Yes, India’s Constitution has been hijacked – but not by the Supreme Court

Retired High Court judge RS Sodhi claimed the Supreme Court has hijacked the Constitution of India. Union Law Minister Kiren Rijiju agrees.

The judge and the minister were talking about this “hijacking” in the context of the appointment of judges. The Union government and the Supreme Court have been in a war of words over the matter for weeks now.

But upon reading their exchange, there came a realisation that the Constitution has indeed been hijacked – not by the Supreme Court, but India’s growing class of billionaires.

Merely compare what the wealthy own: houses, not only in Mumbai but in Dubai, London and may be further afield, cars worth crores, watches, shoes and designer clothes, and some even own airports.

What do ordinary Indians own? Their material goods probably amount to a small bundle of clothes, perhaps a few utensils and not much else.

What does the right to justice, equality and liberty mean to millions of Indian citizens? They are not demanding such luxurious material goods. All they want is what is rightfully theirs: the rights guaranteed under the Constitution of India.

Right to livelihood

On September 9 last year, weeks after India celebrated Independence Day on August 15, six sanitation workers attempted to commit suicide outside a municipality office in Ahmedabad – three consumed poison while the others doused themselves with petrol and set themselves on fire. They were protesting against not being made permanent employees.

Why did Daksha Hathiwala, Parshottam Vala, Hira Kabira, Moti Vaghela, Ashok Vaghela and Leela Vaghela, the six safai karamcharis who had been given contract work by the Ahmedabad Municipal Corporation, decide to commit suicide?

It is because they were being deprived of their right to livelihood.

These are six names that made the headlines. But most contract workers who died by suicide remain anonymous statistics.

There is an increasing incidence of death by suicide among contract workers. In Gujarat, the suicide rate of daily wage workers increased by 50.44% per cent from 2017. About nine daily wagers die by suicide every day.

According to data submitted in Rajya Sabha in December last year by Minister of State for Home Nityanand Rai, Gujarat recorded 2,131 cases of death by suicide by daily wage labourers in 2017, or about six per day. In 2018, it increased to 2,522, a massive jump of 18.34% in a single year, and in 2021, the number had increased to 3,206 in 2021.

Citing data from the National Crime Records Bureau, Rai’s response stated that 42,004 daily wage workers had died by suicide in 2021 across India.

Economist Indira Hirway told The New Indian Express, which published a report on the data in January, that Gujarat has the lowest average daily wage rate for workers in India. According to Hirway, Gujarat’s daily wage rate is Rs 295.9 while in Kerala it is Rs 837.7, in Tamil Nadu it is 478.6, in Jammu and Kashmir Rs 519, in Himachal Pradesh it is Rs 462. In Bihar, it is Rs 328.3 while in Odisha it is Rs 313.

“The share of informal unorganised workers is much higher in Gujarat compared to the states like Maharashtra, Karnataka, Punjab and Haryana, among others,” Hirway told the newspaper.

Meaningless fundamental rights?

From the contract worker, migrant labourer, daily wage earner to the app-based transport worker, the gig worker and platform worker, none of them have any way of enforcing their rights guaranteed under the Constitution or even under specific laws such as Unorganised Workers Social Security Act, 2008.

Workers in all these categories are paid well below minimum wages. They can rarely afford full meals, nor proper and comfortable accommodation. Sending their children to school is expensive while neither is healthcare affordable. The right to life and liberty guaranteed under the Constitution is meaningless for millions of such workers.

The only way these workers can enforce their rights under the law or the Constitution is by organising themselves into unions. Under the Right to Freedom, Article 19(1)(c) of the Constitution guarantees all Indian citizens the right to form associations or unions.

Yet, large corporations, with the help of the government, have ensured this right is undermined by promoting scab unions – which are subservient to the management. Corporations have also found innumerable ways to undermine the trade union movement. Thousands of workers have been unfairly dismissed and when they go to labour courts, they seldom get justice.

Despite this, the workers have found ways to register unions and fight for their rights. They have come up with ingenious ways to preserve their unions and persevere.

In Haryana, there has been a unique history of solidarity between permanent workers and contract workers. The latest case is of the Bellsonica Auto components’ karmachari union. The union granted Keshav Raj, a contract worker, membership of the union on August 14.

This was a move to bridge the divide between permanent and contract workers in the Gurugram-Manesar-Bawal automotive belt in Haryana. But the labour department in September sent a notice threatening to deregister the union if it allowed a contract worker to be a member.

According to The Hindu, the union said the move was as per its constitution, which was approved by the labour commissioner’s office. The union also referred to the Indian Constitution as well as provisions of the Trade Unions Act, 1926, which it said did not distinguish between a contract or regular worker.

What does the Constitution mean to Keshav Raj and thousands of others like him working at modern automobile hubs where corporations deliberately employ contract workers to avoid paying the wages paid to permanent workers.

Permanent workers, through their struggles, have managed to get their wages increased and some are paid between Rs 60,000 to Rs 80,000. Contract workers, however, are paid, at best, paid between Rs 10,000 to Rs 30,000.

Systematic exploitation

Workers have been divided into various categories such as temporary, casual, and trainee – and they often remain trainees long after, despite doing the work of a permanent worker). Then there is the National Employment Enhancement Mission where workers are paid wages well below the minimum in exchange for a certificate. Some factories in Goa have more than a hundred National Employment Enhancement Mission workers, which amounts to free labour for the company.

This author knows of refugees living in and around New Delhi’s Vikaspuri working in factories which pay male refugees Rs 7,000 a month for eight fours work while female workers get Rs 5,000. Rent for one-room accommodation is Rs 5,000, plus more for electricity charges, leaving little to nothing for food, medicine or education for the children of such workers and their families.

Under the Constitution, every person (not only citizens) living within India’s borders has the right to life and equal protection. Thus, refugees too are denied their rights under the Constitution.

Billionaires rising

What does the right to equality mean in a country where 5% of Indian citizens own more than 60% of the country’s wealth while the bottom 50% possess just 3%?

Oxfam India’s report “Survival of the Richest: The India story”, released on January 16, shows that a one-off 20% tax on a billionaire’s unrealised gains from 2017-’21 could potentially raise Rs 1.8 lakh crore. This is enough to employ more than five million primary school teachers in the country for a year

While the poor are still dealing with the aftermath of the pandemic and the lockdown, the number of billionaires in India increased from 102 in 2020 to 166 billionaires in 2022. The combined wealth of India’s 100 richest has touched $660 billion – Rs 54.12 lakh crore – an amount that could fund the entire Union Budget for more than 18 months.

None of these stories or statistics have shocked the vast middle-class – there are no protests or outrage. In the midst of this unfolding tragedy, the law minister has said that a retired High Court judge is right when he says that the Supreme Court has hijacked the Constitution.

The Constitution has indeed been hijacked, not by the Supreme Court, but by rich and powerful Indians who have rendered the fundamental rights enshrined in the Constitution meaningless for the vast majority of our fellow citizens.

They have hijacked the rights of the people and deprived them of their right to justice (social, economic and political), and their right to equality and liberty. The rich have virtually disfranchised their fellow citizens.

Nandita Haksar is a human rights lawyer and award-winning author.