The Transformative Constitution

by Gautam Bhatia

  The examples of racism and patriarchy are important, because they drive a wedge between the republican binary of ‘intentional’ domination (that compromises freedom) and ‘natural’ obstacles (that only condition it). While the loss of liberty caused to Dalits in a casteist society cannot be attributed to any single intentional act or agent, it would be as preposterous to chalk it down to nature, as it is to say that my body structure prevents me from flying. However, once it is accepted that there exists a space between intent and nature it is not at all obvious that that space can be filled only by the impersonal domination of racism or patriarchy. What about, for example, ‘the forms of domination a person might experience in the anonymous labour market?’61

  C. Freedom, Institutions, and Structures

  Arguments for the space between intent and nature—a space where domination, dependence, and power are constituted by ‘an ensemble of social relations’62—have existed for a long time. In fact, they came on the scene far before the articulation of racism and patriarchy as impersonal systems or structures of dominance. For example, as Arthur Ripstein articulates the ideas of freedom and dependence in Karl Marx’s critique of capitalism:

  It is true that no individual stands in a relation of dependence on any other, insofar as the options of all are limited by the market … [but] to have one’s activities entirely shaped by forces that are the result of human practices is to be enslaved, not merely limited in one’s options.63

  This articulation, as we can see, takes direct issue with the Hayek-Pettit view that because in a market economy, ‘no worker [is] dependent on any particular employer’,64therefore ‘economic compulsion’ is not an infringement of freedom, but just a narrowing (or limitation) of one’s options in the backdrop of natural economic arrangements or states of affairs. Subjugation, on this counter-view, is not individual, but social; or, in other words, it is ‘personal independence founded on objective dependence’.65 To put it another way, the key shift is from the idea of intent to the idea of design. Recall Miller’s original formulation of unfreedom, which posited ‘an obstacle … which stands in need of justification, and [which] we are in effect calling on the human race collectively to vindicate’.66 This structural formulation of unfreedom argues that impersonal or unintentional constraint might still need to be justified, as long as it is the product of human design, if not simply human intent.

  This, in fact, was the precise argument made during a sustained effort to constitutionalize this view of freedom. In the course of the late-nineteenth century, the American labour movement drew upon the US Constitution to argue against the system of economic exchanges that ‘by direct operation of law, or by indirect operation of unwise social arrangements,’67 resulted in exploitation and unfreedom. As Alex Gourevitch articulates the argument (which he calls labour-republicanism),68 these ‘unwise social arrangements’ yielded:

  … a form of domination arising from the background structure of property ownership and because the compulsion they [i.e., the labourers] felt did not force them to work for a specific individual. It is not that the ‘structure’ was somehow an ‘agent’, nor that there were no dominating agents. There were, in this case, many dominating agents—all those who defended property distributions that left the majority propertyless. Through human design and institution, workers were left with no reasonable alternative but to sell their labour.69

  It is important to stress the point that this argument is not about anthropomorphizing structures and institutions, and vesting them with human agency. Rather, the argument is that these structures are designed and instituted by individuals and, therefore, the moral responsibility for their working lies upon human shoulders (and is not simply an amoral ‘natural’ way of working, like my body structure that prevents me from flying). Or, if one were to use the language of intent, the intent may not be to coerce any specific individual, but to construct a system whose effect is to narrow the range of options available to those subject to its functioning. It is because of this that talking about the ‘compulsion of economic circumstances’ in a capitalist economy, that is based upon individual market exchanges and contracts, albeit between persons of unequal bargaining power, begins to make sense.

  The task before the American labour-republicans was to expand the scope of freedom by minimizing the scope of domination and also the power enjoyed (collectively) by employers. This, in turn, was to be achieved through labour regulations and unionization:

  A major argument not just for unionization and collective action, but for labor regulations – such as banning payment in script, abolishing convict and child labor, and instituting maximum hours laws – was that they reduced the kinds of terms that employers were able to impose at their own discretion. Although these regulations could not abolish the dependence of the wage-laborer on the employer, they could at least limit the kinds of arbitrary power he could exercise over the terms of contract. More generally, this analysis of the contract helped explain why employers sought dependence. Insofar as structural domination translated into personal domination in the setting of terms, employers enjoyed an arbitrary superiority in the ability to extract concessions from the workers.70

  While at its most radical, the argument called for abolishing the system of wage-labour altogether (labelling it ‘wage-slavery’),71 in its more moderate form (as we see above), it made the impeccably republican argument about constraining and curtailing domination and arbitrary power through laws. Perhaps most crucially, however, American labour republicans consciously grounded their argument in the Thirteenth Amendment to the US Constitution,72 which provided that:

  Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.73

  The key phrase here is ‘involuntary servitude’, in particular the word ‘involuntary’. Like ‘forced’, it is the word ‘involuntary’ that creates the bridge between ideas of freedom on the one hand and the manner in which economic arrangements constrain options on the other.

  While this interpretation of the US Constitution was strenuously opposed—notably by invoking the ‘natural and necessary laws’ of market economics74—and, ultimately, rejected by the US courts,75 as we have seen, it found fertile ground in PUDR v. Union of India. Here, for the first time in Indian constitutional history, the Court drew a clear link between ‘the compulsion of economic circumstances’ and the constitutional guarantee of freedom expressed through the prohibition of ‘forced labour’.76

  D. Conclusion: A Moral Issue

  … water is said to descend freely, or to have liberty to descend by the channel of the river, because there is no impediment that way, but not across, because the banks are impediments. And though the water cannot ascend, yet men never say it wants the liberty to ascend, but the faculty or power, because the impediment is in the nature of the water, and intrinsical.

  Thomas Hobbes

  We have discussed three different views about the meaning of ‘freedom’, ‘constraint’, and ‘force’, along with the meanings of a constellation of associated words such as ‘ability’, ‘capacity’, ‘power’, ‘dependence’, ‘domination’ and ‘servitude’. Over time, these views have attracted their defenders as well as their detractors. In PUDR, the Supreme Court nailed its colours to the mast of the third view, what we have called labour-republicanism. The question is whether it was correct to do so. Yet before that, we must answer a more basic question: how do we judge whether it was correct to do so?

  Let us go back for a moment to our initial example: the distinction between being imprisoned and being unable to fly. Let us complicate the situation somewhat. Imagine a world in which genetic modification is commonplace, and something that people regularly undergo in order to fly unaided. Suppose I am a political dissident and, as punishment, the government bars me from undergoing genetic modification. In this situation, I might be justified in sayi
ng, ‘I am not free to fly,’ rather than merely, ‘I am not capable of flying.’ A further twist: genetic modification is on the cusp of being perfected, and would be perfected with a little more investment, but the government refuses to accord it priority in its science budget, choosing to spend on space travel instead. Have I been deprived of my freedom to fly, or do I remain incapable of flying?

  Futuristic and far-fetched as they may sound, such examples help us to see that even the seemingly clear-cut division between the ‘intentional’ and the ‘natural’ is not simply a neutral description of the world—as Thomas Hobbes’ illustration about the flow of water would have us believe—but a matter of judgement.77 As MacCallum admits:

  … if one is concerned with social, political, and economic policies, and with how these policies can remove or increase human misery, it is quite irrelevant whether difficulties in the way of the policies are or are not due to arrangements made by human beings. The only question is whether the difficulties can be removed by human arrangements, and at what cost.78

  While the example of flying may not directly speak to the question of freedom, it is easy to imagine other, non-futuristic examples that do. For example, does the government’s failure to invest in disability-mitigating technologies impinge upon disabled persons’ ‘freedom of movement’? The answer would depend upon what we think is the ‘normal baseline’—a world that disabled people must take as they find, or a world that must be consciously designed to facilitate the needs of disabled people. And that, in turn, depends upon our sense of moral commitment. As Benn and Weinstein discuss in a famous example:

  … a man who lacks the physical means—whether muscular strength or ropes—to climb a cliff need not be unfree but only unable to climb it, though one way of depriving a man of his freedom to climb it is to take away his ropes.79

  In other words, the distinction between being unfree and lacking the ability (or capacity) to use one’s freedom is, again, not always simple or clear-cut. If I forcibly take away your ropes from you, then I am depriving you of your freedom to climb the cliff. But what if I was standing by with ropes in my hand and refused to give them to you (just like I could design cities to facilitate access for disabled people but choose not to)? Would I then be depriving you of your freedom? The answer, clearly, would turn not on taking apart the word ‘freedom’ semantically, but on the question of what my moral obligations to you are.

  This leads us to an important insight: there is no a priori argument that will help us decide between the three (or more) theories of freedom discussed above, and no a priori argument that will help us draw clear lines between ‘intention’, ‘design’, and the ‘natural world’. The question, rather, is inescapably moral. Our assumptions about what constitutes the ‘natural order of things’; the background conditions that merely structure freedom instead of compromising it; our choice of seeing force and freedom through the prism of intentionality or the prism of design; and, indeed, how we understand intention and design are all moral judgements.

  So, Benn and Weinstein are correct when they observe that:

  … conditions formerly accepted as necessary may be called progressively into question; the frustrations to which they give rise come to be seen not merely as natural limitations on what is possible, but as restrictions on freedom … the conditions of the market and the rights of property that governed the workers’ bargaining power were generally taken to be no more alterable than the weather, the laws of supply and demand no more restrictive of freedom than the laws of gravity. The worker was free in negotiating with his employer because, in terms of all conceivably controllable conditions, there was no restriction on his ability and opportunity to make the best possible bargain. Trade unionism and socialist economic theory combined to break down these presuppositions. The workers came to protest not merely against low wages or inequality, but against economic unfreedom to do and enjoy many things they now saw as denied to them because the employing class was either unwilling or unable to change economic conditions that were none the less capable of change.80

  Now, if this debate was being conducted in the abstract, its resolution would depend upon which theory, ultimately, seemed truest to our reflective moral commitments. Different persons would justifiably give different answers. And even if we accepted some of the premises of republicanism, it would also depend on what economic arrangement we think would, at the end of the day, advance freedom the most: a market republican would argue, for example, that even on republican terms, a market/capitalist society, compared to all others, represents the state of affairs that minimizes domination and dependence.

  In the context of PUDR, however, the matter must be decided not by advancing the most persuasive moral or economic theory, but by excavating what constitutional morality would have to say about this question. In other words, the correctness of PUDR depends upon which theory of freedom is more consistent with the constitutional text, structure, and history. And to answer this, we must investigate how the Constitution envisions the relationship between freedom and economic structure.

  Does the Constitution view the market-oriented economic structure and economic arrangements as part of the ‘natural background’, and its social relations as ‘natural relations’,81 simply conditioning and structuring freedom rather than compromising it (in our original, uncomplicated example, akin to my body structure, or to the weather)? Or does the Constitution understand economic arrangements to be the product of human design, and in a morally salient way, so that the constraints they impose are to be treated as constraints on freedom, and overcome through the fashioning of constitutional remedies?82 The text of Article 23 does not answer the question. Something more is needed.

  III. Economic Structure and the Transformative Constitution

  In this section, I argue that the Indian Constitution did not treat economic structure as part of the background, natural environment, which only conditioned the exercise of fundamental rights instead of compromising them. Rather, the founding philosophy of the Constitution understood economic arrangements (especially in the context of a capitalist economy) as potential infringements upon freedom and, consistent with labour-republicanism, understood State power as one method of protecting freedom from the market.

  However, the story does not end here. While the Constitution recognized that economic arrangements and employers, leveraging economic arrangements, could exercise ‘force’ and ‘coercion’ over individuals, the primary task of overhauling the economic structure to nullify market coercion entirely was not left to the Constitution, but to Parliament, guided by the Directive Principles of State Policy. The Constitution’s task was a more modest one—not to overhaul, but only to mitigate the harm caused by the market economy to freedom. Articles 23 and 24, within the rubric of the ‘right against exploitation’, were the constitutional shields for protecting freedom, and the importance of PUDR lay in recognizing and giving life to the guarantee of Article 23.

  A. The Framing of Article 23

  We see the first indications of this philosophy in the Karachi Resolution, discussed above. This document contained Clause 4, a predecessor clause of Article 23, which stated that ‘labour [is] to be freed from serfdom or conditions bordering on serfdom’.83 The structure of this clause is similar to Article 23, with ‘serfdom’ playing the role of begar, and ‘conditions bordering on serfdom’ playing the role of ‘other similar forms of forced labour’. ‘Serfdom’, a word borrowed from the conventions of the International Labour Organization,84 was, of course, at the heart of the republican conception of freedom, which located unfreedom in the idea of ‘servitude’. Right from the beginning, therefore, the constitutional understanding of freedom had a republican slant, going beyond the simple understanding of freedom as non-interference.

  While ‘serfdom’ itself remained a narrow word with a defined range of meaning, it is also important to note that this clause was nested within a much broader and more radical set of guarantees. Just before
Clause 4 were guarantees of ‘[a] living wage for industrial workers, limited hours of labour, healthy conditions of work, protection against the economic consequences of old age, sickness, and unemployment’,85 and following it immediately was, ‘[the] protection of women workers, and specially adequate provisions for leave during maternity period’.86 Together, these clauses made up ‘Labour’s Constitution of Freedom’,87 and would have required fundamental structural changes to implement. Crucially, these clauses were further nested within a set of classic civil and political rights, bookended on one side by freedom of speech and the press,88 equal protection of laws,89 and religious neutrality,90 and, on the other, by adult suffrage.91 From the perspective of liberty, therefore, the Karachi Resolution drew no ironclad distinction between civil/political rights and labour rights.

  In fact, the Preamble to the Resolution categorically stated,‘This Congress is of the opinion that in order to end the exploitation of the masses, political freedom must include real economic freedom of the starving millions.’92 While the use of the word ‘exploitation’ creates the bridge between the 1931 Resolution and Articles 23/24 of the Constitution, the use of the word ‘include’ to define the relationship between ‘political freedom’ and ‘economic freedom’ suggests that the two were not treated as separate but, rather, economic freedom was viewed as being a part of (classic) political freedom. The 1931 Resolution’s Labour Code, then, was not about providing material benefits or socio-economic rights, but fundamentally about the idea of freedom. Indeed, the Preamble’s stress on real economic freedom recalls the American labour republicans’ insistence on effective freedom, which ‘encompassed the ability not only to influence the conditions of working life, but to do so consciously, in combination with one’s co-workers, using forms of action that yield immediate, unambiguous evidence of personal and collective potency … [and]was embedded in narratives of slavery, emancipation, and freedom.’93