AN ENDEAVOUR FOR INCORPORATION OF RIGHT TO WORK AS FUNDAMENTAL RIGHT

[Vol 4/ Issue 1/ November 2018] [ISSN 2394-9295]

ABSTRACT
The Preamble to the Indian Constitution begins with the WE THE PROPLE and it interalia emphasizes on socio-economic justice, principle of equality and dignity. The UDHR, ILO and other Covenants make it obligatory for the Member States to enact legislations to provide for the right to work in order to ensure right to livelihood while ensuring other natural rights. Directive Principles of State Policies though not enforceable, makes the State duty bound to enact the appropriate legislations to realize these directives. The Parliament has enacted MNREGA, however it is vehemently discriminatory as it provides only 100 days wage work to the rural households while completely ignoring the urban unemployed. There is a felt need that the Parliament should bring in a suitable constitutional amendment to make work-right a guaranteed right for protection of other human rights. This would protect and preserve dignity and his worth as an individual. Justice Field made very famous observation in Munn v. Illinois[i] that by term ‘life’ something more is meant than a mere animal existence. The Apex Court in Maneka Gandhi vs. Union of India[ii] also held that right to life embodied is not merely a physical right but it also includes within its ambit, the right to live with human dignity. Supreme Court in Francis Coralie vs. Union Territory of Delhi[iii] once again held that right to live includes the right to live with human dignity with bare necessities of life.

Keywords:- Socio-Economic Justice , Human Dignity, Poverty, Constitution & Employment.

TheRight to work is neither a theoretical question nor a simple matter of principle; it is actually an urgency of being a fundamental. After much thought and deliberation the authors have decided to delve and explore deeper into some of the more questionable DPSP belonging to economic, social and cultural framework.  The main purpose of this paper is to outline and steer the propositions and suggestions behind making right to work as a Fundamental Right. Right to Work is considered as a very important human right throughout the world.  In jurisprudence also the word ‘Right’ has philosophical connotations. In generic sense the word legal right may be defined as any advantage or benefit conferred upon a person by rule of law. Right may also mean Liberty, Power, Immunity or an Interest guarded by Law. In Indian context also this right has been considered as a sacrosanct right in the Constitution as well as in welfare jurisprudence. The concept of right to work and its status as an actual and theoretical right is also of prime concern. It is a Directive Principle of State Policy and various laws have been made related to Right to work in India. A number of schemes, policies and enactments have been made for providing at least employment to the extent of living wages to the poor.

Right to Work has been viewed as the next right to be lifted to the level of a fundamental right after Right to Education in India. Earlier it was considered that the economic resources of the country may not permit it to be made a fundamental right, as is the position with regard to the Directive Principles of State Policy. But Indian Economy has progressed by leaps and bounds since the era of liberalization and globalization which begun in the decade of 1990. The National Front and its Government led by Late Shri V.P. Singh was the first government in independent India to aim on Right to Work to be made a fundamental right as a major goal in their election manifesto.  The directive principle of right to education of children under Article 45 has been made a fundamental right by the Eighty-Sixth Amendment Act only after Apex Court judgment in Unnikrshanan vs. State of AP [iv]. As a natural corollary to this, time is opportune to bring necessary constitutional amendment to make right to work also a fundamental right.

In the light of the constitutional aim of economic justice it is now believed that making Right to Work a fundamental right shall prove to be a major tool of social engineering in the light of socio-economic justice and an effective effort to check the concentration of wealth in the hands of about 20% of the people. In this perspective this research is aimed to examine the feasibility of making Right to Work as a fundamental rightin light of nurturing the economic, geographical and cultural diversity etc. of India. Since it is a matter of prime importance the research on this topic was urgently required and justified. Making Right to Work a fundamental right may accelerate the national growth and development. It may be able to break the vicious cycle of poverty, population explosion and unemployment in India. It may take the benefits of economic prosperity to the grass root level of the society. The research proposes to examine Right to Work in the light of the intention, outlook, observation, grasp, range, activity, purpose, extent, width and limitations, area, sphere, field, action, undertaking and opportunity & to make suggestions for further research work in this direction.

The researcher Proposed to research on this topic because of the keen unflinching enthusiasm and concernment in the tussle between fundamental right and DPSP .After much rationalization and speculation it was decided to probe beneath into the arguable and indeterminate right belonging to DPSP.Eventually the researcher determined for the right to work and its position / feasibility of converting it from DPSP to FR.The intendment and aspiration behind the study is to find out if the economic right and directive principles more pertinently the right to work therein get the likewise equivalent  to carry  a status/eminence as the other economic, social  and cultural right as well as rights under PART III of the Indian constitution.

Article 41 of the Indian Constitution was the motive and inspirationof the present study and more explicitly the provision related to right to work along with in depth research on the mentioned topic. The comprehensiveness and unity of fundamental rights has always been really tedious issue, even more so when it dealt with socio economic rights. The Socio economic rights cannot be universal but rather are simply vernacular.Right to work as a Fundamental Right will certainly raise bountiful interrogations.It needs very extensive and careful examination. Since the inception of the adoption of our Constitution, the incorporation of this right in the Directive Principles of State Policy has not accrued any desired results.Through this research it is understood that the right to work meant that people have human rights to work or engage in productive employment and cannot be bridled or suppressed from doing so.

Preamble to the Constitution secured social, economic and political justice to all citizens of India, the same resolution was more extensively repeated in DPSP which, amongst others, specifically bounded the state to minimize the inequalities in income and to eradicate the huge gap which is not letting things happen to be equal distribution of Income, resources and  opportunities as well as to direct its Policy towards warranting that the operation of the economic system doesn’t result in the concentration of wealth in few hands and means of production to the probable impairment.

The distinction between Fundamental rights and social privileges had always been there and still persisted. Both existed to protect and promote a quality of life for all, which created sufficient conditions for a purposeful life. It is pertinent to comprehend the purpose and justification of fundamental right because it raises questions over the befitting scope of their application and importance.The right to work was seen as a pre requisite for human life, a right that is impediment for the quality of life for all human beings.

The debate between the Primacy of Fundamental Rights over Directive Principles or vice-versa has now become redundant. TheHuman Rights principles have now become universal simply by the merit of mounting to the status of customary international law or through codification as a part of an international instrument of human right. The argument between DPSP and Fundamental rights has now become invalid because the directive principles have become hegemonic.The Plea to make right to work as a fundamental right in the Constitution is not unfamiliar, neither it is contemporary or new. The thrust in today’s world is only employment generation brought into focus by the election manifesto of the National Front and the consequential discourse initiated by the approach to the Eight Five Year Plan (1990-95) though now Five Year Plan has been replaced by Commission of NITI Aayog.

The movement / paradigm shift to elevate right to work to the status of fundamental right will surely provides all answers to the questions imposed over this right. Times have changed, laws multiplied and the constitution amended. Earlier DPSP were not justiciable when the constitution came into force probably because the country didn’t possess such financial resources to fulfil them during that era. Also the colossal and extensive diversity and backwardness in our country were also the apparent reasons. We also believe that if Fundamental Rights are important for political Democracy, DPSP are equally paramount for social and economic democracy in the country. The DPSP have moral and political sanctions.Fundamental Rights promote welfare of an individual whereas DPSP promotes welfare of a complete society then what is harm of making right to work as a fundamental right,DPSP requires a legislation for their implementation.

The authors of present research makes following suggestions in this regard.

1. The scantiness of statutory laws relating to right to work and shallowness of work related legislations, lack of dignity of labour and rampant poverty and illiteracy are the main apprehensions for the stress in the working class people.
2. The globalization has been so rapid that it has aggrandized the marginalization of labour encapsulated by capitalism in unorganized sectors. The majority of the workforce is poor, misinformed, unenlightened unmindful of their rights and have wages at starvation levels. This has passed from generation to generation.
3. The age old caste corridors of the work need to be protected so as to pressure and popularize the interests of the working class.
4. There were many legal hurdles confronted by the labour force in the notion of right to work as a part of DPSP and not a fundamental right ,therefore the issue of right to work was handled n a broader theme of human rights Panorama.
5. Sheer poverty due to unemployment and deaths due to hunger were viewed as human considerations rather than the tress led and worthless dichotomy between Fundamental rights and Directive principles.
6. The United Nations made sincere attempt for the implementation of Human rights through 1948 Universal Declaration and right to work was the nuclear of all human rights because work was recognized and identified as a mode of earning a livelihood, unavoidable part of survival.
7. The makeshift measures which are purely stopgap arrangements like state sponsored and specific employment guarantee schemes are not perpetual and invariable because these are short lived and substitute remedies offering interim solutions. This is just due to lack of coherence over the concept of the right to work. A clear cut statutory definition in the wake of human rights can bring a permanent solution.
8. Right to work as a Directive Principles no doubt makes government less burdensome and impudent due to its unjustifiablenature, also economic non-viability is another hindrance for realization of right to work.
9. The socio-economic disparities can be reduced if Right to Work is turned into a Fundamental Right by elevating the banner of socialism under the Constitution.
10. Right to work shall have a cascading effect and it will shine in its true spirit only and only if the earnest provisions for realising the right to work be made fundamental. The democratically feasible discourse on this right is to transfer it to a Fundamental Right under the Universe of Human Rights.

The three organs of the Government namely legislature, Executive and Judiciary must be in motion and move forward with conceptual clarity while proceedings with the issue of right to work. The authors have undertaken extensive research for imperative and urgent necessity for the fundamental right to work and have following reasonable suggestions in this regard.

1. The statutory laws relating to work must aid, encourage and foster the interest of the people working in organized and unorganized sector.
2. National Rural Employment Guarantee Act, 2005 an Indian labour legislation and social security measure that aims to guarantee the right to work must be revisited and renamed as National Employment Guarantee Act and made applicable to urban educated unemployed too.
3. The law making power should take dynamic action to reformulate the scope of right to work in human rights umbrella.
4. Though Right to work as a DPSP has laid onus on the state but due to its non justiciable character, the state at times sidesteps its importance and impending thrust is to convert this DPSP into a Fundamental rights and that is possible only through a constitutional reform.
5. The execution of stricter laws should be enforced to strengthen the accountability of right to work.
6. The evil of poverty which is direct or indirect outcome of lack of right to work, must be tackled by using three Strategies simultaneously anti-poverty legislations, economic advancement and human evolvement.
7. If political rights are considered as preponderance of importance,then so are the major socio economic rights simply because they too are imperative and unavoidable for the full enjoyment of the political rights.
8. Right to work may actually be more conducive for human beings because it is and shall always be a cornerstone for the expansion and well being of every human being.
9. Various Laws have been enacted to eradicate poverty.Some of them directly deal with it and some indirectly. Nevertheless their tardy implementation makes us lag behind in effectively dealing with the problem. Therefore inspite of the constitutional safeguards and state legislative intervention in favour of poor and needy, the Union and State Governments should accord top priority to implementation of the judgements rendered by courts in nexus to Right to work.

The basic Human Rights are paramount human responsibilities. When and wherever they are violated people are the victims, they and their families need practical help. Some very important and basic human rights which are declared by the Constitution of a country as fundamental rights get enforced by the right to constitutional remedies. With the advancement of civilization the number of human rights and gradually of fundamental rights keeps on increasing. In every civilized society after the fulfilment of basic needs it becomes very important that people get the opportunity to work and hence to earn, so that they are able to sustain the availability of basic needs. The Welfare State is required to play a very constructive role in this regard. This is possible only when state is able to provide Right to Work to individuals as a fundamental right.

During last few decades, the dynamics in India and also in different areas of the world has been towards making Right to Work, a fundamental right. Right to Work has a close relation with Right to Development. There is no secret behind the fact that right to work suffered many limitations in terms of enforcement, protection and validity.The inquisitiveness therefore urged to suggest that the right to work be raised to the level of a fundamental right.

REFERENCE:

[i]94 US 113 (1877)

[ii] AIR 1978 SC 597

[iii] AIR 1981 SC 746

[iv]AIR 1993 SC 2178