The Constitution of India has conferred innumerable rights on the protection of labour. In this chapter let’s see in brief what are all the rights confered and what are the mechanism used, with the support of case laws.
Articles 14, 19, 21, 23 and 24 form part of the Fundamental Rights guaranteed under Part III of the Constitution.
Articles 38, 39, 39-A, 41, 42, 43, 43-A and 47 form part of the Directive Principles of State Policy under Part IV of the Constitution.
Art 14 of the Indian Constitution explains the concept of Equality before law. The concept of equality does not mean absolute equality among human beings which is physically not possible to achieve. It is a concept implying absence of any special privilege by reason of birth, creed or the like in favour of any 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 equal and should be equally administered, that like should be treated alike. The right to sue and be sued, to prosecute and be prosecuted for the same kind of action should be same for all citizens of full age and understanding without distinctions of race, religion, wealth, social status or political influence” It only means that all persons similarly circumstance shall be treated alike both in the privileges conferred and liabilities imposed by the laws. Equal law should be applied to all in the same situation, and there should be no discrimination between one person and another. As regards the subject-matter of the legislation their position is the same.
Thus, the rule is that the like should be treated alike and not that unlike should be treated alike. In Randhir Singh v. Union of India(AIR 1982 SC 879), the Supreme Court has held that although the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right, but it is certainly a constitutional goal under Articles 14, 16 and 39 (c) of the Constitution. This right can, therefore, be enforced in cases of unequal scales of pay based on irrational 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 equal pay for equal work is also applicable to casual workers employed on daily wage basis. Accordingly, it was held that persons employed in Nehru Yuwak Kendra in the country as casual workers on daily wage basis were doing the same work as done by Class IV employees appointed on regular basis and, therefore, entitled to the same salary and conditions of service. It makes no difference whether they are appointed in sanctioned posts or not. It is not open to the Government to deny 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. A welfare 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 daily rated casual labourers in P & T Department who were doing similar work as done by the regular workers of the department were entitled to minimum pay in the pay scale of the regular workers plus D.A. but without increments. Classification of employees into regular employees and casual employees for the purpose of payment of less than minimum pay is violative of Articles 14 and 16 of the Constitution. It is also opposed to the spirit of Article 7 of the International Covenant of Economic, Social and Cultural Rights 1966. Although the directive principle contained in Articles 38 and 39 (d) is not enforceable by virtue of Article 37, but they may be relied upon by the petitioners to 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 of its dominant position. The government should be a model employer. In F.A.I.C. and C.E.S. v. Union of India the Supreme Court has held that different pay scales can be fixed for government servants holding 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 for equal work, implicit in Article 14. The Court said, "Equal pay must depend upon the nature of the work done. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference.
Equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of the right". Accordingly, the court held that different pay scales fixed for Stenographers Grade I working in Central Secretariat and those attached to the heads of subordinate offices on the basis of recommendation of the Third Pay Commission was not violative of Article 14. Although the duties of the petitioners and respondents are identical, their functions are not identical. The Stenographers Grade I formed a distinguishable class as their duties and responsibilities are of much higher nature than that of the stenographers attached to the subordinate offices.
In Gopika Ranjan Chawdhary v. Union of India the Armed Forces controlled by NEFA were reorganized as a result of which a separate unit known as Central Record and Pay Accounts Office was created at the head quarters. The Third Pay Commission had recommended two different scales of pay for the ministerial staff, one attached to the headquarters and the other to the Battalions/units. The pay scales of the staff at the headquarters were higher than those of the staff attached to the Battalions/units. It was held that this was discriminatory and violative of Article 14 as there was no difference in the nature of the work, the duties and responsibilities of the staff working in the Battalions/units and those working at the headquarters. There was also no difference in the qualifications required for appointment in the two establishments. The services of the 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 pay for 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 qualifications prescribed for the two posts are different and there is difference in measure of responsibilities, the principle of equal pay for equal work would not apply. Different treatment to persons belonging to the same 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 workers in Rengali Power Project of State of Orissa in appeal claimed that they were entitled to equal pay on the 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 permanent staff because their, duties and responsibilities were not similar to permanent employees. The duties and responsibilities of the regular and permanent employees were more onerous than that of the duties of. N.M.R. workers whose employment depends on the availability of the work. The Court held that although equal pay for equal work is a fundamental right under Article 14 of the Constitution but does not depend only on the nature or the volume of work but also on the qualitative difference as regards reliability and responsibility. Though the functions may be the same but the responsibilities do make a real and substantial difference. They have failed to prove the basis of their claim and in such situation to 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 is paid to them.
This Article speaks about the Fundamental right of citizen to form an associations and unions.. Under clause (4) of Article 19, however, the State may by law impose reasonable restrictions on this right in the interest of public order or morality or the sovereignty and integrity of India. The right of association pre-supposes organization. It as an organization or permanent relationship between its members 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 form association but also to continue with the association as such. The freedom to form association implies also 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", the Court said, "necessarily 'implies that the person forming the association have also the right to continue to be associated with only those whom they voluntarily admit in the association. Any law by which members are introduced in the voluntary association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, 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 Service Rules for his being a member of Communist Party and a trade unionist. The appellant contended that the 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 to be 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 from continuing to be in Communist Party or trade unionist.. The right to form union does not carry with it the right to achieve every object. Thus the trade unions have no guaranteed right to an effective bargaining or right to strike or right to declare a lock out. Right to life, includes right to the means of livelihood which make it possible for a person to live.
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 cannot be 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. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. There is thus a close nexus between life and the means of livelihood and as such that, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right of 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 with human dignity. Elaborating the same view the Court in Francis Coralie v. Union Territory of Delhi said that the right to live is not restricted to mere animal existence. It means something more than just physical survival. The right to 'live' is not confined to the protection of any faculty or limb through 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 of life such as, adequate nutrition, clothing and shelter and facilities for reading, writing and expressing ourselves in diverse forms, freely moving about and mixing and commingling with fellow human being. In State of Maharashtra v. Chandrabhan the Court struck down a provision of Bombay Civil Service Rules, 1959, which provided for payment of only a nominal subsistence allowance of Re. 1 per month to a suspended Government Servant upon his conviction during the pendency of 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' a five judge bench of the Court has finally ruled that the word 'life' in Article 21 includes the 'right to livelihood' also. The court said:"It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because no person can live without the means of livelihood. 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 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 Court has held that daily wages workmen employed under the Jawahar Rozgar Yojna has no right of automatic regularization even though they have put in work for 240 or more days. The petitioners who were employed on daily wages in the Jawhar Rozgar Yojna filed a petition for their regular absorption as regular employees in the Development Department of the Delhi Administration. They contended that right to life, includes the right to livelihood and therefore, right to work. The Court 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. 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, "within the limits of its economic development". In D.K. Yadav v. J.M.A. Industries, The Supreme Court has held that the right to life enshrined under Article 21 includes the right to livelihood and therefore termination 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 the challenge 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 without leave or prior permission from the management arid, therefore, "deemed to have left the service of the company under clause 12(2)(iv) of the Certified Standing Order. But the appellant contended that despite 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' before terminating the service of an employee or workman fair play requires that a reasonable opportunity should be given to him to explain his case . The procedure prescribed for depriving a person of livelihood must meet the requirement of Article 14, that is, it must be right, just and fair and not arbitrary, 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 the glorious content of dignity of person would be reduced to animal existence. The Court set aside the Labour 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 in the understanding and interpretation of the meaning and content of fundamental rights. 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. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just 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 scope of the right to free legal aid. The right to free legal aid and speedy trial are guaranteed fundamental rights under Art. 21. Art 39A provides "equal justice" and "free legal aid". It means justice according to law. In a democratic policy, governed by rule of law, it should be the main concern of the State to have a proper legal system. The crucial words are to "provide free legal aid" by suitable legislation or by schemes" or "in any other way" so that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. These words in Article 39A are of very wide import. In order to enable the State to afford free legal aid and guarantee speedy trial vast number of persons trained in law are needed." Legal aid is regarded in many forms and at various stages, for obtaining guidance, for resolving disputes in courts, tribunals or other authorities. It has manifold facets. The need for a continuing and well organized legal education is absolutely necessary in view of the new trends in the world order, to meet the ever-growing challenges. The Legal education should be able to meet the ever growing demands of the society. This demand is of such a great dimension that sizeable number of dedicated persons should be properly trained in different branches of law every 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 like Bombay it should permit private colleges with necessary facilities to be established. For this, it should afford grants-in-aid to them so that they should function effectively and in a meaningful manner. For this huge funds are needed. They should not be left free to hike the fees to any extent to meet their expenses. In absence of this the standard of legal education and the free legal scheme would become a farce. This should not be allowed to happen. The Court therefore directed the State to afford grant-in-aid to them in order to ensure that they should function effectively and turn out sufficient number of law graduates in al branches every year which will in turn enable the State to provide free legal aid and ensure that opportunities for securing justice are not denied to any citizen on account of any disability. Article 21 read with Art. 39A casts a duty on the State to afford grants-in-aid 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 a continuing and well organized legal education is absolutely essential for the purpose. The State of Maharashtra had denied grants-in-aid of the private recognized Law Colleges on the ground of paucity of funds. The Court held that this could not the reasonable ground for denial of grant-in-aid to such colleges. Other Aspects under the Indian Constitution. The Articles 21, 23, 24, 38, 39, 39-A, 41, 42, 43, 43-A and 47 of the Constitution, are calculated to give an idea of the conditions under which labour 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 and political conditions of the country.
Article 23 of the Constitution prohibits traffic in human being and beggar and other similar forms of forced labour. The second part of this Article declares that any contravention of this provision shall be an offence punishable in accordance with law. Clause (2) however permits the State to impose compulsory services for public purposes provided that in making so it shall not make any discrimination on grounds only of religion, race, caste or class or any of them. 'Traffic in human beings' means selling and buying men and women like goods and includes immoral traffic in women and 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 Constitution Parliament 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 only against the State but also private citizens. It imposes a positive obligation on the State to take steps to abolish evils of "traffic in human beings" and beggar and other similar forms of forced labour wherever they are found. Article 23 prohibits the system of 'bonded labour' because it is a form of force 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 lawfully entitled 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 confined to beggar only but also to "other forms of forced labour". It means to compel a person to work against his will.
Rights of Migrant Labour
The word decent means accepted moral standards, decent work; it shows an acceptable quality of work. let us say, workers are pleasant at work places and they are satisfied from any type of work due to decent conditions of life as well as decent working conditions of labour.It shows various types of freedoms and rights for men, women and children in order to maintain dignity of human 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 decent work therefore has something common with concepts of deprivation or exclusion, but of which concerned with social and economic situations, which do not meet social standards. Decent work 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 public infrastructures 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
(IV) Reprehensive at work dialogue.
The problem of seasonalisation in agro-based 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 more than half the days of the year. The main feature of nearly all the seasonal factories is that the workers are still agriculturists and the great majority live in their village homes. The workers are generally quite unorganized and wages tend to be low. There are some of the important key questions; we need to 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 the population of India. The agriculture on which the bulk of the rural population in our country has to depend for the main source of livelihood. Which is itself largely dependent on the precipitation and distribution of rainfall; failure of rain and consequent failure of agriculture greatly reduce the purchasing 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 of Maharashtra 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 marginal farmers, agricultural labourers, landless labourers etc, have to face the problems of natural calamities in India. According to some experts, drought is not caused by niggardliness of nature, but failure of the system properly plan and use the resources of land and water, he further emphatically stressed that water resources of India are colossal but they are seasonally, regionally distributed and very compressive water resources, planning is reduced to combat recurrent droughts and raving floods.however,the problem of chronic under employment in rural areas is thus essentially due to the event of a failure of seasons and lack of resources.At present, about 27.5 percent of the population is below the poverty line in India,( in which section of the society is unable to fulfill its basic necessities of life like food, cloths and shelter etc ) The planning Commission of India in its Approach to the 11th Five year Plan,2006 estimated that 27.8 percent of population was below the poverty line in 2004-05. States with poverty of less than 15 percent were Jammu and Kashmir, Punjab, Haryana, Himachal Pradesh, Delhi, Andhra Pradesh. As against them, States with poverty ratios above 30 percent were Maharashtra, Uttar Pradesh, Bihar, Jharkhand, Madhya Pradesh, Chattisgarh, Uttarakhand, and Orissa. The problem of poverty is directly related to the existence of unemployment; underemployment and low productivity.Agriculture is a seasonal occupation, which can not open job opportunities round the year to all. In the absence of irrigation facilities permitting multiple cropping,the monsoon agriculture enjoins on a majority of the rural labour force on a extended period of seasonal unemployment. These help lessness dispirited unemployed labour leave their village homes and join to swell the already over populated areas not only in India but also in other parts of the developing and developed countries, whose agricultural laboures are shifting to industrial sector. The feature of seasonability and disguised nature of unemployment in the agricultural sector, seasonability arises from 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 during the off season, consequently, they migrate from insufficient food and limited sources of geographical areas to job opportunities areas.Therefore, we can say that agricultural labourers and other workers are migrating from drought prone areas to irrigated and industrially developed areas for part time work or seasonal types of jobs. Especially. Workers migrate from their native places to urban areas or other places of work due to various reasons. The analysist have pointed out various causes of migration of labour, 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 existence of a large size of small cultivators whose holdings are extremely inadequate and landless labour in economically 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 industrial fields, he says that this class of people, who migrate to industrial areas for several months, they live with camp, the contractor himself generally provides his army and he exploits the labourers in two-fold fashion as soldiers of industry, and he works with the help of labour gang system, which is cheaper than other work. Karl Marx further states that labour gang system is decidedly the cheapest for the land and factory owners and decidedly worst for the children and migrant workers. Now, how can this difficult situation be tackled? How can the rural marginal farmers, landless and agricultural labour 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 Orissa states, was composed of such type of migratory labour. This seasonal trend of labour force also found in other plantation areas in different parts of India. Rights available to the women workers Women in India form quite a large portion of the current labour force. The 1991census states that it was 28.6% or 89.8 million. However, around 94% of women workers are in the unorganized sector. Most of the focus is on the 6% of the women who are in the organized sector where most of the laws apply and are 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 which encapsulate the directives to the Government while formulating its policies are very clear about many of these rights. These Principles contained in Part IV of the Constitution have been read into Article 21 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 both the Government and the judiciary through its interpretation and decisions in the cases that have come up before it since the 1990’s. However, there are a few instances that demonstrate the ability and power that they possess to safeguard women’s human rights if they have the inclination and commitment to ending discrimination in the work place.
The Fundamental Rights section, Part III of the Indian Constitution reflects some of the basic human rights of all people. Article 14 guarantees equality before law and equal protection of the law, while Article 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 prohibits discrimination in matters of employment. Article 16 (4) provides for reservation of appointment or posts in favor of any backward class of citizens which in the opinion of the State may not be adequately represented in the services of the State. Article 19 (1) (g) gives the right to freedom to practice any business, trade or occupation and Article 21 guarantees the right to life and personal liberty.
In addition are the provisions in Part IV as I mentioned earlier. While Article 38 speaks of the promotion of welfare of all the people Article 39 (a) speaks specifically of right to an adequate means of livelihood for men and women equally. Article 39 (d) addresses the issue of equal pay for equal work for both men and women (the Government of India went on to enact the Equal Remuneration Act in 1975 to fulfill this direction) and Article 39 (e) particularly directs the state to ensure that its policy secures that the health and strength of workers, men and women and children are not abused and that the citizens are not forced by economic necessity to take to vocations unsuited to their age or strength. Article 41 adds strength to Article 39 (a) by stating that within the limits of its economic capacity and development the State should make effective provisions for securing the right to work amongst other things to its entire people. Article 42 is one of the hall marks of the Indian Constitution as it takes into consideration the very specific context of pregnancy related discrimination in the context of employment and therefore it directs the State to make provisions for securing not only just and humane conditions of work but also for Maternity Relief. It is in this context that the Government of India went on to enact the Maternity Benefit Act, 1961 which enables women in the labour force who have been employed for 160 days in a year to provide leave with pay and medical benefit.
Rights of woman employees
There are a number of cases in which the Supreme Court helped to advance the rights of women and strike down those laws or practices that were discriminatory. Though, this may not be true in the case of all women workers. One of the earliest challenges came from Ms. Muthamma (who died only recently), a senior Indian Foreign Service Officer. In 1978 she filed a writ petition stating that certain rules in the Indian Foreign Service (Recruitment, cadre, seniority and promotion) Rules, 1961 were discriminatory. The rules in fact provided that no married woman would be entitled as of right to be appointed to the service. In fact a woman member was required to obtain permission of the government 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 to discharge her duties efficiently. The Supreme Court struck down these rules on the ground that they violated the fundamental right of women employees to equal treatment in matters of public employment under Article 16 of the Constitution.
Similarly in AIR India v. Nargesh Mirza, (1981) 4 SCC 335 the discriminatory regulations of Air India were challenged. The regulations did not allow the Air Hostesses to marry before completing four years of service. If anyone of them got married within that period that she had to resign and if she got married after four years but became pregnant after that she still had to resign. If she neither got married before the four year period was over or married only after the four year period and did not become pregnant she could only continue in service till she attained the age of 35. These provisions were challenged in this case, while the Supreme Court did not accept all the contentions. It, in fact, said that Air Hostesses were a separate category and therefore those regulations could not be termed discriminatory. It was a reasonable classification as in their situation both in spirit and purport the classes were essentially different. It, however, regarded the provision relating to 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 recognized the right to privacy of female employee. Mrs. Neera had been appointed by the LIC without them knowing that she was pregnant. She applied for maternity leave and when she returned thereafter she was terminated. The reason given was that she had withheld information regarding her pregnancy when she had filled their questionnaire. The Supreme Court on perusing the questionnaire was hocked to find that it required women candidates to provide information about the dates of their menstrual cycles and past pregnancies. It considered them to be an invasion of 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 its future questionnaires. In this case the petitioner drew the attention of the Court to the Equal Remuneration Act (25 of 1976) Section 4. The Supreme Court upheld her contention and stated that the employer was bound to pay the same remuneration to both male and female workers irrespective of the place where they were working unless it is shown that the women were not fit to do the work of the male stenographers.
In Ram Bahadur Thakur (p) Ltd. v Chief Inspector of Plantations a woman worker employed in the Pambanar Tea Estate was denied maternity benefit on the grounds that she had actually worked for only 157 days instead of the required 160 days. The Court, however, drew attention to a Supreme Court Decision(1982(2) LLJ 20) wherein the Court held that for purposes of computing maternity benefit all the days including Sundays and rest days which maybe wageless holidays have to be taken into consideration. It also stated that the Maternity Benefit Act would have to be interpreted in such a way as to advance the purpose of the Act therefore upheld the woman worker’s claim. One of the most important decisions of the Supreme Court is Vishaka and Ors v State of Rajasthan. This was a writ petition filed by several non-governmental organizations and social activists seeking judicial intervention in the absence of any law to protect women from sexual harassment in the work place. The Court observed that every incident of sexual harassment is a violation of the right to equality and right to life and liberty under the Constitution and that the logical consequence of sexual harassment further violated a woman’s right to freedom to choose whatever business, occupation or trade she wanted under Article 19 (1) (g). The Court further held that gender equality included protection from sexual harassment and right to work with 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 of the Indian Constitution and therefore read those provisions into the Fundamental Rights interpreting 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 the fundamental human rights of women there are several instances where such rights are brazenly violated. The women workers most vulnerable to this are those working in the unorganized sector of the economy like agriculture, forestry, livestock, textile and textile products, construction etc. In these sectors women, generally, tend to be employed in the lowest paid, most menial tasks using the least technology. Women often work in labour intensive sectors. It is almost like they are working in a different segment of the labour market from that of men one that is invariably lower paid. There are even instances in some sectors of women being paid less than men for even the same work for example in the tea plantations, construction, agriculture etc. These women do not even get the Maternity Benefit. This is mostly because of the fact that their employment is temporary, poor enforcement of the Act and the inability of these women to fight for their rights. It is estimated that only 1.8% of the workforce is covered by he statutory provisions. In some of the states like Andhra Pradesh, 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 hand loom weavers have also begun to provide maternity benefit.
Similarly the provision of the Factories Act of 1948 for crèches in factories where more than 25 women are employed does not extend to the unorganized sector. Thus, excepting for the crèches run under the Social Welfare Boards or voluntary agencies there is little help in this regard for women in this sector. Considering that majority of the women workers are in the organized sector there is urgent need to ensure that the discrimination against women is ended and that the State take immediate steps to ensure the implementation of many of its progressive welfare legislations for workers extends to women workers in the unorganized sector. Some gains have been made but there is still a long way to go. The most important task is to ensure the implementation and enforcement of existing laws and enacting new legislation to ensure that women are not dissuaded from joining the labour force or forced to endure these indignities. Right to strike Every right comes with its own duties. Most powerful rights have more duties attached to them. Today, in each country of globe whether it is democratic, capitalist, socialist, give right to strike to the workers. But this right must be the weapon of last resort because if this right is misused, it will create a problem in the production and financial profit of the industry. This would ultimately affect the economy of the country. Today, most of the countries, especially India, are dependent upon foreign investment and under these circumstances it is necessary that countries who seeks foreign investment must keep some safeguard in there respective industrial laws so that there will be no misuse of right of strike. In India, right to protest is a fundamental right under Article 19 of the Constitution of India. But right to strike is not a fundamental right but a legal right and with this right statutory restriction is attached in the industrial dispute 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 registered trade union in furtherance of a trade dispute which otherwise breach of common economic law. Now days a right to strike is recognized only to limited extent permissible under the limits laid down by the law itself, as a legitimate weapon of Trade Unions. The right to strike in the Indian constitution set up is not absolute right but it flow from the fundamental right to form union. As every other fundamental right is subject to reasonable restrictions, the same is also the case to form trade unions to give a call to 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 or right to declare lock out may be controlled or restricted by appropriate industrial legislation and the validity of such legislation would have to be tested not with reference to the criteria laid down in clause (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 no fundamental right to go on strike. Under the Industrial Dispute Act, 1947 the ground and condition are laid down for the legal strike and if those provisions and conditions are not fulfilled then the strike will be illegal.
In Mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd., it was held that the provisions of section 22 are mandatory and the date on which the workmen proposed to go on strike should be specified in the notice. If meanwhile the date of strike specified in the notice of strike expires, workmen have to give fresh notice. It may be noted that if a lock out is already in existence and employees want to resort 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 a long 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 wage bargaining in an industrial economy, as classical political economy and post-Keynesian economics demonstrated long ago in the analysis of real wage determination. The right to strike is organically linked with the right to collective bargaining and wil continue to remain an inalienable part of various modes of response/expression by the working people, wherever the employer-employee relationship exists, whether recognized or not. The Apex court failed to comprehend this dynamic of the evolution of the right to strike. In Gujarat Steel Tubes v. Its Mazdoor Sabha,( AIR 1980 SC 1896) Justice Bhagwati opined that right to strike is integral of collective bargaining. He further stated that this right is a process recognized by industrial jurisprudence and supported by social justice. Gujarat Steel Tubes is a three-judge bench decision and cannot be overruled by the division bench decision of T.K. Rangarajan v.Government of Tamilnadu and Others.(MANU/SC/0541/2003) In the Rangarajan case the court had no authority to wash out completely the legal right evolved by judicial legislation. The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide interpretation of the term 'industry'26by the courts includes hospitals, educational institutions, 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 going to strike, as laid down under Sections 22 and 23. The provision thereby implies that all strikes are not illegal and strikes in conformity with the procedure laid down, are legally recognized. Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an illegal Banglore Water Supply and Sewage Board v. A.RajappaAIR 1978 SC 548 strike could be a justified one". It is thus beyond doubt that the Industrial Disputes Act, 1947 contemplates a right to strike. The statutory provisions thus make a distinction between the legality and illegality of strike. It is for the judiciary to examine whether it is legal or illegal. Is the total ban on strikes post-Rangarajan not barring judicial review which itself is a basic structure of the Constitution? The workers' right to strike is complemented by the employers' right to lock-out, thus maintaining a balance of powers between the two. However, the Rangarajan judgment, by prohibiting strikes in all forms but leaving the right to lock-out 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 the number 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 lock-outs, due to closures and lay-offs. In 2001, man days lost due to lock-outs were three times more than those due to strikes. In 2002 (January-September) lockouts wasted four times more man days than strikes. Who is holding the production process to ransom? The Apex court preferred to overlook the recent strike by the business class against the value added tax and also the transport companies' strike against the judicial directive on usage of non-polluting fuel, both of which created much more chaos and inconvenience to the common people. It is submitted that the court came to a conclusion without looking at the industrial scenario in the present times. Should the apex court not consider banning closures, lock-outs, muscle-flexing by the business class etc., which not only put people to inconvenience but also throw the workers at risk of starvation? Besides the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 also recognizes the right to strike. Sections 18 and 19 of the Act confer immunity upon trade unions on strike from civil liability. Of the Directive Principles of State Policy enshrined in Part IV of the Constitution, Article 51(c) provides that the State shall endeavour to foster respect for international law 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.- The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws". A reading of Articles 51(c) and 37 implies that principles laid down in international conventions and treaties must be respected and applied in governance of the country. In Vishaka v. State of Rajasthan Justice Verma opined that any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue of Article 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 it has to be remembered that a strike is a legitimate and sometime unavoidable weapon in the hands of labour, it is equally important that indiscriminate and hasty use of this weapon should not be encouraged. It will not be right for labour to think that any kind of demand for a 'strike' can be commenced with impunity without exhausting the reasonable avenues for peaceful achievement of the objects. There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect the labour to wait after asking the government to make a reference. In such 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 the employer, it is essentially a weapon of last resort being an abnormal aspect of employer-employee relationship and involves withdrawal of labor disrupting production, services and the running of enterprise. It is a use by the labour of their economic power to bring the employer to meet their viewpoint over the dispute between them. The cessation or stoppage of works whether by the 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 the rights of workmen to strike, has tried to regulate it along with the rights of the employers to lockout and has also provided machinery for peaceful investigation, settlement arbitration and adjudication of dispute between them. The strike or lockout is not be resorted to because the concerned party has a superior bargaining power or the requisite economic muscle to compel the other party to accept its demands. 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 under extreme situations when the alternative mechanisms have totally failed to provide any amicable settlement, can they resort to a strike as a last resort.