The Court thus began by making a defensive argument, noting that the existence of remuneration was not what changed the character of ‘forced’ labour to free labour. That, however, left the positive case still to be made: how was the word ‘forced’ (and, by extension, words such as ‘compulsion’ and ‘freedom’) to be understood under Article 23? The Court answered thus:
Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as ‘force’ and if labour or service is compelled as a result of such ‘force’, it would be ‘forced labour’.16
While a tautology in some sense, this formulation is surely too broad. The phrase ‘any factor’ makes no distinction between factors that are caused by human action, ‘natural’ factors that are within the domain of human power to overcome, and factors that are neither caused by human beings, nor are subject to their control. While we may have a philosophical debate about the ‘true’ meaning of force and freedom, a constitutional provision that is unable to draw the distinctions outlined above would be meaningless. Perhaps aware of this, the Court went on to clarify its position:
Where a person is suffering from hunger or starvation … where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no choice but to accept any work that comes his way, even if the remuneration offered to him is less than the minimum wage … And in doing so he would be acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances and the labour or service provided by him would be clearly forced labour … it is not unoften that in capitalist society economic circumstance exert much greater pressure on an individual in driving him to a particular course of action than physical compulsion or force of legislative provision. The word ‘force’ must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage of course.17
There is, however, an important internal shift within this formulation. While the Court began by pointing out the absence of choice available to a person suffering from hunger or starvation, it progressed towards classifying this as the ‘compulsion of economic circumstances’. It then clarified that it was a problem arising in, and out of, ‘capitalist society’ (where economic circumstances would be driven by the requirements of a functioning market).18 Or, in other words, the ‘force’ exerted by economic circumstances acquires normative salience in the context of a capitalist/market society. Consequently, it is not simply hunger or starvation (or ‘any factor’) that necessitates ‘forced labour’, but the economic arrangements in a capitalist society, where, presumably, the only way to alleviate hunger or starvation is to contract with a far more powerful employer, in a relationship with no bargaining parity, and accept employment at whatever rate the existing market dictates. Until the point at which the rate was below the legislatively prescribed minimum wage, the Court held, it remained ‘forced labour’.19
It is important to understand what the PUDR argument was not about. The Court did not ground the right to minimum wage in some vision of socio-economic rights, positive liberties, or by making the familiar argument that civil and political rights are meaningless without basic material security. Rather, the Court’s argument was purely about the meaning of freedom, in its classical sense. To be ‘forced’ was not simply to have a gun put to your head (physical force), or to be threatened with legal sanctions (legal force). The economic arrangements of society equally exercised ‘force’ upon an individual, forming, shaping, and constraining the range of options open to her. As the Court began its discussion by noting:
The reason for enacting this provision in the chapter on fundamental rights is to be found in the socio-economic condition of the people at the time when the Constitution came to be enacted. The Constitution makers, when they set out to frame the Constitution, found that they had the enormous task before them of changing the socio-economic structure of the country … with a view to reaching social and economic justice to the common man.20
The specific shape this guarantee took was that of a right to a minimum wage.
Was there any warrant for this (somewhat left-field) understanding of force and freedom? Was the Court’s attribution of freedom (and its absence) to society’s economic arrangements—and, consequently, its articulation of freedom as freedom from the compulsion of economic circumstances—justified by the text, structure, history, and philosophy of the Indian Constitution? I will argue that it was; but before that I will trace the conflicting genealogies of the word ‘freedom’ and ground PUDR’s articulation within a rich intellectual tradition that was also the tradition that formed and influenced the drafting of Article 23.
II. Three Views on the Meaning of Freedom
Let us begin with our unreflective linguistic intuitions about the word ‘freedom’. If someone has imprisoned me, we could say with perfect propriety that my freedom of movement has been curtailed.21 On the other hand, human physiology dictates that I cannot fly unaided. Yet, we do not normally say, ‘My freedom to fly has been restricted,’ or ‘I am not free to fly’. It would sound more correct to say, ‘I am unable to fly unaided’. In our ordinary language we draw a distinction between inability and unfreedom.22
The philosopher David Miller articulates this intuition by observing that ‘when we describe a person as unfree to do something we imply that an obstacle exists which stands in need of justification, and we are in effect calling on the human race collectively to vindicate its behaviour in permitting the obstacle to exist’.23 In other words, while we can all agree to define freedom in terms of the absence of an obstacle (or constraint),24 that is only the beginning of the story. The key issue is how we understand the idea of ‘constraint’ (or, in our context, the idea of ‘force’), and ‘why certain kinds of constraint play a central role in debates about freedom, and other seemingly no less significant kinds of constraint do not’.25
A. Freedom and Non-Interference
According to a dominant view (that is broadly labelled the ‘liberal view of freedom’),26 I am ‘unfree’ to the extent that an identifiable individual, or group of individuals, intentionally interferes in what I could otherwise do. What matters, therefore, is not the range of possibilities that are actually open to me, but only the intentional actions of others that limit those possibilities. While this understanding of freedom in terms of intentional interference has a long lineage,27 Isaiah Berlin provided its most popular articulation in a famous essay titled ‘Two Concepts of Liberty’. Berlin wrote:
If I say that I am unable to jump more than ten feet in the air or cannot read because I am blind, or cannot understand the darker pages of Hegel, it would be eccentric to say that I am to that degree enslaved or coerced. Coercion implies the deliberate interference of other human beings within the area in which I could otherwise act … Mere incapacity to attain a goal is not lack of political freedom.28
Therefore, in Berlin’s view, our intuitive linguistic distinction between ‘unfreedom’ and ‘inability’ maps onto the distinction between intentional interference and all other manner of obstacles. Berlin’s argument was taken forward in the economic realm by Friedrich Hayek, who defined freedom as the absence of coercion, and coercion, in turn, as being subject to the ‘arbitrary will of another’.29 Like Berlin, therefore, Hayek insisted that freedom is not concerned with ‘the range of physical possibilities from which a person can choose at a given moment of time’30, but whether ‘somebody else [has] power so to manipulate the conditions as to make [her] act according to that person’s will’.31 In almost direct contradiction to the point of view expressed by the Court in PUDR, therefore, the logic of Hayek�
��s argument led him to state that:
Even if the threat of starvation to me and perhaps to my family impels me to accept a distasteful job at a very low wage, even if I am ‘at the mercy’ of the only man willing to employ me, I am not coerced by him or anybody else. So long as the act that has placed me in my predicament is not aimed at making me do or not do specific things … its effect on my freedom is not different from that of any natural calamity—a fire or a flood that destroys my house or an accident that harms my health.32
In Hayek’s view, the market cannot, by definition, be coercive or freedom-infringing, because it is simply an aggregate of numerous individual actions, performed by self-interested actors, none of which are ‘aimed’ at making a particular individual do or refrain from doing anything. Hayek called this ‘spontaneous order’.33PUDR’s articulation of ‘force’ arising from ‘the compulsion of economic circumstances’, on this view, was a category mistake, a confusion of concepts. This form of compulsion was akin to a ‘natural calamity’. To go back to our original example, the (capitalist) economy is like our body structure, which does not allow us to fly unaided—a natural, given, background circumstance which might determine what we are or are not capable of doing, or the range of options open to us, but which cannot be understood as a constraint upon freedom.
This does not, of course, mean that the individual under ‘threat of starvation’ is placed in a position equal to the ‘only man willing to employ [him]’. Both Berlin and later the philosopher John Rawls conceded that. However, the difference, they argued, is not that the former is less free than the latter, but that the two individuals relate to their freedom differently. For Berlin, material deprivation might render freedom meaningless, but does not take away from its existence:
It is important to discriminate between liberty and the conditions of its exercise. If a man is too poor or too ignorant or too feeble to make use of his legal rights, the liberty that these rights confer upon him is nothing to him, but it is not thereby annihilated.34
Similarly, Rawls drew a distinction between ‘liberty’ and the ‘worth of liberty’, noting that:
The inability to take advantage of one’s rights and opportunities as a result of poverty and ignorance, and a lack of means generally, is sometimes counted among the constraints definitive of liberty. I shall not, however, say this, but rather I shall think of these things as affecting the worth of liberty … the worth of liberty is not the same for everyone. Some have greater authority and wealth, and therefore greater means, to achieve their aims.35
The argument, therefore, can be summed up thus: not every obstacle or constraint is an infringement of my freedom. The key distinction is between intentional obstructions, traceable to an individual or a set of individuals (e.g., my imprisonment), and obstructions that occur as part of the natural, background arrangements within which we exist and act (e.g., my inability to fly because of my body structure, or the economy).36 In some cases, the latter situation might be unjust, and might require State intervention to remedy, but is not a situation of unfreedom.37
B. Freedom, Non-Domination, and Arbitrary Power
For all its intellectual dominance, this understanding of freedom in terms of intentional non-interference has been challenged. Drawing from ancient Greek and Roman articulations of liberty, which were then taken up by English parliamentarians during the civil wars of the seventeenth century,38 scholars in the republican tradition argue that what matters is not freedom from interference, but freedom from dependence,39 or ‘arbitrary power’.40 To take an easy example: a slave might have a benevolent master, who never interferes with anything that he wants to do. For all that, however, the slave remains unfree, because he is in a position of dependence upon the master, and the master retains the power to interfere arbitrarily, even though it may never be used.41 The crucial shift is from understanding freedom as non-interference, to understanding it as non-domination,42 which no longer requires an ‘identifiable act of hindrance’ in order to constitute a condition of unfreedom.43
The republican theory of freedom marks a departure from the liberal view in three distinct ways. First, it seems truer to our intuitions, in not limiting the definition of freedom to the mere absence of ‘force or the coercive threat of it’.44 Second, under the republican theory of freedom, laws might be freedom-reducing, but they might also be freedom-enhancing. If freedom is limited to non-interference, then by definition, every law is a constraint or interference upon freedom, even though it might be justified on other grounds. On an understanding of freedom as non-domination, however, laws that reduce or mitigate states of affairs in which one set of persons can exercise arbitrary power and domination over others (e.g., laws abolishing slavery) are, in themselves, freedom-enhancing.45 This, too, seems truer to our intuitions. And third, most importantly, republicanism understands freedom as social. That is, freedom is not simply limited to an equation between two individuals or groups of individuals (whether A is interfering with B), but concerns questions of ‘institutional design’.46 Social or republican freedom requires a set of legal and institutional arrangements that prevent the possibility of domination and curtail the possibility of the exercise of arbitrary power.47 This, in a nutshell, is the meaning of the popular republican adage: ‘It is possible to be free only in a free State.’48
In many other respects, however, the republican theory has substantial overlap with the understanding of freedom as non-interference. Since it takes the relationship between master and slave49 as its paradigm case, republicanism too insists that domination and arbitrary power must be a function of intent, and traced back to identifiable individuals (or groups). In other words, while republicanism does not insist upon an identifiable act of interference (the mere existence of arbitrary power is enough), it does insist upon an identifiable agent who is vested with power or dominance. Republicanism is committed to maintaining liberalism’s ‘distinction between securing people against the natural effects of chance and incapacity and scarcity and securing them against the things that they may try to do to one another’.50
What is crucial to note about this formulation is the binary that it imposes: between ‘intentional obstruction’ and the ‘natural effects of chance and incapacity and scarcity’. That is, whatever cannot be defined in terms of intentional obstruction (e.g., imprisoning or enslaving me) is to be treated as natural (e.g., my inability to fly), and not, therefore, an infringement of freedom. And consequently, just as Berlin and Rawls distinguished between ‘freedom’ and the ‘worth of freedom’ or my ‘ability to use freedom’, republican theorists draw a distinction between ‘factors that compromise liberty and factors that [merely] condition it’.51
The conflation of the non-intentional (obstructions) and the natural (obstacles) that simply ‘condition’ freedom instead of ‘compromising’ it leads republican theorists to an obvious corollary, which is relevant for our discussion of PUDR: in a market society operating through contractual relationships between people in formally equal positions, an individual is not placed in a position of dependence vis-à-vis another person. Therefore, the question of unfreedom does not arise.52 In a language that strikingly resembles that of Hayek, the republican theorist Philip Pettit argues that:
… the property system or distribution will not be inimical as such to freedom is that, assuming as we have done that it does not license or issue from any form of domination, it will not entail that anyone is in dominating charge of another. The property regime can have the aspect of an environment akin to the natural environment. Like the natural environment, it will certainly affect the range or the ease with which people enjoy their status as undominated agents, and it may warrant complaint on that account, but it will not itself be a source of domination. It will not be a source of domination as far as it is the cumulative, unintended effect of people’s mutual adjustments.53
On this definition, therefore, within the republican definition of freedom as non-domination, ‘market offers are
noncoercive’.54 This is because, if a market in capitalist society is a ‘decentralized and largely anonymous mechanism for aggregating information about the economic decisions of an indefinite number of people’,55 as Eric MacGilvray defines it, then ‘the influence I have on you when I make a market offer need be no more inimical to your status as an undominated agent than the influence I have on you in revealing a mistake in your deliberative assumptions’.56 Once again—even on the expanded republican theory of freedom—PUDR’s argument that the ‘compulsion of economic circumstances (in a capitalist society)’ can be freedom-infringing is relegated to a conceptual error.
However, as William Clare Roberts points out, ‘both Hayek’s and Pettit’s claims about the freedom-preserving character of market interactions treat them as one-on-one interactions between buyers and sellers … The question, for them, is whether some identifiable person, either in making me an offer or in considering my offer, is a threat to my freedom.’57 Both the non-interference and the non-domination views of freedom, therefore, are undergirded by this search for the ‘identifiable person’. And because, in the market, both the employer and the employee are formally free to enter into contracts with each other, this search for an identifiable dominating agent is a non-starter. Neither argument would hold, however, if this premise itself was challenged; i.e., if it could be convincingly argued that ‘dependence is no less dependence for the absence of an identifiable individual to be depended on’.58
On some reflection, the premise is, indeed, not quite as obvious as it might appear at first glance. To insist upon an identifiable agent who either interferes or is in a position to exercise arbitrary power in freedom-infringing ways, appears to ignore a crucial insight about the nature of power and domination in modern society, which was most clearly articulated by Foucault. The ‘non-sovereign, socially distributed character of human agency’ entails that power is rarely focused or concentrated in an identifiable centre, but operates through multiple nodes and at various levels: in other words, it is ‘structural’.59 As Sharon Krause argues, therefore, the ‘master-slave dynamic’, that is paradigmatic of the republican theory of freedom as non-domination, seems unable to grasp the form of domination implicit in structures of thought and behaviour such as racism or patriarchy, which create ‘the informal social inequalities that remain outside the reach of non-domination because of their often unintentional character’.60
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