Introduction
The evolution of occupational safety law has historically been anchored in the institutional setting of the factory, the mine and the formal workplace, thereby constructing the legal conception of the worker around the existence of an identifiable employer exercising control over the workplace and possessing the capacity to prevent and manage occupational risks. This employer-workplace paradigm continues to exert considerable influence on contemporary labour legislation. The Occupational Safety, Health and Working Conditions Code, 2020, notwithstanding its legislative objective of consolidating thirteen central labour enactments and establishing a unified framework for occupational safety, health and working conditions, substantially retains this conventional regulatory architecture. Its statutory scheme is predominantly structured around the interrelated concepts of the establishment, the employer, the employee and the worker, thereby raising significant questions regarding the adequacy of an employment-centred framework in addressing the occupational vulnerabilities of workers situated beyond the traditional employment relationship.
The exclusion assumes greater significance in the case of workers who are self-employed, mobile and situated within the informal economy. The statutory framework fails to accommodate adequately the realities of migrant workers who move across State boundaries and sustain their livelihoods primarily through their own labour, without the existence of a conventional employer-employee relationship. This category encompasses a diverse range of workers, including street vendors, independent transport workers, small-scale service providers, waste collectors, construction workers engaged on individual assignments, independent agricultural labourers, and persons engaged in other informal economic activities. Self-employment and occupational mobility, however, do not negate the existence of workplace-related risks. On the contrary, the absence of a clearly identifiable employer may intensify the vulnerability of such workers by effectively transferring the economic consequences of occupational injury and illness onto the individual worker. Medical expenses, the procurement of protective equipment, loss of income and the costs associated with work-related injuries are consequently borne by workers who often lack access to institutional mechanisms for occupational safety and social protection.
The treatment accorded to this category of workers under the OSH Code reveals a significant normative paradox. Section 21 expressly permits workers who have migrated from one State to another and become self-employed in the destination State to register themselves on the inter-State migrant worker portal.1 The provision is undoubtedly a legislative acknowledgement that self-employed migrant workers exist as a distinct and identifiable category. Yet the substantive provisions of the Code do not correspondingly extend a general occupational safety entitlement to this category. Registration therefore becomes an endpoint rather than a gateway to enforceable safety protection.
This article argues that the central defect of the OSH Code lies not merely in the absence of a specific provision for self-employed migrant labourers, but in the deeper conceptual structure of the statute. The Code is employer-centric and establishment-based, whereas the occupational risks faced by self-employed migrant workers are activity-based and worker-centred. A legal framework that recognises the worker for purposes of registration but excludes the worker from substantive safety protection produces a form of regulatory visibility without legal protection.
This article undertakes a doctrinal examination of the foregoing issue. It begins by interrogating the statutory structure of the Code, with particular emphasis on the conceptualisation of the inter-State migrant worker within its definitional framework. The analysis thereafter focuses on the limited statutory acknowledgement of self-employed migrant workers under Section 21 and demonstrates how the employer-establishment-based architecture of the Code operates as a structural impediment to the realisation of substantive occupational protection. The constitutional dimensions of this exclusion are then critically examined. The article concludes by advocating a risk-oriented, portable and inclusive framework for occupational safety capable of extending protection beyond conventional employment relationships.
The Employer-Centric Architecture of the OSH Code
The long title of the OSH Code describes the legislation as an enactment to consolidate and amend the laws regulating “the occupational safety, health and working conditions of the persons employed in an establishment.” This statutory formulation is of considerable interpretive significance. The Code does not position the worker exposed to occupational risk as its primary regulatory subject in the abstract; rather, its protective framework is principally directed towards persons employed within an establishment. This foundational orientation substantially informs and shapes the subsequent architecture of the Code, including the allocation of statutory duties, the identification of duty-bearers and the scope of occupational safety protection.
Section 2 of the OSH Code further reinforces this institutional orientation through its definitional scheme. The statutory conception of an “employee” is substantially premised upon the existence of a person engaged for wages by an establishment to undertake specified work.2 Correspondingly, the definition of “employer” is predicated upon the existence of a person employing one or more employees in an establishment.3 The statutory definition of “worker” similarly remains anchored to the performance of work for hire or reward within an establishment.4 These interlocking definitions reveal a discernible normative sequence within the Code: the establishment constitutes the foundational regulatory unit, the employer the principal duty-bearer, and the employee or worker the primary beneficiary of the ensuing statutory protections and entitlements.
The central occupational safety obligation under Section 6 further confirms this structure. Every employer must ensure that the workplace is free from hazards, comply with occupational safety and health standards, provide the prescribed health examinations, maintain a safe working environment and avoid charging employees for safety and health measures.5 Section 23 imposes responsibility upon the employer for maintaining health, safety and working conditions.6 The statutory enforcement framework, including inspection, compliance and penalties, is consequently directed towards establishments and persons capable of being identified as employers.
This structure is entirely rational in relation to a factory or a large construction establishment. An employer possesses control over the workplace, machinery, working methods and organisational arrangements. The law can therefore impose a preventive duty upon the employer. However, the same model becomes inadequate where a worker performs economically productive labour without an employer.
The fundamental difficulty is not that self-employed persons are incapable of being regulated. The difficulty is that the Code presumes that occupational safety is primarily a duty owed by an employer. Where there is no employer, the statutory architecture struggles to identify the duty-bearer. The result is an implicit transfer of occupational risk from the economic system to the individual worker. This is particularly problematic in the informal economy. The International Labour Organization has repeatedly recognised that informal workers are frequently engaged in hazardous activities and remain outside regulatory systems, including occupational safety and health systems.7 The absence of an employer does not make the risk less real. It merely makes the traditional legal mechanism of assigning responsibility less convenient.
The Statutory Recognition of Migrant Workers and the Limits of Self-Employed Status
The OSH Code expanded the statutory conception of the inter-State migrant worker beyond the traditional model of a worker recruited through an intermediary. The definition of inter-State migrant worker under Section 2(1)(zf) includes a person who has come on his or her own from one State and obtained employment in an establishment in another State, subject to the statutory conditions relating to employment arrangements and wages. The provision is important because it recognises that migration is not always mediated by a contractor. Nevertheless, the definition continues to contain a decisive employment requirement. An inter-State migrant worker is, by definition, a person “employed in an establishment.” The self-employed migrant therefore falls outside the core definition.
The structural tension within the OSH Code becomes particularly evident upon an examination of Section 21. While Section 21(2) requires the Central and State Governments to maintain a database or record of inter-State migrant workers, the provision simultaneously permits an inter-State migrant worker to register on the designated portal on the basis of self-declaration and Aadhaar. More significantly, the second proviso to Section 21(2) expressly extends the registration mechanism to persons who have migrated from one State to another and are self-employed in the destination State.8 The provision is therefore of considerable legislative significance. It demonstrates that Parliament was not oblivious to the existence of self-employed migrant workers; rather, it expressly acknowledged their presence within the migrant labour landscape and incorporated them into the statutory mechanism for identification and registration.
The difficulty, however, lies in the limited legal consequences attached to such recognition. Section 21 brings self-employed migrant workers within the ambit of the Code for the purpose of registration and data collection, but does not correspondingly confer upon them an independent and substantive entitlement to occupational safety protection. The legislative approach therefore creates a clear gap between recognising self-employed migrant workers and actually protecting them. Registration alone does not adequately address the occupational risks faced by these workers. Its real value lies in enabling access to legal rights, welfare benefits and safety measures. However, where registration is not accompanied by enforceable occupational safety rights, the law merely makes these workers visible to the State without creating a corresponding duty to protect them from the risks associated with their work.
This regulatory asymmetry becomes particularly apparent when the nature of occupational risk is considered. A self-employed migrant worker may perform work involving hazards materially indistinguishable from those encountered by a similarly situated worker engaged by an establishment. The difference between the two workers lies not necessarily in the nature, intensity or consequences of the occupational hazard, but in the legal characterisation of their work relationship. Yet, under the OSH Code, that distinction carries decisive consequences for the availability of statutory protection. The employer-dependent framework is thus capable of producing differential legal treatment between workers exposed to comparable occupational risks solely on the basis of their employment status.9
The underlying difficulty is that the Code continues to treat the employment relationship as the principal juridical gateway to occupational safety protection. Such an approach is increasingly difficult to reconcile with the contemporary labour market, which is marked by informalisation, fragmented work arrangements, casualisation and the expansion of non-standard forms of labour.10 In this context, the statutory equation of occupational protection with formal employment risks leaving precisely those workers who are most vulnerable to occupational harm outside the effective reach of the protective framework.
The Occupational Safety Gap: From Employer Responsibility to Individual Risk
The exclusion of self-employed migrant labourers becomes particularly apparent from the substantive rights and duties established under the Code. Section 6 places the primary obligation upon the employer to maintain a workplace free from hazards and to ensure working conditions that do not endanger the health or safety of employees.11 This employer-centred duty is complemented by Section 13, which imposes corresponding obligations upon employees to exercise reasonable care for their own safety, comply with prescribed safety requirements and report unsafe conditions to the employer.12 Section 14 further confers upon employees rights relating to access to safety information and participation in matters concerning occupational safety.13 The statutory framework thus operates through a reciprocal employer-employee relationship in which employer responsibility constitutes the principal foundation of occupational safety protection.
A self-employed migrant worker is outside this relationship, as there is no employer to whom a hazardous situation can be reported. There is no statutory duty to provide safety equipment. There is no employer-funded health examination. There is no workplace safety committee in which the worker can participate. There is no legally identified person upon whom the general duty under Section 6 can be imposed. By excluding self-employed migrant workers from the employer-based safety framework, the Code effectively shifts the responsibility for managing occupational risks onto the individual worker. Such a burden is particularly problematic where the worker lacks the financial means to obtain protective equipment, access preventive healthcare or absorb the economic consequences of work-related injury. The individualisation of occupational safety is therefore especially problematic in conditions of poverty and informal employment.
Occupational safety is inherently preventive in character. Post-injury compensation cannot serve as a substitute for measures designed to identify, minimise and prevent occupational hazards. The International Labour Organization has emphasised that occupational safety in the informal economy requires an integrated approach combining workplace safety, health promotion, skills development and social protection.14 A legal framework that fails to extend preventive safety measures to self-employed workers risks reducing occupational safety from a public regulatory responsibility to an individual concern.
The vulnerability of self-employed migrant workers is further intensified by the conditions associated with migration. Language barriers, unfamiliarity with local administrative systems, limited access to healthcare and the absence of established social networks may significantly restrict their ability to obtain information and institutional assistance. The International Labour Organization has recognised these factors, together with poor working and living conditions and inadequate social protection, as important dimensions of the vulnerability experienced by migrant workers.15 Self-employed migrants encounter these difficulties without the institutional support that an employer may, at least in principle, provide.
The exclusion is therefore situated at the intersection of two distinct but mutually reinforcing vulnerabilities, namely migration and self-employment. While the Code addresses migrant workers principally through the framework of employment in an establishment, its treatment of self-employed migrants is substantially confined to registration. A worker who falls within both categories is consequently recognised administratively but remains inadequately integrated into the substantive architecture of occupational safety protection.
The Constitutional Dimension: Articles 14 and 21
The exclusion of self-employed migrant labourers raises important constitutional questions. The challenge is not necessarily that the OSH Code directly discriminates against a named class. Rather, the concern is whether a classification based on the employment relationship is rationally connected to the object of occupational safety legislation. Article 14 permits reasonable classification but requires an intelligible differentia and a rational nexus with the legislative objective.16 The relevant comparison is between workers exposed to comparable occupational hazards. If the object of the Code is to promote occupational safety and health, the distinction between an employed worker and a self-employed worker may not adequately explain why one receives statutory protection and the other does not.
The State may argue that the employer is the natural duty-bearer and that the Code cannot impose employer obligations where no employer exists. This is a legitimate administrative consideration. However, it does not necessarily justify the complete absence of a protective framework. The constitutional question is not whether the State must impose identical duties upon differently situated persons. It is whether the State can simply leave a vulnerable class outside the substantive scope of occupational safety protection when the underlying occupational risks are real and foreseeable.
The constitutional jurisprudence of the Supreme Court has progressively interpreted Article 21 to protect the conditions necessary for a dignified human life. In Maneka Gandhi v. Union of India, the Court rejected a narrow understanding of constitutional protection and emphasised fairness and reasonableness in State action.17 In Olga Tellis v. Bombay Municipal Corporation, livelihood was recognised as intimately connected with the right to life.18 In Consumer Education and Research Centre v. Union of India, the Court recognised the significance of occupational health and the responsibility of the State in protecting workers from occupational hazards.19
The constitutional significance of occupational safety is also reflected in the Directive Principles. Article 39(e) directs the State to secure that the health and strength of workers are not abused. Article 42 requires provision for just and humane conditions of work. Article 43 contemplates a living wage and conditions of work ensuring a decent standard of life. Although the Directive Principles are non-justiciable, they are constitutionally relevant in interpreting the scope and purpose of labour legislation. A worker-centred interpretation of Article 21 suggests that the right to livelihood cannot be separated from the right to pursue a livelihood without avoidable and preventable occupational harm. The obligation of the State may differ according to the nature of the work and the identity of the duty-bearer, but the protection of human life cannot depend exclusively upon the existence of a formal employment contract.
The problem is particularly serious in the case of migrant labourers. In In re Problems and Miseries of Migrant Labourers, the engagement of the Supreme Court with the conditions of migrant workers during the COVID-19 crisis underscored the vulnerability produced by mobility, informality and the lack of institutional support.20 The judgment does not directly decide the treatment of self-employed workers under the OSH Code. Nevertheless, it illustrates a broader constitutional principle: the legal invisibility of migrant workers cannot be accepted as a justification for administrative inaction.
International Labour Standards and the Need for a Risk-Based Approach
The exclusion of self-employed migrant labourers is also inconsistent with the evolving international understanding of occupational safety. The occupational safety framework of the ILO increasingly focuses on the prevention of occupational injury and disease rather than merely on the formal classification of the worker. The materials of the ILO on migrant workers recognise that occupational risks arise from the conditions and nature of the work and that migrant workers may face higher exposure to hazards.21
The international labour framework provides important support for a more inclusive understanding of occupational safety. The Recommendation of the International Labour Organization concerning the Transition from the Informal to the Formal Economy, 2015 (No. 204), recognises the need for policies that extend social protection, labour rights and improved working conditions to workers in the informal economy. Its underlying approach is significant because it rejects the assumption that informal work, by virtue of its informality, falls outside the legitimate sphere of State responsibility.
Similarly, the Occupational Safety and Health Convention, 1981 (No. 155), and the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187), reflect an international commitment to the development of national systems aimed at preventing occupational injuries and diseases.22 Although the legal effect of these instruments is shaped by ratification and domestic implementation, their broader normative significance lies in the movement away from a narrowly employer-dependent model towards a comprehensive national framework for occupational safety.
A risk-based approach would consequently require a different starting point from the employer-centred framework reflected in the OSH Code. The central inquiry should not be confined to identifying the employer; it should also examine the nature of the occupational hazard, the persons exposed to it and the preventive measures necessary to minimise the risk. Such an approach is particularly relevant to self-employed migrant workers, whose exposure to occupational hazards may be substantial despite the absence of a conventional employment relationship.
Adopting a risk-based framework would not require the State to impose identical and unlimited obligations upon every self-employed worker. Rather, the law could establish minimum safety standards for identified high-risk occupations, facilitate access to affordable protective equipment, provide sector-specific safety training, develop mobile occupational health services and strengthen mechanisms for reporting work-related injuries. Where occupational risks are generated or significantly aggravated by the activities of local authorities, sectoral institutions, principal enterprises or supply-chain actors, the regulatory framework could also allocate appropriate preventive responsibilities to those entities. Such a model would preserve the primary responsibility of the employer where an employment relationship exists, while extending a basic level of occupational safety protection to workers who fall outside the conventional employment structure.
Towards a Worker-Centred Reform of the OSH Code
The statutory gap identified above cannot be addressed merely through a broader interpretation of existing provisions. It requires a conscious reorientation of the occupational safety framework from an exclusively employment-based model towards one that is responsive to the actual conditions in which work is performed. The objective should not be to impose identical obligations upon formally employed and self-employed workers. Rather, the law must ensure that the absence of a conventional employer does not result in the complete absence of preventive occupational safety protection.
A. Statutory Recognition of the Self-Employed Migrant Worker
The first and most fundamental reform should be the express incorporation into the OSH Code of a distinct category of “self-employed worker” that includes the migrant worker. At present, Section 21 recognises the existence of such workers for the limited purpose of registration, while the principal definitional provisions remain substantially structured around employment in an establishment. This creates an avoidable conceptual inconsistency within the statutory scheme.
The Code should therefore define a self-employed migrant worker as a person who has migrated from one State to another and pursues a livelihood through own-account or self-directed work in the destination State, irrespective of the existence of an employer or establishment. The definition should be sufficiently broad to include workers engaged in informal and non-standard forms of work, while allowing the Central Government to notify specific occupational categories for regulatory purposes. Such an amendment would not, by itself, confer every employer-based right upon self-employed workers. Its immediate purpose would be to provide them with a clear statutory identity and bring them within the substantive protective framework of the Code.
B. A Minimum Occupational Safety Entitlement Independent of Employment Status
A more fundamental reform would be to establish a minimum statutory entitlement to occupational safety that is not contingent upon the existence of a conventional employment relationship. The OSH Code should require the appropriate Government to ensure basic preventive protection for workers exposed to notified occupational hazards. Such protection could include access to essential safety information, occupation-specific training, periodic occupational health screening and information concerning available medical and social security schemes. The underlying principle is simple: occupational risk does not cease to exist merely because a worker is self-employed. At the same time, extending protection to self-employed workers does not require the wholesale application of employer obligations to them. Employers should continue to bear the primary responsibility for workplace safety wherever an employment relationship exists; in the absence of such a relationship, the State must assume a defined preventive and facilitative role.
To operationalise this entitlement, the appropriate Government should be empowered to identify and notify categories of self-employed work involving a heightened risk of occupational injury, disease or exposure to hazardous conditions. The determination should be guided by objective criteria, including the nature and severity of the hazard, the incidence of work-related injury or disease, the extent of exposure and the practical ability of the worker to control the risk independently. Once an occupation is notified as high-risk, the Government should prescribe minimum safety standards appropriate to the particular activity. These may include basic safety orientation, access to suitable personal protective equipment, periodic occupational health assessments, emergency-response training and mechanisms for reporting serious work-related injuries. A sector-specific framework would enable the law to respond to the actual risks associated with different forms of self-employed work, while allowing the scope of protection to be progressively expanded as new occupational hazards emerge.
C. Portable and Sector-Specific Safety Protection
The mobility of migrant workers necessitates a portable system of occupational safety protection. The registration mechanism under Section 21 could therefore be developed into a rights-enabling framework by linking it to a portable occupational safety record documenting safety training, basic occupational health screening and eligibility for notified protective schemes. Such a system would ensure continuity of protection across States and occupations, subject to appropriate safeguards concerning data minimisation, privacy and the restricted use of personal information. Its purpose must be to facilitate access to protection rather than to monitor or penalise informal workers.
A uniform safety model would, however, be inadequate given the varying risks associated with self-employed work. The Central and State Governments should accordingly prescribe sector-specific minimum safety standards for notified high-risk occupations, including construction, waste work and transport. Local authorities and relevant sectoral institutions should also disseminate safety information in languages accessible to migrant workers.
D. Public Financing and Clearly Defined Institutional Responsibility
Occupational safety cannot be treated as a private financial responsibility of low-income self-employed migrant workers. The State should therefore establish a dedicated Occupational Safety Fund to support essential protective equipment, mobile health services, safety training and preventive healthcare for workers engaged in notified high-risk occupations. Clear institutional responsibility is equally necessary, with labour departments, local authorities and public health institutions coordinating identification, training and occupational health services. In this manner, Section 21 can evolve from a registration mechanism into an entry point for portable and preventive protection. The central objective must be to ensure that the absence of an employer does not result in the absence of occupational safety.
Conclusion
The treatment of self-employed migrant workers under the OSH Code reveals a significant limitation in the traditional architecture of Indian occupational safety law. Although Section 21 provides a basis for their statutory identification, the absence of a corresponding substantive framework leaves protection dependent upon an employment relationship that many such workers do not possess. The resulting gap is therefore structural rather than incidental.
The more appropriate legal response is to recognise occupational risk as an independent basis for minimum preventive protection. Such an approach would preserve employer responsibility within formal employment while requiring the State to provide a basic, portable and sector-sensitive safety framework for workers outside that relationship. The issue is ultimately one of legislative design: whether occupational safety is to remain tied to the institutional boundaries of the establishment or be extended to the realities of contemporary work. The OSH Code requires reform on the latter basis if its promise of comprehensive occupational protection is to become meaningful for self-employed migrant workers.
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Footnotes
1. Occupational Safety, Health and Working Conditions Code, 2020, No. 37 of 2020, pmbl., s. 21 (India).
2. Id. s. 2(1)(t).
3. Id. s. 2(1)(u).
4. Id. s. 2(1)(zzl).
5. Id. s. 6(1).
6. Id. s. 23.
7. Int’l Lab. Org., Occupational Safety and Health in the Informal Economy (2014), https://www.ilo.org/publications/occupational-safety-and-health-informal-economy.
8. Occupational Safety, Health and Working Conditions Code, 2020, No. 37 of 2020, s. 21(2), second proviso (India).
9. Id. ss. 2(1)(t), 2(1)(u), 2(1)(zzl), 6, 13–14, 23–24.
10. Int’l Lab. Org., World Employment and Social Outlook 2015: The Changing Nature of Jobs 3–7 (2015).
11. Occupational Safety, Health and Working Conditions Code, 2020, supra note 1, s. 6(1)(a), (d).
12. Id. s. 13.
13. Id. s. 14.
14. Int’l Lab. Org., Occupational Safety and Health in the Informal Economy, supra note 7.
15. Int’l Lab. Org., Safety and Health for Migrant Workers (2020), https://www.ilo.org/resource/safety-and-health-migrant-workers.
16. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 (India); Budhan Choudhry v. State of Bihar, AIR 1955 SC 191 (India).
17. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India).
18. Olga Tellis v. Bombay Municipal Corp., (1985) 3 SCC 545 (India).
19. Consumer Educ. & Research Centre v. Union of India, (1995) 3 SCC 42 (India).
20. In re Problems & Miseries of Migrant Labourers, (2021) 8 SCC 441 (India); see also 2021 SCC OnLine SC 410 (order dated 29 June 2021).
21. Int’l Lab. Org., Safety and Health for Migrant Workers, supra note 15.
22. Int’l Lab. Org., Occupational Safety and Health Convention, 1981 (No. 155); Int’l Lab. Org., Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187).