Right to Work by Arvind Panda

Leaving aside the factors which make life livable, it is the practical truth of the economic world that one must earn a living to be able to live. In other words, work to maintain an suitable standard of living. Leave aside the labour power, economic assets are unevenly distributed therefore making each one of us reliant. Consequently, one must work otherwise the basic necessities of life shall remain unfulfilled. The world has been moving forward based on the policy of give and take. And as we have come a long way from the barter system, the present-day medium which enables such exchange of resources, for which one must ‘work’, is money.

The ‘right to work’ hence is the most essential element of life to be able to live. To enable the fulfilment of the basic need for food, water, clothing and shelter and also something more than just the basic requirements of life one must work to earn.

The Indian Constitution does not explicitly recognize the ‘right to work’ as a fundamental right. It is placed in Part IV (Directive Principles of State Policy) of the Constitution under Article 41, which hence makes it unenforceable in the court of law. Despite the absence of an express wording of the ‘right to work’ in Part III (Fundamental Rights) of the Constitution, it became a ‘fundamental right’ through a judicial interpretation.

The first and foremost thing to be kept in mind is,  since it is the State which enforces the existence of fundamental rights, the same can only be claimed against the State and not against any private institution. In other words, the right to work can only be claimed against the State and not against any private institution.

Decoding the Supreme Court ruling in Olga Tellis case right to work is violated-

  1. When a person is terminated from his job against the terms of his employment. For instance, if a permanent employee is terminated from his job without a reasonable cause it amounts to the violation of the ‘right to work’.
  2. When a person is terminated from his job in violation of the already laid down Central or State laws.
  3. When a person is excluded from being employed based on unfair and unreasonable classification.
  4. When a person is deprived of his livelihood in violation of the just and fair procedure established by law, as was the case in Olga Tellis & Ors. v Bombay Municipal Corporation & Ors.

It is important to note that voluntary unemployment or unemployment due to lack of jobs or lack of skills shall not amount to a violation of the Right to Work.

How to approach the Court to seek a remedy?

In event of violation of the ‘right to work,’ a writ petition can be filed-

  • In the High Court of the respective State under Article 226 of the Constitution of India, or
  • In the Supreme Court of India under Article 32 of the Constitution of India.

As opposed to the other fundamental rights which are suspended for the period during which the Proclamation of Emergency is in force, Article 21 and 22 of the Constitution continue to operate. Thus, ‘right to work’ which is included in ‘right to life’ under Article 21 can be claimed even during the period of Emergency and the aggrieved can seek remedy from the Court in event of its violation.

However, a person pursuing an occupation/ trade/ business prohibited by law cannot claim the ‘right to work’ when the State takes measures to curb it. For instance, living on the gains of prostitution, gambling and the likewise is not protected under the ‘right to work’.

To what started as a struggle to stop the demolition of pavement dwellings and slum hutments ended with the Supreme Court recognising ‘right to work’ as a fundamental right. Henceforth, providing every person within the Indian territory with the right to be employed in an employment of their choice, subject to lawful restrictions, to protect them from being deprived of their life. Furthermore, the Right prevents the removal of any person from employment or deprivation of a person from being employed except as per procedure established by law.

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