Indian Constitution and Worker Rights – Human Rights Regulations and Perspectives

I. Introduction

India is one of the most populated countries in the world, facing the massive problem of unemployment. The problem of unemployment is a serious one and it leads to a number of consequences including personal disorganization, family disorganization, social disorganization and irreparable financial losses. Majority of the poor in India continue to live in rural areas and depend on wage labour for their survival. Realization of human personality is only possible when there is a scope of substantial access to employment.

However, in a welfare state like ours appropriate legislations and the judiciary can do a lot to secure the “right to employment”, one of the basic human rights. India is a signatory to all the employment-related human rights documents, which it is obliged to satisfy.

Right to employment has been crystallized as basic human rights in the Universal Declaration of Human Rights (UDHR), 1948. Socialist systems recognize the right to work as an obligation; the State may extract the work that is socially and economically useful. The National Rural Employment Guarantee Act, 2005 aims at enhancing livelihood security of households in rural areas of the country and guarantees wage employment at an unprecedented scale.

In this backdrop this chapter attempts to discuss the concept of right to employment from constitutional perspective and its development and statutory recognition in India. Indian Judiciary has played an important role in recognizing right to employment within the content of “right to life” guaranteed as fundamental right under Article 21 of the Constitution. Considering the role of the Indian Judiciary to this end an attempt has also been made to examine the Jurisprudential and Constitutional validity of the right to employment within the existing legal system in India.

II. Mainly Four Types of Labour Laws

• Laws relating to conditions of work.
• Laws on wages and remuneration.
• Laws on social security.
• Laws on industrial relations and employment security.

As a whole, overall coverage of labour laws very limited (only 10-12% of workers); only laws relating to wages have somewhat larger coverage, although in recent years, both central and state governments have tried to cover larger number of informal workers, mostly relating to social security.

The Supreme Court has in a number of decisions referred to the concept of socialism and has used this concept along with the Directive Principles of the State Policy to assess and evaluate economic legislation. The Court has derived the concept of social justice and of an economically egalitarian society from the concept of socialism.

According to the Supreme Court, “the principle aim of socialism is to eliminate inequality of income and status and standards of life and to provide a decent standard of life to the working people.”

III. Constitutional Rights

Articles 38-39, and 41-43A, however, like all rights listed in Part IV of the Constitution are not enforceable by courts, rather than creating an aspirational "duty of the State to apply these principles in making laws".

The original justification for leaving such principles unenforceable by the courts was that democratically accountable institutions ought to be left with discretion, given the demands they could create on the state for funding from general taxation, although such views have since become controversial.

Article 38(1) says that in general the state should "strive to promote the welfare of the people" with a "social order in which justice, social, economic and political, shall inform all the institutions of national life.

In article 38(2) it goes on to say the state should "minimise the inequalities in income" and based on all other statuses.

Article 41 creates a "right to work", which the National Rural Employment Guarantee Act 2005 attempts to put into practice.

Article 42 requires the state to "make provision for securing just and human conditions of work and for maternity relief".

Article 43 says workers should have the right to a living wage and "conditions of work ensuring a decent standard of life".

IV. Role of the Judiciary towards Right to Work

The right to employment is the essential foundation for economic democracy therefore employment can no longer be considered as a privilege. The right to employment for a living wages in the common occupation of the community is of the very essence of the personal freedom and opportunity which should be recognized as a fundamental human right having legal enforceability. Indian judiciary has played a very vital role in this regard and included right to employment within the “right to life” as guaranteed under Article 21 of the Constitution.

V. Citation

• The decision of the Supreme Court of India in Maneka Gandhi v. Union of India, gave a new dimension to Article 21 which guarantees the right to life and personal liberty. The judges of the Indian Supreme Court have noted that right to life is not confined to mere physical existence but includes the right to live with human dignity.
• In Olga Tellis v. Bombay Municipal Corporation a five judge bench of the Supreme Court ruled that the word “life” in Article 21 includes the “right to livelihood”.
• The court observed:

“If the right to livelihood is not treated as a part of the constitutional right to life, the easiest ways of depriving a person of his right to life would be to deprive him of his means of livelihood. In view of the fact that Articles 39(a) and 41 require the State to secure to the citizen an adequate means of livelihood and the right to work, it should be sheer pedantry to exclude the right to livelihood from the content of the right to life.”

Equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of the right.

VI. Labour Regulation and Employment

Heated debate about the impact of so–called rigidity of labour laws and its impact on employment growth and its structure. Empirical basis rather weak, divergent research findings and empirical trends. Increasingly felt that no conclusive evidence about labour laws restricting investment and employment as well as in formalisation of workforce.

But at the same time, labour laws regime suffers from some important limitations:

• Numerous laws and considerable ambiguities in definitions; judicial nightmare and hence heavy litigation.
• Some unreasonable provisions regulating closure of sick enterprises.
• Sharpens dualism between formal and informal sectors as well as within formal sector.

In practice, however, considerable flexibility in labour market; at firm levels several changes in laws, procedures and practices in various states over years towards greater flexibility.

VII. Rights of Woman Employees

There are a number of cases in which the Supreme Court helped to advance the rights of women and strike down those laws or practices that were discriminatory. Though, this may not be true in the case of all women workers.

One of the earliest challenges came from Ms. Muthamma, a senior Indian Foreign Service Officer. In 1978 she filed a writ petition stating that certain rules in the Indian Foreign Service (Recruitment, cadre, seniority and promotion) Rules, 1961 were discriminatory.

The rules in fact provided that no married woman would be entitled as of right to be appointed to the service. In fact a woman member was required to obtain permission of the government in writing before her marriage was solemnized and that she could be required to resign if the government was satisfied that due to her family and domestic commitments she was unable to discharge her duties efficiently.

The Supreme Court struck down these rules on the ground that they violated the fundamental right of women employees to equal treatment in matters of public employment under Article 16 of the Constitution.

VIII. Citation Regarding Women Rights in Employment

• Mrs. Neera Mathur v Life Insurance Corporation of India,

The Supreme Court recognized the right to privacy of female employee. Mrs.Neera had been appointed by the LIC without them knowing that she was pregnant. She applied for maternity leave and when she returned thereafter she was terminated. The reason given was that she had withheld information regarding her pregnancy when she had filled their questionnaire.

The Supreme Court on perusing the questionnaire was shocked to find that it required women candidates to provide information about the dates of their menstrual cycles and past pregnancies. It considered them to be an invasion of privacy of a person and violative of Article 21 which guarantees right to life and privacy.

It therefore, directed the LIC to reinstate Mrs. Neera and to delete those columns from its future questionnaires. In this case the petitioner drew the attention of the Court to the Equal Remuneration Act (25 of 1976) Section 4. The Supreme Court upheld her contention and stated that the employer was bound to pay the same remuneration to both male and female workers irrespective of the place where they were working unless it is shown that the women were not fit to do the work of the male stenographers.

IX. Conclusion

In view of emerging pattern of production requirements, use of contract workers may be allowed where requirements justified but discourage its use just for denying worker the benefits to which he is entitled to; important to provide contract workers same wages and other non-wage benefits as regular workers and making them portable; both contractor and principal employer should be jointly responsible for effective implementation of these measures. While the ongoing measures attempt to enhance security of workers to some extent, efforts seem in to be more towards facilitating the use of flexible labour and reducing further the already weak collective bargaining system (increase in the threshold of trade Union recognition)

The social security measures, should not rely only on enterprises but a partnership with state wherever necessary should be done, particularly in case of small enterprises. India growing over 7% per annum and workers deserve to get benefits of growth in order to make it inclusive and even sustainable. Reforms in the labour market regulation regime should focus on both enterprises and workers and it needs to be a fair and composite deal for the both.

Regular employment at a living wage is the dream and the first demand of the poor in our country. The demand of right to employment calls for an adequate legal system for providing employment guarantee whereby the Government can be legally bound to provide work to all those who are able bodied. This would enable people not only to feed themselves and their families, but also to achieve a minimum standard of living with human dignity.

The initiative should project the view that the right to employment must be backed by the full commitment and determination of the government. Affirmation and commitment to this principle does not mean that government should or could employ every job seeker. A guarantee implies not merely an opportunity or even a right, but also assured and secure possession of what is guaranteed.

Under the Constitution of India, Labour is a subject in the concurrent list where both the Central and State Governments are competent to enact legislations.

As a result, a large number of labour laws have been enacted catering to different aspects of labour namely, occupational health, safety, employment, training of apprentices, fixation, review and revision of minimum wages, mode of payment of wages, payment of compensation to workmen who suffer injuries as a result of accidents or causing death or disablement, bonded labour, contract labour, women labour and child labour, resolution and adjudication of industrial disputes, provision of social security such as provident fund, employees‟ state insurance, gratuity, provision for payment of bonus, regulating the working conditions of certain specific categories of workmen such as plantation labour, workers etc.

It will bring in greater security and confidence into their lives, and also serve to strengthen their bargaining power. The duty of the State does not end only with the enactment of laws. Mere declaration of right is of no use unless a suitable mechanism has been set up to realize it. Successful implementation of any system for upholding the human rights and dignity largely depends on the cooperation of all those who are involved and concerned with it. Let us also participate to make the right to work an evocative reality.

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