What obligations do the state owe to its citizens when the state imposes on the citizenry a duty to perform work ? The Indian Constitution, in a Chapter titled “Fundamental Duties”, mandates that every citizen of India must “strive towards excellence in all spheres of individual and collective activity”, furthering the nation’s continuous rise in “endeavour and achievement.” This fundamental duty to work has a normative aim, which is, contribution towards the development and rise of the state. And the state does reciprocate. The extensive list of constitutional safeguards that citizens possess (i.e., social welfare provisions) under the Constitution, are aimed primarily at worker-citizens. In my new book Labour Justice, I argue that the very foundation of the constitutional social justice agenda hinges on understanding Indian citizens as “worker-citizens,” whose citizenship is defined on the basis of their work.  Although the Constitution does not imagine work only as paid work, protection and privileges of labour laws do not extend to unpaid workers – including those performing the indispensable labour of care work.

Citizens’ constitutional obligation to work creates a more direct reciprocal relationship with the state. If the imagination of citizenship is based primarily on citizens’ duty to contribute to the state’s development, the state must, as a beneficiary, reciprocate with welfare entitlements. This idea of fairness, based on social reciprocity, largely unfolds by means of labour laws, including social security provisions. Recently, the Indian Parliament – led by the Hindu nationalist (BJP) Government – comprehensively repealed labour laws in the country (collectively called the “2020 Labour Law Reforms”). In the wholesale repealing of labour laws, the BJP-government diluted social protection entitlements for Indian workers. The government promoted a market-determined hire-and-fire regime (fire-at-will has not traditionally been a characteristic of Indian labour laws), without either affording commensurate conditions for enabling successful market participation by workers or adequate social security benefits.

Conceding moral space and regulatory preoccupation to the market, when Indian citizens are constitutionally bound to socially contribute to the nation’s development, goes against the ethos of the Constitution. To be sure, the Indian Constitution does not deny the role played by the market. But market exchanges occupy a more limited space in the constitution-conceived social relational basis of citizenship. Care work, and in particular, unpaid and informal care work, clarifies the point. If citizens are dutybound to propel the nation to higher levels of endeavour and achievement, citizens are conceived as agents for change. Such agency among citizens cannot be created in absence of care work. Care work, as part of early nutrition and education, social development, skills training, and healthcare, for example, is instrumental in creating agency among the citizenry. Additionally, a specific kind of care – caring for the environment (for forests, lakes, rivers, and wildlife) – is also enumerated as a fundamental duty under the Constitution.  Since care work is fundamental to the concept of worker-citizenship, the law’s failure to value it outside of market services undermines the constitutional ideal of fairness in social reciprocity

Unfortunately, any consequential recognition of care work, or for that matter, the recognition of worker-citizenship is missing from the 2020 Labour Law Reforms. Unpaid care or caring for the environment by urban waste recyclers and forest workers remain unrecognized under the Reforms. The latter – waste pickers and forest-based workers – are legally imagined as informal (or “unorganized”) workers, workers who do not fit the legal “form” of market-based employment contract. For these and other informal workers, the Reforms conceive of some social security entitlements such as life and disability insurance, old-age insurance, and pension security. The law also requires the government(s) to create a range of other social security entitlements for informal workers. By means of these entitlements, the Reforms aimed to replicate existing social security entitlements of formal workers for informal workers. Although, on the surface, this replication seems to be attending to the insecurities of informal workers, on a careful analysis, such replication seems inadequate.

Since the very basis of identifying a given activity as informal is its divergence from employment contracts, these workers do not enjoy rights and entitlements that emerge from formal employment relationships. In absence of such entitlements, if informal workers are to be treated equitably with formal workers, their social security entitlements must be much more comprehensive that formal workers. By failing to offer a more comprehensive social security, including unemployment insurance, for informal workers, the latest Reforms have largely failed informal workers from the promise of the Constitution. It is unsurprising, then, that informal workers relied more on their social networks, friends, and family for their urgent needs than their legal entitlements as workers, during the COVID-19 pandemic.

Although unpaid and informal care work subsidizes both the country’s social security program and the labour market, it remains unrecognized as a public concern. Care work is legally deemed as a private matter of the family, untethered from the imagination of worker-citizenship. The only way care work is recognized is when it is undertaken as part of an employment contract, as a “domestic worker”. Leaving it to the market to value a deeply social relational and nation-building role, however, limits the constitutional promise that all worker-citizens can claim its protections.

Supriya Routh is Associate Professor & Canada Research Chair in Labour Law and Social Justice at the University of British Columbia’s Peter A. Allard School of Law and author of the recent book Labour Justice: A Constitutional Evaluation of Labour Law, Cambridge University Press, 2024

Artwork drawn from book cover.
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