The unprecedented health crisis is reinvigorating the term ‘migrant workers’. They are gaining media attention, rightly so, for their sufferings, and also newfound affection from their ‘native’ states whose governments are promising all-out support to these workers, including employment.

What is the origin of this term? Is it in the constitutional scheme to categorise workers into natives and migrants? If not, the term ‘migrant worker’ appears to breach the Constitution’s guarantee of free movement, residence and trade, profession or occupation to every citizen. Implicitly it builds a territorial barrier to earning livelihoods—or is the migrant worker only valid for electoral processes?

Here I take you through the Constitution makers’ intent in crafting these rights to freedom. Were they willing to create region-based identities, where workers would drive the economic growth of immigrant regions in particular? In fact these rights are the bulwark of the constitutional assurance that workers can travel to any part of the country with the aim of improving their quality of life.

Notably the use of ‘migrant workers’ has been in vogue in the international sphere since 1990 after the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families was adopted by states. The convention deals with the migration of workers from one sovereign state to another for varied reasons. It draws a distinction between a worker’s ‘state of origin’ and their ‘state of employment’. Here a migrant worker is ‘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.’

The convention prohibits any non-remunerative engagement of workers and their discrimination based on 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.

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.

In 1979 the central government enacted the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act aimed at preventing the exploitative tendency of contractors to employ people from one state to carry out work in another. This legal protection was accorded to the illiterate workforce from abusive contractors who would deny them wages and livable working conditions. It regulates the conduct of the contractor, and does not develop an understanding of the responsibility of state governments in situations like the ongoing pandemic.

Read together the rights to freedom under Articles 19(1)(d)(e) and (g) affirm the charter of liberties and are also the foundation for a new nation of indestructible units and undivided citizenry. These rights facilitate the citizen-driven socio-cultural integration of the country. Additionally, they play a significant role in creating a nationwide ‘single market’ of labourers.

Prefixing ‘migrant’ to the word ‘worker’ appears to add another ground of restriction to the exercise of these rights — to move freely throughout the territory of India; to reside and settle in any part of the territory of India; and to practise any profession, or to carry on any occupation, trade or business — besides the restrictions already written into Article 19. Are we to assume that workers who migrate to different parts of the country have given qualified consent to the enjoyment of these rights?

Surprisingly, the ‘native states’ were earlier the princely states, which had sovereign rights subject to limitations imposed by the paramount power. These states were empowered to erect tariff barriers in the interest of their region and people. While rejecting the idea of tariff barriers in independent India, B.R.Ambedkar observed that a separate fundamental right to freedom of trade had been carved out to guarantee the free flow of trade to everyone within the state as well as across the states.

Apprehensions were raised about some of the rights guaranteed in Article 19. K.Hanumanthaiya argued that states might act in a partisan manner to safeguard the rights and interests of the people within their respective areas. The apprehension was addressed by pointing to the requirement of ‘reasonableness’ of any restrictions imposed on these freedoms.

T.T.Krishnamachari said, ‘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.’

No civilised country would take the risk of guaranteeing absolute rights. One of the common grounds to restrict the right to freedom is ‘in the interest of general public’. To fears of high-handedness by the state Krishnamachari replied, ‘Sir, the future, what it is going to be none of us really know, but we or most 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 governments on the plight of workers for the past few months goes contrary to the belief of the Constitution makers. The Union and state governments are running away from the responsibility of standing with the working class in a time of unprecedented crisis, by branding them ‘migrant’ so these workers will look for help only from their native states.

The directive principles of state policy serve as guidance on how to de-tag the word ‘migrant’ from the working class.

‘Workers’ is used in three directives: Article 39(e) binds the state to formulate a non-abusive policy on the health and strength of women and men workers. Article 43 provides for legislative measures to guarantee living wages to all workers, industrial or agriculture. Article 43A, added in 1976, suggests for the participation of workers in the management of any industry.

These directives do not make any distinction between workers. What these provisions promise cannot be implemented conditionally, on the basis of regional affiliation or domicile of the workers. Reading 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 a commitment to attain not only social and political democracy but also economic democracy.

Labelling the worker as ‘migrant’ amounts to devaluing their contribution to nation-building and promotes the fragmentation of Indian working class. Interestingly, the division leaves untouched the white-collar jobs (or should it be white-colour?) and the workers engaged in such employment are accommodated without any reservations or conditions.

Workers are returning to their homes in the hope that governments will do the needful in this time of distress. But the political dispensation sees them as a pawn in electoral politics. It is this identification that drives them back home, after undertaking unbelievable hardships, so that they again get counted as human beings when the election is around the corner. Their abject poverty and lack of income opportunity drives them away from home and they swallow the bitter pill of being called ‘migrant’.

The failure of the Supreme Court in prevailing upon governments to aid these workers in distress amounts to a judicial abdication of duty. Let us not turn ourselves from the reality that many a time the apex court’s intervention only provides a knee-jerk reaction to the situation at hand, and fails to establish a long-lasting solution.

On numerous occasions the judiciary has stood with the destitute and deprived—let this pandemic be a testing time for the other two branches of state. We should avoid putting the judiciary in the dock when in crisis we should expect some concrete initiatives from the executive and legislature at Centre and state.

Uday Shankar is associate professor at the Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur. The views expressed are personal