It is the state's responsibility to secure an equitable income for those who are employed, to care for those incapable of doing any work, and to relieve those who are able to work but prevented from doing so by economic forces. Among the basic rights is the right to work. This has been recognized since the eighteenth century, when the German thinker Fichte argued that the right to live and the right to work must be protected by the state.0
Right to Work in Theory and Practice
Socialist systems recognize the right to work as an obligation; the state may extract the work that is socially and economically useful. For example, the Chinese Constitution of 1982 declares that the right to work is "a glorious duty of every able-bodied citizen." However, because the socialist systems lack strong judiciary, they have not made this right justiceable.
It is naive to suppose that the right to work can be guaranteed only in socialistic systems. It is as effectively ensured in several democratic nations, along with programs of insurance for the unemployed. France (1905), Norway (1906), Denmark (1907), Great Britain (1911), Italy (1919), and Canada (1955) have programs providing employment. In the United States, the problems of unemployment are met by the Social Security Act of 1935. The Japanese constitution makes it obligatory for the state to provide employment. In the Scandinavian countries the unemployment alleviating programs are funds administered by the trade unions and subsidized by tax revenues.
The Universal Declaration of Human Rights states that, "everyone has right to work, to free choice of employment, just and favorable conditions of work, and protection against unemployment." The International Covenant on Economic Social and Cultural Rights adds, "full realization of this right shall include technical and vocational guidance and training programs." The International Labour Organization sought to ensure that "there is work for all who are available for and seeking work" and that "there is freedom of choice of employment and the fullest possible opportunity for each worker to qualify for his employment." These rights prescribe the goals to which nations aspire.
Right to Work in India
The Joint Family system, the caste system, and the agricultural background of ancient Indian society left no room for unemployment. Manu, the law-giver of ancient India, ordained that the king should support all his subjects as earth does for all the living beings, without discrimination. The epic Mahabharat mentions that the king should look after the welfare of the disabled, helpless, orphans, widows, victims of calamities, and pregnant women by meeting their minimum needs. Kautilya, the greatest economist of the medieval period of Indian history, said, "in the happiness of his subjects lies the king's happiness, in their welfare his welfare..." Mahatma Gandhi viewed work more as duty than as right. This is in consonance with Hindu thought in treating duty as an aspect of dharma.
India is a signatory to all the employment-related human rights, which it is obliged to satisfy. The Universal Declaration of Human Rights had a vital impact in framing the Indian Constitution. However, the Constituent Assembly that framed it did not throw much light on the right to work as an enforceable right. Ambedkar, the Chairman of the Drafting Committee, remarked,
"If a person who is unemployed is offered a choice between a job of some sort and exercise of his rights to freedom of speech, association, religion, etc., can there be any doubt as to what his choice would be? The unemployed are thus compelled to relinquish their fundamental rights for the sake of securing the privilege to work and subsist."
Enforceable and Unenforceable
The Indian Constitution maintains a dichotomy between enforceable rights and unenforceable rights. Ultimately, when the constitution was passed, "right to work" became one of the unenforceable rights. "Fundamental Rights" are enforceable, mostly covering civil rights, but also providing for equality of opportunity in public employment. These do not specifically guarantee right to employment.
However, other enforceable articles do guarantee all citizens the freedom to practice any profession or to carry on any occupation, trade, or business; prohibit forced labor or the employment of children below 14 years by factories, mines, and other hazardous employment; and guarantee right to life and personal liberty.
The judges of the Indian Supreme Court have noted that right to life is not confined to mere physical existence but includes the right to live with human dignity. This ruling makes many directives enforceable that would not otherwise be covered. For instance, the law now recognizes the right to primary education, since it is necessary to sustain human dignity. However, the Supreme Court was enigmatic about the right to work. In a 1981 case the court held that bare necessities of life go with the right to live with dignity. However, in 1992 the court reversed the trend by stating that the right to work is contingent on the economic capacity of the state.
Planning and Right to Work
The Annual Report of the Ministry of Labour says the overall unemployment rate is more than 2.56%. The rate of educated unemployment is nearly 9.6%.
The Five Year Plans adopted by India aim to create jobs. In fact, the Eighth Plan envisages full employment by 2000 A.D., but in the past, the achievements have fallen short of the target. In view of the acute cyclical unemployment prevailing in India, it may not be practicable to guarantee right to work when this would cost a whopping 48% of the annual national budget.
As envisaged in the Five Year Plans, the government is implementing several poverty alleviating programs, especially in rural areas. A report from parliament observed that, whereas ad hoc or isolated schemes of employment may work well for a time, they cannot be sustained for long and will fail to achieve their purpose. It added that the time has come to recognize citizens' right to work and that the state should accept the responsibility to provide work or give employment assistance.
On at least four previous occasions, private members of the Parliament have tried to get a Bill passed assuring the right to work. The President of India, addressing Parliament in 1990, observed, "Government will introduce a Constitution Amendment Bill to enshrine the right to work as a Fundamental Right in the Constitution." This assurance is yet to materialize.
Staggering Financial Implications
Though the financial implications of implementing the right to work are staggering, the economic problem can be solved if necessary measures are taken. Subsidies must be severely curtailed. Money spent on all the poverty-alleviating programs can be pooled together for an effective implementation of legislation on the right to work. A strategy of "minimum wages and more employment" is preferable to "more wages and less employment." Efforts should be made to maximize employment by taking advantage of globalization in the market economy. Universal compulsory education abolishes child labor and releases jobs to adults. Unfortunately, the present educational system aims at preparing the students for higher degrees instead of developing vocational skills and careers. This requires necessary changes.
The right to work cannot be made absolute or unrestricted, but can be reasonably qualified. Assurance of right to work may be limited by income and age and should not be extended to the unemployed who were dismissed for faults or whose unemployment is only a disguise for indolence. Any constitutional guarantee of the right to work may cover the following: All citizens over the age of 18 shall have the right to work, provided that their annual income from all sources shall not exceed the average minimum wage per annum. If the state fails to provide the work, it must provide an unemployment allowance instead.
The authors are law professors at Sri Padmavati Mahila Visvavidyalayam University in Tirupati, India.