to build upon in this regard. In this sense, an agreement or MOU is better than a situation of no agreement or MOU. The author argues that the MOUs provide a broad framework, but that they need to be backed up by concrete initiatives in the areas of model employment contracts, strict workplace monitoring and enforcement of labour laws and regulations with adequate labour inspection procedures in place, dispute resolution mechanisms and mechanisms for access to justice by all migrant workers, and effective monitoring and regulation of recruitment agencies at both ends, and doing away with the sponsorship (‘Kafala’) system in GCC countries. While these may be harder to negotiate, they should nevertheless receive high priority if MOUs are to have any operational value in improving labour migration governance, and effectively protecting Indian migrant workers abroad. In this sense, multilateral and regional forums may serve as better platforms to move forward in these areas.