The unplanned lockdown announced by Prime Minister Narendra Modi has revealed an overabundance of agonizing issues vis-à-vis our transportation, health, employment, finance and public distribution systems. However, the current migrant crisis being witnessed by the country takes precedence over any other anguishing phenomenon that the country might have since we gained our independence.
Whether we look at daily reports of migrants piling up at the Delhi-U.P. border, labourers dying inside Shramik special trains owing to lack of food or visuals like that of a child trying to wake up his dead mother at a railway station in Bihar, all of it adds up to make us realize the hollowness of Modi’s promises of Acche Din.
While there are states trying to rise to the occasion and help the migrant labourers, there are some like Madhya Pradesh and Uttar Pradesh which are taking bizarre actions against them, thereby violating their fundamental rights guaranteed under the Constitution.
Recently, the Shivraj Singh Chouhan-led government in Madhya Pradesh gazetted several amendments to its labour laws which virtually relieved the employers of otherwise essential provisions of the Factories Act. Similarly, the Yogi Adityanath-led government in the state of Uttar Pradesh has exempted all factories and establishments engaged in manufacturing process from the operation of all labour laws, barring some very basic provisions, for a period of three years.
In this catena of unprecedented ordinances and orders, the UP government recently issued an inherently unconstitutional diktat prohibiting outside movement of labourer population from the state of Uttar Pradesh, except with the express permission from the state government, for which the labourers (who traditionally depends on work in cities like Delhi, Mumbai and Surat) will have to depend upon the mercy of the state government in order to earn his/ her livelihood.
Any 2nd year law student having studied the basics of the Constitution of India can easily make out the constitutional infirmity in the aforementioned government diktat. Article 19(1)(d) of the Constitution of India guarantees to all citizens the right to move freely throughout the territory of India, while Article 19(1)(e) guarantees all citizens the right to reside and settle in any part of the territory of India. These provisions of the Constitution guarantee to the Indian citizens the right to go or to reside wherever they like within the Indian territory.
Just like all other freedoms protected under Article 19, these freedoms are also not absolute, but are only subject to reasonable restrictions “in the interests of the general public” or “for the protection of the interests of any Scheduled Tribe” under Article 19(5). While the phrase “for the protection of the interests of any Scheduled Tribe” is as unambiguous as it can be, there can be a debate on whether the UP government’s order can be called constitutional “in the interests of the general public”.
The Supreme Court of India, which is the final interpreter of the Constitution, in the case of Municipal Corporation v. Jan Mohd. Usmanbhai defined the phrase general public to be “of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution. A law providing for basic amenities; for the dignity of human labourer… is a social welfare measure in the interest of general public.”
However, by no stretch of imagination can the action of Yogi government be deemed to be for public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution.
Rather, in the words of Yogi Adityanath himself, the only reason for such an order is “…because of the way our people have been treated in other states” (Source: NDTV Report titled “States Can't Hire Workers From UP Without Permission: Yogi Adityanath” updated on 25 May 2020 by Alok Pandey).
Therefore, it becomes quite evident that the government order in question is not covered under either of the reasonable restrictions provided under Article 19(5). Further, when read with Article 19(1)(g) which guarantees to all citizens the freedom to carry on trade and commerce, it becomes abundantly clear that the action of Yogi government in taking the labourers hostage by restricting their movement out of the state is anything but constitutional.
Besides suffering from inherent constitutional irrationality, such a diktat also fails to assure jobs and livelihood for the millions of labourers who migrate from the state of Uttar Pradesh in search of assurance of three square meals for his/ her family, which is easily available in metro cities and negligible in the home state, owing to state’s large dependency on the service sector.
Industries constitute a mere 26% of the Gross Domestic Product of the state, whereas, service sector contributes nearly 50% to the total state GDP. Therefore, it becomes quite evident that a state which depends mainly on its service sector for employment cannot ensure employment for millions of labourers accustomed and trained to work in small, medium and large manufacturing units, industries and mines.
Moreover, it can be safely said that employment cannot be generated in such overwhelming numbers overnight, that too during the current pandemic, where layoffs and terminations seem to be becoming a norm.
The current lockdown and the pandemonium that followed has already made these migrants go through an unquantifiable financial and emotional suffering and thanks to this diktat by the BJP government in Uttar Pradesh, the problems for these migrants do not seem to be ending anytime soon.
What is more disturbing is the brazen alacrity with which the Yogi government took away the protection of many important labour laws and now has held these labourers “hostage” within their own home state, that too armed with a draconian diktat sans any constitutional validity, rationality or reasonableness. The present order has a chilling effect on the constitutionally protected rights of the labourer population and renders them incapable of earning basic livelihood. Though one hopes that the government is actually able to generate employment to employ the whole of the migrant workforce, keeping in mind the lack of industries in the state, the present order will only result in a serious loss of opportunity for the labourer population as well as loss of face for the state government, which will not be able to generate enough employment to accommodate every individual from the migrant labourer populace.
Recent confrontation of the Yogi government with the Indian National Congress, regarding Priyanka Gandhi Vadra’s apolitical offer of buses to fetch migrants and the resultant loss suffered by the migrants has appropriately depicted before us the misplaced steadfastness and the fragile ego of the current political dispensation in the state.
Hence, all we can hope for is that the state government thinks twice before employing such stringent measures and gives priority to the underprivileged labourer class over its political ego. In the end, let us also hope that good sense prevails.
(Amrish Ranjan Pandey is National Secretary and National Media Incharge of Indian Youth Congress; Ambuj Dixit is an advocate and spokesperson of Delhi State Youth Congress)