Unprecedented health crisis has reinvigorated the terminology ‘migrant workers’. They are not only getting the attention, rightly so, of the media for the sufferings but also experiencing the newly found affection from their home States. The home States are promising all-out support to these workers, including employment. What is the origin of the word ‘migrant workers’? Does the Constitution or the constitutional scheme categorise the workers into ‘non-migrant and migrant workers’? If not, then the word ‘migrant worker’ betrays the constitutional guarantees of the right to freedom to movement, reside and to carry on trade, business and occupation to every citizen in any part of the country. Also, the nomenclature implicitly creates territorial barriers for the workers to earn livelihoods which otherwise a factor counted in during electoral processes only. This work takes us through the intent of the makers of the Constitution while crafting the right to freedom. Were they intended to create a region-based identity of the workers while contributing to the economic growth of the migrated States, in particular and the country in general? These rights to freedom constitutes bulwark of the constitutional assurance to the workers to travel in any part of the country with an aim to improve upon the quality of life and be part of a liberated country.
Notably, the usage of ‘migrant workers’ has been in vogue in the international sphere as ‘the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families’ since 1990. The Convention accepts the reality of the migration of workers from one sovereign State to another for varied reasons. Aptly, the Convention draws a distinction between ‘the State of origin’ and ‘the State of employment’ based upon the country from where migration is taking place and the employment being generated for the workers. The Convention defines migrant workers as ‘a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.’ It rules out any non-remunerative engagement of the workers and they shall not be subjected to discrimination based on the sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status. Intriguingly, the vocabulary used in the international relations has become popular in the national context. In the national context, the classification has institutionalised the discrimination not only on the basis of the region but also the nature of employment. It is pertinent to highlight that the Convention guarantees equality of treatment in the State of employment whereas the same is apparently denied in the case of ‘migrant workers’ within India. Also, in 1979, the Central Government has enacted ‘the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act aimed at preventing the exploitative tendency of the contractors to employ people from one State to carry out the work in another State. Though, the present work refrains from detailing out the scheme of the Act, it is apropos to mention that the legal protection was accorded to the uneducated workforce from the unscrupulous contractors who deny the living wage and livable working conditions to the workers arranged by them. The legal instrument regulates the conduct of the contractor and does not lay down the norms on the responsibility of the States in the pandemic situation. Thus, it is desirable to unfold the leaves of the constitutional structure to comprehend the positioning of the ‘migrant workers’ and the obligations of the States thereof.
What is ‘migrant’ in the exercise of the right to freedom?
The combined reading of the rights to freedom under Articles 19(1)(d)(e) and (g) are not only the affirmation of the charter of liberties but also edifice to build a new nation of indestructible units and undivided citizenry. These rights also facilitate citizen driven socio-cultural integration of the country. When the citizens decide to relocate themselves in the urge of better living, they also carry their tradition which contributes in building a culture of tolerance, an idea of India. Additionally, these rights play a significant role in the creation of ‘single market’ with an aim to free movement of goods, services and labour.
The prefix ‘migrant’ to the word ‘worker’ signifies the adhocism in the enjoyment of the right guaranteed under Articles 19(1)(d)(e) and (g). It appears that ‘migrant’ adds another ground of the restriction, other than Clauses (5) and (6), to the exercise of the right assured to every citizen in a situation where the decision to stay or to leave the migrated State is not voluntarily taken by the citizens. Are we assuming that the workers who migrate to different parts of the country give qualified consent to the enjoyment of the right? Let us travel through the history of the contextualisation of the rights and the restrictions to understand the contours of the freedom guaranteed.
Surprisingly, ‘the home States’ were being used for the Princely States which had sovereign rights subject to the limitations imposed by the paramount power. These States were empowered to erect tariff barriers in the interest of the region and the people. While rejecting the idea of tariff barriers in independent India, Dr. Ambedkar observed that “the reason of carving out a separate fundamental right to freedom of trade was to guarantee the free flow of trade to everyone within the State as well as across the States. But in view of a number of considerations, including the need to regulate trade and commerce.”
While navigating in the history, the apprehensions were raised regarding giving effect to some of the rights guaranteed under Article 19. K. Hanumanthaiya presenting his views on the rights to settle, to acquire property and to carry on trade indicated that they might act in a partisan manner to safeguard the rights and interests of the people within their respective areas. Though, the apprehension raised was addressed with elucidation on the requirement of the ‘reasonableness’ of the restrictions imposed against the enjoyment of these freedoms. Members of the Assembly were of the opinion that the leaders of the country would never run after the draconian powers to rule the people. T.T. Krishnamacahri, while articulating on the scope of the liberty guaranteed under Article 13 of the Draft Constitution (now Article 19) said that ‘It only depends upon the type of leaders that we get for the abridgment of these rights which are enumerated here to become a dead letter, and that is in the lap of the gods. For the time being we have done the very best possible which human ingenuity can devise.’
Nevertheless, no civilised country would take a risk of guaranteeing absolute rights. Thus, score of restrictions are devised to limit the scope of the rights to freedom. One of the common grounds to restrict the exercise of the right to freedom is ‘in the interest of general public’. T.T. Krishnamachari, dispelling the fear of highhandedness of the State in restricting the rights, said that
‘Sir, the future, what it is going to be, none of us really know, but we almost of us–envisage that the future will be one which will be bright, the future will be one where the State is going to be progressive, where the State is going to interfere more and more in the economic life of the people not for the purpose of abridgment of rights of individuals, but for the purpose of bettering the lot of individuals. That is the State that I envisage, a State which will not be inactive, but will be active and interfere for the purpose of bettering the lot of the individual in this country; and I do feel, Sir, that as it is a well-known canon that in any Constitution that is forged there should be a reconciliation of past political thought which will at once pave the way for a new level of thinking, a new level of progressive and critical thinking.’
The deafening silence of the Governments on the plight of the workers goes contrary to the belief of the makers of the Constitution. Moreover, the States are running away from the responsibility of standing with the working class at the time of unprecedented crisis by branding them ‘migrant’ so that these workers would look for the necessary help from their respective home States.
Need to de-tag ‘migrant’ from the workforce?
The Directive Principles of State Policy aim to create social and economic conditions under which the citizens can lead a good life. The legislature and the executive are directed to design the legislations and policies for attaining the socio-economic democracy. These principles also serve as a guiding tool to unveil the scope of the fundamental rights. In Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore , the Supreme Court has validated the law on minimum wages invoking the provision on ‘living wage’ under the directives and justified the limitations on the right to carry on trade under Article 19(1)(g). The Directives are being petitioned to unveil the scope and ambit of the Fundamental Rights. Mere glance of the provision on the ‘workers’ clearly spells out the absence of domicile as criteria to enjoy the basic fundamental rights.
A set of provisions on welfare of the workers is included in the Directive Principles. ‘Workers’ are used in three directives. Article 39(e) binds the State to formulate the non-abusive policy on health and strength of women and men workers. Article 43 provides for legislative measures for guaranteeing living wages to all the workers, industrial or agriculture. A directive added in 1976, Article 43-A, suggests for the participation of workers in the management of any industry. These directives have not made any distinction between the workers of the migrated States from the migrant States. It is pertinent to mention that what these provisions promise cannot have a conditional scheme of implementation, least on the basis of the regional affiliation/domicile of the workers. Reading of these directives with the right to social security enshrined under Article 41, it opens up a new charter of life to the exploited and underprivileged with the commitment to attain not only socio-economic democracy but also economic democracy. The scheme of Part IV does not suggest the entitlement based upon the place of domicile of the workers.
Labeling of the ‘worker’ as migrant amounts to devalue the contribution in nation building and promotes the fragmentation of the working class in the country. Interestingly, the division has untouched the white collar jobs and the workers engaged in such employment get accommodated without any reservations.
It is also a matter of fact that the workers are returning to their home States in the hope that the political dispensation will do the needful at this time of distress. Because, they are seen as a pawn in the larger electoral politics. It is this identity that compels them to return home, after undergoing unprecedented hardships, so that they again get counted in as a human being when the election would be approaching. Needless to say, the abject poverty and lack of employment opportunity drives them away from home and they swallow the bitter pill of being called a ‘migrant’. In the instant situation, a narrative needs to be built that the terminology of ‘migrant workers’ is abhorrent to the constitutional philosophy of ‘fraternity’, ‘liberty’ and ‘single market’. The State must enable the people to use the rights so that the citizens can feel the pride of the sacrifices made in the past.
*Associate Professor, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur. Author can be reached at email@example.com (Views are personal).
 Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
 Constituent Assembly Debates, Vol. 7, Thursday, 2nd December, 1948
 (1969) 3 SCC 84