Right to Employment in India: A Jurisprudential Approach

Transcription

1 Introduction: Right to Employment in India: A Jurisprudential Approach Sanjit Kr. Chakraborty* 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. The right to minimum means to live a life with human dignity is an unwritten implication of the guarantee of human dignity which includes basic living conditions implying some kind of employment. Unemployment is not only a social problem it is an individual problem also. An unemployment person loses self-respect and faces a discouraging and a disappointing out look. 1 His plight affects himself, his family and the society too. Equal employment opportunity is a prerequisite for equal accessibility to achieved status. Realization of human personality is only possible when there is a scope of substantial access to employment. Thus, opportunity for employment becomes imperative in all such cultures which claim to be democracies. This minimum has to be provided and protected by the state through appropriate governmental policies and qualitative execution of those policies. The issue is not purely legal since it has economic, social and political dimensions. 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. In addition to different provisions of Part III and Part IV, the Preamble of the Indian Constitution which ensures Socio, Economic and Political justice, provide a strong legal foundation to make the right to employment a reality. Moving towards rights based * Assistant Professor, School of Law, KIIT University, At/P.O. KIIT, Bhubaneswar, Orissa, India, PIN , skconline@ rediffmail.com **This article has been abstracted from the paper presented by the author in the UGC Sponsored National Seminar on Right to Employment in Rural Perspective, 28 th -29 th January, 2011 organized by the Departments of Commerce and Economics, Sudhiranjan Lahiri Mahavidyalaya in collaboration with Kernel of Action Research, Motivation & Awareness (KARMA), Kolkata. 1 See generally, C.N. Shankar Rao, Sociology Principles of Sociology with an Introduction to Social Thought (6 th ed. 2006) Electronic copy available at:

2 approach particularly after 1978, the Government of India has undertaken a number of comprehensive programmes in the form of social security or social assistance measures and social security legislations to address the various needs of different target groups. 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 paper attempts to discuss the concept of right to employment from human rights 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. Right to Employment: Meaning and Concept C. B. Mamoria defines the term unemployment as a state of worklessness for a man fit and willing to work, that is, it is condition of involuntary and not voluntary idleness. Generally unemployment is largely concerned with those men and woman who constitute the labour force of the country, who able-bodied and willing to work but are not gainfully employed. The joint family system, the caste system, and the agricultural background of ancient Indian society left no room for unemployment. 2 However, the firstever Annual Employment Survey in conducted by the Labour Bureau of the Government of India has estimated that there are 40 Million unemployed people in this country with an unemployment rate of 9.4%. 3 Various factors are responsible for this 2 Manu, the law-giver of ancient India, ordained that the king should support all his subjects as earth does for all the living beings, without discrimination. Kautilya, the greatest economist of the medieval period of Indian history, said, "In the happiness of his subjects lies the king's happiness, in their welfare his welfare..." 3 The survey was conducted in 28 States/Union Territories spread across the country in which about 99 per cent of the country s population resides. The overall unemployment rate is 9.4%, and it is split out as 10.1% in rural areas, and 7.3% in urban areas. A key thing to remember about unemployment rate is that it is calculated as a percentage of labor force, and not the total population. So, this means that 9.4% of that part of population which is interested in working is unemployed, and not 9.4% of the entire population is unemployed. In the Indian context, 359 persons per 1,000 are either working or interested to work, and this is called the Labor Force Participation Rate. So, out of an estimated population of 1,182 million 424 million persons are either employed or are interested in working. The unemployment rate of 9.4% means that out of those 359 persons per thousand, or 424 million people there are 9.4% or about 40 million who were unemployed. ( available at visited on ) Electronic copy available at:

3 problem of unemployment such as individual factors 4, external factors 5, enormous increase in the population, ups and downs of trade cycle, globalization, economic depression, technological advancement, computerization and automation, defective education system, natural calamities etc. Whatever may be the reason unemployment is the main cause of widespread poverty and hunger in India. The term right may be defined as a justiciable claim, on legal or moral grounds, to have or obtain something, or act in certain way. In other words, rights are entitlements or assertion of interests that are backed by legal or moral principles. Legal rights however, are those interests which have been legally recognized and protected. The rights which might have originated in moral or natural rights should necessarily get legal protection and recognition in order to be enforceable through the courts of law as legal rights. 6 Will theory 7 of right defines a right as an inherent attribute of human will. The subject matter of a right is derived from the exercise of a human will. It is the function of law to confer certain powers or allow certain freedom to individuals in the form of legal rights. According to Salmond, a right is an interest recognized and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong. Vinogradoff observed that when a man claims something as his right, he claims it as his own or as due to him. Therefore, a right supposes a potential exercise of power in regard to things or persons. It enables the subject endowed with it to bring, with the approval of the organized society, certain things within the sphere of action of his own will. In State of Rajasthan v. Union of India 8 the Supreme Court of India observed that, in a strict sense, legal rights are correlative of legal duties and are defined as interests which the law protects by imposing corresponding duties on others. K. R. R. Shastri defined a right as an interest recognized and protected or guaranteed by the state since it is conducive to social well-being. 9 In view of the above right to employment may defined as guaranteed employment which emphasized that everyone should be given the opportunity to work for 4 For example: age, vocational unfitness, physical disabilities which restrict the people to work etc. 5 It includes technological and economic factors 6 Salmond on Jurisprudence, (12 th ed.) 7 Austin, Holland, Pollock and Vinogradoff are the main exponent of will theory of right. 8 AIR 1977 SC Quoted in V. D. Mahajan, Jurisprudence & Legal Theory, 288 (5 th Ed. 2005) - 3 -

4 a basic living wage 10 so that the people can be put in a position to live their life with human dignity. Right to employment is at the core of all human rights though it developed independently as a necessary part of survival strategy. Right to employment as a fundamental right implies a corresponding duty upon the state to provide adequate opportunity and creating a favorable environment so that the unemployed people get an opportunity to work with basic living wages to live with human dignity in accordance to their quality and competence. Legal Framework: Indian Perspective Right to employment has been crystallized as basic human rights in the Universal Declaration of Human Rights (UDHR), Socialist systems recognize the right to work as an obligation; the state may extract the work that is socially and economically useful. For example, the Chinese Constitution of 1982 declares that the right to work is "a glorious duty of every able-bodied citizen." However, it is inexperienced to suppose that the right to work can be guaranteed only in socialistic systems. 12 The word socialist was added in the preamble of the Constitution by the Forty-second Amendment in 1976 incorporating the philosophy of socialism aims at elimination of inequality in income and status and standard of life. 13 It dose not however envisage doctrinaire socialism in the sense of insistence on state ownership as a matter of policy. The Supreme Court has in a number of decisions referred to the concept of socialism and has used this concept along 10 A living wage is such wage as enables the male earner to provide for himself and his family not merely the bare essentials of food, clothing and shelter, but a measure of frugal comfort including education for children, protection against ill-health, requirements of essential social needs, and a measure of insurance against the more important misfortunes including old age. For details see Edward Mills Co. v. Ajmer, AIR 1955 SC 25; D.M.S. Rao v. State of Kerala, AIR 1963 Ker In addition to this India became a signatory to all the employment-related human rights documents, which it is obliged to satisfy. International Labour Organisation (ILO) a subsidiary organ of UNO endeavoured to define, protect and promote human rights in the working world. The International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Radical Discrimination (CEDAW), incorporated right to work as the most fundamental basic human rights. Article 7 directs the parties to the covenant that equal opportunity for everyone to be promoted in his employment to an appropriate higher level. 12 It is as effectively ensured in several democratic nations, along with programs of insurance for the unemployed. France (1905), Norway (1906), Denmark (1907), Great Britain (1911), Italy (1919), and Canada (1955) have programs providing employment. In the United States, the problems of unemployment are met by the Social Security Act of Dr. T.V. Subba Rao and Dr. I. Ramabrahmam, Public Policy and the Right to Work in India, at archive /v14n6p24.htm ( visited on ) 13 Kerala Hotel and Restaurant Assn. v. State of Kerala, AIR 1990 SC

5 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. Another idea propounded by the Court is that socialism means distributive justice so as to bring about the distribution of material resources of the community so as subserve the common good. 14 After the adoption of new economic policy which is oriented towards free market and privatization doubts were raised if that policy was consistent with socialism as envisaged in the preamble. 15 The Supreme Court of India however, used the word socialist in the preamble for evolving a concept of social democracy which comes very closure to the concept of social welfare state expressed as social state. 16 While defining socialism the Supreme Court in Samtha v. State of Andhra Pradesh 17 stated that establishment of the egalitarian social order through rule of law is the basic structure of the Constitution. The concept of state has undergone a radical change from laissez faire to an era of welfare state which seeks to promote the prosperity and well-being of the people. Political democracy is of no use unless the legal system of the country like us could provide economic democracy. Accordingly the framers of the Indian Constitution incorporated the directive principles of the state policy so that the state can initiate positive action in certain directions in order to promote the welfare of the people and achieve amelioration of the socio-economic conditions of the masses. Constitution of India maintains a dichotomy between enforceable rights and unenforceable rights by incorporating fundamental rights and directive principles of the state policy. However, the directive principles of the state policy have to reconcile with the rights available to the citizen under Part III of the Constitution and the obligation of the state to one and all and not to a particular group of citizens. 18 There is no express provision in the Constitution of India which makes the right 14 See generally, M.P. Jain, Indian Constitutional Law, (6 th ed., 2010) 15 See generally, S. S. Singh & S. Mishra, State and Market: A Constitutional Analysis, Delhi Law Review, 46 (1996) 16 V. N. Shukla, Constitution of India, 3 (11 th ed. 2008) 17 AIR 1997 SC 3297, Secy., State of Karnataka v. Umadevi (3), (2006) 4 SCC 621, at page

6 to work an enforceable right however, the evolution of human rights has sought to safeguard three aspects of human existence: human integrity, freedom and equality are the integral part of the Constitution. 19 In such a situation the Supreme Court of India has taken the recourse to Article 39(a) to interpret Article 21 to include therein the right to livelihood. In Olga Tellis v. Bombay Municipal Corporation 20 the Supreme Court observed: If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. Our Constitution has adopted the liberal democratic concept of democracy where all people can enjoy and develop their human capabilities. The Constitution is founded on the basic concept of Justice, Equality, Liberty and Fraternity and incorporates the principles of modern socialism. Democratic socialism aims to end poverty, ignorance, disease and inequality of opportunity. 21 The primary impact of socialism as a matter of fact is to offer and provide security of life so that the citizens of the country may have two square meals a day and maintenance of a minimum standard of life. It is expected that this would lead to the abridgment of the gap between have-s and have not-s. 22 These objectives of the Constitution can not be achieved unless and until the state secure an equitable income for those who are employed, take care for those incapable of doing any work and to relieve those who are able to work but prevented from doing so due to any reasons whatsoever. Right to employment finds its place in the directive principles of the state policy under Articles 39 and 41of the Constitution. 23 The Constitution levies responsibility on the State to provide social security to citizens of the country. The State, here, discharges duty as an agent of the society in order to help those who are in adverse situations or 19 Articles 14, 16, 19(1)(g), and 21 of the Constitution of India 20 AIR 1986 SC Dr. L.M. Singvi, Constitutional Law of India,58-59 (Vol. II, 2007) 22 D.S. Nakara v. Union of India, AIR 1983 SC Article 39 of the Constitution, provides that the state shall, in particular, direct its policy towards securing that the citizens, men and woman equally, have the right to an adequate means of livelihood. Article 41, provides inter alia that the state shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want

7 otherwise needs protection owing to miscellaneous contingencies. The Concurrent List of the Seventh Schedule of Constitution of India mentions issues like- -Social Security and insurance, employment and unemployment. -Welfare of labour including conditions of work, provident funds, employers' liability, workmen's compensation, invalidity and old age pension and maternity benefits. Thus, the concept of right to employment is very well embedded in the Constitution of India and the Constitution being supreme, it is a bounden duty of the state and all its organs including law courts to give shape and offer reality to such concept. Role of the Judiciary & Employment Programmes in India: 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. The decision of the Supreme Court of India in Maneka Gandhi v. Union of India 24, gave a new dimension to Article 21 which guarantees the right to life and personal liberty. 25 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. 26 In Olga Tellis v. Bombay Municipal Corporation 27 a five judge bench of the Supreme Court ruled that the word life in Article 21 includes the right to livelihood. The court observed: 24 AIR 1978 SC Article 21 provides: No person shall be deprived of his life and personal liberty except according to procedure established by law. 26 Francis Corali v. Union Territory of Delhi, AIR 1981 SC 746, Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, State of H.P. v. Umed Ram, AIR 1986 SC 847, Delhi Development Horticulture Employees Union v. Delhi Administration, AIR 1992 SC AIR 1986 SC

8 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. Similar view was reiterated by the apex court in many other subsequent decisions by which the right to employment has been given the same strength as of fundamental rights of the Constitution. 28 In D.K. Yadav v. J.M.A. Industries it was observed that Article 21 clubs life with liberty, dignity of persons with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. These landmark decisions of the Indian judiciary make many directives enforceable that would not otherwise be covered. Article 37 of the Constitution provides that the directive principles of the state policy, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The principle contained in Articles 39(1) and 41 has been interpreted by the court with help of fundamental rights under different provisions of the Constitution and regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. However, the Supreme Court in Delhi Development Horticulture Employees Union v. Delhi Administration 29 held that although broadly interpreted and as a necessary logical corollary, the right to life would include the right to livelihood and therefore, right to work but this country has so far not found feasible to incorporate the right to livelihood as a fundamental right in the Constitution. This is because the country has so far not attained the capacity to guarantee it, and not because it considers it any the less fundamental to life. Therefore, it has been placed in the directive principles, Article 41 of which enjoins upon the State to make effective provision for securing the same, within the limits of its economic capacity and development. Thus, it is seen that the right to employment has got the jurisprudential recognition in India on the basis of liberal and innovative interpretation of the various provisions of the Constitution and emerged to be a right though it remains subject to economic capacity and development of the state. 28 Sodhan Singh v. New Delhi Municipal Committee, AIR 1989 SC 1988, D.K. Yadav v. J.M.A. Industries, (1993) 3 SCC AIR 1992 SC

9 In recent past a large number of employment programmes 30 have been initiated in India to overcome the problem of employment providing gainful employment to the urban unemployed and underemployed poor, by encouraging the setting up of self employed ventures by the urban poor and also by providing wage employment and utilizing their labour for construction of socially and economically useful public assets. The National Rural Employment Guarantee Act (NREGA), 2005 seeks to provide at least 100 days of guaranteed wage employment in a financial year to every rural household whose adult members volunteer to do unskilled manual work. NREGA is different from other wage employment programmes as it bestows a legal right and guarantee to the rural population through an Act of Parliament and is not just a scheme like other employment programmes. With its rights based framework NREGA is the first ever law internationally, that guarantees wage employment at an unprecedented scale and marks a paradigm shift in the governmental approach to the problem of unemployment. The primary objective of the Act is augmenting wage employment. Its auxiliary objective is strengthening natural resource management through works that address the causes of chronic poverty like drought, deforestation and soil erosion and so encourage sustainable development. The process outcomes include strengthening grass root process of democracy and infusing transparency and accountability in governance. 31 National Rural Employment Guarantee Scheme (NREGS) is completely different in conception from the earlier government employment scheme since it gives legal guarantee of employment treating employment as a right and programme is intended to be demand driven. Any adult who applies for work under the Act is entitled to be employed in public works within fifteen days. Thus, the Employment Guarantee Act provides a universal and enforceable legal right to the most basic form of employment. 32 Moreover, the Act which anticipates substantial participation of the local people in planning and monitoring of the specific schemes can be a significant vehicle for strengthening decentralization and deepening the grass root democratic structure. 30 Swarnajayanti Gram Swarozgar Yozana (SGSY), Sampoorna Grameen Rozgar Yojana (SGRY), Prime Minister s Rozgar Yojana (PMRY), The National Rural Employment Programme (NREP), The Rural Landless Employment Guarantee Programme (RLEGP), The Integrated Rural Development Programme (IRDP), Jawahar Rozgar Yojana (JRY), The Employment Assurance Scheme (EAS), etc. 31 See generally, The National Rural Employment Guarantee Act 2005-Poverty Eradication Through Wage Employment Generation, Vol. 57 No. 2 Kurukshetra, 3 (2008) 32 Dr. Sita Kumari, Right to Work as a Human Right and Rural Employment Guarantee Act, 2004 VIII (4) NYAYA DEEP 99 (2007) - 9 -

10 Conclusion: 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 guarantee of gainful employment holds the promise of eventually leading to the fulfillment of other basic rights to food, health, education, and most importantly, right to life. This is not a utopian idea, indeed well incorporated in the Constitution, the supreme law of the country. A guarantee implies not merely an opportunity or even a right, but also assured and secure possession of what is guaranteed. 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. What it does mean is that government has the obligation-and it also has the power-to formulate and modify its policies to make the economic system meet the objective of full employment. If implemented well, the national-level Employment Guarantee Programme will go a long way in upholding the right to employment for the poorest who cannot find work but have labour. 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. *****************************