The Transformative Constitution

by Gautam Bhatia

  This vision was carried forward into the Constitution-making process. For example, K.T. Shah, one of the few members of the Constituent Assembly who proposed a comprehensive model fundamental rights code, made explicit mention of Franklin Roosevelt’s Second Bill of Rights and its focus on ‘freedom from necessity’. In fact, in Shah’s draft Bill of Rights, a guarantee of a minimum wage and the prohibition of forced labour were part of a single, compendious provision, viz., Article 40.94

  Most tellingly, however, it was Ambedkar who provided the intellectual foundation for the relationship between constitutional liberty and economic structure. After proposing a draft fundamental rights code that included a prohibition upon ‘forced labour or … involuntary servitude’,95 in his accompanying notes Ambedkar made an impeccably labour-republican argument that deserves to be quoted in full:

  … what is the purpose of prescribing by law the shape and form of the economic structure of society? The purpose is to protect the liberty of the individual from invasion by other individuals which is the object of enacting fundamental rights. The connection between individual liberty and the shape and form of the economic structure of society may not be apparent to everyone. Nonetheless, the connection between the two is real. It will be apparent if the following considerations are borne in mind.

  Political democracy rests on four premises which may be set out in the following terms:

  The individual is an end in himself.

  That the individual has certain inalienable rights which must be guaranteed to him by the Constitution.

  That the individual shall not be required to relinquish any of his constitutional rights as a condition precedent to the receipt of a privilege.

  That the State shall not delegate powers to private persons to govern others.

  Anyone who studies the working of the system of social economy based on private enterprise and pursuit of personal gain will realize how it undermines, if it does not actually violate, the last two premises on which democracy rests. How many have to relinquish their constitutional rights in order to gain their living? How many have to subject themselves to be governed by private employers?96

  According to Ambedkar, the market economy, based on ‘private enterprise and pursuit of personal gain’, created a situation where ‘private employers’ had the power to violate the liberty of the individual.97 The task of constitutional law was to regulate the ‘shape and form of the economic structure of society’ in order to protect individual liberty. In this way, Ambedkar linked individual liberty and economic structure through the mode of constitutional law.

  In what manner was individual liberty under threat by economic structure? Ambedkar went on to elaborate:

  Constitutional lawyers assume that the enactment of fundamental rights is enough to safeguard their liberty and that nothing more is called for. They argue that where the State refrains from intervention in private affairs—economic and the social—the residue is liberty. What is necessary is to make the residue as large as possible and State intervention as small as possible. It is true that where the State refrains from intervention what remains is liberty. But this does not dispose of the matter. One more question remains to be answered. To whom and for whom is this liberty? Obviously, this liberty is liberty to landlords to increase rents, for capitalists to increase hours of work and reduce rate of wages. This must be so. It cannot be otherwise. For in an economic system employing armies of workers, producing goods en masse at regular intervals someone must make rules so that workers will work and the wheels of industry run on. If the State does not do it the private employer will … In other words what is called liberty from the control of the State is another name for the dictatorship of the private employer.

  How to prevent such a thing happening? How to protect the unemployed as well as the employed from being cheated out of their fundamental rights to life, liberty, and pursuit of happiness? The useful remedy adopted by democratic countries is to limit the power of Government to impose arbitrary restraints in political domain and to invoke the ordinary power of the legislature to restrain the more powerful individual from imposing arbitrary restraints on the less powerful in the economic field. The inadequacy nay the futility of the plan has been well-established … [this] plan follows quite a different method. It seeks to limit not only the power of Government to impose arbitrary restraints but also of the more powerful individuals or to be more precise to eliminate the possibility of the more powerful having the power to impose arbitrary restraints on the less powerful by withdrawing from the control he has over the economic life of the people. There cannot be the slightest doubt that of the two remedies against the invasion by the more powerful of the rights and liberties of the less powerful the one contained in the proposal is undoubtedly more effective. Considered in the light of these observations the proposal is essentially a proposal for safeguarding the liberty of the individual.98

  Ambedkar’s argument speaks for itself, and needs no explanation. It would be worthwhile, however, to restate it within the framework developed above. Ambedkar was providing a direct riposte to the theory of freedom as non-interference and the absence of intentional coercion, by making the point that in a market economy, employers’ power to set rules vested in them the ‘control … over the economic life of the people’. Following republican thought, it was the existence of this control, and not any overt act of interference, that constituted the threat to freedom. Where Ambedkar departed from traditional republican thought and embraced labour republicanism was in his insistence that ‘arbitrary power’ need not be exercised intentionally, but was simply a function of existing economic arrangements.

  It is of particular importance that throughout the argument, Ambedkar consistently used the language of liberty, and repeatedly stated that the Constitution existed to protect individual liberty by regulating the unequal relations of power that existed between employers and employees in a market economy. Moreover, Ambedkar was acutely conscious that his argument marked a departure from traditional ways of thinking about liberty and freedom in not treating economic structure as part of the natural background that only conditioned freedom. In fact, he specifically acknowledged this:

  The proposal marks a departure from the existing constitutions whose aim is merely to prescribe the form of the political structure of society leaving the economic structure untouched. The result is that the political structure is completely set at nought by the forces which emerge from the economic structure which is at variance with the political structure … the soul of democracy is the doctrine of one man, one value. Unfortunately, democracy has attempted to give effect to this doctrine only so far as the political structure is concerned by adopting the rule of one man one vote which is supposed to translate into fact the doctrine of one man one value. It has left the economic structure to take the shape given to it by those who are in a position to mould it.99

  Admittedly, Ambedkar’s draft notes were written in the context of incorporating State socialism into the Constitution, a position that was not accepted by the Constituent Assembly, and from which Ambedkar himself subsequently resiled.100 However, as I shall show, the vision of freedom, and the link between freedom and the economic structure, remained an underlying foundation of the Constitution as it emerged in its final form, and found expression in what eventually became Article 23.

  Indications of this emerge from the Fundamental Rights Sub-Committee’s first set of discussions on the draft fundamental rights, where it was proposed that ‘every form of slavery or traffic in human beings is abolished and contravention of this prohibition shall be an offence’.101 After some debate, it was decided to incorporate the US Constitution’s prohibition on involuntary servitude102 into the clause. Ultimately, in the Sub-Committee’s Draft Report, the redrafted Clause 15 now prohibited ‘slavery, traffic in human beings, the form of forced labour known as begar, any form of involuntary servitude except as a punishment for crime …’103

  While the dr
aft clause borrowed from the US Constitution, there was a crucial difference. The Thirteenth Amendment to the US Constitution 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’.104 The US Courts had interpreted this provision narrowly, restricting its scope to actual slavery, or to relationships possessing the badges or incidents of slavery, such as the peonage system.105 But despite having this model before them, and expressly borrowing the term ‘involuntary servitude’, the Sub-Committee chose to preface it with the words ‘any form …’—words absent from the Thirteenth Amendment. Combined with the words ‘every form’ in its previous iteration, we can clearly see the conscious intention of the drafters not to restrict the operation of the draft clause only to relationships that bore a formal resemblance to slavery and begar.

  The Fundamental Rights Sub-Committee finally split up Draft Article 15 into two parts, the first prohibiting trafficking in human beings, and the second retaining the broad preface to begar and prohibiting ‘forced labour in any form including begar, and involuntary servitude’. When this clause came up for debate in the Constituent Assembly on 1 May 1947, K.M. Munshi proposed redrafting it to read: ‘Traffic in human beings and begar and other similar forms of forced labour are prohibited, and any contravention of this prohibition shall be an offence.’106 (This is—in relevant part—the language of the final constitutional guarantee, as it stands today.) Importantly, however, Munshi also provided the rationale for this restructuring. It was not to curtail the scope of the provision by replacing ‘any form’ with ‘similar forms’, but rather, it was simply ‘to deal in one sentence with both subjects’,107 and do away with a specific exception for military service that was present at the time. Munshi then went on to note:

  The object of this is that if there is any sort of forced labour like begar, it will be prohibited. Traffic in human beings will be prohibited. But the other forms of labour e.g., labour, for educational purposes or for any other purpose of public service, will be regulated by legislation.108

  Munshi’s explanation is crucial, because it has a direct bearing on the debate in PUDR v. Union of India. In PUDR, the State had argued that the phrase ‘similar forms’ after begar qualified ‘forced labour’, and indicated that only those relationships which, like begar, resulted in the extraction of work without compensation could amount to ‘forced labour’. The Court rejected this argument, noting that the ‘similarity’ was not based on the payment of compensation, but on the element of ‘force’. Here, Munshi was making it clear that the purpose of ‘similar forms’ was to distinguish unjustified forced labour (exemplified by begar) from labour that was compelled (and therefore, in the descriptive sense, forced), but was justified (by virtue of being for educational purposes, or public service). Consequently, Munshi was effectively arguing that the word ‘forced’ in the Draft Article was normative in character. It retained its wide amplitude (as provided for in earlier drafts, which used the phrases ‘any form’ and ‘every form’), but by adding the word ‘similar’ it would be ensured that compelled labour that could be justified under a larger public purpose would escape the prohibition of the section.

  Munshi’s proposed amendment was accepted by Ambedkar, who promptly responded that ‘I have no objection to the redrafting of subclause (a) and (b) in order that they may run in a compact manner’,109 thus making it doubly clear that the substitution of ‘any form’ with ‘similar forms’ was not intended to lop off the width of the term ‘forced labour’. The debate that then followed focused on the merits of retaining a specific exception for military service, where, arguing against Munshi, Ambedkar insisted that a specific exception be retained, otherwise ‘it is perfectly possible for anybody to argue that even compulsory military service is begar’.110

  The fact that Ambedkar deemed a specific exception necessary further strengthens the argument about the width of the term ‘forced labour’: there would be no need of carving out specific exceptions if the main clause was itself to be interpreted narrowly. After all, as P.K. Sen specifically pointed out, the word ‘similar’ ‘is a vague word’,111 incapable of possessing specific boundaries. In fact, that the breadth of the core clause was settled was made most clear by Damodar Swarup Seth’s attempt, in the December 1948 Debates regarding the Draft Constitution, to bring back the phrase ‘servitude and slavery in all forms’112 into the clause, and Ambedkar’s rejection of it on the basis that it was ‘unnecessary’113 (i.e., that the Article already had a sweep wide enough to include ‘all forms’).

  In addition, there were two important events that are relevant for our argument. The first was a proposal that, as part of its prohibition of human trafficking, the draft Article also prohibit prostitution. This proposal, vigorously argued for by several members, was voted down by the Assembly, with Renuka Ray protesting against the dual standards of morality that existed for men and women.114 This suggests that Article 23 draws a clear distinction between exploitation and bare ‘public immorality’.

  Secondly, the meaning and purpose of Article 23 (Draft Article 11) was articulated by many members of the Assembly in clear and lucid terms. Perhaps the most eloquent among them was Dakshayani Velayudhan, the only Dalit woman in the Assembly, who pointed out that:

  … even nowadays we find traffic in human beings in some parts of India and this clause will have a great effect on the underdogs of this land who will have a voice when India gets her independence. This clause will bring about an economic revolution in the fascist social structure existing in India. All the disabilities of the underdogs of this land are mainly due to the economic backwardness of the unfortunate brethren of the neglected community … Even if there is not the system of ‘begar’ in other parts of India, almost a similar sort of compulsion exists throughout India and the majority of the people are subjected to exploitation economical and in all sorts of ways. The underdogs of this land are deprived of the facilities that make life happy … so, this clause when it comes into existence will give great relief to a great number of people who are subjected to economic exploitation.115

  What stands out in this remarkable speech is that, just like Ambedkar, Dakshayani Velayudhan drew a clear link between economic structure, exploitation, and freedom. In particular, she noted that, while the paradigm case of begar was work without remuneration, ‘a similar sort of compulsion’ existed, marked by ‘exploitation economical and in all sorts of ways’. For Velayudhan, therefore—like it had been for Ambedkar, K.T. Shah and K.M. Munshi, and like it would be for the PUDR Court in 1982—the point of placing begar front and centre in Article 23 was not its elements of physical force or absence of compensation, but that it was the paradigm case of exploitation. And when the prevention of exploitation became the heart of Article 23, the interpretation of force and freedom as inextricably linked with economic structure became inevitable.

  The debates in the Constituent Assembly, therefore, reveal two crucial points. The first is that Article 23(1) was drafted in broad terms, intending to outlaw all forms of forced labour, and specifically those that were similar to begar in their exploitative capacity. Secondly, this exploitation was a function not merely of physical or legal force, but of the economic structure of society, which had a direct relationship with individual freedom. This was affirmed by members of the Constituent Assembly even after Ambedkar had abandoned his initial plan to incorporate State socialism into the Constitution.116 In fact, they used Ambedkar’s own language from his initial Notes on Fundamental Rights, that the Constitution was committed to the principles of economic democracy and ‘one man, one value’.117 As we have seen above, the chosen vehicle of the one-man-one-value principle was Article 23, and the prohibition of forced labour. So, while the Constitution did not, ultimately, impose an economic theory, it did impose a ‘social vision’118—a vision in which economic arrangements were not part of the natural order of things, but had to be measured and
judged according to their impact on freedom.

  B. The Departure from International Conventions

  The amplitude of Article 23 can also be deduced from the fact that, while it was inspired by international conventions, it departed in important respects from the language used by them. The first of these documents was the League of Nations’ 1926 Slavery Convention (contemporaneous with the Indian debates on the subject), which aimed to prohibit the institution of slavery and the slave trade. The 1926 Convention specifically noted the continuum between slavery and forced labour, observing that ‘it is necessary to prevent forced labour from developing into conditions analogous to slavery’.119 While the phrase ‘conditions analogous to slavery’ is reminiscent of ‘other similar forms of forced labour’, the 1926 Convention was, nonetheless, clear that ‘slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.120 The core of the Convention, therefore, was not actual exploitation, but legal control (right of ownership). As we can see, therefore, the Convention treated forced labour as existing within and on the fringes of the master-slave paradigm,121 in line with republican thought.

  Four years later, in 1930, the International Labour Organization passed a separate convention dealing specifically with forced labour, where, unlike the Indian Constitution, it defined the term thus: ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.122 One can see here glimpses of the freedom-as-non-interference view, where to ‘be forced’ assumes the existence of a specific penalty or threat of it.