Equal freedom and forced labour
#GS2 #Constitution #Laws #Governance
The steps being taken by States, under the cover of COVID-19, of removing labour laws are grossly unconstitutional
- Soon after Independence, while the Constitution of a free India was being drafted, Dr. B.R. Ambedkar, the chairperson of the Drafting Committee, was asked to prepare a note on the idea of Fundamental Rights.
- In a terse document, B.R. Ambedkar observed that thus far, the purpose of Constitutions had been to limit state power, in order to preserve the freedom of the individual.
- But this was too narrow an understanding of freedom, because it ignored the fact that often, it was private parties — individuals and corporations — that exercised great sway over the economic and social life of the nation.
- B.R. Ambedkar therefore argued that fundamental rights must also “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” — or, more euphemistically, to tackle the “the dictatorship of the private employer”.
- B.R. Ambedkar, a long-time advocate for the rights of labour, and who had been instrumental in the passage of an eight-hour working day a few years before, was writing as part of a long-standing intellectual and political tradition.
- Labour movements had been key to the successful freedom struggle, and indeed, the 1931 Karachi Declaration and Bill of Rights — a fore-runner to the Constitution — expressly placed labour rights on a par with ordinary civil rights such as the freedom of speech and expression.
- These principles eventually found their way into the Indian Constitution in the form of “Directive Principles of State Policy”, while a few of them were retained as fundamental rights.
- Prominent among these was the right against forced labour, guaranteed by Article 23 of the Constitution.
- It ignores the compulsion that is exerted by serious and enduring differences of power, compulsion that may not take a physical form, but instead, have a social or economic character that is nonetheless as severe.
- In 1983, the Supreme Court called upon to address the exploitation of migrant and contract labourers, who had been put to work constructing the Asian Games Village.
- The judgment of the Supreme Court in PUDR vs. Union of India, and the constitutional history that it drew upon, provides us with an important perspective from which to understand basic ideas of freedom, especially in our present context.
- A market economy is sustained by a set of laws — the laws of contract, of property, and so on.
- This legal structure ensures that capital and labour do not face each other as equals across a mythical bargaining table.
- There is a structural inequality that enables the former, going back once more to B.R. Ambedkar’s language, to “make the rules” for the latter.
- This amounts to a form of “private government”, a situation in which there exists democracy in the political sphere, but unilateral term-setting in the context of the workplace.
- The purpose of labour laws, which arose out of a long period of struggle (often accompanied by state-sanctioned violence against workers), has always been to mitigate this imbalance of power.
- In India, the path has been to create a detailed set of laws, covering different aspects of the workplace, and depend upon State agencies for their enforcement.
The Indian situation
- It is argued that it sets up a labour bureaucracy that is prone to corruption; that the adjudicatory mechanisms are inefficient; the rights that labour laws grant are effectively submerged in a creaking judicial system, thus providing no real relief; that the system creates an unconscionable tiered structure where a majority of the workforce, engaged in contract labour or informal employment, has very few rights, while those in formal employment have greater security, at least in theory; in a recent interview, it was even pointed out that many prominent labour unions prefer to arrive at an accommodation with the management, rather than represent the interests of their constituents.
- These problems certainly call for a debate on the future of labour rights, especially in a world where the rapidly changing nature of work is already rendering old concepts of jobs and employments obsolete (courts around the world, for example, are struggling with how to classify platform workers such as Uber drivers).
- In his Note on Fundamental Rights, B.R. Ambedkar pointed out that this would be nothing other than the freedom to “increase hours of work and reduce rates of wages”.
- Ironically, an increase in working hours and a removal of minimum wages are two proposals strongly under discussion.
- If the Constitution is to remain a charter of freedom, however, it must be equal freedom — and that must be the yardstick from which we measure proposed legal changes in the shadow of COVID-19.