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1 - Labour’s Constitution: Pursuing Economic, Social and Political Justice
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 April 2024
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- 30 June 2024, pp 29-67
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Summary
Introduction
One of the core normative aims of the Indian Constitution is the creation of an active citizenry. An Indian citizen is duty-bound to respect the constitutional principles, follow the ideals that guided the Indian independence movement, protect the sovereignty and unity of the country, defend the country, promote harmony and brotherhood, preserve the nation's heritage and culture, protect and improve the natural environment, develop scientific temper and inquisitiveness, safeguard public property, provide opportunities for their children's education and strive towards excellence in all spheres of individual and collective activities. It is by imagining Indian citizens as agents of historical continuation and progressive change through their individual and collective activities that the slave mentality of the Indian subjects under the British rule could be overcome. While it is true that the Constitution aimed to create independent political agents capable of self-determination, the ideal of enterprising citizens, or worker-citizens, is also required to overcome the slave mentality and simultaneously pursue a nation-building agenda. In fact, the Constitution's three major trajectories – that of securing political freedoms, planning economic development and undertaking social reform – all take the idea of worker-citizens as the core of their agenda. Although different dimensions of Indian citizenship may be contested, the secular Indian identity is so intimately connected to the idea of the worker-citizen that it is around this ideal that the Constitution develops its social justice narrative. Yet this aspect of the Constitution has rarely received a sustained analysis from constitutional law scholars, including by those offering a tour d’horizon of the Constitution.
Since the Constitution signifies a break from the past, Indian citizens are conceived as agents of change. Work, or labour, is the primary process through which this agency finds – ought to find – a concrete personal expression in accordance with the Constitutional plan. The de facto reach of the concept of work, and consequently of the worker identity, is much more pervasive than that of the fundamental duty-bearing political citizen. Work is a fundamental condition of life for the overwhelming majority of Indian citizens. If we take into account an expansive definition of work as also including unpaid and care work, the magnitude of the worker identity becomes staggering.
Frontmatter
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 April 2024
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- 30 June 2024, pp i-iv
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Acknowledgements
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 April 2024
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- 30 June 2024, pp xxiii-xxvi
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Introduction: The Law of Labour—Evaluating the Labour Law Reforms
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 April 2024
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- 30 June 2024, pp 1-28
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Summary
Introduction
This book argues that the 2020 labour law reforms in India, where Parliament consolidated twenty-nine federal statutes into four labour codes, fail to meet the Indian Constitution's labour mandate. In so failing to meet the constitutional mandate, the reforms have far-reaching consequences for labour rights in the country. Labour, understood broadly as an individual's personal undertaking contributing to broader socio-economic pursuits, occupies a prominent position in the constitutional framework in India. As a category, labour is pivotal to the social justice agenda envisaged under the Constitution. The Preamble to the Constitution of India, 1950, aspires to social, economic and political justice. The other values fundamental to the foundation of the republic are freedom, equality and solidarity. While the latter values are inherently important for the constitutional framework of the nation, they are also the conceptual and programmatic components of the constitutional social justice agenda.
On the basis of its social justice agenda, India's Constitution could be positioned somewhere between classical liberalism and social democracy. In classical liberalism, on the one hand, the constitution stipulates basic rules of contract, property and tort to regulate market exchanges, which are the primary means of distributing goods and services. In social democracy, on the other hand, the constitution catalogues extensive rules of redistribution that secure citizens’ legal entitlements, such as education, nutrition, work, healthcare, social security, unionisation, maternity benefit, legal aid, and so on. Mark Tushnet notes that in classical liberalism, the distribution of goods and the principles of such distribution are primarily the concern of private law, whereas in social democracy, they are primarily a public law issue. The Indian Constitution uses – balances – both of these approaches by simultaneously allocating a role for the market (structured through private law) and guaranteeing welfare rights (secured through public law).
The Constitutional Social Justice Agenda
The Indian Constitution's social justice agenda is furthered through a combination of individual freedom, social solidarity and participatory democracy. It is the balance among these three aspects of the social justice agenda that captures the uniqueness of the agenda for Indian society. The Constitution guarantees every citizen of India the individual freedom to practise their chosen occupation and engage in a trade or business of their choice without undue interference.
3 - Solidarity and Social Welfar
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 April 2024
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- 30 June 2024, pp 100-134
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Summary
Introduction
The Constitution of India promises equality of status and opportunity to the citizens. It entrusts a specific duty on the state to minimise inequalities in income and eliminate inequalities in status, facilities and opportunities through social welfare. The aim of the social welfare provisioning by the state is to promote equality of opportunities – with a view to rectifying opportunity gaps of particularly disadvantaged citizens and groups – so that their wealth and earning inequalities are kept to a minimum. Such provisioning has to be secure and sustainable to meet the mandate of equality contemplated under the Constitution. In fact, the state is mandated to secure a decent standard of life, including social and cultural opportunities, for all workers through their work.5 It is, thus, the state's constitutional duty to pursue equitable outcomes for all workers irrespective of the nature of their work and their organisation. This is a broader mandate than the achievement of a decent life through market-based employment relationships. It is a mandate of equity wherein no worker should be left behind in achieving a fulfilling life through work. At the same time, this constitutional mandate is not a guarantee of work. The aim is the achievement of the decent life by means of work. If work – that is, human agency – should be the basis of an equitable decent life, the state must also secure social provisioning linked to work in order to facilitate the decent life of workers when work (including opportunities to work) falls short of delivering such a life. This specific constitutional concern for workers is an instance of the more general concern for the equitable treatment of disadvantaged citizens and groups through social welfare.
As discussed in Chapter 2, the Constitution creates a space for the operation of workers’ individual agency through market exchanges. This is important from the constitutional perspective because individual agency is the basis of the ideal of worker-citizens, as analysed in Chapter 1. However, as noted earlier, the worker-citizen is not an exclusively individualistic ideal. The ideal also signifies a deep relationship with the state. The Constitution entrusts the nation-building initiative to worker-citizens and expects them to be industrious in this collective undertaking. Thus, in spite of the prima facie focus on individual agency, there exists a deep social relationality to the idea of the worker-citizen.
Contents
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 April 2024
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- 30 June 2024, pp vii-viii
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Dedication
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 April 2024
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- 30 June 2024, pp v-vi
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2 - Individual Autonomy, Freedom of Contract and the Labour Market
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 April 2024
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- 30 June 2024, pp 68-99
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Summary
Introduction
Individual liberty, contractual freedom and market participation are justiciable fundamental rights under the Indian Constitution. Individual rights to freedom of trade, business, profession and occupation are the bases of contractual freedom under the Constitution. However, freedom of contract is not identical to freedom of trade or profession. The scope of the latter is much broader than the former. An individual's profession, occupation, trade or business is also an expression of individual choices and aspirations – things that individuals value in their lives – when such choices are not substantially constrained. Contractual freedom is of a narrower import compared to the freedom of trade or profession, but an important one that also facilitates the aforementioned individual aspirations under market conditions. An exclusive focus on contractual freedom as an indicator to evaluate the scope (and realisation) of freedom of trade sidelines other motivations of workers to engage in a specific profession, occupation or business. An exclusive focus on the freedom of market exchange (that is, contract) also comes at the cost of ignoring the prerequisites and corequisites of such exchange. Such focus does not capture the role of education, training, skills, resources, social circumstances, cultural sensitivities and other factors that help expand the real freedom of the parties to such an exchange.
To elaborate, there is a valid basis to argue, as John Gardner does, that an isolated focus on the freedom of contract is restrictive of overall individual freedom. In the context of the employment relationship, if the primary legal emphasis lies on preserving or promoting the contractual feature of the relationship, the employee identity narrows down to that of an instrument of exchange (of labour), or contractor. As instruments of exchange employees remain merely as means of performing the (employer’s) contract. This instrumental understanding of employees articulates a narrow view of an employee's freedom, including her right to freedom of trade, by denying the capacity of choice and aspiration of such employee. Work or employment is broader than mere contractual exchange since it also signifies a worker's aspiration and self-fulfilment. This (or any) human aspiration is bound to be broader than an instrumental – means to something – understanding of one's freedom of contract. Accordingly, a mere contractual understanding of employment, without also referring to other social commitments (including other individual freedoms), is restrictive of the very freedom (that is, freedom of trade) that it purports to promote.
4 - Industrial Democracy and Republican Citizenship: Collective Action in Resource Redistribution
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 April 2024
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- 30 June 2024, pp 135-169
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Introduction
The Constitution of India specifies the subject matter of distribution (social goods or the measuring standard of social justice) – consisting of individual freedoms (Part III) and material resources (Part IV) – in furtherance of the social justice agenda. While the Constitution equally safeguards individual freedoms of all citizens, it does not specify a rule – a method – for the redistribution of material resources except for noting that ‘weaker sections’ of the population should receive ‘special care’ as the state seeks to minimise and eliminate inequalities. With this general guidance, the Constitution leaves the specific rule of redistribution to be determined through the political ‘governance’ process. This approach to redistribution means that constitutionally mandated redistribution must take place through direct citizen participation in governance. Participatory democracy, as the third component of the social justice agenda, is particularly appropriate as a basis for a redistributive framework given the nation's exceptionally diverse and large population. Operationalising a specific, singular, functional redistributive method, albeit with contextual modifications, is bound to be difficult, if not impossible, for a country as heterogeneous as India. The Constitution subjects redistributive entitlements to a participatory decision-making process to make room for contextual sensitivity in diverse circumstances.
Liberal theories of justice based on individual autonomy widely recognise the significance of this process in shaping the nature of the economy (and polity). The role of democratic deliberation in workplaces has been underscored from the perspectives of workplace democracy and workplace republicanism. Workplace democracy sees participatory decision-making as the right to collective governance of enterprises, and workplace republicanism defines it as a worker's right to contest arbitrary management decisions. It is, thus, argued that democracy in workplaces is important in both conferring control of productive assets on workers and protecting them from the management's caprices. These perspectives emphasise the participatory process operating within the capitalist relations of production based on private contract and property relationships and are thereby consistent with the Indian Constitution's scheme of social justice. As noted earlier (in Chapter 1), the Constitution conceives of worker-citizens as autonomous self-interested actors in market exchanges. The Constitution supports the foundation of this mode of market participation without interfering in the outcome of individual exchanges.
Preface
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 April 2024
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- 30 June 2024, pp ix-xxii
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Summary
This book is premised on the understanding that work is a political idea of wide import and regulation of work is an exercise in public reasoning, whereby citizens accept the general idea of such regulation (labour law) because it is justified by an appeal to broadly accepted political ideals in contrast to justifications based primarily on private self-interested motives. The political notion of work and, relatedly, the just treatment of workers are articulated through the imagination of citizenship. The concept of duty-bearing citizenship is central to the articulation of the social justice agenda under the Constitution of India, 1950. Citizenship is understood as a basis for social cooperation, and the latter is essential to the formation and development of the independent constitutional state. At the same time, the conceptual and institutional project of social justice under the Indian Constitution unfolds with reference to social cooperation inherent in the idea of Indian citizenship. Indian citizenship cannot merely be defined on the basis of legal rights that citizens can validly demand against the state. The idea of citizenship carries with it substantial constitutional duties. These duties are central to the understanding of citizenship in India. The Constitution enumerates a number of citizenship duties, which every Indian citizen is expected to abide by and fulfil. One among these duties receives significant prominence under the Constitution, which is the duty to individually and collectively excel in their activities, including work or labour (as a core human activity), in a manner that contributes to the development of society (or the state). That this duty to work (and to excel in one's respective work) is fundamental to defining Indian citizenship is evident from the constitutional structure that furthers the social justice project of the constitutional state. The social justice project of the Constitution unfolds primarily through Parts III and IV of the Constitution, dealing with fundamental rights of individual citizens and fundamental duties of the state, respectively. Although the social justice project under the Constitution develops with reference to citizens’ duty to work and their social cooperation as workers, a duty-based conceptualisation of citizenship is yet to receive much prominence in political and legal scholarship. While citizenship obligations have been recognised in prominent accounts of citizenship, these obligations are conceived primarily as participatory and deliberative political duties, rather than an obligation to contribute by means of individual and collective labour.
Index
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 June 2024, pp 221-230
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Conclusion: Realising Labour Justice
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 June 2024, pp 170-199
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Summary
The purpose of this concluding chapter is not merely to reprise the major arguments made in the book and condense its main thesis. Instead, building on the arguments made in the book, this chapter aims to be future-guiding and discusses a potential alternative approach to labour law, particularly from an Indian and more generally from a Global South perspective. It is hoped that some of the future-guiding reflections offered in this chapter will aid the way labour law is debated, practised and interpreted in the country, by both policy and legal practitioners, including the judiciary. Of course, some of the main arguments of the book are revisited here, but they occupy a limited part of this chapter. In revisiting the main arguments of the book, the intention is to emphasise the understanding of labour law in light of the specific requirements under the Constitution of India. In discussing an alternative approach to labour law, this chapter also indicates some potential areas for future scholarly explorations. After this more general introduction to the chapter, in the first section, the foundations of labour law in India, as conceived under the Constitution, are revisited. Drawing on this discussion, the second section offers a more general take on the alternative social justice-based theorising of labour law. The third section is devoted to the discussion of the overall orientation of the 2020 labour law reforms. The chapter ends (fourth section) with a note on overcoming the dependent juridical mentality, which has historically constrained an alternative conceptual formulation of labour law in India, in view of the contextual realities of the country.
This book argued that labour law furthers the social justice mission of the Constitution, which is conceived in relation to social cooperation among worker-citizens of the country. Labour law is, then, an instrument to practically realise the constitutional commitment made to worker-citizens. In so realising the constitutional commitment, the challenge for labour law is to sustain the balance among the different aspects of the social justice mission envisaged under the Constitution. It is this balance among the three components of social justice – market freedom, social solidarity and participatory deliberation – that gives the idea of social justice its unique Indian character.
Bibliography
- Supriya Routh, University of British Columbia, Vancouver
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- Labour Justice
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- 30 April 2024
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- 30 June 2024, pp 200-220
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Labour Justice
- A Constitutional Evaluation of Labour Law
- Supriya Routh
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- 30 April 2024
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- 30 June 2024
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This book argues that the imagination of the worker-citizen, inherent in citizens' constitutional duty to work, is the very foundation of constitutional citizenship and its social justice agenda. The design of social justice in the constitution takes labour as its core ideological and political commitment, seeking to treat workers fairly for their social contribution through work. Employing this constitutional design, this book evaluates the recently repealed labour law against the constitutional metric of social justice. Drawing on the components of social justice, the book evaluates the new labour law in its capacity to promote market-based distribution, respecting basic individual liberties; the complementary redistribution of public goods, upholding the principle of solidarity; and worker participation in decisions about the operation of the market and the state. In offering such evaluation, the book conceives of work in its wider social relationship in contrast to its narrower private exchange rationale.
13 - Workers and Competition Law in India
- Edited by Sanjukta Paul, Wayne State University, Detroit, Shae McCrystal, University of Sydney, Ewan McGaughey, King's College London
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- The Cambridge Handbook of Labor in Competition Law
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- 05 May 2022
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- 26 May 2022, pp 193-207
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The Indian Competition Act aims at promoting economic development through market freedom by curbing anti-competitive agreements, abuse of dominant market position, and combinations of businesses that have adverse effect on market entry and competitiveness. These practices are curbed because they are market-distorting, thereby stunting the freedom of trade and business, a justiciable constitutional right. By the same logic, worker associations, negotiating collective bargaining and using strike as a bargaining leverage, may be restricted. However, the right to association is also a justiciable right under the constitution. The Supreme Court resolves the trade off between two co-equal justiciable rights by creating a distinction between social function and economic function of worker associations. When worker associations act as collective bargaining agents promoting the principle of solidarity (a constitutional ideal), they are exempted from the operation of the competition law, but when they act as associations of enterprises with a business interest (i.e., profit motive) of their own, their associations become anti-competitive “combinations.” This chapter argues that although such a trade off might exonerate trade unions in industrial relationships from the scope of the competition law, it may impede worker associations of informal workers, the majority of whom are self-employed workers participating in market exchanges. However, since associations of informal workers primarily negotiate with the government, their “political negotiation” may be exempted from the operation of the competition law by governmental discretion permitted under the law.