Author
Assoc Prof Sophy K J
Organisation/Institution
National Law University, Delhi
Country
INDIA
Panel
Labor and Employment Law
Title
Constitutionalisation of labour relations in India: Paradox in New Labour Codes
Abstract
‘Particularism’ in Labour Law vs. ‘autonomy’ of Labour Law has been a foundational debate in labour jurisprudence. This debate has been to understand the nature of the detachment of labour law from civil law and to establish a completely independent juridical system. Lord Wedderburn refers to this as a debate between two important founders of labour law in France and the British legal system, Paul Durand and Otto-Kahn-Freud, respectively. Labour law viewed labour relations in the market differently from private law and incorporated the guiding principle of social justice to address the innate hierarchical subordination of workers. This distinctive element is further explained by the contemporary labour scholar, Ruth Dukes, as the ‘constitutionalization’ of labour relations. She refers to regulating the economic sphere from an equitarian approach by not leaving it to be autonomous for the market forces or management decisions. Therefore, this paper follows Ruth Dukes’s concept of ‘constitutionalization of labour relations’ to inquire whether the objective of constitutionalising the economic sphere has been attempted through the existing labour enactments. In the Indian context, the constitutionalisation process demands proactive intervention to distribute the benefits of economic growth to the unorganised workers, the major workforce of the country. Inadequate regulatory intervention for the inclusion of unorganised workers in labour relations shows the failure of the constitutionalisation of the economic sphere. This debate becomes more significant in the context of the impending labour reforms in the form of the New Four Labour Codes, such as the Code on Industrial Relations, 2020, the Code on Minimum Wages, 2019, the Code on Social Security, 2020 and the Code on the Occupational Safety, Health and Working Conditions, 2020. The foundational question that leads the paper is whether the legal discourse in these New Labour Codes is slowly eliminating the ‘distinctive element of labour law’ and therefore, the constitutionalisation of the economic sphere aimed through labour law.
Biography
Associate Professor of Law, Dean, Dean Office (Research, Planning & Strategic Development), Director, Centre for Labour Law Research and Advocacy, Sophy has joined NLUD in 2010. Her research focusing on Labour Law is driven by questions that intersect development, social reproduction and inequalities at work. She has finished her post-doctoral studies in Laws of Social Reproduction affiliated with the CWDS and anchored by King’s College of London. Her current research project from ICSSR studies “the Working and Living Conditions of Live-in Domestic Workers in Delhi and Bangalore”. She is leading the ‘Journal on Labour’ as Chief Editor (Annual Journal), Labour Law Insights (Monthly publication) and Annual Case Law Digest on Labour Law (Annual Monograph) as Chief Editor from the Centre for Labour Law Research and Advocacy (CLLRA). Her last published book is titled, “Customary Rights of Farmers in Neo-liberal India: Law and Policy Analysis” published in 2021 by Oxford University Press. Her policy work is mainly on informal workers, with particular emphasis to domestic workers, platform workers and urban workers.
