Millennium Post

For the record

Why the Indian Constitution is a de-facto Charter of Labour Rights; writes Vaidushya Parth

For the record

The labour rights movement underscores a special footnote in the spell of India's freedom struggle. Regardless of its history, the Indian Constitution (1950) sincerely acknowledges the labour rights, with the same standard as ordinary basic human rights. In order to take up this issue and rebut the contentions, the objects and positions of the labour rights and laws, as it is placed in the Indian Constitution, need first to be made clear.

During the time of the Constitution-making, civil rights became enforceable Fundamental Rights under Part III of the Constitution, while the Rights of Labour were made to 'reverse-swing' into the unenforceable Directive Principles of State Policy (Part IV) (hereinafter, DPSP). The possible logic, that primarily appears by going through the pages of history, is, that the labour rights have consistently been denied upon the guillotine of 'fiscal capacity' and 'economic reforms'.

Ergo, the Right to Work, the Right to a Living Wage, the Right to Equal Pay for Equal Work etc. are all 'DPSPs' — not enforceable in the court of law. Though an individual cannot go to court to enforce her rights based on DPSP, the provisions contained under DPSP, however, as per Article 37 is binding on the Government to implement. Alladi Krishnaswamy Iyer, one of the members of the Drafting Committee, concurred that while the DPSPs are neither justiciable nor enforceable, it would be "idle to suggest that any responsible government or any legislature elected on the basis of universal suffrage can or will ignore these principles."

Notably, there were three exceptions to this pattern: Article 19(1)(c) (the freedom of association); Article 23 (guaranteed freedom from forced labour); and Article 24 (prohibition of the use of children in any hazardous employment). This piece, for various other reasons, is only concerned with the 'unenforceable labour rights' contained under the DPSP; and make arguments in favour of the court that how they have, over the years, endeavoured to give DPSP a teeth to encroach upon the State's arbitrariness and in turn to make them follow the constitutional mandate of social welfare.

So, the question whether India should adopt — in its substance — 'inter alia', the Right to Work, the Right to a Living Wage, and the Right to Equal Pay for Equal Work should be regarded as a question of law for the reason that it is a mandate addressed to the 'State' under Directive Principles of the Constitution.

Regrettably, in India or elsewhere, legal questions are altered when it affects the 'Corporates/Business lobbies.'

For example, Article 43 of the Constitution says — "The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities...". Besides, Articles 38, 39, 41, 42 and 43 have a noteworthy role in labour rights and laws, deriving their origin and philosophy from 'Magna Carta' of international industrial jurisprudence.

But, when the Indian Government, in 'PUDR v. Union of India', stood before the Court, they argued of having no 'locus standi' on behalf of the labourers. Nevertheless, the Court, in response, noted that denying equal pay for equal work not only violated the Equal Remuneration Act, but also Article 14 of the Constitution.

At the outset, India's main labour legislation is the 'Industrial Disputes Act' of 1947. The 'Industrial Disputes Act' contains both substantive labour rights, and also sets up a detailed procedure for the resolution of disputes between employers and employees; the two caveats, however, are: the disputants must be part of an 'industry', and the rights are guaranteed to 'workmen'.

As per economists and legal scholars, the purpose of industrial law is to rectify the inequality of bargaining power between workers and employers by creating a legal regime that strengthens trade unions, and encourages collective bargaining from a position of relative equality, while refraining from intervening too much in the outcomes of the bargaining process.

Further, the Apex Court has observed in the case of 'Sri Srinivasa Theatre v. Govt. of Tamil Nadu', "...[E]quality before law can be predicated meaningfully only in an equal society, i.e., in a society contemplated by Article 38 of the Constitution," reaffirming its resolve of giving DPSP a force. In 'Consumer Education & Research Centre v. Union of India', the Court concluded: " [The] right to health, medical aid to protect the health and vigour of a worker while in service or post-retirement is a Fundamental make the life of the workman meaningful and purposeful with dignity of the person."

The SC has also noted in 'Olga Tellis v. Bombay Municipal Corporation', that: "If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life." There is yet another major pronouncement of the SC — on a similar line of labour jurisprudence – in 'Madhu Kishwar v. State of Bihar'.

It would, therefore, be naïve to suppose that the labour rights as enshrined in the DPSP, which are "not enforceable in the court of law", are of no value and importance to get considered by the Government. The Indian Constitution, in fact, serves as a charter of 'de facto' labour's right and freedom. The courts — too — through various judicial pronouncements have elevated the labour rights to the standard of common basic human rights. In spite of that, the rights and freedom of labourers remain under siege in India.

The writer is reading law at the Narsee Monjee Institute of Management Studies (NMIMS) School of Law, Mumbai. Views expressed are personal

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