Lawyersclubindia Article _ Labour Rights Under the Indian Constitution

8/10/2015 Lawyersclubindia Article : Labour Rights under the Indian constitution

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Labour Rights under the Indian constitution

The Constitution of India has conferred innumerable rights on the protection of labour. In this chapterlet’s see in brief what are all the rights confered and what are the mechanism used, with the support ofcase laws.

Articles 14, 19, 21, 23 and 24 form part of the Fundamental Rights guaranteed under Part III ofthe Constitution.

Articles 38, 39, 39A, 41, 42, 43, 43A and 47 form part of the Directive Principles of State Policyunder Part IV of the Constitution.

Article 14

Art 14 of the Indian Constitution explains the concept of Equality before law. The concept of equalitydoes not mean absolute equality among human beings which is physically not possible to achieve. It isa concept implying absence of any special privilege by reason of birth, creed or the like in favour ofany individual, and also the equal subject of all individuals and classes to the ordinary law of the land.As Dr. Jennings puts it: "Equality before the law means that among equals the law should be equaland should be equally administered, that like should be treated alike. The right to sue and be sued, toprosecute and be prosecuted for the same kind of action should be same for all citizens of full age andunderstanding without distinctions of race, religion, wealth, social status or political influence” It onlymeans that all persons similarly circumstance shall be treated alike both in the privileges conferredand liabilities imposed by the laws. Equal law should be applied to all in the same situation, and thereshould be no discrimination between one person and another. As regards the subjectmatter of thelegislation their position is the same.

Thus, the rule is that the like should be treated alike and not that unlike should be treatedalike. In Randhir Singh v. Union of India(AIR 1982 SC 879), the Supreme Court has held thatalthough the principle of 'equal pay for equal work' is not expressly declared by our Constitution to bea fundamental right, but it is certainly a constitutional goal under Articles 14, 16 and 39 (c) of theConstitution. This right can, therefore, be enforced in cases of unequal scales of pay based onirrational classification. This decision has been followed in a number of cases by the Supreme Court.

In Dhirendra Chamoli v. State of U.P (AIR 1986 SC 172) it has been held that the principle of equalpay for equal work is also applicable to casual workers employed on daily wage basis. Accordingly, itwas held that persons employed in Nehru Yuwak Kendra in the country as casual workers ondaily wage basis were doing the same work as done by Class IV employees appointed on regularbasis and, therefore, entitled to the same salary and conditions of service. It makes nodifference whether they are appointed in sanctioned posts or not. It is not open to the Government todeny such benefit to them on the ground that they accepted the employment with full knowledge



that they would be paid daily wages. Such denial would amount to violation of Article 14. Awelfare State committed to a socialist pattern of society cannot be permitted to take such an argument.

In Daily Rated Casual Labour v. Union of India((1988) 1 SCC 122) it has been held that the dailyrated casual labourers in P & T Department who were doing similar work as done by the regularworkers of the department were entitled to minimum pay in the pay scale of the regular workers plusD.A. but without increments. Classification of employees into regular employees andcasual employees for the purpose of payment of less than minimum pay is violative of Articles 14and 16 of the Constitution. It is also opposed to the spirit of Article 7 of the International Covenantof Economic, Social and Cultural Rights 1966. Although the directive principle contained in Articles38 and 39 (d) is not enforceable by virtue of Article 37, but they may be relied upon by the petitionersto show that in the instant case they have been subjected to hostile discrimination:

Denial of minimum pay amounts to exploitation of labour. The government can not take advantage ofits dominant position. The government should be a model employer. In F.A.I.C. and C.E.S. v. Unionof India the Supreme Court has held that different pay scales can be fixed for government servantsholding same post and performing similar work on the basis of difference in degree of responsibility,reliability and confidentiality, and as such it will not be violative of the principle of equal pay forequal work, implicit in Article 14. The Court said, "Equal pay must depend upon the nature of thework done. It cannot be judged by the mere volume of work. There may be qualitative difference asregards reliability and responsibility. Functions may be the same but the responsibilities make adifference.

Equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturallythat equal pay for unequal work will be a negation of the right". Accordingly, the court held thatdifferent pay scales fixed for Stenographers Grade I working in Central Secretariat and those attachedto the heads of subordinate offices on the basis of recommendation of the Third Pay Commission wasnot violative of Article 14. Although the duties of the petitioners and respondents are identical, theirfunctions are not identical. The Stenographers Grade I formed a distinguishable class as their dutiesand responsibilities are of much higher nature than that of the stenographers attached to thesubordinate offices.

In Gopika Ranjan Chawdhary v. Union of India the Armed Forces controlled by NEFA werereorganized as a result of which a separate unit known as Central Record and Pay AccountsOffice was created at the head quarters. The Third Pay Commission had recommended twodifferent scales of pay for the ministerial staff, one attached to the headquarters and the other tothe Battalions/units. The pay scales of the staff at the headquarters were higher than those of thestaff attached to the Battalions/units. It was held that this was discriminatory and violative ofArticle 14 as there was no difference in the nature of the work, the duties and responsibilities of thestaff working in the Battalions/units and those working at the headquarters. There was alsono difference in the qualifications required for appointment in the two establishments. The services ofthe staff from Battalions/units are transferable to the Headquarters.

In Mewa Ram v. A.I.I. Medical Science the Supreme Court has held that the doctrine of 'equal payfor equal work' is not an abstract doctrine. Equality must be among equals, unequals cannot claim



equality. Even if the duties and functions are of similar nature but if the educational qualificationsprescribed for the two posts are different and there is difference in measure of responsibilities, theprinciple of equal pay for equal work would not apply. Different treatment to persons belonging to thesame class is permissible classification on the basis of educational qualifications.

In State of Orissa v. Balaram Sahu the respondents, who were daily wagers or casual workersin Rengali Power Project of State of Orissa in appeal claimed that they were entitled to equal pay onthe same basis as paid to regular employees as they were discharging the same duties and functions.The Supreme Court held that they were not entitled for equal pay with regularly employed permanentstaff because their, duties and responsibilities were not similar to permanent employees. The dutiesand responsibilities of the regular and permanent employees were more onerous than that of the dutiesof. N.M.R. workers whose employment depends on the availability of the work. The Court held thatalthough equal pay for equal work is a fundamental right under Article 14 of the Constitution but doesnot depend only on the nature or the volume of work but also on the qualitative difference as regardsreliability and responsibility. Though the functions may be the same but the responsibilities do make areal and substantial difference. They have failed to prove the basis of their claim and in such situationto claim parity with pay amounts to negation of right of equality in Article 14 of the Constitution.However, the Court said that State has to ensure that minimum wages are prescribed and the same ispaid to them.

Article19(1)(c)

This Article speaks about the Fundamental right of citizen to form an associations and unions.. Underclause (4) of Article 19, however, the State may by law impose reasonable restrictions on this right inthe interest of public order or morality or the sovereignty and integrity of India. The rightof association presupposes organization. It as an organization or permanent relationship between itsmembers in matters of common concern. It thus includes the right to form companies, societies,partnership, trade union, and political parties. The right guaranteed is not merely the right to formassociation but also to continue with the association as such. The freedom to form association impliesalso the freedom to form or not to form, to join or not to join, an association or union.

In Damayanti v. Union of India, The Supreme Court held that "The right to form an association", theCourt said, "necessarily 'implies that the person forming the association have also the right to continueto be associated with only those whom they voluntarily admit in the association. Any law by whichmembers are introduced in the voluntary association without any option being given to the membersto keep them out, or any law which takes away the membership of those who have voluntarily joinedit, will be a law violating the right to form an association".

In Balakotiah v. Union of India the services of the appellant were terminated under Railway ServiceRules for his being a member of Communist Party and a trade unionist. The appellant contended thatthe termination from service amounted in substance to a denial to him the right to form association.The appellant had no doubt a fundamental right to from association but he had no fundamental right tobe continued in the Government service. It was, therefore, held that the order terminating his services



was not in contravention of Article 19(1 )(c) because the order did not prevent the appellant fromcontinuing to be in Communist Party or trade unionist.. The right to form union does not carry with itthe right to achieve every object. Thus the trade unions have no guaranteed right to an effectivebargaining or right to strike or right to declare a lock out. Right to life, includes right to the means oflivelihood which make it possible for a person to live.

Article 21

The sweep of the right to life, conferred by Article 21 is wide and far reaching. 'Life'means something more than mere animal existence. It does not mean merely that life cannotbe extinguished or taken away as, for example, by the imposition and execution of the death sentence,except according to procedure established by law. That is but one aspect of the right to life. Anequally important facet of that right is the right to livelihood because, no person can live without themeans of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of theconstitutional right to life, the easiest way of depriving a person of his right to life would be to deprivehim of his means of livelihood to the point of abrogation. Such deprivation would not only denude thelife of its effective content and meaningfulness but it would make life impossible to live. There is thusa close nexus between life and the means of livelihood and as such that, which alone makes it possibleto live, leave aside what makes life livable, must be deemed to be an integral component of the rightof life.

In Maneka Gandhi’s case the Court gave a new dimension to Article 21. It held that the right to 'live'is not merely confined to physical existence but it includes within its ambit the right to live withhuman dignity. Elaborating the same view the Court in Francis Coralie v. Union Territory ofDelhi said that the right to live is not restricted to mere animal existence. It means something morethan just physical survival. The right to 'live' is not confined to the protection of any faculty or limbthrough which life is enjoyed or the soul communicates with the outside world but it also includes"the right to live with human dignity", and all that goes along with it, namely, the bare necessities oflife such as, adequate nutrition, clothing and shelter and facilities for reading, writing and expressingourselves in diverse forms, freely moving about and mixing and commingling with fellow humanbeing. In State of Maharashtra v. Chandrabhan the Court struck down a provision of BombayCivil Service Rules, 1959, which provided for payment of only a nominal subsistence allowanceof Re. 1 per month to a suspended Government Servant upon his conviction during the pendencyof his appeal as unconstitutional on the ground that it was violative of Article 21 of the Constitution.

In Olga Tellis v. Bombay Municipal Corporation popularly known as the 'pavement dwellers case' afive judge bench of the Court has finally ruled that the word 'life' in Article 21 includes the 'right tolivelihood' also. The court said:"It does not mean merely that life cannot be extinguished or takenaway as, for example, by the imposition and execution of death sentence, except according toprocedure established by law. That is but one aspect of the right to life. An equally important facet ofthat right is the right to livelihood because no person can live without the means of livelihood. If theright to livelihood is not treated as a part of the constitutional right to life, the easiest ways ofdepriving a person of his right to life would be to deprive him of his means of livelihood. In view ofthe fact that Articles 39((a).and 41 require the State to secure to the citizen an adequate means oflivelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the



content of the right to life."

In Delhi Development Horticulture Employee's Union v. Delhi Administration,the Supreme Courthas held that daily wages workmen employed under the Jawahar Rozgar Yojna has no right ofautomatic regularization even though they have put in work for 240 or more days. The petitioners whowere employed on daily wages in the Jawhar Rozgar Yojna filed a petition for their regular absorptionas regular employees in the Development Department of the Delhi Administration. They contendedthat right to life, includes the right to livelihood and therefore, right to work. The Court held thatalthough broadly interpreted and as a necessary logical corollary, the right to life would include theright to livelihood and therefore right to work but this country has so far not found feasible toincorporate the right to livelihood as a fundamental right in the Constitution. This is because thecountry has so far not attained the capacity to guarantee it, and not because it considers it any the lessfundamental to life. Advisedly therefore it has been placed in the chapter on Directive Principles,Article 41 of which enjoins upon the State to make effective provision for securing the same, "withinthe limits of its economic development". In D.K. Yadav v. J.M.A. Industries, The Supreme Court hasheld that the right to life enshrined under Article 21 includes the right to livelihood and thereforetermination of the service of a worker without giving him reasonable opportunity of hearing in unjust,arbitrary and illegal. The procedure prescribed for depriving a person of livelihood must meet thechallenge of Article 14 and so it must be right, just and fair and not arbitrary, fanciful or oppressive.In the instant case,the appellant was removed from service. By the management of the M/s. J.M.A.Industries Ltd.

on the ground that he had willfully absented from duty continuously for more than 8 days withoutleave or prior permission from the management arid, therefore, "deemed to have left the service of thecompany under clause 12(2)(iv) of the Certified Standing Order. But the appellant contended thatdespite his reporting to duty every day he was not allowed to join duty without assigning any reason.The Labour Court upheld the termination of the appellant from service as legal. The Supreme Court,held that the right to life enshrined under Article 21 includes right to livelihood and 'therefore' beforeterminating the service of an employee or workman fair play requires that a reasonable opportunityshould be given to him to explain his case . The procedure prescribed for depriving a person oflivelihood must meet the requirement of Article 14, that is, it must be right, just and fair and notarbitrary, fanciful or oppressive. In short, it must be in conformity of the rules of natural justice,Article 21 clubs life with liberty, dignity of person with means of livelihood without which theglorious content of dignity of person would be reduced to animal existence. The Court set aside theLabour Court award and ordered his reinstatement.

Articles 39(a) and 41

The principles contained in Articles 39(a) and 41 must be regarded as equally fundamental inthe understanding and interpretation of the meaning and content of fundamental rights. If there isan obligation upon the State to secure to the citizens an adequate means of livelihood and the right towork, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life.The State may not, by affirmative action, be compellable to provide adequate means of livelihood orwork to the citizens. But, any person, who is deprived of his right to livelihood except according tojust and fair procedure established by law, can challenge the deprivation as offending the right



conferred under the Article 21.

In State of Maharashtra v. Manubhai Pragaji Vashi the Court has considerably widened the scopeof the right to free legal aid. The right to free legal aid and speedy trial are guaranteed fundamentalrights under Art. 21. Art 39A provides "equal justice" and "free legal aid". It means justice accordingto law. In a democratic policy, governed by rule of law, it should be the main concern of the State tohave a proper legal system. The crucial words are to "provide free legal aid" by suitable legislation orby schemes" or "in any other way" so that opportunities for securing justice are not denied to anycitizen by reason of economic or other disabilities. These words in Article 39A are of very wideimport. In order to enable the State to afford free legal aid and guarantee speedy trial vast number ofpersons trained in law are needed." Legal aid is regarded in many forms and at various stages, forobtaining guidance, for resolving disputes in courts, tribunals or other authorities. It has manifoldfacets. The need for a continuing and well organized legal education is absolutely necessary in viewof the new trends in the world order, to meet the evergrowing challenges. The Legal education shouldbe able to meet the ever growing demands of the society. This demand is of such a great dimensionthat sizeable number of dedicated persons should be properly trained in different branches of lawevery year. This is not possible unless adequate number of well equipped law colleges are established.Since a sole Government law college cannot cater to the needs of legal education in a city likeBombay it should permit private colleges with necessary facilities to be established. For this, itshould afford grantsinaid to them so that they should function effectively and in a meaningfulmanner. For this huge funds are needed. They should not be left free to hike the fees to any extent tomeet their expenses. In absence of this the standard of legal education and the free legal schemewould become a farce. This should not be allowed to happen. The Court therefore directed the Stateto afford grantinaid to them in order to ensure that they should function effectively and turnout sufficient number of law graduates in al branches every year which will in turn enable the State toprovide free legal aid and ensure that opportunities for securing justice are not denied to any citizenon account of any disability. Article 21 read with Art. 39A casts a duty on the State to afford grantsinaid to recognized private law colleges in the State of Maharashtra, similar to the faculties, viz. Art,Science, Commerce, etc. The words used in Art. 39A are of very wide importance. The need for acontinuing and well organized legal education is absolutely essential for the purpose. The State ofMaharashtra had denied grantsinaid of the private recognized Law Colleges on the ground of paucityof funds. The Court held that this could not the reasonable ground for denial of grantinaid to suchcolleges. Other Aspects under the Indian Constitution. The Articles 21, 23, 24, 38, 39, 39A, 41, 42,43, 43A and 47 of the Constitution, are calculated to give an idea of the conditions under whichlabour can be had for work and also of the responsibility of the Government, both Central and State,towards the labour to secure for them social order and living wages, keeping with the economic andpolitical conditions of the country.

Article 23

Article 23 of the Constitution prohibits traffic in human being and beggar and other similar forms offorced labour. The second part of this Article declares that any contravention of this provision shall bean offence punishable in accordance with law. Clause (2) however permits the State to imposecompulsory services for public purposes provided that in making so it shall not make anydiscrimination on grounds only of religion, race, caste or class or any of them. 'Traffic in humanbeings' means selling and buying men and women like goods and includes immoral traffic in womenand children for immoral" or other purposes.Though slavery is not expressly mentioned in Article 23,it is included in the expression 'traffic in human being'. Under Article 35 of the ConstitutionParliament is authorized to make laws for punishing acts prohibited by this Article. In pursuance of



this Article Parliament has passed the Suppression of Immoral Traffic in Women and Girls Act, 1956,for punishing acts which result in traffic in human beings. Article 23 protects the individual not onlyagainst the State but also private citizens. It imposes a positive obligation on the State to take steps toabolish evils of "traffic in human beings" and beggar and other similar forms of forced labourwherever they are found. Article 23 prohibits the system of 'bonded labour' because it is a form offorce labour within the meaning of this Article. "Beggar" means involuntary work without payment.What is prohibited by this clause is the making of a person to render service where he was lawfullyentitled not to work or to receive remuneration of the services rendered by him. This clause, therefore,does not prohibit forced labour as a punishment for a criminal offence. The protection is not confinedto beggar only but also to "other forms of forced labour". It means to compel a person to work againsthis will.

Rights of Migrant Labour

The word decent means accepted moral standards, decent work; it shows an acceptable qualityof work. let us say, workers are pleasant at work places and they are satisfied from any type ofwork due to decent conditions of life as well as decent working conditions of labour.It showsvarious types of freedoms and rights for men, women and children in order to maintain dignity ofhuman life in the society, in other words, development of society, workers, as per labour standards.

Decent work refers to work wider than job or employment including wage employment,self employment and home working and is based on the core enabling labour standards viz,freedom of association, collective bargaining, freedom from discrimination and child labour. Besides,the word decent too involves some notion of the normal standards of society, lack of decentwork therefore has something common with concepts of deprivation or exclusion, but ofwhich concerned with social and economic situations, which do not meet social standards. Decentwork is a broad concept which is related to overall development of the society and workers.Decent work is a way of capturing interrelated social and economic goals of development.Development involves the removal of unfreedoms such as poverty, lack of access to publicinfrastructures or the denial of civil rights. Decent work brings together different types of freedoms.Such as labour rights, social security, employment opportunities etc.

Therefore, there are four dimensions of decent work,

(i) Work and employment itself

(ii) Rights at work

(iii) Security



(IV) Reprehensive at work dialogue.

The problem of seasonalisation in agrobased industries can be found in a large number of countries.Firstly, we have to define seasonal factory, seasonal factory is one which normally works for morethan half the days of the year. The main feature of nearly all the seasonal factories is that the workersare still agriculturists and the great majority live in their village homes. The workers are generallyquite unorganized and wages tend to be low. There are some of the important key questions; we needto seek answers like,

(i) Who are the migrant workers?

(ii) Why do they migrate from their native places?

(iii) Where do they migrate?

(iv) What is the status of migrant labour in respect of labour standards in India?

(v) Do they know about their labour rights?

For the purpose of migration, some studies and reports have tried to seek answers of these questions,and they have discussed the problem of migrant workers in India.Agricuture is the main source of thepopulation of India. The agriculture on which the bulk of the rural population in our country has todepend for the main source of livelihood. Which is itself largely dependent on the precipitation anddistribution of rainfall; failure of rain and consequent failure of agriculture greatly reduce thepurchasing power of this large segment of population, recurrence of such situation called as drought.

In India, droughts occur once in every five years in some parts of India.(MEDC,1974),viz.,West Bengal, Madhya Pradesh ,Kerala, Costal parts of Andhrash Pradesh ,some parts ofMaharashtra state, like Marathwada,east and west parts of Maharashtra, inferior of south Karnataka,Bihar, Orissa, Rajasthan and other parts of India. At present, Cultivators, small and marginalfarmers, agricultural labourers, landless labourers etc, have to face the problems of natural calamitiesin India. According to some experts, drought is not caused by niggardliness of nature, but failureof the system properly plan and use the resources of land and water, he further emphatically stressedthat water resources of India are colossal but they are seasonally, regionally distributed and verycompressive water resources, planning is reduced to combat recurrent droughts and ravingfloods.however,the problem of chronic under employment in rural areas is thus essentially due to theevent of a failure of seasons and lack of resources.At present, about 27.5 percent of the population isbelow the poverty line in India,( in which section of the society is unable to fulfill its basic necessitiesof life like food, cloths and shelter etc ) The planning Commission of India in its Approach to the 11thFive year Plan,2006 estimated that 27.8 percent of population was below the poverty line in 200405.



States with poverty of less than 15 percent were Jammu and Kashmir, Punjab, Haryana, HimachalPradesh, Delhi, Andhra Pradesh. As against them, States with poverty ratios above 30 percent wereMaharashtra, Uttar Pradesh, Bihar, Jharkhand, Madhya Pradesh, Chattisgarh, Uttarakhand, and Orissa.The problem of poverty is directly related to the existence of unemployment; underemployment andlow productivity.Agriculture is a seasonal occupation, which can not open job opportunities round theyear to all. In the absence of irrigation facilities permitting multiple cropping,the monsoon agricultureenjoins on a majority of the rural labour force on a extended period of seasonal unemployment. Thesehelp lessness dispirited unemployed labour leave their village homes and join to swell the alreadyover populated areas not only in India but also in other parts of the developing anddeveloped countries, whose agricultural laboures are shifting to industrial sector. The featureof seasonability and disguised nature of unemployment in the agricultural sector, seasonability arisesfrom the problem of in elasticities of the time pattern of primary production.

The majority of the agricultural labourers, small and marginal farmers do not get enough work duringthe off season, consequently, they migrate from insufficient food and limited sources of geographicalareas to job opportunities areas.Therefore, we can say that agricultural labourers and other workers aremigrating from drought prone areas to irrigated and industrially developed areas for part time work orseasonal types of jobs. Especially. Workers migrate from their native places to urban areas or otherplaces of work due to various reasons. The analysist have pointed out various causes of migration oflabour, like agricultural poverty, the decline of village and cottage industries, poverty of the people,drought affected villages in which absentee of work for about six months per annum,and the existenceof a large size of small cultivators whose holdings are extremely inadequate and landless labour ineconomically weaker sections of the community, and lower caste people.

The 1991 Census of India includes two other reasons for migration of people. Namely

(i) Business and

(ii) Natural calamities like drought, floods, and others.

However, Karl Marx (1958) also pointed out the problem of migrants in the agricultural and industrialfields, he says that this class of people, who migrate to industrial areas for several months, they livewith camp, the contractor himself generally provides his army and he exploits the labourers in twofold fashion as soldiers of industry, and he works with the help of labour gang system, which ischeaper than other work. Karl Marx further states that labour gang system is decidedly the cheapestfor the land and factory owners and decidedly worst for the children and migrant workers. Now, howcan this difficult situation be tackled? How can the rural marginal farmers, landless and agriculturallabour and migrants be saved out of this situation? The Royal Commission of Agriculture Report,1927 pointed out that about 75 percent of the labour employed in large sugar mills in Bihar and Orissastates, was composed of such type of migratory labour. This seasonal trend of labour force also foundin other plantation areas in different parts of India. Rights available to the women workers Women inIndia form quite a large portion of the current labour force. The 1991census states that it was 28.6% or89.8 million. However, around 94% of women workers are in the unorganized sector. Most of thefocus is on the 6% of the women who are in the organized sector where most of the laws apply andare better enforced. The Constitution of India was drafted in such a way as to ensure that all workers,



men and women were equally protected by the law. The Directive Principles of State Policy whichencapsulate the directives to the Government while formulating its policies are very clear about manyof these rights. These Principles contained in Part IV of the Constitution have been read into Article21 of the Fundamental Rights in Part III to safeguard and guarantee the workers their rights. However,with globalization and liberalization we see that more and more these rights have been eroded by boththe Government and the judiciary through its interpretation and decisions in the cases that have comeup before it since the 1990’s. However, there are a few instances that demonstrate the ability andpower that they possess to safeguard women’s human rights if they have the inclination andcommitment to ending discrimination in the work place.

The Fundamental Rights section, Part III of the Indian Constitution reflects some of the basic humanrights of all people. Article 14 guarantees equality before law and equal protection of the law, whileArticle 15 prohibits discrimination on the grounds only of sex amongst other forms of discrimination.Article 15 (3) provides for special provisions to be made for women and children. Article 16 prohibitsdiscrimination in matters of employment. Article 16 (4) provides for reservation of appointment orposts in favor of any backward class of citizens which in the opinion of the State may not beadequately represented in the services of the State. Article 19 (1) (g) gives the right to freedom topractice any business, trade or occupation and Article 21 guarantees the right to life and personalliberty.

In addition are the provisions in Part IV as I mentioned earlier. While Article 38 speaks ofthe promotion of welfare of all the people Article 39 (a) speaks specifically of right to anadequate means of livelihood for men and women equally. Article 39 (d) addresses the issue of equalpay for equal work for both men and women (the Government of India went on to enact the EqualRemuneration Act in 1975 to fulfill this direction) and Article 39 (e) particularly directs the state toensure that its policy secures that the health and strength of workers, men and women and children arenot abused and that the citizens are not forced by economic necessity to take to vocations unsuited totheir age or strength. Article 41 adds strength to Article 39 (a) by stating that within the limits of itseconomic capacity and development the State should make effective provisions for securing the rightto work amongst other things to its entire people. Article 42 is one of the hall marks of the IndianConstitution as it takes into consideration the very specific context of pregnancy relateddiscrimination in the context of employment and therefore it directs the State to make provisions forsecuring not only just and humane conditions of work but also for Maternity Relief. It is in thiscontext that the Government of India went on to enact the Maternity Benefit Act, 1961 which enableswomen in the labour force who have been employed for 160 days in a year to provide leave with payand medical benefit.

Rights of woman employees

There are a number of cases in which the Supreme Court helped to advance the rights of women andstrike down those laws or practices that were discriminatory. Though, this may not be true in the caseof all women workers. One of the earliest challenges came from Ms. Muthamma (who died onlyrecently), a senior Indian Foreign Service Officer. In 1978 she filed a writ petition stating that certainrules in the Indian Foreign Service (Recruitment, cadre, seniority and promotion) Rules, 1961 werediscriminatory. The rules in fact provided that no married woman would be entitled as of right to beappointed to the service. In fact a woman member was required to obtain permission of thegovernment 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 todischarge her duties efficiently. The Supreme Court struck down these rules on the ground that theyviolated the fundamental right of women employees to equal treatment in matters of publicemployment under Article 16 of the Constitution.

Similarly in AIR India v. Nargesh Mirza, (1981) 4 SCC 335 the discriminatory regulations of AirIndia were challenged. The regulations did not allow the Air Hostesses to marry before completingfour years of service. If anyone of them got married within that period that she had to resign and if shegot married after four years but became pregnant after that she still had to resign. If she neither gotmarried before the four year period was over or married only after the four year period and did notbecome pregnant she could only continue in service till she attained the age of 35. These provisionswere challenged in this case, while the Supreme Court did not accept all the contentions. It, infact, said that Air Hostesses were a separate category and therefore those regulations could notbe termed discriminatory. It was a reasonable classification as in their situation both in spiritand purport the classes were essentially different. It, however, regarded the provision relatingto pregnancy as being manifestly unreasonable and arbitrary and therefore violative of Article 14.

In Mrs. Neera Mathur v Life Insurance Corporation of India the Supreme Court recognizedthe right to privacy of female employee. Mrs. Neera had been appointed by the LIC withoutthem knowing that she was pregnant. She applied for maternity leave and when she returnedthereafter she was terminated. The reason given was that she had withheld information regardingher pregnancy when she had filled their questionnaire. The Supreme Court on perusingthe questionnaire was hocked to find that it required women candidates to provide informationabout the dates of their menstrual cycles and past pregnancies. It considered them to be an invasionof 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 itsfuture questionnaires. In this case the petitioner drew the attention of the Court to theEqual Remuneration Act (25 of 1976) Section 4. The Supreme Court upheld her contention andstated that the employer was bound to pay the same remuneration to both male and femaleworkers irrespective of the place where they were working unless it is shown that the women were notfit to do the work of the male stenographers.

In Ram Bahadur Thakur (p) Ltd. v Chief Inspector of Plantations a woman worker employed in thePambanar Tea Estate was denied maternity benefit on the grounds that she had actually worked foronly 157 days instead of the required 160 days. The Court, however, drew attention to a SupremeCourt Decision(1982(2) LLJ 20) wherein the Court held that for purposes of computingmaternity benefit all the days including Sundays and rest days which maybe wageless holidays haveto be taken into consideration. It also stated that the Maternity Benefit Act would have tobe interpreted in such a way as to advance the purpose of the Act therefore upheld thewoman worker’s claim. One of the most important decisions of the Supreme Court is Vishaka andOrs v State of Rajasthan. This was a writ petition filed by several nongovernmental organizationsand social activists seeking judicial intervention in the absence of any law to protect women fromsexual harassment in the work place. The Court observed that every incident of sexual harassment isa violation of the right to equality and right to life and liberty under the Constitution and thatthe logical consequence of sexual harassment further violated a woman’s right to freedom tochoose whatever business, occupation or trade she wanted under Article 19 (1) (g). The Courtfurther held that gender equality included protection from sexual harassment and right to workwith dignity which is a basic human right. Therefore in the absence of domestic law, the



Court referred to the CEDAW and its provisions which were consistent with the provisions ofthe Indian Constitution and therefore read those provisions into the Fundamental Rightsinterpreting them in the broader context of the objective contained in the Preamble.

While these cases demonstrate the instances in which the Supreme Court stepped in to safeguard thefundamental human rights of women there are several instances where such rights are brazenlyviolated. The women workers most vulnerable to this are those working in the unorganized sector ofthe economy like agriculture, forestry, livestock, textile and textile products, construction etc. In thesesectors women, generally, tend to be employed in the lowest paid, most menial tasks using the leasttechnology. Women often work in labour intensive sectors. It is almost like they are working in adifferent segment of the labour market from that of men one that is invariably lower paid. There areeven instances in some sectors of women being paid less than men for even the same work forexample in the tea plantations, construction, agriculture etc. These women do not even get theMaternity Benefit. This is mostly because of the fact that their employment is temporary, poorenforcement of the Act and the inability of these women to fight for their rights. It is estimated thatonly 1.8% of the workforce is covered by he statutory provisions. In some of the states like AndhraPradesh, Karnataka and Gujarat efforts are on to extend the maternity benefits to agricultural workers.While in Kerala the boards that look after the welfare of the cashew workers, coir workers and handloom weavers have also begun to provide maternity benefit.

Similarly the provision of the Factories Act of 1948 for crèches in factories where more than25 women are employed does not extend to the unorganized sector. Thus, excepting for thecrèches run under the Social Welfare Boards or voluntary agencies there is little help in this regardfor women in this sector. Considering that majority of the women workers are in the organized sectorthere is urgent need to ensure that the discrimination against women is ended and that the State takeimmediate steps to ensure the implementation of many of its progressive welfare legislations forworkers extends to women workers in the unorganized sector. Some gains have been made but thereis still a long way to go. The most important task is to ensure the implementation and enforcement ofexisting laws and enacting new legislation to ensure that women are not dissuaded from joining thelabour force or forced to endure these indignities. Right to strike Every right comes with its ownduties. Most powerful rights have more duties attached to them. Today, in each country of globewhether it is democratic, capitalist, socialist, give right to strike to the workers. But this right must bethe weapon of last resort because if this right is misused, it will create a problem in the production andfinancial profit of the industry. This would ultimately affect the economy of the country. Today, mostof the countries, especially India, are dependent upon foreign investment and under thesecircumstances it is necessary that countries who seeks foreign investment must keep some safeguardin there respective industrial laws so that there will be no misuse of right of strike. In India, right toprotest is a fundamental right under Article 19 of the Constitution of India. But right to strike is not afundamental right but a legal right and with this right statutory restriction is attached in the industrialdispute Act, 1947.

In India unlike America right to strike is not expressly recognized by the law. The trade union Act,1926 for the first time provided limited right to strike by legalizing certain activities of a registeredtrade union in furtherance of a trade dispute which otherwise breach of common economic law. Nowdays a right to strike is recognized only to limited extent permissible under the limits laid down by thelaw itself, as a legitimate weapon of Trade Unions. The right to strike in the Indian constitution set upis not absolute right but it flow from the fundamental right to form union. As every other fundamentalright is subject to reasonable restrictions, the same is also the case to form trade unions to give a callto the workers to go on strike and the state can impose reasonable restrictions.



In the All India Bank Employees Association v. I. T, the Supreme Court held, "the right to strike orright to declare lock out may be controlled or restricted by appropriate industrial legislation and thevalidity of such legislation would have to be tested not with reference to the criteria laid down inclause (4) of article 19 but by totally different considerations."

Thus, there is a guaranteed fundamental right to form association or Labour unions but there is nofundamental right to go on strike. Under the Industrial Dispute Act, 1947 the ground and condition arelaid down for the legal strike and if those provisions and conditions are not fulfilled then the strikewill be illegal.

In Mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd., it was held that the provisions of section22 are mandatory and the date on which the workmen proposed to go on strike should be specified inthe notice. If meanwhile the date of strike specified in the notice of strike expires, workmen have togive fresh notice. It may be noted that if a lock out is already in existence and employees want toresort to strike, it is not necessary to give notice as is otherwise required.

The working class has indisputably earned the right to strike as an industrial action after along struggle, so much so that the relevant industrial legislation recognizes it as their implied right.(Bank of India v. T.S.Kelawala(1990) 4 SCC 744). Striking work is integral to the process of wagebargaining in an industrial economy, as classical political economy and postKeynesian economicsdemonstrated long ago in the analysis of real wage determination. The right to strike is organicallylinked with the right to collective bargaining and wil continue to remain an inalienable part of variousmodes of response/expression by the working people, wherever the employeremployee relationshipexists, whether recognized or not. The Apex court failed to comprehend this dynamic of theevolution of the right to strike. In Gujarat Steel Tubes v. Its Mazdoor Sabha,( AIR 1980 SC1896) Justice Bhagwati opined that right to strike is integral of collective bargaining. He further statedthat this right is a process recognized by industrial jurisprudence and supported by social justice.Gujarat Steel Tubes is a threejudge bench decision and cannot be overruled by the division benchdecision of T.K. Rangarajan v.Government of Tamilnadu and Others.(MANU/SC/0541/2003) In theRangarajan case the court had no authority to wash out completely the legal right evolved by judiciallegislation. The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. Awide interpretation of the term 'industry'26by the courts includes hospitals, educationalinstitutions, clubs and government departments. Section 2 (q) of the Act defines 'strike'. Sections 22,23, and 24 all recognize the right to strike. Section 24 differentiates between a 'legal strike' and an'illegal strike'. It defines 'illegal strikes' as those which are in contravention to the procedure of goingto strike, as laid down under Sections 22 and 23. The provision thereby implies that all strikes are notillegal and strikes in conformity with the procedure laid down, are legally recognized. Further, JusticeKrishna Iyer had opined that "a strike could be legal or illegal and even an illegal Banglore WaterSupply and Sewage Board v. A.RajappaAIR 1978 SC 548 strike could be a justified one". It is thusbeyond doubt that the Industrial Disputes Act, 1947 contemplates a right to strike. The statutoryprovisions thus make a distinction between the legality and illegality of strike. It is for the judiciary toexamine whether it is legal or illegal. Is the total ban on strikes postRangarajan not barring judicialreview which itself is a basic structure of the Constitution? The workers' right to strike iscomplemented by the employers' right to lockout, thus maintaining a balance of powers between thetwo. However, the Rangarajan judgment, by prohibiting strikes in all forms but leaving the right to



lockout untouched, shifts the balance of power in favour of the employer class.

The Court, in opining that strikes 'hold the society at ransom', should have taken into account that thenumber of man days lost due to strikes has gone down substantially during the last five years.Whereas there has been a steep rise in the man days lost due to lockouts, due to closures and layoffs.In 2001, man days lost due to lockouts were three times more than those due to strikes. In 2002(JanuarySeptember) lockouts wasted four times more man days than strikes. Who is holding theproduction process to ransom? The Apex court preferred to overlook the recent strike by the businessclass against the value added tax and also the transport companies' strike against the judicial directiveon usage of nonpolluting fuel, both of which created much more chaos and inconvenience to thecommon people. It is submitted that the court came to a conclusion without looking at the industrialscenario in the present times. Should the apex court not consider banning closures, lockouts, muscleflexing by the business class etc., which not only put people to inconvenience but also throw theworkers at risk of starvation? Besides the Industrial Disputes Act, 1947, the Trade Unions Act, 1926also recognizes the right to strike. Sections 18 and 19 of the Act confer immunity upon trade unionson strike from civil liability. Of the Directive Principles of State Policy enshrined in Part IV of theConstitution, Article 51(c) provides that the State shall endeavour to foster respect for internationallaw and treaty obligations in the dealings of organized people with one another.

Article 37 of Part IV reads as under: :Application of the principles contained in this Part. Theprovisions contained in this Part shall not be enforceable by any court, but the principles therein laiddown are nevertheless fundamental in the governance of the country and it shall be the duty of theState to apply these principles in making laws". A reading of Articles 51(c) and 37 implies thatprinciples laid down in international conventions and treaties must be respected and applied ingovernance of the country. In Vishaka v. State of Rajasthan Justice Verma opined that anyinternational convention not inconsistent with the fundamental rights and in harmony with its spiritmust be read into these provisions to enlarge the meaning and content thereof, to promote the objectof the constitutional guarantee. This is implicit from Article 51(c) and the enabling power ofParliament to enact laws for implementing the international conventions and norms by virtue ofArticle 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution.

Concluding the Rights Available to the Labour under the Indian Constitution While on the one hand ithas to be remembered that a strike is a legitimate and sometime unavoidable weapon in the hands oflabour, it is equally important that indiscriminate and hasty use of this weapon should not beencouraged. It will not be right for labour to think that any kind of demand for a 'strike' can becommenced with impunity without exhausting the reasonable avenues for peaceful achievement of theobjects. There may be cases where the demand is of such an urgent and serious nature that it wouldnot be reasonable to expect the labour to wait after asking the government to make a reference. Insuch cases the strike, even before such a request has been made, may very well be justified.

In Syndicate Bank v. K. Umesh Nayak((1994)II LLJ 836 (SC)), Justice Sawant opined: "The strike,as a weapon, was evolved by the workers as a form of direct action during their long struggle with theemployer, it is essentially a weapon of last resort being an abnormal aspect of employeremployee relationship and involves withdrawal of labor disrupting production, services and therunning of enterprise. It is a use by the labour of their economic power to bring the employer to meettheir viewpoint over the dispute between them. The cessation or stoppage of works whether bythe employees or by the employer is detrimental to the production and economy and to the well being



of the society as a whole. It is for this reason that the industrial legislation, while not denying for therights of workmen to strike, has tried to regulate it along with the rights of the employers to lockoutand has also provided machinery for peaceful investigation, settlement arbitration and adjudication ofdispute between them. The strike or lockout is not be resorted to because the concerned party has asuperior bargaining power or the requisite economic muscle to compel the other party to accept itsdemands. Such indiscriminate case of power is nothing but assertion of the rule of 'might is right’.Thus, initially, employees must resort to dispute settlement by alternative mechanisms. Only underextreme situations when the alternative mechanisms have totally failed to provide any amicablesettlement, can they resort to a strike as a last resort.

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Lawyersclubindia Article _ Labour Rights Under the Indian Constitution

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