116. See, infra.
117. See Parliament of India, Constituent Assembly Debates, Vol. VII, 22 November 1948.
118. Forbath, ‘The Ambiguity of “Free Labor”’, supra, 768.
119. Preamble, Slavery Convention of 1926.
120. Article 1, Slavery Convention of 1926.
121. Even the Slavery Convention, it is important to note, did not equate forced labour with the absence of compensation. Article 5(1) provided that in countries where forced labour continued to exist, it should ‘always receive adequate remuneration’.
122. Article 2(1), ILO Forced Labour Convention, 1930 (No. 29); there were exceptions for military service, civic obligations, penal liability, and emergencies (Article 2[2]).
123. Article 1(b), Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956.
124. The running together of the words ‘law, custom or agreement’ is testament to this.
125. Article 6, Constitution of Malaysia.
126. Article 30, Constitution of Kenya.
127. Article 6, Constitution of Botswana.
128. Article 25, Constitution of Uganda.
129. Article 9, Constitution of Lesotho.
130. Article 6(1) of the Malaysian Constitution prohibits slavery, and 6(2) prohibits forced labour. Article 30(1) of the Kenyan Constitution prohibits slavery and servitude, while Article 30(2) prohibits forced labour. Article 6 of the Constitution of Botswana, Article 25 of the Constitution of Uganda, and Article 9 of the Constitution of Lesotho are structured in exactly the same way, and all draw upon the ILO Conventions.
131. Although, of course, a social practice is constituted by an aggregate of individual acts, bound by a non-trivial unity of purpose.
132. Poola Bhaskara Vijaykumar v. State of Andhra Pradesh, AIR 1988 AP 295, ¶4.
133. Express Newspapers v. Union of India, AIR 1958 SC 578.
134. See ibid, for an extended discussion.
135. For example, if the State fixed an absurdly low amount, a court would have the power to review it on the touchstone of Article 23.
136. On 15 November 1948, while rejecting K.T. Shah’s proposed amendment to include ‘socialist’ in the Preamble, Ambedkar stated: ‘What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances.’ In the course of the same speech, Ambedkar went on to argue that, in any event, the proposed amendment was ‘unnecessary’, because through the Directive Principles of State Policy, ‘socialist principles are already embodied in our Constitution’. Parliament of India, Constituent Assembly Debates, Vol. VII, 15 November 1948 (speech of Dr B.R. Ambedkar). This is why, in my view, the articulation that I provided earlier in this book—that the Constitution authorized and encouraged socialism but did not mandate it—is the correct one, and it is within that intellectual framework that the Fundamental Rights chapter ought to be interpreted.
137. Sanjit Roy v. State of Rajasthan (1983) 1 SCC 525.
138. Lingegowd Detective and Security Chamber (P) Ltd. v. Mysore Kirloskar Ltd. (2006) 5 SCC 180.
139. Ibid., ¶10.
140. State of Karnataka v. Uma Devi (2006) 4 SCC 1, ¶50.
141. Mukesh Chandra v. State of U.P., (2000) 85 FLR 317 (All), ¶7.
142. Ibid., ¶14.
143. Ibid., ¶17.
144. Ibid., ¶15.
145. An interesting application of PUDR took place in the context of prison labour. Soon after PUDR, the High Court of Kerala, applying the logic of the judgement, held that the State could not exact unpaid labour from prison convicts. Noting specifically the vulnerable position in which prisoners were placed vis-à-vis the State, the Court held, ‘the right not to be exploited in contravention of Article 23(1) is a right guaranteed to a citizen, and there is no reason a prisoner should lose his right to receive wages for his labour’. In the Matter of Prison Reforms, Enhancement of Wages of Prisoners etc., AIR 1983 Ker 261, ¶29. But see also, Poola Bhaskara Vijaykumar, supra, which disagreed with this view; and State of Gujarat v. High Court of Gujarat, (1998) 7 SCC 392, where the Supreme Court was unable to arrive at a consensus.
146. The ratio of Uma Devi has, indeed, been watered down in the years since the judgement was delivered. As recently as May 2018, the Delhi High Court delivered a judgement on the regularization of school teachers, consciously ignoring the legal form (that they were appointed on contract), and focusing upon the fact of exploitation. Indu Munshi v. Union of India, LPA 286/2015. For an analysis, see Gautam Bhatia, ‘Round-Up: The Delhi High Court’s Experiments with the Constitution’, The Indian Constitutional Law and Philosophy Blog, 26 June 2018, available at https://indconlawphil.wordpress.com/2018/06/26/round-up-the-delhi-high-courts-experiments-with-the-constitution/.
147. Another abortive attempt to constitutionalize labour rights (although not in the context of Article 23) was in Air India Statutory Corporation v. United Labour Union (1997) 9 SCC 377. In Air India Statutory Corporation, the Supreme Court held that if the government abolished contract labour in any establishment (under the provisions of the Contract Labour Act), then the affected workmen would have a right to regularization, even though there was no specific provision expressly allowing for that. One particularly significant feature of Air India Statutory Corporation was its attempt to constitutionalize labour law by expressly using Part III as well as the Directive Principles as interpretive aids to determine questions left open by the Contract Labour Regulation Act. Implicit in the Court’s analysis was the idea that imbalances of power within the workplace are of constitutional concern, and subject to the application of constitutional values. In fact, the Court specifically invoked economic and social democracy, channelling Ambedkar’s speech in the Constituent Assembly, and used impeccably labour-republican language in observing, ‘permanent employment which is not a bounty of the employer nor can its survival be at the volition and mercy of the employer. Income is the foundation to enjoy many Fundamental Rights and when work is the source of income, the right to work would become as such a fundamental right. Fundamental Rights can ill-afford to be consigned to the limbo of undefined premises and uncertain application.’ Ibid., ¶49. Air India Statutory Corporation was, however, overruled by the Supreme Court in SAIL v. National Union of Waterfront Workers (2001) 7 SCC 1.
Another judgement that applied labour-republican constitutional logic to issues of labour law was Hussainbhai v. The Alath Factory Thozhilali Union, Kozhikode (1978) 4 SCC 257, where the Court held that even in cases where the mode of employment was formally through contract labour (which had fewer rights), an ‘employment relationship’ (and, consequently, the application of the full labour law regime with all its attendant rights) existed where there was ‘economic control’: ‘a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers’ subsistence, skill, and continued employment.’ The Court did not invoke Article 23, or any other provision of the Fundamental Rights chapter, but did invoke Part IV. It appears, however, that the thrust of Hussainbhai has subsequently been diluted by the Supreme Court in Balwant Rai Saluja v. Air India (2014) 9 SCC 407.
148. Susan Walzer, Thinking About the Baby: Gender and Transitions into Parenthood (Philadelphia: Temple University Press 1998); Arlie Hochschild and Anne Machung, The Second Shift: Working Families and the Revolution at Home (London: Penguin Books 2012).
149. UN Women, ‘Equal Rights and Responsibilities in Marriage’, available at http://www.endvawnow.org/en/articles/766-equal-rights-and-responsibilities-in-marriage.html. For more details, see ActionAid, ‘Making Care Visible: Women’s Unpaid Care Work in Nepal, Nigeria, Uganda, and Kenya’, available at http://www.actionaid.org/sites/files/actionaid/making_care_visible.pdf; see also Anna Knox et al., ‘Connecting Rights to Reali
ty: A Progressive Framework of Core Legal Protections for Women’s Property Rights’, ICRW, available at https://www.icrw.org/wp-content/uploads/2016/10/Connecting-Rights-to-Reality-A-Progressive-Framework-of-Core-Legal-Protections-for-Womens-Property-Rights.pdf.
150. Evelyn Nakano Glen, Forced to Care: Coercion and Caregiving in America (Cambridge: Harvard University Press 2010), available at https://caringlabor.files.wordpress.com/2012/05/forced-to-care.pdf, visited on 30 December 2017; Alice Kessler-Harris, Women Have Always Worked: A Historical Overview (New York: Feminist Press 2012).
151. See, e.g., Silvia Federici, Wages Against Housework (Bristol: Falling Wall Press 1975), available at https://caringlabor.files.wordpress.com/2010/11/federici-wages-against-housework.pdf, visited on 30 December 2017; see also, Article 88, Constitution of Venezuela: ‘The state recognises work at home as an economic activity that creates added value and produces social welfare and wealth. Housewives are entitled to Social Security in accordance with law.’ For a list of resources, see http://www.generation-online.org/h/wages-for-housework.htm, visited on 30 December 2017.
152. See, e.g., the judgement of the Supreme Court of California in Meyer v. Kinzer and Wife, 12 Cal. 247 (1859), where Chief Justice Stephen Johnson Field wrote, ‘The marriage, in respect to property acquired during its existence, is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after dissolution, in case of surviving the other.’ See also, the marital law of South Africa, where the default legal system governing marriages is that of community of property.
153. These are ‘partial community of property regimes’. Complete community of property regimes include property purchased before marriage. For obvious reasons, this can perpetuate oppression within the family, rather than mitigate it.
154. Editorial, ‘For Equality all the Way’, The Hindu, 3 April 2012, available at https://www.thehindu.com/opinion/editorial/for-equality-all-the-way/article3273970.ece.
155. See, e.g., S.R. Batra v. Taruna Batra, (2007) 3 SCC 169.
156. See, e.g., Agnes Nanjala William v. Jacob Petrus Nicolas Vander Goes, Mombasa CA Civil Appeal No. 127/2011.
157. Ibid.
158. See, e.g., the judgement of the Nairobi High Court in Federation of Women Lawyers Kenya (FIDA) v. Attorney-General, Petition No. 164B of 2016, where the High Court described the evolution of law, and also upheld a provision of the Matrimonial Property Act of 2018, which acknowledged non-monetary contributions to the household, but also made recognition conditional by courts on a case-by-case basis. The Court seemed to adopt a position that what a spouse received on the dissolution of marriage would be determined on the basis of what they had contributed in monetary or non-monetary terms. Statutorily, the definition of ‘non-monetary’ included domestic work, childcare, companionship, farm work, and management of the matrimonial property.
7: Privacy beyond the Public/Private Divide: Sareetha and Freedom within the Family
1. Section 9, Hindu Marriage Act. While a decree for the restitution of conjugal rights cannot be enforced by physically forcing the recalcitrant party to cohabit with the other, it can be enforced by attaching their property.
2. T. Sareetha v. T. Venkatasubbaiah, AIR 1983 AP 356. Procedurally, Sareetha came before the single judge as a revision petition against an order of a subordinate judge, and not a writ petition; consequently, adjudicating upon constitutionality in such a situation was somewhat unconventional.
3. Sareetha, supra, ¶17.
4. Dadaji v. Rukhmabai (1885) ILR 9 Bom 529.
5. Dadaji Bhikaji v. Rukhmabai (1886) 10 I.L.R. (Bom) 301.
6. For a non-representative sample of academic literature on the Rukhmabai case, see Sudhir Chandra, Enslaved Daughters: Colonialism, Law, and Women’s Rights (New Delhi: OUP 2008); Padma Anagol, ‘Rebellious Wives and Dysfunctional Marriages: Indian Women’s Discourses and Participation in the Debates over Restitution of Conjugal Rights and Child Marriage Controversy in the 1880s and 1890s’ in Women and Social Reform in Modern India 282–313 (Sumit and Tanika Sarkar eds., Bloomington: Indiana University Press 2008); Meera Kosambi, ‘Gender Reform and Competing State Controls over Women: The Rakhmabai Case (1884–1888)’ (1995) 29(1–2) Contributions to Indian Sociology 265.
7. Tanika Sarkar, Hindu Wife, Hindu Nation 150 (Bloomington: Indiana University Press 2010).
8. Parliament of India, Constituent Assembly Debates, Vol. III, 30 April 1947, available at http://parliamentofindia.nic.in/ls/debates/vol3p3.htm.
9. Parliament of India, Constituent Assembly Debates, Vol. VII, 3 December 1948, available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C03121948.html.
10. Parliament of India, Constituent Assembly Debates, Vol. XI, 15 September 1949 (speech of Pandit Thakur Das Bhargava), available at http://164.100.47.194/Loksabha/Debates/cadebatefiles/C15091949.html.
11. M.P. Sharma v. Satish Chandra, 1954 S.C.R. 377.
12. Kharak Singh v. State of UP (1964) 1 S.C.R. 332.
13. Ibid., ¶28 (Justice Subba Rao, dissenting).
14. Ibid., ¶13.
15. Ibid., ¶15.
16. Gobind v. State of MP (1975) 2 SCC 148.
17. Ibid, ¶24.
18. It is also rather inapposite to the context of the case itself, which was about police surveillance. This might be because the statement is copied verbatim (without acknowledgement) from the US Supreme Court judgement of Paris Adult Theatres v. Slaton, 413 U.S. 49 (1973), which was a case about zoning for adult theatres.
19. Jeff Weintraub, ‘The Theory and Politics of the Public/Private Distinction’ in Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy 1, 2 (Chicago: University of Chicago Press 1999). See also Lawrence E. Klein, ‘Gender and the Public/Private Distinction in the Eighteenth Century: Some Questions’ (1995) 29(1) Eighteenth-Century Studies 97–109, warning that a facile public/private binary is ahistorical.
20. J. Roy, ‘Polis and Oikos in Classical Athens’ (1999) 46(1) Greece and Rome 1.
21. Don Slater, ‘Public/Private’ in Core Sociological Dichotomies (Chris Jenks ed., London: Sage Publications 1998) 136–37.
22. See Hannah Arendt, The Human Condition, Part II (2nd ed., Chicago: University of Chicago Press 2013).
23. The Greek word for this was isonomia, which translates to ‘equality of political rights’.
24. Arendt, The Human Condition, supra; Weintraub, ‘The Theory and Politics of the Public/Private Distinction’, supra, 12; Martha Nussbaum, ‘Is Privacy Bad for Women?’, The Boston Review, 1 April 2000, available at https://bostonreview.net/world/martha-c-nussbaum-privacy-bad-women, visited on 13 July 2017.
25. Gurpreet Mahajan, ‘Introduction’ in The Public and the Private 1, 10 (Gurpreet Mahajan and Helmut Reifeld eds., New Delhi: Sage Publications 2003). See also Jean Elshtain, ‘Moral Woman and Immoral Man: A Consideration of the Public-Private Split and its Political Ramifications’, (1974) 4 Politics & Society 453–73.
26. Slater, ‘Public/Private’, supra.
27. See Dieter Grimm, Constitutionalism: Past, Present, and Future (Oxford: OUP 2016).
28. Seyla Benhabib, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics 109 (Cambridge: Polity Press 1992).
29. Ibid. See also, Carole Pateman, The Sexual Contract (Stanford University Press 1988); Joan Landes, ‘The Public and the Private Sphere: A Feminist Reconsideration’ in Feminism, The Public and the Private 135–63 (Joan Landes ed., Oxford: OUP 1998).
30. Ann Hughes, ‘Learning from the Levellers?’ in Elizabeth Anderson, Private Government: How Employers Rule Our Lives 75, 87 (and Why We Don’t Talk About It) (New Jersey: Princeton University Press 2009).
31. Samuel D. Warren and Louis D. Brandeis, ‘The Right to Privacy’ (1890) 4(5) The Harvard Law Review 193, 220.
32. Olmstead v. United States, 277 U.S. 438 (1928).
33. Katz v. United States, 389 U.S
. 347 (1967).
34. The Fourth Amendment to the Constitution of the United States: ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’
35. Olmstead, supra.
36. Katz, supra, 351.
37. Ibid., 361 (concurring opinion of Justice Harlan).
38. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973).
39. Kyllo v. United States, 533 U.S. 27 (2001).
40. Ibid., 40.
41. Ibid., 37. See also Solove, ‘A Taxonomy of Privacy’ (2006) 154 University of Pennsylvania Law Review 477, demonstrating how the spatial conception continues to be the paradigm within which privacy/surveillance cases operate: pp. 496–99.
42. Article 8, European Convention of Human Rights: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’; Article 13(1), Basic Law of the Federal Republic of Germany: ‘The home is inviolable.’
43. Bernstein v. Bester, 1996 (4) BCLR 449.
44. Ibid., ¶67. See also Port Elizabeth Municipality v. Various Occupiers (2004) 12 BCLR 1268 (concurring opinion of Justice Sachs).
45. The classic statement of the issue is considered to be in Carole Pateman, ‘Feminist Critiques of the Public/Private Dichotomy’ in Public and Private in Social Life 281 (Stanley I. Benn and Gerald F. Gaus eds., New York: St Martin’s Press 1983). See also Ruth Gavison, ‘Feminism and the Public/Private Distinction’ (1992) 45 Stanford Law Review 1.
46. Nussbaum, ‘Is Privacy Bad for Women?’, supra. See also, Catherine MacKinnon, ‘Privacy v. Equality: Beyond Roe v. Wade’ in Feminism Unmodified 93–102 (Cambridge: Harvard University Press 1987).
47. Anderson, Private Government, supra; Michael Walzer, ‘Liberalism and the Art of Separation’ (1984) 12(3) Political Theory 315, 325.
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