Supreme Court: Should right to work be a fundamental right?

NEW DELHI: The Supreme Court on Friday questioned whether the statutory guarantee of employment for rural workers can be placed on the same footing as the fundamental right to life and dignity.

A three-member bench comprising Chief Justice of India (CJI) Surya Kant and Justices Joymalya Bagchi and V Mohana noted that the Constitution doesn’t recognise the right to work as a fundamental right but places it among the state’s obligations under the Directive Principles of State Policy. “Should we create it on a par with Article 21?” said Justice Bagchi. He then flagged the broader constitutional implications of elevating the right to work to the level of an enforceable right, particularly if the State were to scale back its social welfare measures. “That is a very big question which we need to answer,” he said. “Because if we do that, and the State contracts its social welfare activities, can we issue a mandamus upon them and say, no, you have to implement MGNREGA or the Viksit Bharat–Guarantee for Rozgar and Ajeevika Mission (Gramin) (BG RAM) scheme?”.

The SC was hearing a plea concerning payment of minimum wages and compensation for delayed wages for rural employment guarantee workers. Advocate Prashant Bhushan, representing the petitioner, contended that the petition wasn’t rendered infructuous by the replacement of Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) with the Viksit Bharat–Guarantee for Rozgar and Ajeevika Mission (Gramin) (VB-G RAM G) Act.


The petition has raised two issues—compensation for delayed payment of MGNREGA wages, and whether workers can be paid less than minimum wages notified by the respective States. The top court had earlier dealt with delayed payment of MGNREGA wages in another judgment. Speaking on behalf of the bench, CJI Kant said the issue is covered by the previous judgment and that any failure to implement it would constitute fresh cause of action.

Bhushan told the court that the minimum wage question continued to survive under the new law. He submitted that the state-notified minimum wages must be paid. He relied on earlier Supreme Court judgments holding that payment below minimum wages can amount to forced labour. CJI Kant, however, pointed to the practical implications of imposing a minimum wage threshold on an employment guarantee scheme. He observed that a higher wage could reduce the number of workers who could be provided employment if the overall resources remained unchanged. He said the applicability of the Minimum Wages Act would depend on the nature of activities undertaken under the employment scheme.