UP’s Migrant Commission seems to imagine that its workers are the absolute property of the state

The Uttar Pradesh government is in the process of setting up a Migration Commission. According to Chief Minister Adityanath, the Commission will look into the rights of migrant workers, including provisions such as social security, unemployment allowance and re-employment assistance.

He added that other states would not be allowed to hire workers from Uttar Pradesh without the permission of the Commission. “This is being done to save the migrant workers from exploitation in other states,” he said. “Any state hiring them [the returning migrants] back in future will have to provide an insurance cover to ensure their social security.”

While it is being projected as a welfare measure, such a system will only create an exploitative platform where the workers will be deprived of freedoms guaranteed to them under the Constitution.

When a worker takes a job in another state, she exercises at least three Constitutional rights: the right to move freely throughout India, the right to reside in any part of India and the right to practice any profession of her choice. The first two rights can be subject to reasonable restrictions, in the interest of the general public or for protection of Scheduled Tribes. The third right can be restricted only in the interest of the general public.

Thus, being able to move out of a state and take up a job is a fundamental right of citizens and cannot be curtailed whimsically. It is difficult to see how the system proposed by the state government will pass constitutional muster, if subjected to an independent judicial review.

Constitutional violation

It is interesting that Adityanath’s rhetoric has been squarely directed towards other states, although the state governments have no role to play in the employment of migrant workers. Workers are employed by private employers. Through which legal interface then are state governments expected to approach the Uttar Pradesh government? What would be the procedural framework between the employers and the governments in the host states?

Unless the host states also agree to the logic of such a commission and institute necessary legal regulations within their territories, it is difficult to imagine how the scheme will be implemented. Even then, such an arrangement will lack Constitutional permissibility. It is clearly beyond the states’ purview to institute licensing arrangements for employers to hire migrant workers.

Even if the actual system requires the private employers to directly approach the Uttar Pradesh Migrant Commission, one can imagine how the process will pan out. In a country where the nexus between political leaders and capitalist businesses is ubiquitously malignant, it doesn’t require a lot of imagination to predict how compromised the process will be.

It is important to consider the creation of these bureaucratic barriers as a follow-up to the suspension of labour laws that the Uttar Pradesh government announced a couple of weeks ago. With one stroke, the government divested the workers of the rights which have been fundamental to fair working conditions. As a result, workers in the state are likely to encounter hostile working conditions.

With the Migrant Commission as a gatekeeper, the workers will also not be able to move out freely in search of better jobs. The government-business nexus will severely limit their employment opportunities and trap them without an escape route.

Workers as chattel

The language that has been used in relation to the workers has been deeply disturbing. Describing the workers as “UP’s manpower” indicates a mindset where workers are seen as being owned by the government. To insist that another state cannot “take away” workers without the consent and permission of the Uttar Pradesh government imagines the workers as chattel, and not as human being with Constitutional rights.

While the rhetoric has been aimed towards other states, the message is meant for the workers: “You cannot work as per your choice. You can work only for the employers that the government choses for you. The government will decide where you should work and who you should work for. The government will decide if you are free to exercise your Constitutional rights.”

One wonders if the state will ever prescribe similar restrictions for white-collar workers hailing from Uttar Pradesh. Will judicial service aspirants from Uttar Pradesh need to take the permission of a commission before applying for a job in Bihar or Jharkhand? Will other states be allowed to take away “UP’s manpower” by employing people from the state in public services?

Bonded labour is the practice of forcing a person to contribute labour because of an outstanding debt. Bonded labourers are made to work against their will; they are not free to choose their employers or employment. Essentially a variant of slavery, this practice is illegal in India.

Now, under the pretext of responding to the Covid-19 crisis, the workers in India are being denied their free will because of a debt they owe to the state – the debt of their existence. In exchange for being allowed to exist, they have to accept the absolute dominion of the state over their bodies, minds and souls.

Rangin Pallav Tripathy is a faculty at National Law University, Odisha, and has recently completed his Fulbright Post-Doctoral Fellowship from Harvard Law School.