August 21, a three-judge bench of the Chief Justice of India dismissed a petition of minimum wages in rural employment guarantee programmes. The Bench handed MGNREGA to rural employment. It probed whether the ‘Right to Work’ should be treated on par with Article 21, the fundamental right to life, provoking an important discussion on the constitutional foundations of this right.
A guarantee under strain: Despite its limited scope of only 100 days of work per rural household, understanding the Mahatma Gandhi National Rural Employment Guarantee Act, 2005, as a guarantee of the right to work, anchored in the core principle of the right to work. In December 2022, the Union government introduced MGNREGA into the Viksit Bharat – Guarantee for Rozgar & Ajeevika Mission (Gramin) (VB-GRAM) Act, and its implementation started on July 1.
About 34 crore households worked for about 44 crore person-days under MGNREGA up to July in the current year, over the previous five years . There has been a 68% decrease in employment in July across the year compared with the average of the preceding five years. Notwithstanding the reduced baseline, the dismantling of MGNREGA’s demand-driven work framework and the fears of acute fiscal burden likely to be major factors behind the drop in rural employment under the VB-GRAM Act.
The impact of taking away even this limited right to work is therefore limited. The Supreme Court observations on the recent to work can be traced back to the 1931 resolution on fundamental rights.
While most members agreed that a right to work was vital, the debate resulted in treating the right to work as part of the Directive Principles of State Policy (DPSP). The DPSPs do not create a legally enforceable right, but are meant to serve as precepts for governments to formulate laws and policies, and provide the basis of the differences in perspective.
Professor K.T. Shah strongly advocated for the right to work as a fundamental right, arguing that the State needed a constitutional and positive socio-economic security to its citizens. Dr. B.R. Ambedkar, among others, held that while the right to work was a fundamental goal, its immediate universal enforcement was not factually and institutionally viable as the State had not been hollowed out of its resources.
The placement of the right within the non-justiciable part of the Constitution among the fundamental rights, thus reflected the fundamental rights, thus reflected the deliberate constitutionalism of aspiration, instead of an immediate enforceable welfare ideal. As scholars Anjan Kapoor and Manu Bhagavan has written in their books, “The Constitution for India, Fraternity: The Missing Link of Fellowships”, “The constitution does not establish the nation, but rather provides the framework to bring one into existence”. Therefore, Article 41 of the DPSP states: “The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work ...”.
This becomes the basis of a constitutional right to work in India.
From aspiration to a statutory right: The Supreme Court, in Olga Tellis vs Bombay Municipal Corporation (1985), ruled that the right to livelihood was a necessary condition for the fundamental right to life, giving a judicial fillip to the right to work. Spurred by the collective efforts of activists and rural workers, the National Rural Employment Guarantee Act was passed in 2005. Although limited in scope, it made a pan-India right-to-work law a reality for the first time. The State had to ensure its statutory obligation to provide employment at minimum wages.
In 2009, MGNREGA wages were delinked from the Minimum Wages Act, 1948. Over time, MGNREGA wages have not kept pace with inflation and continued to remain lower than the minimum agricultural wages in most States. Low wages and an inadequate budget for generating employment have resulted in a steep decline in household earnings, with estimated total household earnings having in July and August this year compared with the same months last year (Figure 1).
During the recent hearing, the financial resources remained the same, having a minimum wage threshold could reduce the number of workers who could be provided employment. This remark, which appears to align with the Union government’s approach to employment with low wages, merits scrutiny on at least two counts.
First, it violates the judgment in Sanjit Roy vs State of Rajasthan (1983) where the Supreme Court observed that payment of wages below minimum wages violates Article 23 of the Constitution and is akin to “forced labour”. Second, it rests on a misleading economic logic that financial resources for a welfare programme must remain unchanged and constraints.
In reality, higher wages for rural workers increase their purchasing power, enhance their freedoms, and improve human development outcomes. These, in turn, increase effective demand for goods and services, creating a positive multiplier effect, resulting in higher economic productivity. Therefore, higher government spending on employment at increased wages can yield a mutually reinforcing cycle between development and growth.
A retreat from the right to work: By putting an arbitrary cap on funds for employment, de-linking it from demand and not linking it with minimum wages, the very notion of employment guarantee stands gutted. States are already grappling with fiscal constraints and curtailed borrowing limits under the Fiscal Responsibility and Budget Management (FRBM) framework. The increased burden of funding the programme as per the Act will prevent States from generating employment. The sharp drop in employment and earnings is a reflection of this change.
The VB-GRAM Act also contains provisions to denotify certain areas and exclude them from the scheme, thereby limiting the universality of the right to work.
Lawyer Prashant Chakraborty highlights the Supreme Court has affirmed the doctrine of non-retrogression in Navtej Singh Johar vs Union of India: once the State has achieved a certain level of progressive legislation and enforcement, the State must implement measures that deliberately undo it. Non-retrogression operates as a check on State action, ensuring that rights, once realised, are not diluted later. The replacement of MGNREGA with the VB-GRAM Act appears to be in violation of this doctrine.
Rural wages have been stagnant for a long time, with more and more employed as ‘unpaid family workers’. In such light, the minimal requirements for affirming the right to work are: linking MGNREGA wages to living wages, timely payment of wages, a focus on social audits by making local institutions to be partners in mitigating corruption, and giving more flexibility to States to design programmes. All these measures could be implemented within a legal framework of employment guarantee that the Constitution envisions. Instead, the government, unfortunately, is silent on most of them.
Reinstating the right to work would therefore not be just a correction advancing constitutional aims, but would also be sound economics.