By Anurag Singh and Rashi Jeph
For the purpose of this article, “right to work” is to be interpreted as bearing a positive obligation on the State to ensure employment for everyone.
Introduction
In a nation like India, unemployment is endemic, and so is the demand for the ‘fundamental right to work’ as a solution for the situation. Some rights related to freedom of work are protected in the constitution as fundamental rights. For instance, Article 19(1)(g) ensures that all citizens have the right to practice any profession or engage in any occupation, trade, or business, subject to certain reasonable restrictions imposed on the public good. The right to life and personal liberty is guaranteed by Article 21, and the Supreme Court (“SC”) has interpreted this to mean that the right to life also includes the right to livelihood. As a result, it is clear that the refusal to right to work, which is a livelihood amounts to deprivation of the right to life. However, it is pertinent to note that all of them are negative rights, i.e., protect individuals from arbitrary interference of the State in one’s profession. Right to work in the form of a fundamental right would create a positive obligation similar to the obligation envisaged in Part IV of the Constitution in the form of Directive Principles of State Policy (“DPSP”). Nonetheless, DPSP does not ensure a right to citizens to claim enforcement from the State of its obligation to provide work to everyone. This leads to the whole debate ─ Should the Right to work be included as a fundamental right in the constitution?
Right to work can have three possible connotations ─ against the State, against the employer, and; against trade unions. The latter two are not under the scope of this article. We argue that the Right to work should not be included as a fundamental right in the constitution because of the following reasons:
First, Indian Constitution so far protects the right to livelihood and equal opportunity to work under the Preamble, Article 14, Article 15, Article 19 (1)(g), and Article 21 of the Indian Constitution. Furthermore, DPSPs provide for a positive obligation on the State to ensure employment for everyone. The distinction between providing negative obligation in the form of fundamental rights and positive obligation in non-binding DPSP is evident of the intention of the drafters of the Constitution. The Indian economy has not developed enough to enable the relocation of the right to work from DPSP to Part III of the Indian Constitution, as it cannot bear the financial burden of this nature.
Second, there are various practical difficulties associated with the implementation of the right to work as a Fundamental Right. For instance:
We shall conclude with our arguments that the right to work as Fundamental Right is not only practically possible but also not desirable at this stage in the Indian Economy.
International Perspective
The debate revolving around the recognition of the right to has occupied the central place in the human rights discourse. This was formally recognised in Article 23 of the Universal Declaration of Human Rights [“UDHR”] as a free choice of an individual and claim over equal wages for equal work. Article 6 of the International Covenant of Economic, Social, and Cultural Rights also recognises the right to a free choice of employment. It says: “The State parties to the present Covenant recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts”. Furthermore, Article 15 of the European Union Charter of the Fundamental Rights provides that every citizen of the European Union [“EU”] has the freedom to seek employment, work, exercise the right of establishment, and provide services in any EU country.
Despite recognition by these international conventions, the majority of the population does not enjoy meaningful employment. As per the study conducted by the International Labour Organisation in 2012, around 210 million people were found to be unemployed across the world. All these conventions provide the right to work as a negative obligation in the form of freedom to work. In light of this, it is essential to highlight that Soviet bloc States had argued during the drafting of the UDHR that right to work should have a positive connotation in the form of a guarantee of work. Therefore, at present, there is no legislation or convention imposing a positive obligation on the State to provide employment to its citizens. Thus it will be difficult for India to draw an example from some other jurisdiction.
Right to Work and Livelihood are Already Protected Under the Preamble, Articles 14, 15, 16, 19 and 21 of the Constitution
The right to work is not given as a fundamental right to create a positive obligation on the State to ensure employment for everyone. We argue that existing fundamental rights secure the right to livelihood, freedom of choice of profession, and equality in the opportunities given. The SC in Olga Tellis v. Bombay Municipal Corporation has recognized that that which makes life possible must be considered an essential component of the right to life. For if a person’s right to livelihood is taken away, he also loses his right to life. As defined by Article 21, the right to life entails more than mere animal existence. This interpretation of Article 21 by the SC provides protection to people against arbitrary termination or unlawful deprivation of livelihood.
Furthermore, the provision of reservation in the constitution also tries to deal with the social and economic inequality which might affect a person’s opportunity of employment. Additionally, a conjoint reading of the Preamble to the Constitution with Article 38 and Article 39 mentions social and economic justice, which is a cardinal principle of paramount importance within the constitutional structure. Article 41 enjoins the State to make provisions for providing work, of course, to the capacity and development within the limits of its economic capacity. The inclusion of such obligation in DPSP not only shows the awareness of the drafter of the constitution of the need for economic justice but also the incapacity of the State to bear such a burden. At this point, it is pertinent to note that though the Indian economy has expanded and developed to become the sixth-largest economy in the world, at the same time, it is ranked second in terms of population, thereby showing that the population-resource ratio has only increased with the team. This is also evident from the fact that at the present stage, India is grappling, inter-alia, with the problem of black money, unemployment, lack of good governance, and concentration of power and wealth.
Therefore, we are of the opinion that the present constitutional framework that provides for the right to work only as a negative obligation in fundamental rights and a positive obligation in non-binding DPSPs, is suitable for the Indian economy.
Fundamental Right to Work is Impractical
In Dwarkadas Srinivas v. The Sholapur and Weaving Co. Ltd, it was observed that the practical consequences of the State’s actions should be evaluated rather than only looking at the legal element. An analogy can be drawn from Fundamental Right to property which was made a legal right via the 44th Constitutional Amendment to the Indian Constitution. One of the reasons why it was made a legal right was due to the practical implications of implementing it as a Fundamental Right. The main motive of this removal was to reduce the boundaries between rich and poor. It restricted the power of the Indian government to acquire property for the social welfare of the general public. Similarly, with the Right to work as a Fundamental Right government will lose economic welfare as businesses will be rendered unviable with too much bargaining power in the hands of employees.
In this part, we argue that it is vital to consider that granting everyone the right to work will impose an unnecessary strain on the State’s economic resources. Some of the practical difficulties associated with the right to work are; changes to the existing labour law [A]; financial burden on the State’s revenue ; negative impact on the private sector and FDI [C].
A. Changes to the Existing Labour Law
A lot of changes will have to be made to the existing labour law regime. As of now, the existing labour laws are based on the ‘right to work’ as DPSP or based on any international convention. Changes will be required to accommodate the change of stance for the right to work as a Fundamental Right. Provisions relating to the termination of employees will be rendered useless.
Besides, it would become difficult to define ‘work’ and ‘employment’, and it would not be possible to assess whether to allot work in the public sector, private sector, or organized and unorganized. Various types of institutional mechanisms would also be required to be established to provide insurance till gainful work opportunities. This requires fundamental changes in economic policy and planning. Several socialist countries have recognized work, but they have not given the individual the right to courts for the enforcement of that right. No doubt providing the right to work is a welcome factor at the same time, it is imperative to keep the practical difficulties of implementation in mind. Distributive justice to society is more important than the fundamental right of a single individual to work. The status of a fundamental right is not feasible and appropriate, and it is, therefore, justified to retain it as the directive principle policy.
B. Financial Burden on the State
In Nilabati Behra v. State of Orissa, the Supreme court observed that the State is obliged to pay monetary compensation for violation of fundamental rights to redress the contravention made by it. In light of this, there will be a lot of financial burden on the State as now it will have to compensate unemployed people. Right to work under the current law indicates that every person of the nation has the right to work, and the State will protect that right and education to the best of its ability. If this is made a Fundamental Right, every unemployed person in India will now have the right to sue the government of India. This sounds good on paper, but in practical situations, it is not possible for the Indian government to provide employment to each and every person living in India (with a population of 1.39 Crores). Further, the Indian government will now have to compensate each and every person for unemployment. This will cause more harm than good. Indian courts will be flooded with cases that are already overburdened with work. The courts would then have the authority to compel the right for everyone. There are millions of unemployed in India, and it is not possible for the courts to provide through writs to those unfortunate unemployed.
National Rural Employment Guarantee Act, 2005 or Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (“MGNREGA”), is the Indian statute that deals with the social security measure that aims to provide the right to work. It is an already existing statute that works in furtherance with the right to work given as DPSP. MGNREGA aims to improve the employment status of people living in rural areas. It provides at least one adult member of every family that volunteers to undertake unskilled manual labour and receives 100 days of paid employment in a fiscal year. However, the fact is that despite the government’s boasts of “record allocations” and 92% on-time payment generation, MGNREGA has been dying a slow death. The central government recently sent a press release indicating that 92% of MGNREGA payments were made on schedule this fiscal year.
Currently, 17 States MGNREGA pay rates are lower than their respective State minimum salaries. Workers have lost interest in working for MGNREGA projects due to the extremely low salary rates, allowing contractors and middlemen to seize control locally. MGNREGA’s ground-level performance depends on consistent funding to the States. The lack of “mother sanctions” from the Central government has hampered work in peak season three times last year and once this year . Over 80% of the money is spent in the first six months almost every year. It has actually dropped due to the inclusion of last year’s pending obligations. Thus, the funds allocated are inadequate to guarantee effective execution. This is the situation when the right to work is currently a DPSP.
With right work as a Fundamental Right will put a lot of economic stress upon the State to an extent that it does more harm than good. For instance, in US Workers in non-“right-to-work” states are more likely to have health insurance and pensions supplied by their employers. Workers in “right-to-work” states are substantially less likely to have health insurance or pensions supplied by their employers. As it puts a lot of burden on the state to provide employment to a greater number of people than focusing the on-quality aspect.
C. Negative Impact on Private Sector and FDI
Government job in India is already a matter of prestige, with a high number of candidates competing for a few posts. While the right to work can still be enforced on public organizations/ entities, the same will not be possible to implement against a private entity. A Fundamental Right to work might even lead to the undesirability of private jobs due to a lack of assurance compared to a government job. Since the right to work cannot be implemented against private entities, all the burden arising from the right to work will have to be borne by government entities. This might even lead to nationalization in various sectors of the economy, which can nurture only in a closed economy.
Alternatively, considering that the right to work is made enforceable against the private entity. In this case, business in India will become unviable as it will have a huge negative impact on India’s ranking in ease of doing business. It will demolish India’s efforts to bring reforms in every sector to improve India’s ranking in the World Bank’s Ease of doing business. As India is one of the famous countries for cheap labour, which counts as an attractive point for investment, it will now become a negative point for investment in India.
Conclusion
In conclusion, it would not be wrong to say that it is not desirable to have a fundamental right to work as envisaged in DPSPs. Considering the practicalities, the biggest concern would be in materializing the right to work. There is a significant demand for resources in order to offer jobs for everyone in the economy. In order to adjust to the situation, the salaries would be lower than in the private sector for similar jobs. As Sir BN Rou, the architect of the Constitution had rightly observed that “certain rights requiring positive action on the part of the State can only be guaranteed only as far as such action is practicable otherwise State shall obtain from prejudicial actions”. At present, it is not feasible to give everyone the right to work since each individual will turn to the courts to have this right enforced, and the courts will not be able to provide employment to every unemployed person through writs.
Besides, there will be a concern in drafting the provision, if at all, if it is decided to be included in the constitution as Fundamental Right. The main concern would be whether to provide the fundamental right to work to only “citizens” or to “everyone”, which is a question of another debate altogether.
The authors, Anurag Singh and Rashi Jeph, are undergraduate law students at the National Law University (NLUJ), Jodhpur.
The Constitution of India, 1950, Art. 19(2).
Olga Tellis v. Bombay Municipal Corporation, 1985 SCC (3) 545.
The Constitution of India, 1950, Arts. 39 & 41.
The Constitution of India, 1950, Art. 14.
The Constitution of India, 1950, Art. 15.
The Constitution of India, 1950, Art.19(1)(g).
The Constitution of India, 1950, Art. 21.
Article 23, Universal Declaration of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (December 12, 1948).
Article 6, International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3 (December 16, 1966).
Id.
Article 15, European Union Charter of the Fundamental Rights, December 14, 2007, C 303/1.
International Labour Office, Global Employment Trends for Youth, August 2010, available at .pdf (Last visited on June 12, 2012).
Jose Luis Rey-Perez, The Right to Work Reassessed: How We Can Understand and Make Effective the Right to Work, 2 Rutgers J. L. & Urb. Pol’y 217, 218 (2005).
M.C.R. Craven, The International Covenant On Economic, Social and Cultural Rights: A Perspective on its Development 195 (1998).
Olga Tellis v. Bombay Municipal Corporation, 1985 SCC (3) 545.
The Constitution of India, 1950, Art. 21.
The Constitution of India, 1950, Arts. 15 & 16.
The Constitution of India, 1950, Art. 38.
The Constitution of India, 1950, Art. 39.
The Constitution of India, 1950, Art. 41.
The Economic Times, India to overtake Japan as Asia’s 2nd largest economy by 2030: HIS, January 7, available at (Last visited on April 19, 2022).
U.S. Census Bureau, U.S. Census Bureau Current Population, April 18, 2022, available at (Last visited on April 19, 2022).
Aayushi, Present Situation of the Right to Job in India, 1 Jus Corpus L.J. 165 (2021).
Dwarkadas Srinivas v. The Sholapur and Weaving Co. Ltd, AIR 1954 SC 119.
The Constitution (Forty-fourth Amendment) Act, 1978, Statement of Objects and Reasons, ¶3.
Jon Elster, Democracy and the Welfare State (1988).
Sudesh Kumar Sharma, Right to work: An assessment of constitutional policy and ethos, 1 KUJLS, 191 (1998).
Nilabati Behra v. State of Orissa, 1993 AIR SC 1960.
V. M. Dandekar, Making Right to Work Fundamental, 26 EPW 697 (1991).
The Constitution of India, 1950, Art. 41.
Data Commons, India, available at (Last visited on April 19, 2022).
V. Hemalatha Devi, Sayed Maswood and B. Yuvakumar Reddy, Right to Work as Fundamental Right: Illusion or Reality, 44 JOTILI 269-272 (2002).
NREGA, FAQs on MGNREGA, (July, 2014), available at (Last visited on April 19, 2022).
Ministry of Rural Development, 92% MGNREGA wage payments generated on time, October 30, 2018 available at (Last visited on April 19, 2022).
Frontline, The battle for employment guarantee, January 16, 2009, available at (Last visited on April 19, 2022).
Lok Sabha, Synopsis of Debates, February 8, 2018, available at (Last visited on April 19, 2022).
American Progress, Fact Sheet: The Value of Unions and the Consequences of ‘Right-to-Work’ Laws, (December 13, 2012) available at laws/#:~:text=%E2%80%9CRight%2Dto%2Dwork%E2%80%9D%20laws%20weaken%20unions%20by%20making,laws%20have%20broad%20negative%20consequences (Last visited on April 19, 2022).
Id.
VII Constituent Assembly Debates, 1948 speech by Sir BN Rou, available at (Last visited on April 19, 2022).
For the purpose of this article, “right to work” is to be interpreted as bearing a positive obligation on the State to ensure employment for everyone.
Introduction
In a nation like India, unemployment is endemic, and so is the demand for the ‘fundamental right to work’ as a solution for the situation. Some rights related to freedom of work are protected in the constitution as fundamental rights. For instance, Article 19(1)(g) ensures that all citizens have the right to practice any profession or engage in any occupation, trade, or business, subject to certain reasonable restrictions imposed on the public good. The right to life and personal liberty is guaranteed by Article 21, and the Supreme Court (“SC”) has interpreted this to mean that the right to life also includes the right to livelihood. As a result, it is clear that the refusal to right to work, which is a livelihood amounts to deprivation of the right to life. However, it is pertinent to note that all of them are negative rights, i.e., protect individuals from arbitrary interference of the State in one’s profession. Right to work in the form of a fundamental right would create a positive obligation similar to the obligation envisaged in Part IV of the Constitution in the form of Directive Principles of State Policy (“DPSP”). Nonetheless, DPSP does not ensure a right to citizens to claim enforcement from the State of its obligation to provide work to everyone. This leads to the whole debate ─ Should the Right to work be included as a fundamental right in the constitution?
Right to work can have three possible connotations ─ against the State, against the employer, and; against trade unions. The latter two are not under the scope of this article. We argue that the Right to work should not be included as a fundamental right in the constitution because of the following reasons:
First, Indian Constitution so far protects the right to livelihood and equal opportunity to work under the Preamble, Article 14, Article 15, Article 19 (1)(g), and Article 21 of the Indian Constitution. Furthermore, DPSPs provide for a positive obligation on the State to ensure employment for everyone. The distinction between providing negative obligation in the form of fundamental rights and positive obligation in non-binding DPSP is evident of the intention of the drafters of the Constitution. The Indian economy has not developed enough to enable the relocation of the right to work from DPSP to Part III of the Indian Constitution, as it cannot bear the financial burden of this nature.
Second, there are various practical difficulties associated with the implementation of the right to work as a Fundamental Right. For instance:
- The financial burden on the State in providing compensation to the people whom the State is not able to provide employment.
- Alternatively, the State would want to invite Foreign Direct Investment (“FDI”) and more MNCs to set up in India so that maximum people could be employed. In order to achieve this objective, State will give tax concessions and might also suspend some labour laws to attract MNCs to India. In this way, the quality of the working conditions would be compromised over the quantity of no. of people employed.
- Employees will not perform to the best of their capacity due to a lack of fear of termination from the job or reassurance of compensation and re-employment in case they are terminated.
We shall conclude with our arguments that the right to work as Fundamental Right is not only practically possible but also not desirable at this stage in the Indian Economy.
International Perspective
The debate revolving around the recognition of the right to has occupied the central place in the human rights discourse. This was formally recognised in Article 23 of the Universal Declaration of Human Rights [“UDHR”] as a free choice of an individual and claim over equal wages for equal work. Article 6 of the International Covenant of Economic, Social, and Cultural Rights also recognises the right to a free choice of employment. It says: “The State parties to the present Covenant recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts”. Furthermore, Article 15 of the European Union Charter of the Fundamental Rights provides that every citizen of the European Union [“EU”] has the freedom to seek employment, work, exercise the right of establishment, and provide services in any EU country.
Despite recognition by these international conventions, the majority of the population does not enjoy meaningful employment. As per the study conducted by the International Labour Organisation in 2012, around 210 million people were found to be unemployed across the world. All these conventions provide the right to work as a negative obligation in the form of freedom to work. In light of this, it is essential to highlight that Soviet bloc States had argued during the drafting of the UDHR that right to work should have a positive connotation in the form of a guarantee of work. Therefore, at present, there is no legislation or convention imposing a positive obligation on the State to provide employment to its citizens. Thus it will be difficult for India to draw an example from some other jurisdiction.
Right to Work and Livelihood are Already Protected Under the Preamble, Articles 14, 15, 16, 19 and 21 of the Constitution
The right to work is not given as a fundamental right to create a positive obligation on the State to ensure employment for everyone. We argue that existing fundamental rights secure the right to livelihood, freedom of choice of profession, and equality in the opportunities given. The SC in Olga Tellis v. Bombay Municipal Corporation has recognized that that which makes life possible must be considered an essential component of the right to life. For if a person’s right to livelihood is taken away, he also loses his right to life. As defined by Article 21, the right to life entails more than mere animal existence. This interpretation of Article 21 by the SC provides protection to people against arbitrary termination or unlawful deprivation of livelihood.
Furthermore, the provision of reservation in the constitution also tries to deal with the social and economic inequality which might affect a person’s opportunity of employment. Additionally, a conjoint reading of the Preamble to the Constitution with Article 38 and Article 39 mentions social and economic justice, which is a cardinal principle of paramount importance within the constitutional structure. Article 41 enjoins the State to make provisions for providing work, of course, to the capacity and development within the limits of its economic capacity. The inclusion of such obligation in DPSP not only shows the awareness of the drafter of the constitution of the need for economic justice but also the incapacity of the State to bear such a burden. At this point, it is pertinent to note that though the Indian economy has expanded and developed to become the sixth-largest economy in the world, at the same time, it is ranked second in terms of population, thereby showing that the population-resource ratio has only increased with the team. This is also evident from the fact that at the present stage, India is grappling, inter-alia, with the problem of black money, unemployment, lack of good governance, and concentration of power and wealth.
Therefore, we are of the opinion that the present constitutional framework that provides for the right to work only as a negative obligation in fundamental rights and a positive obligation in non-binding DPSPs, is suitable for the Indian economy.
Fundamental Right to Work is Impractical
In Dwarkadas Srinivas v. The Sholapur and Weaving Co. Ltd, it was observed that the practical consequences of the State’s actions should be evaluated rather than only looking at the legal element. An analogy can be drawn from Fundamental Right to property which was made a legal right via the 44th Constitutional Amendment to the Indian Constitution. One of the reasons why it was made a legal right was due to the practical implications of implementing it as a Fundamental Right. The main motive of this removal was to reduce the boundaries between rich and poor. It restricted the power of the Indian government to acquire property for the social welfare of the general public. Similarly, with the Right to work as a Fundamental Right government will lose economic welfare as businesses will be rendered unviable with too much bargaining power in the hands of employees.
In this part, we argue that it is vital to consider that granting everyone the right to work will impose an unnecessary strain on the State’s economic resources. Some of the practical difficulties associated with the right to work are; changes to the existing labour law [A]; financial burden on the State’s revenue ; negative impact on the private sector and FDI [C].
A. Changes to the Existing Labour Law
A lot of changes will have to be made to the existing labour law regime. As of now, the existing labour laws are based on the ‘right to work’ as DPSP or based on any international convention. Changes will be required to accommodate the change of stance for the right to work as a Fundamental Right. Provisions relating to the termination of employees will be rendered useless.
Besides, it would become difficult to define ‘work’ and ‘employment’, and it would not be possible to assess whether to allot work in the public sector, private sector, or organized and unorganized. Various types of institutional mechanisms would also be required to be established to provide insurance till gainful work opportunities. This requires fundamental changes in economic policy and planning. Several socialist countries have recognized work, but they have not given the individual the right to courts for the enforcement of that right. No doubt providing the right to work is a welcome factor at the same time, it is imperative to keep the practical difficulties of implementation in mind. Distributive justice to society is more important than the fundamental right of a single individual to work. The status of a fundamental right is not feasible and appropriate, and it is, therefore, justified to retain it as the directive principle policy.
B. Financial Burden on the State
In Nilabati Behra v. State of Orissa, the Supreme court observed that the State is obliged to pay monetary compensation for violation of fundamental rights to redress the contravention made by it. In light of this, there will be a lot of financial burden on the State as now it will have to compensate unemployed people. Right to work under the current law indicates that every person of the nation has the right to work, and the State will protect that right and education to the best of its ability. If this is made a Fundamental Right, every unemployed person in India will now have the right to sue the government of India. This sounds good on paper, but in practical situations, it is not possible for the Indian government to provide employment to each and every person living in India (with a population of 1.39 Crores). Further, the Indian government will now have to compensate each and every person for unemployment. This will cause more harm than good. Indian courts will be flooded with cases that are already overburdened with work. The courts would then have the authority to compel the right for everyone. There are millions of unemployed in India, and it is not possible for the courts to provide through writs to those unfortunate unemployed.
National Rural Employment Guarantee Act, 2005 or Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (“MGNREGA”), is the Indian statute that deals with the social security measure that aims to provide the right to work. It is an already existing statute that works in furtherance with the right to work given as DPSP. MGNREGA aims to improve the employment status of people living in rural areas. It provides at least one adult member of every family that volunteers to undertake unskilled manual labour and receives 100 days of paid employment in a fiscal year. However, the fact is that despite the government’s boasts of “record allocations” and 92% on-time payment generation, MGNREGA has been dying a slow death. The central government recently sent a press release indicating that 92% of MGNREGA payments were made on schedule this fiscal year.
Currently, 17 States MGNREGA pay rates are lower than their respective State minimum salaries. Workers have lost interest in working for MGNREGA projects due to the extremely low salary rates, allowing contractors and middlemen to seize control locally. MGNREGA’s ground-level performance depends on consistent funding to the States. The lack of “mother sanctions” from the Central government has hampered work in peak season three times last year and once this year . Over 80% of the money is spent in the first six months almost every year. It has actually dropped due to the inclusion of last year’s pending obligations. Thus, the funds allocated are inadequate to guarantee effective execution. This is the situation when the right to work is currently a DPSP.
With right work as a Fundamental Right will put a lot of economic stress upon the State to an extent that it does more harm than good. For instance, in US Workers in non-“right-to-work” states are more likely to have health insurance and pensions supplied by their employers. Workers in “right-to-work” states are substantially less likely to have health insurance or pensions supplied by their employers. As it puts a lot of burden on the state to provide employment to a greater number of people than focusing the on-quality aspect.
C. Negative Impact on Private Sector and FDI
Government job in India is already a matter of prestige, with a high number of candidates competing for a few posts. While the right to work can still be enforced on public organizations/ entities, the same will not be possible to implement against a private entity. A Fundamental Right to work might even lead to the undesirability of private jobs due to a lack of assurance compared to a government job. Since the right to work cannot be implemented against private entities, all the burden arising from the right to work will have to be borne by government entities. This might even lead to nationalization in various sectors of the economy, which can nurture only in a closed economy.
Alternatively, considering that the right to work is made enforceable against the private entity. In this case, business in India will become unviable as it will have a huge negative impact on India’s ranking in ease of doing business. It will demolish India’s efforts to bring reforms in every sector to improve India’s ranking in the World Bank’s Ease of doing business. As India is one of the famous countries for cheap labour, which counts as an attractive point for investment, it will now become a negative point for investment in India.
Conclusion
In conclusion, it would not be wrong to say that it is not desirable to have a fundamental right to work as envisaged in DPSPs. Considering the practicalities, the biggest concern would be in materializing the right to work. There is a significant demand for resources in order to offer jobs for everyone in the economy. In order to adjust to the situation, the salaries would be lower than in the private sector for similar jobs. As Sir BN Rou, the architect of the Constitution had rightly observed that “certain rights requiring positive action on the part of the State can only be guaranteed only as far as such action is practicable otherwise State shall obtain from prejudicial actions”. At present, it is not feasible to give everyone the right to work since each individual will turn to the courts to have this right enforced, and the courts will not be able to provide employment to every unemployed person through writs.
Besides, there will be a concern in drafting the provision, if at all, if it is decided to be included in the constitution as Fundamental Right. The main concern would be whether to provide the fundamental right to work to only “citizens” or to “everyone”, which is a question of another debate altogether.
The authors, Anurag Singh and Rashi Jeph, are undergraduate law students at the National Law University (NLUJ), Jodhpur.
The Constitution of India, 1950, Art. 19(2).
Olga Tellis v. Bombay Municipal Corporation, 1985 SCC (3) 545.
The Constitution of India, 1950, Arts. 39 & 41.
The Constitution of India, 1950, Art. 14.
The Constitution of India, 1950, Art. 15.
The Constitution of India, 1950, Art.19(1)(g).
The Constitution of India, 1950, Art. 21.
Article 23, Universal Declaration of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (December 12, 1948).
Article 6, International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3 (December 16, 1966).
Id.
Article 15, European Union Charter of the Fundamental Rights, December 14, 2007, C 303/1.
International Labour Office, Global Employment Trends for Youth, August 2010, available at .pdf (Last visited on June 12, 2012).
Jose Luis Rey-Perez, The Right to Work Reassessed: How We Can Understand and Make Effective the Right to Work, 2 Rutgers J. L. & Urb. Pol’y 217, 218 (2005).
M.C.R. Craven, The International Covenant On Economic, Social and Cultural Rights: A Perspective on its Development 195 (1998).
Olga Tellis v. Bombay Municipal Corporation, 1985 SCC (3) 545.
The Constitution of India, 1950, Art. 21.
The Constitution of India, 1950, Arts. 15 & 16.
The Constitution of India, 1950, Art. 38.
The Constitution of India, 1950, Art. 39.
The Constitution of India, 1950, Art. 41.
The Economic Times, India to overtake Japan as Asia’s 2nd largest economy by 2030: HIS, January 7, available at (Last visited on April 19, 2022).
U.S. Census Bureau, U.S. Census Bureau Current Population, April 18, 2022, available at (Last visited on April 19, 2022).
Aayushi, Present Situation of the Right to Job in India, 1 Jus Corpus L.J. 165 (2021).
Dwarkadas Srinivas v. The Sholapur and Weaving Co. Ltd, AIR 1954 SC 119.
The Constitution (Forty-fourth Amendment) Act, 1978, Statement of Objects and Reasons, ¶3.
Jon Elster, Democracy and the Welfare State (1988).
Sudesh Kumar Sharma, Right to work: An assessment of constitutional policy and ethos, 1 KUJLS, 191 (1998).
Nilabati Behra v. State of Orissa, 1993 AIR SC 1960.
V. M. Dandekar, Making Right to Work Fundamental, 26 EPW 697 (1991).
The Constitution of India, 1950, Art. 41.
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