Coronavirus and the Constitution

Late last week, the World Health Organisation declared the outbreak of Covid-19 [“the Coronavirus”] to be a pandemic. While the epicentre of the disease is presently in Europe, it has also found its way to India, with numbers expected to rise sharply in the coming days and weeks.

The Coronavirus presents legislators, the government, and public health professionals with a series of complex policy challenges. Does the Constitution also have something to say about it? Over the years, the right to health has been read into the right to life under the Article 21; and if that right is to mean anything at all, it would require a set of steps to be taken to safeguard the population during a pandemic (see, for example, questions of access to HIV medicine in the South African Constitutional Court case of Treatment Action Campaign).

Here, however, I will discuss a different issue. As scientists have pointed out, the most effective method to combat the spread of the pandemic is through enforced “social distancing.” As the coronavirus spreads through contact, maintaining distance from an infected individual prevents further transmission. The problem, however, is that carriers of coronavirus are often asymptomatic, making detection and control (through quarantining and isolation) even more difficult. For this reason, authorities in a number of countries have now advised people – wherever possible – to work from home until the spread of the pandemic is adequately contained (or a vaccine is developed). Authorities have stopped short, however, of making this a requirement; thus, it is up to individual private employers to decide whether or not to allow their employees to work from home.

In this post, I want to suggest that giving an employee the choice between (a) exposure to the coronavirus by requiring them to come to work on the one hand, and (b) losing their job, on the other – amounts to forced labour under Article 23 of the Constitution. This is because Article 23 – as interpreted by the Supreme Court in PUDR v Union of India – understands forced labour to exist wherever the choices that exist before an employee are not genuine choices at all. Recall that in PUDR, the Supreme Court held that Article 23 – which applies between private parties, and not the State – guaranteed the right to a minimum wage. The basis of the Court’s judgment was that “any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as ‘force’ and if labour or service is compelled as a result of such ‘force’, it would be ‘forced labour’.” Clarifying this point further, the Court specifically noted that in situations of unequal bargaining power (as tend to exist between employers and employees), non-payment of minimum wage under the employment contract would be evidence that in entering into the contract, the worker had been “acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances … the word ‘force’ must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives.“

In other words, therefore, the Court understood the word “forced” in “forced labour” to mean not just physical force (such as putting a gun to your head and “forcing” you to work), but as including any situation where an employer was able to leverage their institutional power (as the owner of property or capital) in order to effectively deprive a worker of legitimate choices. I have, elsewhere, defended this interpretation of Article 23. Here, I want to argue that the logic of PUDR applies squarely to coronavirus: telling an employee “choose between exposing yourself to a pandemic, contrary to express medical advice on the one hand, and losing your livelihood on the other” is an illusory choice in exactly the same way that telling them “work for less than a minimum wage or don’t work at all” is an illusory choice. Both are hit by Article 23.

I submit, therefore, that in the case of a pandemic, where a failure to follow the rules of social distancing and self-quarantining is expressly found to put an individual at a non-trivial risk of exposure, there is a presumptive, enforceable right to work from home. Here, however, there is a problem: in situations where working from office and working from home are broadly substitutable, the right is an absolute right; in a majority of cases, however, the job will require the physical presence of the employee. Now, in some countries, suggestions have been made to grant paid sick leave where required, with the government stepping in to help businesses recoup losses. We may consider that in a future post, but for my purposes here, I want to flag that in such cases, complete enforcement of Article 23 will nullify the employer’s right to freedom of trade under Article 19(1)(g). In such a case – where two rights under Part III of the Constitution clash – the Supreme Court’s recent RTI Judgment held that the doctrine of proportionality is to be applied – which, in practical terms, means that the two rights should be harmonised so that there is the least possible infringement of both.

What might such a harmonisation look like? I would suggest that where the nature of the work requires physical presence, the private employer is constitutionally obligated to put into place all required mechanisms to minimise the risk of exposure, in accordance with WHO advice (for example, the provision of hand sanitisers as disinfectants in the workplace, ensuring minimal distance between workers, and so on). This – I would argue – is the only correct method to balance the possible clash of rights under Articles 23 and 19(1)(g).

Consequently, the upshot of my argument is that (a) in workplaces where physical presence is not a necessity for the job, Article 23 grants to workers an enforceable right to work from a place of social isolation (which, in most cases, will be the home); and (b) in workplaces where physical presence is a necessity, the employer is required to take all reasonable measures to minimise the possibility of exposure.

It is important to note that in this post, the discussion has been limited to the relationship between employers and employees, within the scheme of Article 23 (and, where required, balanced against Article 19). The obligations of the State in such a situation – including a possible obligation to recompense private employers in situation (b) above – will be discussed in a future post.