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Legopedia

Right to Work in Indian Constitution

Right to work under the Indian Constitution

Introduction To Right To Work In Indian Constitution

Right to work is the idea that individuals have a human right to work or take part in productive employment, and may not be kept from doing as such. The right to work is revered in the Universal Declaration of Human Rights and recognized in international human rights law through its incorporation in the International Covenant on Economic, Social and Cultural Rights, where the right to work focuses on financial, social and cultural development.
The ‘right to work’ subsequently is the most basic component of life to live. To have the basic needs of food, water, clothing and shelter and furthermore something more than simply the basic needs of life one must work to earn.

The Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, the two of which were acceded by India, in Article 23 and Article 6 separately, perceive the right to work in employment of one’s own choice and the State’s obligation to protect this right.

However, the Indian Constitution does not expressly recognize the ‘right to work’ as a fundamental right. It is set in Part IV (Directive Principles of State Policy) of the Constitution under Article 41, which henceforth makes it unenforceable in the court. In spite of the lack of an express wording of the ‘right to work’ in Part III (Fundamental Rights) of the Constitution, it was turned into a ‘fundamental right’ through a judicial interpretation.

All because of the wider interpretation of Article 21 made by the Hon’ble Supreme Court through its judgment in Olga Tellis and Ors. v Bombay Municipal Corporation and Ors.- ‘right to work’ was perceived as a fundamental right inalienable in the ‘right to life’.

Olga Tellis and Ors. v Bombay Municipal Corporation and Ors. (AIR 1986 SC 18)

The writ petition was filed by the petitioners under Article 32 before the Supreme Court of India challenging the order of the Respondents-State of Maharashtra and the Bombay Municipal Corporation, to demolish pavement dwellings and slums.

At the very beginning, the Court dismissed the contention of the respondent which stated that by the operation of the doctrine of estoppel, the petitioner couldn’t claim the fundamental right-the right to work. The Court held that there could be no estoppel against the Constitution. That, it was to satisfy the vision in the Preamble that Fundamental Rights were conferred and no individual could deal away from the rights consequently given by way of Fundamental Rights.

Regarding the current case, the Court observed that people in the situation of the petitioners lived in slums and on pavements since they had small jobs in the city. That they lived on pavements or in slums in close proximity of their work to avoid the traveling costs which cost them way more than their meager earning. Losing the sheds consequently implied losing work.

The Court likewise observed that however, the petitioners were utilizing the public property for personal use, they had no intention of committing an offense, threaten, insult or annoy any individual, which is the significance of the offense of ‘Criminal Trespass’ as stated under Section.441 of the Indian Penal Code. That they lived there because of economic compulsion.

Right to work is a Fundamental Right.

Talking about the question of the ‘right to livelihood’ as claimed by the petitioners, the Court had observed that to make living significant there must be a means of living, i.e. the means of livelihood. That, if the right to livelihood was not regarded as a part of the right to life, the most convenient method for denying a man of his right to life is denying him of his means of earning a living.

The Court held-that, which makes life possible to live, must be regarded to be an indispensable part of the right to life. For if a man is denied of his right to livelihood he will be thusly denied of his right to life, forever as revered under Article 21, implied more than mere animal existence.

The landmark judgment of the Supreme Court in the Olga Tellis case recognized the right as being inborn in Article 21. However ‘right to work’ is certainly not a fundamental right expressly specified in Part III of the Constitution of India, it is currently perused alongside the ‘right to life’ under Article 21.

Labour and Employment Laws

As one goes looking for work it is critical that he/she knows about their rights and liabilities relating to such work.

Labor laws attempt to regulate employment. These laws contain provisions concerning working conditions, wages, welfare, social security, and employer-employee relation. There are various Centre and State made laws which plan to secure and defend the rights of employees/ laborers. It is subsequently mandatory that the contract between the employer and employee adhere to the law of contract and also the pervasive labor laws.

The central laws which address the labor issues are-

  • The Factories Act, 1948.
  • Industrial Employment (Standing Orders) Act, 1946.
  • The Minimum Wages Act, 1948.
  • Payment of Wages Act, 1936.
  • The Industrial Disputes Act, 1947.
  • Employees Provident Funds and Miscellaneous Provisions Act, 1952.
  • Payment of Gratuity Act, 1972.
  • The Payment of Bonus Act, 1965.
  • Maternity Benefit Act, 1961.
  • Workmen Compensation Act, 1923.
  • Equal Remuneration Act, 1976.

The first thing to be remembered is, leave alone the exemptions, since it is the State which authorizes the presence of fundamental rights, the same can only be claimed against the State and not against any private organization. In other words, the right to work must be claimed against the State and not against any private organization.

Decoding the Supreme Court judgment in Olga Tellis case right to work is violated-

  • When a man is fired from his job against the terms of his employment. For example, as in the Charan Singh case, if a permanent worker is fired from his job without a reasonable cause it amounts to the infringement of the ‘right to work’.
  • When a man is fired from his job infringing upon the officially set down Central or State laws.
  • When a man is not given a job based on an unfair and unreasonable classification
  • When a man is denied his livelihood in violation of the just and fair procedure established by law, just like the case in Olga Tellis and Ors. v Bombay Municipal Corporation and Ors.

Note that voluntary unemployment or unemployment because of the absence of jobs or absence of skills shall not amount to an infringement of the Right to Work.

In case of infringement of the ‘right to work,’ a writ petition can be filed in the High Court of the respective State under Article 226 of the Constitution of India, or In the Supreme Court of India under Article 32 of the Constitution of India.

As opposed to the other fundamental rights which are suspended for the period amid which the Proclamation of Emergency is in power, Article 21 and 22 of the Constitution keep on working. Therefore, ‘right to work’ which is incorporated into ‘right to life’ under Article 21 can be claimed notwithstanding the time of Emergency and the aggrieved can look for a remedy from the Court in case of its infringement.

However, a man seeking after an occupation/trade/business denied by law can’t claim the ‘right to work’ when the State takes measures to control it. For example, living on the gains of prostitution, betting, gambling and the likewise isn’t ensured under the ‘right to work’.

What began as a struggle to stop the demolition of pavement dwellings and slum hutments ended with the Supreme Court recognizing ‘right to work’ as a fundamental right. Hereafter, giving each individual living in the Indian territory with the right to be employed in the employment of their choice, subject to legal restrictions, to protect them from being denied of their life. Besides, the right prevents the removal of any individual from employment or deprivation of a man from being employed except as per the procedure established by law.

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by mimansa pujari

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