DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
The Need for Social Justice

SUBJECT
Labour Law -II

NAME OF THE FACULTY

Dr. Ch Laxshmi

Name of the Candidate: H.SIMRAN

Roll Number: 18LLB034
Semester: 6th
 ACKNOWLEDGEMENT:
I am highly indebted to my Hon’ble Professor, Ch Lakshmi Ma’am, for giving me a
wonderful opportunity to work on the topic: “The Need for Social Justice” and it is because
of her excellent knowledge, experience and guidance, this project is made with great interest
and effort. I would also like to thank my seniors who have guided my novice knowledge of
doing research on such significant topic. I would also take this as an opportunity to thank my
parents for their support at all times. I have no words to express my gratitude to each and
every person who have guided and suggested me while conducting my research work.
Contents:

Topic Page no
Abstract 1
Introduction 2
Principles of Social Justice 4
Social Justice Foundations of Labour law 6
Social Justice and Constitution 8
Legislations in India 10
Conclusion 16
Reference 17
 ABSTRACT

Topic: The Need for Social Justice

Description: The term social justice was first used in 1840 by a Sicilian priest, Luigi
Taparelli d'Azeglio, and given prominence by Antonio Rosmini Serbati in La Costitutione
Civile Secondo la Giustizia Sociale in 1848. It has also enjoyed a significant audience among
theorists since John Rawls book. A Theory of Justice has used it as a pseudonym of
distributive justice.
The concept of social justice is a revolutionary concept which provides meaning and
significance to life and makes the rule of law dynamic. When Indian society seeks to meet the
challenge of socio-economic inequality by its legislation and with the assistance of the rule of
law, it seeks to achieve economic justice without any violent conflict. The ideal of a welfare
state postulates unceasing pursuit of the doctrine of social justice. That is the significance and
importance of the concept of social justice in the Indian context of today. The idea of welfare
state is that the claims of social justice must be treated as cardinal and paramount. Social
justice is not a blind concept or a preposterous dogma. It seeks to do justice to all the citizen
of the state. Democracy, therefore, must not show excess of valour by imposing unnecessary
legislative regulations and prohibitions, in the same way as they must not show timidity in
attacking the problem of inequality by refusing the past the necessary and reasonable
regulatory measures at all.

Industrialisation is the modern trend in almost all developing countries now a days, as
industry plays an important role in shaping the economic structure of a society. For the
planned, progressive and purposeful development of the society proper regulation of
employer - employee relationship is a condition precedent. This relationship is therefore one
of the most important factors of success of the industrialisation programme. The workers and
employers are two pillars of our national economy. It cannot be denied that labour has a vital
role in increasing

Democratic ideas have also been grown simultaneously with the growth of industrialisation in
our country which have pleaded for and also helped in mass awakening and consciousness for
greater power amongst the working class. Therefore labour legislation and industrial
jurisprudence are based on certain fundamental principles, like Social Justice, Social Equity,
International Uniformity and National Economy.

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 I. INTRODUCTION

The International Labor Organization (ILO) was set up, with an aim to develop the conditions
of labors not only in India but around the world, in the year 1919. India was the instituting
member of ILO, which now expanded its primary membership to 145 countries. Indian Labor
Organization through its resolutions and recommendations supports countries to lure their
own set of labor legislations for the well conduct of the labor class, and the preservation of
their rights. The primary objective of action in the ILO is the creation of the International
Labor Standards in the form of Resolutions and Recommendations. Resolutions are
international treaties and instruments, which generate legally binding responsibilities on the
nations that ratify those nations. Recommendations are non-binding but better set out
guidelines orienting countrywide policies, procedure and help in developing actions. Labor
Law controls matters, such as, remuneration, labor employment, and conditions of
employment, trade unions, industrial and labor management relations. They also include
social legislations regulating such characteristics as reimbursement for accident triggered to a
worker at work place, maternity benefits fixation of minimum wages, and distribution of the
company’s profit of the organization’s workers, etc. Most of these acts regulate rights and the
responsibilities of employee.

History of Indian labor legislation is obviously interlaced with the history of British
colonialism. British political economy was considered natural paramount in modeling some
of these early laws. In the initial phases it was very difficult to get adequate regular Indian
workers to run British organizations and hence labor laws became essential. This was
obviously labor law giving in order to protect the interests of British bosses. The outcome
was the Factories Act. It is well known fact that Indian textile goods offered unbending
competition to British textiles in textile market and hence in order to make Indian labor
costlier. The Factories Act was first time introduced in 1883 because of the pressure carried
on the British parliament by the then textile tycoons of Manchester and Lancashire. Thus we
acknowledged the first requirement of eight hours of work for labor, the abolition of child
labor, and the rheostat of employment of women in night, and inaction of overtime wages for
labor who work beyond eight hours.

Further the attitude of India with respect to International Labor Standards has always been
very constructive. The Indian Labor Organization tools have provided procedures and useful

2
framework for the development of legislative and administrative procedures for the
protection and progression in the interest of labor. To that point the impact of ILO
Resolutions as a regular for reference for both labor legislation and practices in India, rather
than legally binding norm, has been substantial. Ratification of a Resolution enforces legally
binding responsibilities on the nation concerned and, consequently, India has been very
careful in ratifying Resolutions. It has always been in the exercise in India that we ratify a
Resolution when we are entirely satisfied that these laws and practices are in conformity with
the appropriate ILO Resolution. It is now measured that a better course of action is to proceed
with progressive implementation of the standards, leave the formal ratification for
consideration at a later stage when it becomes practicable. India have so far ratified 39
Conventions of the ILO, which is much better than the position obtaining in many other
countries. Even where for special reasons, India may not be in a position to ratify a
Convention, India has generally voted in favor of the Conventions reserving its position as far
as its future ratification is concerned.

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 II. PRINCIPLES OF SOCIAL JUSTICE

The principles of labour legislations have been categorized differently by different scholars.
For example, Frank Tillyward, while examining experiments in industrial legislation in Great
Britain, highlighted ‘protective’ and ‘regulative’ aspects of such legislation. In 1937, R.K.
Das mentioned four major principles of labour legislation

a. Social Justice, includes: abolition off servitude, freedom of association, collective

bargaining and industrial conciliation.
b. Social Welfare covers: development of childhood, opportunity of education,
conservation of womanhood and improvement of environment.
c. National Economy is concerned with development of industry, control of working
conditions, regulation of wage payment and social insurance.
d. International Solidarity has been explained in terms of the compliance of the
provisions of Conventions and Recommendations adopted by ILO.

The principles of social justice implies establishment of equality in social relationships. It

aims at removing discrimination suffered by particular groups of labour. History is replete
with examples where certain groups of society or labour have been subjected to various sorts
of disabilities as compared to other groups or workers in general. The disabilities and
discrimination suffered by slaves, serfs, indentured and migrant labour, bonded labour, and
others, is well-known. Discrimination against women workers when compared to their men
counterpart, in matters relating to wages and other terms and conditions of employment, have
continued till date. The preamble to the constitution of ILO recognizes that “universal and
lasting peace can be established only if it is based upon social justice” and its Philadelphia
Charter of 1944 asserts, “All human beings, irrespective of race, creed of sex, have the right
to purpose both their material well-being and their spiritual development in conditions of
freedom and dignity, of economic security and equal opportunity.” Similarly, the Indian
Constitution has prohibited discrimination on the basis of caste, race, sex and religion. The
Constitution also abolishes ‘untouchability’ in any form and prohibits beggars and forced
labour. The Directive Principles of State Policy also direct the state to strive to promote the
welfare of the people by securing and protecting a social order in which justice – social,
economic and political, shall inform all institutions of the national life.

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Example of labour laws enacted keeping in view the principles of social justice are: Indian
Slavery Act, 1843; Equal Remuneration Act, 1976; Bonded Labour System (Abolition) Act,
1976 and Contract Labour (Regulations and Abolition) Act, 1970.

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 III. SOCIAL JUSTICE FOUNDATION OF LABOUR LAWS

social justice was a central element of the ‘Social’ globalisation of legal thought between
1900 and 1968. Social justice was important to this model because it represented the idea that
justice did not have to be achieved through a set of abstract legal rights which had little to do
with the experience of general society. Justice could be achieved through a consideration and
involvement of different social groups in the design and application of law.

This gave a space for the development of labour law to meet the social compromise of the
early twentieth century. New legal forms came to the fore, which recognised the
interdependent activities of employers and workers and a need to coordinate those activities
in the ‘public interest’ (for example social insurance against industrial accidents and
compulsory collective bargaining). To a certain extent, the creation and the development of
the ILO is a good example of this social moment. This organisation was formed in 1919 as
part of a broader peace project at the end of the First World War. 1 Its Constitution explained
the importance of social justice to that mandate, and the importance of the creation of labour
standards in the achievement of that social justice. A commentary on the seven policy
concerns in the Constitution discerned three priorities in the ILO in terms of ‘social justice’.
The first was the concern with work as a source of livelihood and fulfilment, the second was
the goal of the prevention of exploitation (for example by limiting hours of work and ‘taking
measures to protect those who might be particularly vulnerable’) and the third was the need
to protect workers against the difficulties of working in dangerous or inadequate
environments.2 Social justice thus required a redistribution of power from employers to
workers, but also meant the recognition of the value of work to both workers and to the social
system as a whole. Social justice represented an idea of work quality given the social value of
work. It was understood that this recognition guarded against the treatment of labour ‘merely
as a commodity or an article of commerce’ and ensured that (global) industrial peace could
be maintained.

At the national level, there was arguably a similar commitment to ‘social justice’, but there
was a divergence in what was understood by the use of these concepts. In France and
Germany for example, the influence of the ‘Social’ model can be clearly seen, and a ‘social
law’ model of social justice can be discerned in the design of labour law. In Germany,
1
F Hendrickx, ‘Foundations and Functions of Contemporary Labour Law’ (2012) 3 (2) European Labour Law
Journal 108, 110
2
G Rodgers, E Lee, L Swepston, J Van Daele, The International Labour Organisation and the quest for social
justice, 1919‐2009 (International Labour Office 2009)

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Gierke, a leading theorist in the ‘social’ movement was very influential in the creation of
early labour law. According to his philosophy, the individual could not be viewed separately
from society. By entering into a work contract, each worker was entering into a social
relationship and therefore should have a particular social status (Tatbestand). This social
status should be guaranteed by statute; hence the development of civil law relating to
employment.3 Furthermore, anti‐discrimination legislation was instigated early on in the
development of employment law in this jurisdiction, recognising that the state should be
involved in the guarantee of group, as well as individual status. In a similar way, statutes
were created in France during the period of the Social movement (1900‐1968), which
purported to create legal protections for workers on the grounds of public policy (ordre
public). As such, worker contracts become ‘socialised’ and labour law became dominated by
role of public (government) power in the regulation of the employment relation.4

By contrast, in the UK the focus was on the specific nature of the employment relationship
(aside from other social relationships). In particular, labour theorists referred to the particular
problems associated with the unequal relationship between employers and employees, and the
need to challenge this unequal distribution of power in order to achieve social justice (for
workers). This view had clear Marxist foundations. The employment relationship was seen as
imbued with elements of ‘subordination’ and ‘exploitation’ as a result of the insertion of
employers and employees into the capitalist system of production: ‘There can be no
employment relationship without a power to command and a duty to obey, that is without this
element of subordination in which lawyers rightly see the contract of employment’. 5 In the
UK, there was initially great scepticism about the role that the government and the law should
play in achieving social justice for workers.  It was felt that if workers were to challenge the
lack of social power (or inequality of bargaining power) in their employment relationship,
then this could only be achieved through collective bargaining: the ‘spontaneous creation of a
social power on the workers’ side to balance that of management’.

Increasingly however, theorists of labour law came to be persuaded by the value of labour
law in helping to equalise the unequal power relation between employers and workers. A role
was recognised for the law in limiting the ‘duty’ of obedience of the worker and increasing
the ‘range of his freedom’.

3
Now in the Bürgerliches Gesetzbuch, sections 611‐630
4
2 A Supiot, Critique du droit du travail (Presses Universitaires de France 2007, 2nd edition) 30
5
O Kahn Freund Labour and the Law (Stevens 1983) 17

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 IV. SOCIAL JUSTICE AND THE CONSTITUTION

The concept of social justice has become an integral part of industrial law. It is founded on
the basic idea of socio-economic equality. In an industrial set-up social justice implies two
things; first an equitable distribution of profits and other benefits accruing from industry
between the owner of the industry and workers; and secondly, providing or affording
protection to the workers against harmful effects to their health, safety and morality. The
Constitution of India has affirmed social and economic justice to all its citizens. The
fundamental rights and the directive principles of state policy enshrined in our Constitution
need a special mention in view of their supreme importance in directing and influencing the
labour legislations in the country. These provisions provide sufficient guarantee against
exploitation.

In this regard Article 24 of the Constitution specially provides that “no child below the age of
14 years shall be employed to work in any factory or mine or engaged in any other hazardous
employment.”

Likewise Article 38 says that “the state shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which justice — social,
economic and political shall inform, all the institution or the national life”.

Article 39 ordains that it shall be the duty of the State to apply certain principles of social
justice in making laws. Thus, it specifically says that “the State shall, in particular, direct its
policy towards securing –

 that the citizen, men and women equally, have the right to an adequate means of
livelihood;
 that there is equal pay for equal work for both men and women;
 that the health and strength of workers, men or women and the tender age of children,
are not abused and that citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength;
 that children are given opportunities and facilities to develop in a healthy manner and
in conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment.”

8
The Constitution of India further provides6 that the State shall, within the limits of its
economic capacity and development, make effective provisions for securing the right to
work, to education and to public assistance in case of unemployment, old age, sickness and
disablement, etc.

Article 42 again directs the State that it shall make provision for securing just and humane
conditions of work and for maternity relief. The State shall also endeavour to secure, by
suitable legislation or economic organization or in any other way, to all workers, agricultural,
industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of
life and full enjoyment of leisure etc.

Article 43 – A further provides that the State shall take steps, by suitable legislation or in
any other way, to secure the participation of workers in the management of undertakings,
establishments or other organizations engaged in any industry. In India, labour laws have
been codified in consonance with the above principles of state policy.

V. LEGISLATIONS IN INDIA

6
See Article 41.

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The rise in industrial jurisprudence has eliminated the idea of master and servant, where the
boss and the contractor principle arose, where the former could appoint the latter but could no
longer expel it. An employee’s benefit is now secured in many ways by Legislation.

In MC Mehta case,7 the Court served as a worker’s defender and sometimes has been a
lawmaker where labour law is silent or vague. However, several labour regulations and
constitutional changes in response to the call, were made by the judiciary. It has also
expanded to protect the interests of workers, the fundamental freedom to equality curves,
trading in the right to life and freedom provided by human beings by the rule of law. This
expression has been extended significantly by the Supreme Court

Economic and social justice for all its people. The Fundamental Rights and Directive
Principles of State Policy enshrined in our Constitution include a special mention given their
supreme position significance in directing and shaping the country’s labour laws.

The Workmen’s Compensation Act, 1923

The Act provides compensation for death, total disablement, partial disablement, and
temporary disablement. Employers are responsible for paying such compensation following
the Act and rules made thereunder. Initially, it was applied to the railway, tram, factory,
mine, sea, dock, building, trade, sewage, and fire brigade workers. The critical component of
the trade union is to make it possible for Staff to behave collectively. The strike is the last
resort tactic to use.

The Industrial Employment (Standing Orders) Act, 1946

Among the most critical reasons for conflict between management and employees in India
were industrial companies. The Industrial Employment Act (standing orders) aimed at
regulating the conditions on the recruitment of employees, discharge for disciplinary
activities, holidays, etc.

The Industrial Disputes Act, 1947

7
M.C. Mehta & Anr. Etc vs Union Of India & Ors. 1987 AIR 965

10
In order to enhance labour standards, the Industrial disputes Act of 1947 came into existence
and was a progressive form of social law. The purpose of this Act is to mitigate work-
management tension and promote economic and social fairness as much as feasible. This Act
aims to allow for labour conflicts to be examined and resolved.

The Minimum Wages Act, 1948

In 1948 the Minimum Wages Act was passed to provide benefits to employees. The Act was
passed to guarantee the protection of workers in a fair economy by setting a minimum pay
cap in specific industries. The primary aim of the Bill is to set the minimum salaries in order
to prevent the risk of workplace abuse.

The Employees State Insurance Act, 1948

It is another vital piece of Legislation on social security. A principle of law aims to provide
the exploited labor community with social and economic rights. The Act aims to provide
social security in the event of illness, pregnancy, and many other issues by granting such
incentives to workers who come under this Legislation—the first national security program to
include benefits funded by employees, contractors, and government.

The Factories Act, 1948

Factories Act 1948 is a socio-economic act designed to achieve social reform. The Act seeks
to maintain protection and functional living and working standards for employees operating
in factories against industrial workplace accidents. provisions of the Act clearly show that
both are for the benefit and welfare of workers

Industrial Dispute

The most controversial dispute related to employee-employer relationships arises, and

questions raised in regards to what if any dispute arises between worker and employer of the
said organization then that dispute can be held under ‘industrial dispute’ under section 2(k) of
the Industrial Dispute Act Before the ruling of the Supreme Court in Central Provinces

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Transport Service v Raghunath Gopal Patwardhan. 8 This issue has led to significant
controversy. The overall outcome of the above ruling is that a single employee, not assisted
by the “appreciable number” of workmen or the community, does not remediate under the
Industrial Disputes Act of 1947.

In Workmen v M/s Dharampal Prem Chand 9, it was held that, in the industrial adjudication,
the tests and considerations it applies would necessarily be rational and would depend on the
circumstances and would not accept any rigid or inflexible implementation. No question there
are real reasons behind the constraints imposed by the Court’s decisions when analyzing the
effect of the term provided by Section 2(k) of the Industrial Dispute Act.

INTERPRETATION OF RIGHT TO STRIKE

In the All India Bank Employees Association v National Industrial Tribunal10, the Court
refused to include the right to strike in deciding the context of Article 19(1)(c) of the Indian
Constitution.

It was further held by the same judgment that there would be regulation or limitation by
applicable labor law on the right to strikes or to impose a lockout. It should be essential to
evaluate the feasibility of such laws, not concerning the purpose set out in Article 19(4), but
with an utterly different meaning.

Further Tribunals and courts found that employees engaging in a lawful and rational strike
cannot be refused because the constitutional right to strike will become meaningless if
denied. Moreover, courts held that the reinstatement of workers in a lawful, valid strike could
not be declined merely because other individuals have taken their positions. The Court was
prudent in maintaining industrial self-control while putting down these regulations when it
allowed it to hold that such a law only applied to nonviolent strikers. A legitimate and
unwarranted protest poses complicated issues. The courts also acknowledged that it does not
preclude the possibility of strikers’ dismissal simply because the action has been declared
legitimate.

8
1957 AIR 104
9
1966 AIR 182
10
1962 AIR 171

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The Punjab National Bank v. Employees’ decision has redeemed that workers illegally
disqualified for participating in a lawful but unreasonable strike are generally deemed to
rehabilitation, even though others filled their spots during the strike. Jobs are also entitled to
reinstatement if they have been engaged in a protest triggered by any discriminatory labor
conditions or the employer’s dehumanization. The principle that genuine involvement in an
unlawful strike does not require the elimination of strikers has already been identified.

BONDED LABOUR

Bandhua Mukti Morcha11 is a landmark judgment in the field of bonded labor, where the
Court has extended its protective powers to various aspects, including its recognition, release
and rehabilitation, and has ordered the Government of Haryana to (a) set up a vigilance panel
in each subdivision of the area; (b) instruct the district magistrates to undertake work on bond
identification; (c) to provide assistance to non-political social action organizations and
community groups with a view to ensuring the enforcement of the Act (d) to draw up, within
the same duration of three months from the date of the judgment, a scheme or system for the
resettlement of liberated bonded workers in the light of the standards established by the
Secretary to the Government of India.

In Balram v. State of MP12, the purpose was to issue sufficient funding under the scheme
laid down in the Act for Effective Rehabilitation. The Court further ordered the Additional
Collector and the other officers involved to ensure that they had earned the full sum intended
for free labor. 

In the People’s Union for Civil Liberties v State of Tamil Nadu, the Court acknowledged
that the authorities had not taken meaningful measures towards the classification and
rehabilitation and protection of bonded workers. The Court, therefore, issued directions to the
State with additional directions to the State of Madhya Pradesh to take certain steps stated
therein to eliminate harm.

EQUAL PAY FOR EQUAL WORK

11
1984 AIR 802
12
1989 (59) FLR 721

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In Mackinnon Mackenzie & Co. v Audrey D’Costa 13, the Court noted that the authority
would take a wider view when determining if the job is the same or substantially similar.
Similarly, in deciding if any variations are of practical significance, the authority would take
an equally broad approach, for the very principle of comparable work implies variations in
nature, although they should not negate the argument for equality on an insignificant basis.
The Court added that the authority would consider all the work that was actually performed,
which were not technically necessary. This should look at the roles usually performed by men
and women in contrast. If, however, all men and women work at unexpected hours, there is
no obligation that all those who work, e.g., at night, be paid the same fair rates as all of those
who work regular daytime hours. Consequently, a woman who works on a daily basis cannot
assert parity with a man at a higher standard level for night shifts, and the applicant itself
would be eligible to that rate if she switched shifts.

The Supreme Court held that the term ‘same job or work of a similar nature’ signifies: (a)
similarity of skill; commitment and obligation when carried out under identical
circumstances; (b) standard of work, which differs from position to position and from
organization to organization, which is not a matter of inference but of proof; and (c)
performance of identical tasks, obligations and functions; The Court also held that, because
the plea of equal pay for equal work must be tested in compliance with Article 14 of the
Constitution, the burden of proof is on the appellants to determine, as the case may be, their
right to equal pay or a plea of discrimination.

The meaning of the phrase ‘same work or work of a similar nature’ was discussed in
Harbans Lal v State of HP 14. The Supreme Court ruled that a daily rated worker is qualified
to earn a minimum wage but not a minimum in the pay scale applied to similar workers on a
daily basis unless the employer has agreed to make such a minimum pay scale available to a
daily rated worker.

This status was thoroughly clarified in the State of Haryana v. Jasmer Singh 15. Here, the
Supreme Court decided that workers working on daily wages can not be classified at the
same level as workers engaged on a regular basis because: (a) they are not expected to have
the qualifications prescribed for regular workers; (b) they do not meet the age criteria at the
13
1987 AIR 1281
14
AIR 1993 SC 819
15
(1996) 11 SCC 77

14
process of hiring, and (c) they are not recruited in the manner in which regular employees are
selected.b

VI. CONCLUSION

Workers are the dominant partners in the industrial undertakings and without their
cooperation, effort, discipline, integrity and character the industry cannot survive. Therefore,
there should always be a good relationship between the employer and employee which is very
important. The profits of the industry must also be shared between the employers, workers
and the community. At the same time, as mentioned above, the workers must be safe, secured

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and they should be provided with sufficient welfare measures, healthy working conditions so
that not only the employers will be benefited but the society and the nation shall also get the
positive result.

Justice Bhagwati said, “Fundamental Rights, though precious and valuable for maintaining
the valuable way of life, have absolutely no meaning for the poor, downtrodden, and
economically backward classes, which ultimately constitute the bulk of the people of
India.” A similar submission was made by the Attorney General in the Aadhar Judgment
where he called the Right to Privacy an elitist idea.

The changing status of the directive principles set a new normative account of what judicial
behaviour should mean. The courts have to talk about their idea of how they make social
justice possible in terms of directive principles and the interpretation of fundamental rights.

REFERENCE

BOOKS:

 Bhattacharjee, A. (2007), Industrial Relations in India: Structure, Trends &

Developments, Presentation at the ‘Conditions’, 29-European Foundation for the
Improvement of Living and Working Conditions Workshop, ILO, Geneva, November
29 -30, 2007.(P1-20).

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  Bhatterjee, D and Souza,E.D (2011) Employment and Industrial Relations in India
Subramanian, K.N (1967), Labour Management Relations in India, Asia publication
house New Delhi.
Websites:
 https://madhavuniversity.edu.in/socialjustice.html#:~:text=When%20Indian
%20society%20seeks%20to,the%20doctrine%20of%20social%20justice.
 https://www.theleaflet.in/why-the-supreme-court-must-chalk-out-its-path-of-social-
justice-and-democratic-rights-sans-political-interference/#

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