Several states are hugely reliant on migrant workers to fill the need for a strong workforce.

• Akshay Nagpal and Umang Poddar

With a 23 lakh strong workforce returning to their homes in UP and their recent sufferings known around the nation, the Yogi Aditayanath Government is contemplating a Migrant Commission to be set up.  The benefit that has been cited is twofold – the first is skill mapping, i.e. their Government would keep track of the skills its workforce has and thus improve their deployment; and the second is providing social security and insurance to the workers. As an added corollary to this announcement, the UP Government had said it would now mandate that employing labourers in other states would now require permission from the UP Government. While the specifics of the policy was yet to be out, the UP Government has purportedly backtracked from the statement and said that the Commission would only be for social security. However, there is still confusion over the move as some sources now say that an ‘undertaking’ would be required.

In this article, we analyse the legality of the requirement of permission from any State Government for employing their migrant labour and whether it transgresses the fundamental rights of the ones affected, and secondly, we explore whether it would increase or decrease ease of doing business. 

Constitution and Migrant Workers

Labour falls under concurrent list in Schedule VII of the Constitution; thus, both the State Government and Central Government has the power to regulate it. However, both the Centre and States shall be  bound by Article 19(1)(d) and 19(1)(e) of the Constitution of India, which guarantees all citizens right to move freely throughout the territory of India and to reside and settle in any part of India, respectively. Article 19(5) gives an exemption to a “law” for “interests of general public” or “protection of interests of any Scheduled Tribe”. The main idea is that the entire territory of India shall be treated as one for its citizens. Thus, one would first have to look at the legislative basis for such a restriction and then analyse whether it is in the “interest of general public”. Under this provision, the State would have to show the reasonableness of the restriction, which would be ultimately decided by the courts.  The Supreme Court has held that while the term “interest of general public” would have a wide import, ranging from public health to economic welfare, the courts would look at the purpose, urgency and the proportion of the restriction to test reasonableness. Thus, it may be unlikely that any State Government would have been able fulfil as it severely curtails the movement and employment of citizens in other States.

Further, Article 19(1)(g) gives the protection to practise any profession, or to carry on any occupation, trade or business. The employers, especially the ones who in states like Maharashtra, Delhi who are heavily dependent on migrant labourers might argue that this affects their right to carry out business. The migrant labourers’ right to carry on occupation in a different State might also be hit by this restriction. 

In case the particular State Government is not able to provide protection to the labour force, restrictions on their ability to work outside the State may also hit Article 21, under which the Supreme Court has recognized that “right to livelihood” is a part of “right to life”. This may also transgress Article 41 of the Constitution, under which the State shall take steps to secure “right to work”, which even if not enforceable, are meant to be guiding principles for the Courts and the Government.  

Another challenge that could be raised would be under Article 14. If people from other professions could move freely across the country but migrant workers cannot, this could be classified as discriminatory under Article 14. The relevant State Government may find it hard to justify the migrant labour movement restrictions and prove there is a rational nexus between the object and the action.

Other ways of protection

India already has an Inter State Migrant Workmen (Regulation and Employment and Conditions of Service) Act, 1979 (“Act”), which regulates employment of migrant labourers. The Supreme Court has recognized that this Act was formulated to provide the migrant workers with basic protection, as the Act stipulated for uniform wages, displacement allowances etc. Strangely, this Act has been suspended by the Ordinance passed in Uttar Pradesh suspending application of a majority labour laws. This begs the question that why the UP Government did not rely on the existing Act to further its goal of migrant worker protection. We shall have to wait for the specifics to answer this question.

One should also note the difference between the 1979 Act and the recent decision being contemplated by the UP Government of permission being mandatory for migrant workers from UP to be employed outside.  The former was meant to promote migrants moving to all parts of the country by giving them protection while the latter seemingly restricts their ability to freely move and reside in any part of the country.

Impact on businesses

Several states are hugely reliant on migrant workers to fill the need for a strong workforce. The primary reason workers moved to these areas is because the booming economy of these states provided them with more work opportunities. There doesn’t seem to be an indication that the demand of labour in UP had been more than the supply, which would provide a logical justification for such a move. Additionally, the statements by the UP Government have already started a squabble with the Maharashtra Government on who would be the enabling authority to allow migrant workers in their states. Such a move would lessen investor confidence and increase uncertainty over employment statuses of such individuals. 

The need of the hour is to project an image where various government machineries work in a seamless fashion. This would ensure that anyone investing in the country would have faith in the resolve of the government. While the Government has introduced a lofty economic package, this move needs to work hand in hand with issues of labour, to guarantee that newer investments come to India. The requirement of an approval for migrants to work outside UP provides another avenue for red-tapeism to further in the state, and may be reconsidered.

Way Forward

One would need to see the specifics of the labour commission to see its legality and impact on businesses. The challenge to the 12 hour shift notification in the Allahabad High Court which led to the UP Government withdrawing the notification and the recent backtracking of the requirement of permission from UP Government, shows a lack of certainty of in regulating labour in the region. The government must be certain of the legality of their moves, so as to assuage the possibilities of court interference. At a time when all efforts are bulging towards attracting the public eye towards India, the message given by the Government must be clear and decisive, as lack of clarity could be seen negatively. 

(Akshay Nagpal is a Partner and Umang Poddar is an Associate at L&L Partners. The views expressed are the views of the authors)