Can States Legally Stop the Entry of Migrant Workers?

While the fundamental right to freedom of movement can be restricted, the restrictions have to be reasonable.

Some states are still making it difficult for migrants to return across their borders. In doing so, are they breaking the law of the land?

(Photo: Erum Gour/The Quint)

As India moved into ‘Lockdown 4.0’ on 18 May, many restrictions imposed to prevent the spread of the coronavirus were eased. However, despite the relaxing of the rules on inter-state travel, several state governments seem unwilling to allow the entry of migrant workers and other travellers.

This has been a persistent theme for the past several weeks but after all the controversies over the migrant exodus across the country, the Centre’s instructions to state governments to ensure migrants were able to return by train, and even a revised SOP for allowing them to do so, it was hoped it would get easier for migrants to return to their homes.

Unfortunately, some states are still creating difficulties.

Karnataka announced on 18 May that they would not allow the entry of any persons coming from Gujarat, Maharashtra, Tamil Nadu or Kerala till 31 May (Kerala was later removed from this list). Haryana refuses to allow the entry of anyone coming from Delhi, for now. Telangana has announced similar restrictions.

Following reports of trains not being organised to certain states, the Railways Ministry has had to clarify that the ‘Shramik’ trains for the migrants will not require permission from state governments to run.

Even so, the number of trains being provided for migrants to travel is far lower than the requirement, leaving migrants stuck in horrific conditions while they wait for a chance to return home. Others who try to cross inter-state borders on foot are stopped from doing so.

But can states deny entry of migrants to their states at this point of time? Is this legally permissible? Or are they violating the constitutional rights of migrants and other travellers by doing so?

Can States Restrict the Movement of Anyone Under the Law?

Articles 19(d) and 19(e) of the Constitution guarantee to all citizens the right to freedom of movement throughout the territory of India, and to reside/settle anywhere in the country. On the face of it, denying migrants the ability to return to their homes would appear to be a violation of these two fundamental rights.

However, things aren’t as simple as that, thanks to Article 19(5) of the Constitution. “Under the constitutional scheme, reasonable restrictions on the freedom of movement throughout the territory of India are permissible in the interests of the general public,” explains constitutional scholar Kanika Gauba, from the Azim Premji University in Bangalore.

So would restrictions on movement in light of the coronavirus pandemic fall within this concept of ‘interests of the general public’?

The answer is probably yes, perhaps more because of the ambiguity of the phrase more than anything else. “Several members of the Constituent Assembly then noted, “interests of the general public” is a vague term that may effectively nullify the freedom,” says Gauba, adding that the Supreme Court has never quite defined the term, and instead interpreted it contextually as and when required.

Of course, just because such restrictions can be made, doesn’t mean they can just be put in place at the whims of a government. Any restriction on the fundamental freedoms has to be found in a law – without that, the restriction cannot be imposed.

This is where the Epidemic Diseases Act of 1897 comes into play, the obscure, colonial-era law that most only heard about for the first time after the central and state governments started invoking it right at the start of the coronavirus crisis. As Gauba clarifies,

“To prevent the spread of epidemic disease, states also have wide, general powers under Section 2 of the Epidemic Disease Act, 1897. This includes the power to make temporary regulations with respect to a person or class of persons to limit the spread of the disease.”

When these powers under the Epidemic Diseases Act are read along with the express constitutional powers of states to prevent inter-state spread of communicable diseases (see item 29 of the Concurrent List in the Constitution), and the ambiguous nature of ‘interests of the general public’ in Article 19(5), it leads to the conclusion that states do have the power to restrict the movement of inter-state migrants, Gauba believes.

But are Restrictions on Entry of Migrants Truly Reasonable?

Just because states can restrict inter-state movement of migrants, it does not, however, mean that any and all restrictions would be legally permissible.

Article 19(5) clearly states that such restrictions have to be ‘reasonable’, and this is not something to be taken lightly.

So what kind of restrictions would be reasonable?

NO BLANKET RESTRICTIONS

“One has to look at the science of the disease and how it spreads. We have learnt that it is air-borne and is transmitted form human to human, hence measures such as physical distancing will be reasonable restrictions of movements. Similarly, movement in containment zones may be restricted.”

Indira Jaising, senior advocate

In Jaising's view, restrictions on inter-state movements without any additional conditions or qualifications would not constitute a reasonable restriction on migrants to freely move through any part of the territory to India.

“At best a state may have a legitimate interest in ensuring that the person entering is not positive, and if positive, to be quarantined; that would be considered reasonable with a legitimate aim, but a blanket restriction is patently unconstitutional,” she argues.

HAVE TO BE TIME-BOUND

Jaising notes that even any reasonable restriction would have to come with an expiry date and a ‘sunset clause’. Such restrictions cannot be indefinite. Kanika Gauba agrees, and notes that the temporariness of the restriction is in fact a key consideration when deciding whether or not such a restriction is reasonable, especially keeping in mind that Section 2 of the Epidemic Diseases Act – the likely source of the states’ power to issue such orders – expressly says regulations under it have to be temporary.

When it comes to Karnataka’s restrictions, or Haryana’s, on migrant entry, Gauba suggests that their measures could be considered constitutional, because “it seems that they have imposed outer time-limits and deadlines to their regulations”.

As a corollary, if states are refusing to accept migrants from outside their territory without invoking any law or without specifying a deadline for the same, then their actions would not be constitutional.

A Disproportionate Response?

There is an argument to be made that even if the states invoke the Epidemic Diseases Act, and even if they set a time limit for the restrictions, they may still be unconstitutional.

Madras-based advocate Suhrith Parthasarathy takes the point made by Jaising about the need for a customised rather than a blanket restriction, a bit further, and notes that any restriction on the right to freedom of movement has to also satisfy the test of proportionality.

“The test you have to apply today, after all these recent judgments, is the test of proportionality. Therefore, the state would have to show that this measure is not only effective, necessary and backed by law, but it is also the least intrusive measure for achieving the aim of preventing the spread of COVID-19.”

Suhrith Parthasarathy, advocate

The test of proportionality for restrictions on fundamental rights was emphasised by the Supreme Court in its landmark decision affirming privacy as a fundamental right in 2017, and has been followed in several other major judgments since then, from the decriminalisation of consensual homosexual acts (the Section 377 case) to the review of internet restrictions in Jammu and Kashmir (the Anuradha Bhasin case).

When looked at through this lens, denying entry to all migrants, even if from a limited number of states, looks a lot less like a reasonable restriction.

“While it is true that at this time, anybody could be a potential carrier of the virus, you have to look at what other measures can be put in place, for instance setting up facilities for quarantine and testing,” Parthasarathy argues, with an eye on the requirement for this to be the least intrusive measure.

What hammers this point home is the fact that the Centre’s SOPs for the return of migrants, students, pilgrims etc already appear to endorse this view, even while giving states a certain amount of leeway in deciding what to do once the migrants arrive.

In both the original SOP dated 29 April and the new one dated 19 May, the Centre clarified that all passengers would have to be screened at the time of boarding, and that only those who were asymptomatic would be allowed to travel. Once they arrive at their destinations, the state governments have the right to decide what health protocols will apply, including home quarantine, institutional quarantine and testing.

While these SOPs technically only apply to those travelling by the specially arranged ‘Shramik’ trains now, they provide a logical method for dealing with the entry of any migrants into a state. Instead of just imposing a blanket restriction, the states can impose screening requirements at all entry points, and impose quarantine restrictions of their choosing.

While this may no doubt create additional requirements upon the states, such a system would not only achieve the legitimate aim of checking the spread of the virus, but also be the least intrusive way of doing so.

Are There Any Other Legal Bars to Such Restrictions by States?

Kanika Gauba suggests that there is another ground on which denial of entry to migrants might be illegal. “The Inter-State Migrant Workmen’s Act, 1979 (and Rules) has some exhaustive provisions, including the return journey of migrant workmen in case of cession of employment due to factors outside the reach of the workman, the liability of contractor and principal employer to pay all wages, dues, and return journey fares to the workman, and so on,” she points out.

“There is room to argue that states through their labour departments need to ensure that employers and contractors fulfil such legal obligations, and – if that is not possible – extend compensation to workmen directly through the pre-deposited ‘security’ collected under this Act. Doing this would somewhat ensure the dignity of and equality in treatment promised under Articles 14, 15, and 21.”

Kanika Gauba, assistant professor at Azim Premji University

Article 14 (equal treatment of laws) and Article 15 (right against discrimination) of the Constitution could also come into play given the fact that the states have not objected to the return of Indian nationals from foreign countries via the Vande Bharat mission, though this may be difficult to use when contrasting the current restrictions with decisions that have already been made, suggests Suhrith Parthasarathy.

It could also be argued that such restrictions are ‘manifestly arbitrary’ and therefore a violation of Article 14, if there is no discernible logic for banning people from certain states, or if the restrictions are not consistent.

In conclusion, while states have the power to restrict entry into their territory, the restrictions have to be reasonable and proportionate, and what many states are doing right now could very well fail those tests. In the meanwhile, the migrant crisis continues, which Jaising pithily describes as:

“What a sad comment on the nation as a whole, what a let-down by the governments and then by the courts of the country.”