Lessons From The Law
Author is Senior lecturer at KCEF Law College Pulwama
We have seen that the bulk of ‘Labour’s Constitution of Freedom’ from the 1931 Karachi Resolution ended up in the unenforceable part IV of the constitution, as Directive Principles of State policy. Part IV contains the right to work, guarantees of equal pay equal work, a social security net, aliving wage, and industrial democracy and participation for workers (inserted later). While no law can be invalidated for not conforming to the DPSPs, this does not, as discussed in Chapter 3, make them irrelevant to constitutional interpretation.
The DPSPS are best understood as structuring principles, which help us to interpret and clarify the scope of the Fundamental Rights chapter. In other words, all other things being equal, out of two or more possible interpretations of a fundamental right, the one that advances the values set out in Part IV is to be preferred. As we have argued above, while the text of Article 23 is almost Delphic in its austerity, there is enough historical evidence to make a strong case for interpreting it line with the labour-republican view of freedom. Reading it in the context of Part IV of the constitution (which clearly envisages a transformation of the economic structure) further strengthens the interpretation of the word ‘freedom that have advanced above.
Evidence that supports the argument can be found in Part III as well. Recall that Articles 23 and 24 are two of the few fundamental rights that regulate not only the relationship between individual and State, but also apply horizontally, i.e., between private parties. The other two horizontal fundamental rights in the Constitution are found in Articles 15(2) and 17, which we have discussed in the previous two chapters. Like Article 23, Articles 15(2) and 17 prohibit specific acts of denial of access, or of untouchability.
However, it is crucial to note that the reason they do so is not because of what the act, taken in isolation, does. After all, I should be free to refuse to touch whom I want, and decide for myself who I do business with. Consequently, what is prohibited is not the act itself, but what it signifies, and what it signifies is a social practice of exclusion and denial-the practice of religion and caste-based social and economic boycotts (Article 15[2]), and the practice subordination through social doctrines of purity and pollution expressed through untouchability (Article 17).
What Articles 15(2) and 17 challenge, therefore, is impersonal domination, i.e., institutions, which are the result of human design, but which cannot be pinned onto a specific human act or omission. Our reading of Article 23(1) binds the Constitution’s horizontal rights into a single, unified moral conviction: the
conviction that freedom and equality are threatened not merely by the State, but by the exercise of power and domination through non-State structures, and that the task of the Constitution is to expand constitutional values by curtailing this power. Together, these three articles represent the constitutional ideal of fraternity: that is, an ideal that crims at the elimination of hierarchies and relations of power in social and economic relations, so that liberty and equality exist not only in terms of State action or inaction, but as constituent elements of everyday social and economic life. In fact, soon after PUDR, the Andhra Pradesh High Court groped this fundamental insight when, in Poola Bhaskar Vijay Kumar e State of AP noted:
Article 17 which abolishes untouchability is not in the main a limitation on the power of the State power as an admonition to the society. So is Article 23… thus understood Art. 23 should be held to be more a prohibition directed against the social practices of one member of the society against another rather than a prohibition against the State.
What is important is how the High Court characterizes Articles 23 and 17. The agent that these Articles are directed against is the private individual (naturally), but the act that they seek to protect from is a ‘social practice’. In other words, the source of domination is the social practice (or the social order), and it is carried out by Private individuals. Indeed, this, precisely, is the argument of labour- republicanism, which Ambedkar expressed in such detail in his notes on Fundamental Rights. The social and economic institutions of a market economy create an asymmetry of power between employers and employees, putting them in positions of dominance and dependence, respectively, and threatening the freedom of the better.
