The Freedom to Work: PUDR vs. Union of India and the Meaning of 'Forced Labour' Under the Indian Constitution

Abstract

Article 23(1) of the Indian Constitution prohibits traffic in human beings and begar and other similar forms of forced labour. With begar – a system of inter-generational bonded labour unique to India – at its heart, Article 23 may, at first glance, seem only a narrow protection from debt slavery and its variants. However, in PUDR vs Union of India, the Supreme Court held that the right against forced labour included the right to a minimum wage. Remarkably, the Court framed this not as a positive right or as a socio-economic guarantee that it was importing from the Directive Principles, but in the pure language of freedom: freedom from economic compulsions that drove workers to accept employment at wages even lower than the minimum rates. This essay is a reconstruction and a defence of the transformative vision of freedom articulated by the Supreme Court in PUDR vs. Union of India. I will begin with an analysis of the judgment, the background in which it was delivered, and the Court’s insistence that the term “forced labour” was not simply limited to physical or legal force, but applied equally to the “compulsion of economic circumstances.” This interpretation of “forced labour”, I will argue, necessarily depended upon a theory of freedom. In other words, in interpreting Article 23, the Court had to – and did – answer the question: what kind of freedom did the Constitution envision? (I). To place this in context, I will then set out three different historical accounts of freedom: first, the dominant “liberal” view, that limits freedom to a protection against intentional interference from other human beings; secondly, the “republican” view, which takes a broader approach, and argues that what is relevant is not interference, but the existence of arbitrary power that one individual or a group of individuals might wield over others; and thirdly, the “labour-republican” view, which, dispensing with the requirements of agency and intentionality, extends the domain of freedom from merely protection from the intentional acts of others, to protection from the operation of human institutions and practices, such as the market (II). I will go on to argue that PUDR’s adoption of this third view was justified in view of both the text of Article 23, as well as our constitutional history. The Indian Constitution did not take the existing economic structure and economic arrangements as “natural”, immutable states of affairs, which had no moral bearing on freedom. Rather, much like it sought to actively intervene in social structures through provisions like Article 15(2) and 17, the Constitution also aimed at transforming the economic structure – but to a limited extent. Article 23, and the guarantee against forced labour, were at the heart of this constitutional design, which for the first time was recognized by the Supreme Court in PUDR (III). I will conclude by examining the consequences of PUDR, both in the domain of the workplace, and in other domains which are not usually thought to raise issues of constitutional freedom – such as the household (IV). In the three-and-a-half decades since it was delivered, the promise of PUDR is yet to be followed through by the Supreme Court. However, it remains a standing invitation: an invitation to the Court to view the fundamental rights chapter as embodying not merely a charter of political freedom, but also through Article 23 – in the words of a contemporary scholar – a realization of “labour’s constitution of (economic) freedom.”