The Directive Principles on Health and Work

Part IV is built for that shape of problem. It is addressed to the State, it speaks of what the State must secure rather than what it must not do, and it does not need a named victim before it operates. That is why a science and technology paper reaches for it. The rights in Part III answer the question what may not be done. Part IV answers the question what must be arranged, and technological harm is nearly always a failure of arrangement.

The provisions themselves

Article 39 opens by directing the State to secure six things. The full clause list matters, because two of the six carry this chapter and a third carries the next one on automation.

The State shall, in particular, direct its policy towards securing:

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and 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;

(f) 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.

Article 42 is a single sentence.

The State shall make provision for securing just and humane conditions of work and for maternity relief.

Article 47 is two sentences joined into one, and the second half is the part everybody quotes.

The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

Clause (f) of article 39 is in its present form because of the Constitution (Forty-second Amendment) Act 1976, which took effect on 3 January 1977. Articles 42 and 47 carry no amendment footnote in the official text at all, so both stand exactly as they were adopted.

Broken down

Article 39(e), first limb: health and strength. The State must secure that the health and strength of workers are not abused. Two words are doing work. "Abused" is wider than injured: it covers wearing a person out by the conditions of the work, not only hurting them by an accident. And the clause protects strength as well as health, which is capacity to go on working, not merely the absence of disease. A process that leaves a worker able to do the job at thirty and unable at forty has abused their strength even if no doctor ever diagnoses anything.

Article 39(e), second limb: coerced choice. The State must secure that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. An avocation is an occupation or calling. The wrong this limb names is not that dangerous work exists. It is that poverty leaves a person no other option, so their consent to the danger is worth nothing. That is the exact shape of the argument about a technology which removes the safe jobs from a labour market and leaves only the unsafe ones.

Article 39(a): livelihood. Citizens, men and women equally, are to have the right to an adequate means of livelihood. This is the clause on which the whole automation argument rests, and it is worked out in [Work, Automation and Livelihood]. Note that it speaks of an adequate means of livelihood and not of a particular job, which is both its strength and its weakness: it survives the disappearance of an industry, and it promises nothing to the individual whose trade has gone.

Article 42: just and humane conditions of work. Two provisions in one line. "Just" is about the fairness of the terms, "humane" is about what the work does to the body and the mind of the person doing it, and maternity relief is a separate and specific instruction. Article 42 also uses a stronger verb than most of Part IV. It says the State shall make provision, where article 41 promises the right to work only "within the limits of its economic capacity and development" and article 47 falls back on "shall endeavour" for its prohibition limb.

Article 47: public health as a primary duty. Three objects are named: raising the level of nutrition, raising the standard of living, and improving public health. The article then calls these "among its primary duties", which is the strongest description Part IV gives to anything. The particular limb that follows requires the State to endeavour to prohibit the consumption of intoxicating drinks and of drugs which are injurious to health, except for medicinal purposes. That exception is a science and medicine carve-out written into the Constitution itself, and the statutory regime that draws the line between a medicine and a poison is taken in [Drugs, Standards and Control].

The three routes from these articles into this paper

Occupational health. A new process brings a new exposure, and the people exposed are the people who need the wage. Articles 39(e) and 42 are the constitutional statement that arranging against this is the State's job. The international mirror is article 7(b) of the Covenant on Economic, Social and Cultural Rights, which recognises the right of everyone to "safe and healthy working conditions".

Public health. Technologies change what people eat, drink, breathe and are treated with, usually faster than the regulator moves. Article 47 is the general duty; article 12(2)(b) of the same Covenant requires States to take steps towards "the improvement of all aspects of environmental and industrial hygiene", and [The Right to Health in the Covenant] takes that article properly.

Livelihood. Article 39(a) and the second limb of 39(e) between them cover the case where a technology does not injure anybody but takes away the work. The Committee on Economic, Social and Cultural Rights has said what it thinks that requires, in paragraph 76 of General Comment No. 25 of 2020.

States parties should adopt policies to ensure that those vulnerable to temporary and long-term job loss as a result of scientific and technological advances are provided with and encouraged to pursue vocational training and other job placement opportunities.

That sentence is worth learning, because it is the only place in the material this paper works from where automation and the loss of a livelihood are named as a human rights obligation rather than as an economic misfortune.

A worked example

Anjali works in a small garment unit in Bhiwandi. The owner installs an automated cutting machine which does the work of six people and uses a bonding agent that gives off fumes in a room with two windows. Four of the six cutters are let go. Anjali keeps her job, and within a year she has a cough that does not clear.

Which articles of Part IV are engaged? For the fumes, article 39(e), because her health and strength are being abused by the conditions of the work, and article 42, because the conditions are neither just nor humane. For the four who lost their jobs, article 39(a), because their means of livelihood has gone. For the district as a whole, article 47, if the same agent is in use in thirty other sheds.

What does Part IV give Anjali? Not a case. She cannot file a petition asking the court to enforce article 42 against the State, and article 37 is the reason. The book takes the enforceable route separately: the right to life is in [Science Under Article 21], and the ways a person actually recovers something are in [Remedies When Technology Causes Harm].

Then what is Part IV for, here? Two things, and both are examinable. First, it is the answer to who was supposed to act: not the machine, not the market, but the State, and its failure to have regulated the agent is a constitutional failure even though it is not an actionable one. Second, suppose the State does act, and the owner challenges the new rule as an unreasonable restriction on his freedom to carry on his business. Articles 39(e), 42 and 47 are the State's answer for why the restriction is a reasonable one. That is the work directive principles do most often and most usefully.

Distinctions

What beginners get wrong

Treating unenforceable as unimportant. Article 37 makes Part IV unenforceable and in the same breath calls it fundamental in the governance of the country and a duty in making laws. An answer that quotes only the first half has quoted half a sentence.

Calling article 47 the prohibition article. Prohibition of intoxicating drinks and of injurious drugs is a particular application tacked on at the end. The general duty is nutrition, standard of living and public health, and article 47 is the only article in Part IV to describe what it demands as a primary duty.

Calling article 39(e) the child labour clause. It protects the health and strength of workers of both sexes first, and the tender age of children second. Its subject is abuse of health and strength, and its second limb is about economic coercion, not about the employment of children as such.

Reading article 42 as maternity leave. Maternity relief is the second of the two provisions in it. The first, just and humane conditions of work, is the wider one and is the one a technology answer needs.

Limits and criticism

There is no remedy, and seventy years of breach produce nothing. A directive principle that has never been implemented leaves the person it was meant to help exactly where they were. That is the standing objection to Part IV and it should be stated in an answer rather than avoided.

The text is of 1950 and names the hazards of 1950. Neither automation nor data appears anywhere in Part IV. Article 39(a) reaches the loss of a livelihood only at one remove, by promising an adequate means rather than a job, and nothing in the Part speaks to a person displaced by a machine that works better than they do.

The verbs are inconsistent and nothing turns on it. Article 42 says the State shall make provision, article 41 confines the right to work to the limits of the State's economic capacity, and article 47 drops to shall endeavour for its prohibition limb. In an enforceable Part those differences would be litigated; here they are not, because none of them is enforceable.

The international framework has moved further than the Indian text. General Comment 25 names job loss caused by scientific and technological advance and attaches an obligation to it. An answer on this topic is stronger for running the constitutional and the international material together, rather than treating them as two separate questions.

Quick revision

• Article 37: Part IV is not enforceable by any court, but is fundamental in the governance of the country and a duty of the State in making laws.
• Article 39(e): health and strength of workers, and the tender age of children, not to be abused; citizens not to be forced by economic necessity into avocations unsuited to their age or strength.
• Article 39(a): an adequate means of livelihood for citizens, men and women equally. The automation clause.
• Article 42: just and humane conditions of work, and maternity relief.
• Article 47: raising nutrition, the standard of living and public health, described as among the State's primary duties; prohibition of intoxicating drinks and injurious drugs except for medicinal purposes.
• International mirrors: article 7(b) of the Covenant (safe and healthy working conditions) and article 12(2)(b) (environmental and industrial hygiene). General Comment 25, paragraph 76, on job loss from technological advance.
• Part IV's practical use: it identifies who had to act, and it justifies a law that restricts a business.

Test yourself

1. Set out article 37 and explain why a directive principle is still worth citing. Article 37 provides that the provisions of Part IV shall not be enforceable by any court, but that the principles laid down in it are nevertheless fundamental in the governance of the country, and that it shall be the duty of the State to apply them in making laws. It is worth citing for three reasons: it identifies the State as the body that was required to act, it explains the purpose of a statute passed to give effect to it, and it supplies the justification when a law made in pursuance of it is attacked as an unreasonable restriction on somebody's freedom to trade.

2. A chemical used in a new manufacturing process is found to damage the lungs of the workers who handle it. Which parts of article 39 and article 42 are engaged, and what do they give the workers? Article 39(e) is engaged in both its limbs: the health and strength of the workers are being abused, and if the local labour market offers nothing else, they have been forced by economic necessity into an avocation unsuited to their strength. Article 42 is engaged because the conditions of work are neither just nor humane. What the articles give the workers is not a cause of action, because article 37 excludes one. They give the constitutional statement that regulating the chemical was the State's duty, and they answer the employer who says the resulting regulation is an unreasonable interference with his business.

3. Why is article 47 unusual within Part IV? Because of the phrase "among its primary duties". Part IV elsewhere tells the State to secure, to provide, or to endeavour, and article 41 expressly limits its promise to the State's economic capacity. Article 47 alone characterises what it demands, namely the raising of nutrition and of the standard of living and the improvement of public health, as a primary duty of the State. It also contains an express medical exception, permitting the consumption of otherwise injurious drugs for medicinal purposes.

4. A factory replaces two hundred workers with machines. No one is injured. Is any part of Part IV engaged? Yes. Article 39(a) directs the State to secure that citizens have the right to an adequate means of livelihood, and the second limb of article 39(e) protects citizens from being forced by economic necessity into work unsuited to their age or strength, which is what an unemployed skilled worker is commonly pushed towards. Nothing in Part IV entitles anybody to keep a particular job. The international material goes one step further: paragraph 76 of General Comment 25 requires States to ensure that those vulnerable to job loss caused by scientific and technological advance are provided with vocational training and job placement opportunities.

5. Distinguish a directive principle from a fundamental duty. A directive principle is in Part IV, is addressed to the State, and instructs it about the ends its laws should serve. A fundamental duty is in Part IVA, is addressed to every citizen, and instructs the individual. Neither is enforceable by a court. They frequently state the two sides of one aim: the State is told to protect and improve the environment and the citizen is told to do the same, which is the pairing examined in [The Environment in the Constitution].