Both the 1926 and 1930 conventions were referred to and clarified in the Economic and Social Council’s ‘Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery’. While the Supplementary Convention came into force after the passage of the Indian Constitution, it is relevant because it lay on a continuum with the 1926 and 1930 conventions, and added two further prohibitions that were viewed to be ‘institutions or practices similar to slavery’: debt-bondage (close to begar) and serfdom. Serfdom was defined as ‘the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status’.123
The upshot of these international instruments is that while they used phrases such as ‘voluntarily’ and ‘not free’, which are consistent with the labour-republican argument that we have advanced above, these words were used in addition to, and not as substitutes for, the requirement of legal subjection.124 Again, following republican thought, ‘forced labour’ within the international framework was expressed in the language of slavery, servitude, and serfdom. It is here that the Indian Constitution’s conscious departure from this framework assumes relevance. The 1931 Resolution did use the phrase ‘serfdom or conditions bordering on serfdom’, and the Fundamental Rights Sub-Committee experimented with including the word ‘servitude’, before abandoning that as well. But the paradigm that the framers finally chose was neither slavery nor serfdom, but the uniquely Indian problem of begar. It was begar that anchored Article 23(1), necessitating an autonomous interpretation, independent of the intellectual baggage carried by words such as ‘slavery’ and ‘serfdom’.
The autonomous character of Article 23 is more sharply visible when we compare it to similar provisions in other constitutions. Forced labour has been a vexing problem for postcolonial nations in particular. For example, the Constitutions of Malaysia,125 Kenya,126 Botswana,127 Uganda,128 and Lesotho,129 among many others, all have provisions outlawing it, and which have been interpreted by the courts. Notably, all these provisions are framed within the slavery/servitude paradigm, i.e., the prohibition of forced labour occurs as an adjunct to the prohibition of slavery and servitude.130 The Indian Constitution’s departure from this classic republican framework and its nod towards labour-republicanism in the Constituent Assembly Debates provide a powerful argument in defence of PUDR’s interpretation of ‘forced labour’, and of ‘other similar forms’, under Article 23.
C. The Directive Principles of State Policy and Constitutional Structure
We have seen that the bulk of ‘Labour’s Constitution of Freedom’ from the 1931 Karachi Resolution ended up in the unenforceable Part IV of the Constitution, as Directive Principles of State Policy. Part IV contains the right to work, guarantees of equal pay for equal work, a social security net, a living wage, and industrial democracy and participation for workers (inserted later). While no law can be invalidated for not conforming to the DPSPs, this does not, as discussed in Chapter 3, make them irrelevant to constitutional interpretation.
The DPSPs are best understood as structuring principles, which help us to interpret and clarify the scope of the Fundamental Rights chapter. In other words, all other things being equal, out of two or more possible interpretations of a fundamental right, the one that advances the values set out in Part IV is to be preferred. As we have argued above, while the text of Article 23 is almost Delphic in its austerity, there is enough historical evidence to make a strong case for interpreting it in line with the labour-republican view of freedom. Reading it in the context of Part IV of the Constitution (which clearly envisages a transformation of the economic structure) further strengthens the interpretation of the word ‘freedom’ that I have advanced above.
Evidence that supports the argument can be found in Part III as well. Recall that Articles 23 and 24 are two of the few fundamental rights that regulate not only the relationship between individual and State, but also apply horizontally, i.e., between private parties. The other two horizontal fundamental rights in the Constitution are found in Articles 15(2) and 17, which we have discussed in the previous two chapters. Like Article 23, Articles 15(2) and 17 prohibit specific acts of denial of access, or of untouchability.
However, it is crucial to note that the reason they do so is not because of what the act, taken in isolation, does. After all, I should be free to refuse to touch whom I want, and decide for myself who I do business with. Consequently, what is prohibited is not the act itself, but what it signifies; and what it signifies is a social practice of exclusion and denial—the practice of religion and caste-based social and economic boycotts (Article 15[2]), and the practice of subordination through social doctrines of purity and pollution, expressed through untouchability (Article 17).
What Articles 15(2) and 17 challenge, therefore, is impersonal domination, i.e., institutions, which are the result of human design, but which cannot be pinned onto a specific human act or omission.131 Our reading of Article 23(1) binds the Constitution’s horizontal rights into a single, unified moral conviction: the conviction that freedom and equality are threatened not merely by the State, but by the exercise of power and domination through non-State structures, and that the task of the Constitution is to expand constitutional values by curtailing this power. Together, these three articles represent the constitutional ideal of fraternity: that is, an ideal that aims at the elimination of hierarchies and relations of power in social and economic relations, so that liberty and equality exist not only in terms of State action or inaction, but as constituent elements of everyday social and economic life.
In fact, soon after PUDR, the Andhra Pradesh High Court grasped this fundamental insight when, in Poola Bhaskar Vijaykumar v. State of AP, it noted:
Article 17 which abolishes untouchability is not in the main a limitation on the power of the State power as an admonition to the society. So is Article 23 … thus understood Art. 23 should be held to be more a prohibition directed against the social practices of one member of the society against another rather than a prohibition against the State.132
What is important is how the High Court characterizes Articles 23 and 17. The agent that these Articles are directed against is the private individual (naturally), but the act that they seek to protect from is a ‘social practice’. In other words, the source of domination is the social practice (or the social order), and it is carried out by private individuals. Indeed, this, precisely, is the argument of labour-republicanism, which Ambedkar expressed in such detail in his Notes on Fundamental Rights. The social and economic institutions of a market economy create an asymmetry of power between employers and employees, putting them in positions of dominance and dependence, respectively, and threatening the freedom of the latter.
One last point: the Supreme Court has defined ‘minimum wage’, broadly, as an evolving concept that must include, at the very least, enough for subsistence and basic social needs, such as education and healthcare.133 Notably, the directive principles go further, and require the State to move towards securing a living wage—pegged at a degree higher than the minimum wage, and broadly defined as the normal needs of a human being in a civilized community including a fair and average level of comfort.134 Historically, it was the concept of a living wage that the older constitutional documents, including the 1931 Resolution, highlighted. And indeed, all our arguments about force, freedom, and the coercive character of markets in the context of interpreting Article 23 apply equally to ‘reading in’ a constitutional right to a living wage. PUDR did not address the question, because it was dealing specifically with a case involving non-compliance with minimum wage provisions. However, there is no reason future courts need be constrained by the limits of PUDR.
Needless to say, the actual fixing of a minimum or living wage is a task beyond the competence of the courts. If the logic of PUDR were to be e
xtended, therefore, the primary obligation would lie upon the State to affirmatively determine the actual wage. The State’s obligation would flow from the Constitution, and therefore apply to every form of employment (including domestic work), instead of being limited by the contours of the Minimum Wages Act (or any other statute that the Parliament may choose to enact). The Court’s task would be to ensure that the State is complying with the obligation, and in accordance with the manner in which PUDR interpreted Article 23.135
IV. Conclusion: The Roads Not (Yet) Taken
PUDR v. Union of India was the first judgement to articulate the transformative character of Article 23 of the Constitution. It was also a disciplined judgement. It remained aware of the limited extent to which Article 23 could be pressed into the service of transformative goals. After all, the framers had made a conscious decision to place ‘Labour’s Constitution of Freedom’ in Part IV, excepting only the right against forced labour, and the prohibition of child labour in hazardous employment. Indeed, Ambedkar had been explicit about not imposing a full-blown economic theory upon future generations.136 Had the Court then smuggled in the complete labour charter from Part IV into the meanings of ‘force’ and ‘freedom’, it would have been tantamount to rewriting the Constitution. PUDR’s solution was to implicitly acknowledge that, while the task of overhauling the economic structure in order to guarantee effective freedom remained with the Parliament, it was open to the courts to mitigate some of the market’s more freedom-infringing outcomes.
A. An Unformed Legacy
This does not mean, however, that a minimum wage is the only guarantee that could be read into Article 23. PUDR’s transformative analysis of force and freedom could apply to other situations, depending upon context. Furthermore, the range of a constitutional provision, and its underlying philosophy, is not limited to testing and invalidating State action. Constitutional philosophy ‘radiates’ into the broader legal system as well, influencing how laws are interpreted and applied.
From this perspective, the judgement in PUDR is a signpost to a road not yet taken. Apart from one other judgement delivered the same year, striking down a Rajasthan law that exempted the government from paying a minimum wage for famine relief work,137PUDR marked both the beginning and the end of Article 23 as a potent fundamental right. Although it has never been overruled or doubted, subsequent judgements have refused to advance its underlying principles into other domains.
In particular, the Court has invoked formal doctrines of labour law to forestall Article 23 claims. For example, in Lingegowd Detective and Security Chamber (P) Ltd. v. Mysore Kirloskar Ltd., the Supreme Court rejected a claim to minimum wages on the basis that the employment in question (detective services) was not a ‘Scheduled Employment’ under the Minimum Wages Act.138 The Schedule to the Minimum Wages Act, however, could surely not override a fundamental right under Article 23. The Court’s response to this was to say that PUDR was a judgement rendered ‘in a totally different context’. The Court declined to explain what, exactly, the different context was, and how it was relevant to the judgement.139
Similarly, State of Karnataka v. Uma Devi involved the issue of the State’s power to regularize employees who had been appointed through the ‘back-channel’. The situation that existed, and which continues to exist, is that the State or its instrumentalities would recruit employees through ad hoc procedures, and then keep them on daily wages (an irregular, precarious, and low-paid status) for many years. In Uma Devi, the Supreme Court held that it would be illegal to regularize such workers, on the grounds that it would invade the Article 14 rights of regular recruits. Before the Court, it was specifically argued that the irregular recruits and the State were in an entirely unequal bargaining position; consequently, the State’s conduct in keeping these recruits on daily wages with no security violated Article 23.
Uma Devi was thus an ideal case for an application of PUDR’s logic: the State’s use of a depressed labour market to ‘offer’ exploitative terms to individuals who had no genuine ‘choice’ in the matter was a textbook case of what labour-republicanism would conceptualize as an infringement of freedom. Like in Mysore Kirloskar, however, the Court skirted around the argument, noting, ‘After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment … it appears to us that importing these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.’140
The Court’s casual dismissal of PUDR’s careful analyses as ‘imported theories’ is both unsatisfactory and, simply, incorrect. As we have seen, the use of unequal economic power to compel individuals to give up their constitutional rights in return for basic material security was precisely what Ambedkar warned against, and precisely what the Constituent Assembly wanted Article 23 to guard against. Far from being an imported theory, therefore, the Article 23 claim in Uma Devi was rooted in Indian constitutional law.
In fact, a few years before Uma Devi, the Allahabad High Court had indeed come to a radically different conclusion by applying the logic of PUDR. Dealing with the payment of lower wages and, subsequently, the termination of an ad hoc employee, the Court asked itself ‘whether the State or its instrumentality under its unequal bargaining power can exploit youths and citizens of this country and take advantage of their poverty by exploiting them, knowing that they were being appointed against the rules, and, therefore, no right would accrue to them’.141 Invoking PUDR, the Court answered in the negative, and held that a petitioner could not be deprived of her fundamental right under Article 23 even if she had ‘voluntarily’ taken up the job on offer. ‘It is not the acceptance of the service voluntarily but the effect of it that results in exploitation.’142 And the effect demonstrated that ‘exploitation was writ large’.143 It further said:
[in India] there is no social security or unemployment allowance. The result is that the educated youth is willing to work on any terms. Like a drowning man, he clutches at any straw … for survival for the time being and hope of settlement in future … every day petitions have come before me of teachers who claim to be working for years without any salary in the hope that they may be regularized.144
This paragraph, in particular the telling phrase ‘willing to work on any terms’, illustrates the illusory nature of ‘freedom’ in the labour market, and the true scope of Article 23. What is of particular significance is how Uma Devi and the Allahabad High Court framed exactly the same set of circumstances in radically different normative language. For Uma Devi, it was about employees who accepted the terms of their employment ‘on their own volition’, and could not, therefore, complain afterwards. Formal consent, therefore, was the foundation of Article 23. For the Allahabad High Court, on the other hand, Article 23 was designed to prevent exploitation; and the question of formal voluntariness was insufficient at best to the question of whether, in context, exploitation existed. Uma Devi marked a retreat from the transformative logic of PUDR; the Allahabad High Court—which eventually ordered the petitioner’s reinstatement and retrospective payment on the salary of a regular employee, until formal recruitment was undertaken—demonstrated what that transformative logic would look like in a more complex situation, and how it might be used across domains of labour law.
It is, of course, the Supreme Court’s verdict in Uma Devi, albeit limited to the issue of regularization, that is the law of the land. So, for now, PUDR is a reminder of the road not quite taken.145 That does not, of course, mean that it can never be taken.146 With the rapidly changing character of work, and the rise of the sharing or platform economy, where unequal relationships of power have taken on more scattered and distributed forms, the courts are likely to have many more opportunities in the near future to revisit ideas of force and freedom and, as Ambedkar observed, interrogate the relationship between civil rights and the economic structure. It remains to be seen whether the Court will take up PUDR’s invitation to an
swer these questions in the voice of labour-republicanism.147
B. Force and Freedom in the Domestic Space
PUDR’s crucial insights—that power could be exercised through structures and institutions; that domination could be impersonal; and that freedom could be infringed even in the absence of force or the threat of it—have applications beyond the marketplace. In fact, one space where it seems even more directly and unquestionably relevant is a space which is not normally thought to be relevant to constitutional norms—the space of the household.
It is, by now, a familiar argument that the division of labour within the household is gendered. Women bear a disproportionate burden, in terms of both labour time and volume.148 These tasks include ‘cooking, cleaning, collecting water and firewood, and caring for the ill, elderly, and children … [which are] essential to maintaining the household … [and] the fundamental support for the family’s economic development’.149 And, of course, this division of labour is rarely voluntary in the true sense of the term, but is constituted by a number of factors, viz., social customs and structures of thought, women’s economic vulnerability and marginalization within the family, and often enough coercion in its classical sense.150
PUDR’s arguments, therefore, apply squarely to housework, which, like begar in its original sense, remains unpaid and unremunerated labour: that is, individuals (predominantly women) engaging in housework have (at least) the fundamental, enforceable right to a minimum wage. In the global context, this is not a novel argument. Various arguments have been proposed for factoring in housework as an economic contribution that merits remuneration.151 Another model, broadly known as ‘community of property’, contemplates giving women an enforceable right in the matrimonial property, even though it might legally belong to the husband.152 The logic is a logic of redressal: while the property may be registered in the husband’s name, because it has been bought by ‘his’ money, the very reason for such an asymmetrical situation is that the wife’s labour in the household remains unpaid. Consequently, community of property regimes recognize the woman’s economic contribution to the household by stipulating an equal legal interest on property that is purchased during the marriage.153
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