Summary: The approach to ‘transformative constitutionalism’ in Bandhua Mukti Morcha vs Union stands in stark contrast to the rationale preferred in Balram Singh. The central issue concerns both Article 21 and Article 14 of the Constitution. This article first identifies that the Court, in casu, inverted the “presumption-of-exploitation” rationale. It then argues structurally that, insofar as the application of this inversion rationale is concerned, the Court attempts at a holistic restructuring of social rights adjudication by conclusively shifting the burden-of-proof onto the petitioners, the outcome of which is ‘evidentiary conditionality’.
This article does not merely critique the outcome, but also problematizes the methodological shift incorporated in the decision of the Court.
This article first contrasts the decision in casu with that in the Bandhua Mukti Morcha judgement. It then analyses the inversion of the “presumption-of-exploitation”. The article finally concludes by critiquing the conditionality of evidence.
Introduction
India witnessed the enactment of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act (hereinafter, Prohibition Act) in 2013. The statute aimed to abolish manual scavenging and rehabilitation. Yet, the guarantees of the Act could not be extended to all hazardous workers, for rehabilitation purposes, due to definitional limits, despite the progressive outlook. In 2023, Dr Balram Singh filed a public interest litigation (PIL) before the Supreme Court, concerning the said Act as well as the Employment of Manual Scavengers and Construction of Dry Latrines Act. In June of the said year, an implementation application was filed on behalf of Thamate, regarding the difference in treatment of manual scavengers and hazardous cleaners.
The court was thus faced with a choice between expanding the scope of protection of dignity (through a purposive reinterpretation of the term “manual scavengers”) as done in Bandhua Mukti Morcha vs. Union, or deferring to statutory limitations in the Prohibition Act, thus following a narrower approach. The Court upheld the latter, thereby allowing rehabilitation only contingent on the availability of protective gear [emphasis supplied].
This article critiques the Court’s retreat in the present case from the transformative spirit envisioned in Bandhua Mukti Morcha vs. Union, revealing judicial passivity and over-reliance on statutory limits.
Background
The Court in Bandhua Mukti Morcha spoke vividly about the inhuman conditions pertaining to workers working in stone-crushers. The Court not only delineated the potential risk of tuberculosis, but also acknowledged the lack of access to sufficient medical care to the employed workers. It was accordingly opined that the right to live with dignity enshrined in Article 21 is informed through Articles 39, 41 and 42. Therefore, the emphasis of the Court, in reasoning such, was on the protection, health and strength of workers while acknowledging that just and human conditions of work make up the minimum threshold which must be met for a person to live with dignity.
To give effect to such aspirational motivations of dignity, the central reasoning pushed forth was based off of the central notion of a presumption of exploitation (or presumed exploitation). Bhagwati Justice, in his judgment, presented a methodological contrast to the order passed in the Balram Singh case. He reasoned that when a labourer is made to provide forced labour, it would be presumed to be bonded labour – a distinction material to the conditionality with which rehabilitative mechanisms are provided.
Judicial Over-Reliance on Statutory Limits & Presumptive Inversion
The Court was of the opinion in the Balram Singh judgement that the differentiation cannot be pronounced unconstitutional without a challenge to the provisions of the Act itself.
Herein, I argue that the Court places an overt reliance on the definitional limits set by the statute, departing from the expansive interpretative approach adopted in Bandhua Mukti Morcha vs. Union. The Court simply refuses to test the differentiation against Articles 21 and 14, unless a direct challenge exists to the provisions therein.
This approach treats the constitutional question raised in Bandhua Mukti Morcha vs. Union as a statutorily confined question, implying that unless the categorisation of the Act itself is challenged, the protective means of the Act cannot be expanded.
This over-reliance of the Court on statutory limitations is further plagued by an inversion of presumptions, highlighting a deviation from the reasoning upheld in Bandhua Mukti Morcha vs. Union. The approach of presumptions can be said to have taken a full circle from presuming the bonded nature of labour, once forced labour or inhuman conditions are shown, which then, the State has to rebut, to the presumed lack of exploitation in Balram Singh. The Court in the present matter, through its latest order, essentially burdens the petitioner to prove a severe deprivation of rights through an ‘unquantifiable metric’, which is the sufficiency of minimum gear, thereby discarding any presumptions of exploitation.
On the Question of Conditionality
The core contention with pre-legislative social rights adjudication in Courts is a piecemeal relief, conditional upon existing government schemes, subsidies, orders and legislation. The very idea of social rights has traditionally been deferential to the discretion of the executive and, for the same reason, incapable of radical systemic change. Thus, social rights adjudication by the court, by nature, were mere access point into existing schemes and policies.
The present order in Balram Singh vs. Union reproduces, if not worsens, this problematic schema. The Court has to nod to the line of reasoning adjudicated in Bandhua Mukti Morcha vs. Union, yet it finds itself crafting an exception, attempting to fit social rights within statutory confines, preferring a restrictive interpretation rather than a traditionally preferred holistic one. I argue that the latest Balram Singh order adds a further layer of requirement of “proof of absence of a minimum threshold of safety gear” placed onto the petitioner, as a condition contingent upon denying rehabilitation.
Conclusion
The order of the Court in Balram Singh vs. Union presents a particular deviation from the transformative reasoning of the Court in Bandhua Mukti Morcha vs. Union, by signalling that statutory construction and definitional challenge shall prevail over broader constitutional aspirations. The Court reverses the presumption of exploitation as reasoned in Bandhua Mukti Morcha vs. Union by placing the burden on the petitioner to establish a lack of a minimum threshold of gear, thereby furthering Mukherjee’s critique of conditionality.
This passive nod to indignity based on conditionality is a regressive step, in light of abolitionist promises made through the legislative intent and decisions of the Court. Judicial catalysts can only attack structural vulnerability by presuming exploitation, not adopting an approach of difference to legislative constraints.
Short Bio: Arnav Singh is a sophomore at the National Law School with a keen interest in the law of crime.
Ed Note: This piece was edited by Abhishek Sanjay and published by Tamanna Yadav from the Student Editorial Team
