In a recent national webinar, the former Chief Justice of India P. Sathasivam stated “any wage that is above minimum wage but below promised amount is a labour dispute, but any wage paid below minimum wage is a violation of Fundamental rights.”

The International Labour Organisation defines Minimum wages as “the minimum amount of remuneration that the employer is required to pay wage earners for the work performed during a given period, which cannot be reduced by collective agreement or an individual contract”. The Minimum Wages rates in India is fixed by both the Central Government and State Government. These rates are primarily fixed to protect the interest of workers in the unorganized sector and layout the minimum wage that must be paid to skilled, semi-skilled, as well as unskilled labourers. A minimum wage assures a wage earner’s bare subsistence which includes food and shelter and other basic needs such  education, medical requirement and to some extend comfort, it also ensures efficiency in the work.

It is important to address this serious issue “Non-payment of minimum wages”. The laws pertaining to Minimum wages has been there in our country for decades. Despite various efforts by the government, this issue still exists a significant number of employers are refusing to pay it. This is a clear violation of the fundamental rights of the wage earner, which is promised under Article 21 and Article 23 of the Constitution of India.

Article 21 reads as “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Here the word “Life” does not merely mean the physical act of breathing and mere existence or surviving. The scope of its meaning is much wide, it encompasses within itself right to live with human dignity, right to health, right to livelihood, etc.

We see a massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The migration is fuelled by a person’s necessity to survive and support his family’s mundane needs such as food and shelter, etc. If you deprive a person of his right to livelihood, you shall have deprived him of his life. Such deprivation would lead to circumstances where it would become impossible for a person to lead a normal life. If the right to livelihood is not considered as a part of the right to life then such act of deprivation of a person of his livelihood would be in accordance of the law and will be a clear violation of the fundamental rights. This shows that there is an undeniable relationship between right to life and right to livelihood. The “minimum wages” is part and parcel of the right to livelihood. The primary objective of the livelihood is to provide security of life to the wage earner and that he may have two square meals a day and maintain a minimum standard of life. Thus, the right to livelihood is, therefore an essential and integral part of the right to life, constitutionally guaranteed under Article 21 and breach whereof cannot be tolerated under any circumstance.

Article 23 reads as “Prohibition of traffic in human beings and forced labour (1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law (2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them”.

The protection of fundamental right promised under Article 23 is not only enforceable against the State, but also against the whole world. The very purpose of this article is to protect any individual from any form of forced labour. The Supreme court held in 1982 (3) SCC 235, People’s Union for Democratic Rights v. Union of India that “The non-payment of minimum wages or payment of less than minimum wage prescribed by the government under any law being in force, would amount to “forced  labour”. It is fair to assume that the wage earner is compelled to provide the labour for remuneration less than minimum wage. He is not willingly accepting less remuneration than the minimum wage.

The word “Force”  in Article 23 can be classified into two types. The first type of force is where labour is acquired from wage earner through physical force. The second type is where a wage earner is forced by his hunger and poverty. Due to his poor socio-economic condition, the wage earner becomes so helpless that he accepts any work that comes his way, even if the remuneration offered is less than the minimum wages. The economic derivation put wage earner in no position to bargain or choose, because of this they get exploited. A wage earner who is a victim of forced labour is entitled to come to the court for enforcement of his fundamental right under Article 23. The victim can request the court to direct payment of the minimum wage to him so that the labour provided by him ceases to be ‘forced  labour’ and the employer be punished in accordance to the law.         

When an employer refuses to pay the full minimum wage to the wage earner, it is a violation of wage earner’s fundamental right promised under Article 21 and 23 of Constitution of India. Here the employer is not only depriving the wage earner of his right to livelihood but also taking advantage of his vulnerability by forcing him to work for remuneration less than minimum wage. The state has a duty to punish employers who do not pay minimum wages. In Delhi as per The Minimum Wages (Delhi) Amendment Act, 2017, the penalty for non-payment of minimum wages is Rs. 50,000 with an imprisonment term of three years. Once the employer is convicted of his crime, the state further has constitutional duty to file a claim for back wages for the pending wages on behalf of the wage earner for the work done by him in due course of his employment.

By John James