On the 20th of December, the Bombay High Court came up with a somewhat novel interpretation of the place of the Preamble in constitutional interpretation. Under challenge was the decision of the Western Coalfields Limited (a government organisation) to compulsorily deduct Rs. 50 from the salary/wages of its employees, for transfer to the Prime Minister’s National Relief Fund (the immediate purpose was to contribute to the relief efforts for the Gujarat cyclone).

Section 7(2)(p) of the Payment of Wages Act authorises deduction of payment for the purposes of contributions to the Prime Minister’s National Relief Fund “with the written authorisation of of the employed person.”

The words of the statute (and those of the applicable Standing Order, which mirrored it) are rather unambiguous. Written authorisation of the employed person is an essential pre-requisite for salary transfers to the Relief Fund.

The Court, however, chose not to decide the case upon the words of the statute. Instead, it quoted the Preamble, Dr. Ambedkar’s speech in the Constituent Assembly Debates about fraternity, and the Fundamental Duties chapter of the Constitution, to hold:

“Thus, in the light of the Constitutional provisions under Section 51-A and the explanation given by Dr. Ambedkar for the word ‘Fraternity’ means a sense of common brotherhood of all Indians, we are of the firm opinion that the petitioners in these writ petitions are bound by the aforesaid Constitutional obligation and mandate. It is the fundamental duty of every citizen and the employees of the WCL and the Trade Unions to obey the Constitutional mandate about ‘Brotherhood’. These Trade Unions are not above the law or the Constitution. The Unions as well as the employees of the WCL must understand that there is a responsibility on them to help the brothers and sisters in other States, affected because of the floods, cyclone, tsunami and so on so forth. Under the auspices of the Hon’ble Prime Minister of India, the fund is securely managed providing help to the affected people in the country. We think, the attitude of the Trade Unions including ‘Lal Zenda Coal Mines Mazdoor Union’ in these petitions and others who have challenged the decision to contribute to the PMNRF is destructive of fraternity, unity and integrity of the nation, which is expected of them not only to preach but also to practise. A small amount of contribution of Rs.50/- once a while for donating it to the PMNRF would hardly make any difference for the employees, whose salaries and wages have been regularly and handsomely paid.”

Ambedkar might have had something to say about the ideal of “fraternity” being applied in this manner. In any event, on the provisions of the Payment of Wages Act, the Court then noted:

“We find that the said provision must yield to the aforesaid provisions under the Constitution of India, which we have sufficiently elaborated. That apart, for asking contribution for being made to the PMNRF, to have written authorisation of each and every employee from the large number of organizations, public or private, existing in the country is neither practical nor in the fitness of the things. We, therefore, we hold that the said provision for deduction for making contribution the PMNRF must be held to be subordinate to the Constitution and must yield to the Fundamental Duties and the Constitutional mandate of Fraternity. After all, the Constitution of India is the supreme law.”

This is entirely incomprehensible. It is one thing to say that the words of a statute ought to be interpreted in light of other provisions of the Constitution, including constitutional values that may or may not be found in Part III. It is another thing for the Court to say that it will ignore the words of the statute because it is “not practical nor in the fitness of things” (what does the latter phrase mean anyway?!). It is yet another thing for the Court to ignore the express words of the statute because it apparently conflicts with an unenforceable part of the Constitution (fundamental duties) or the ideal of ‘fraternity’. The Court must do one of three things: if a statute is amenable to more than one reasonable interpretation, it may choose that interpretation which conforms with constitutional values. If a statute violates provisions of the constitution, it may strike it down. If neither of the two situations obtain, the Court must decide the case in accordance with the statute. In its wisdom, the Bombay High Court chooses to do none of the above, and instead develop a fourth alternative, which is that the Preamble and the Fundamental Duties chapter can be invoked to ignore a part of the statute that – apparently – conflicts with the values contained in them.

Following on from the Supreme Court’s make-up artists decision from last month, this is another distressing example of the Court ignoring law to arrive at an outcome that is preferable to it, while window-dressing its decision through a wholly illegitimate and unsanctioned use of the Constitution. Furthermore, the implications of this decision are frightening: if the government can now invoke the Fundamental Duties chapter and the Preambular ideal of “fraternity” to impose collective burdens upon society in contravention of established law, then the place of individual rights within the legal and constitutional scheme is in some jeopardy.

What is also of concern is the Court’s refusal to engage with the idea of fraternity in the context of a fair distribution of burdens. If ‘fraternity’, as a constitutional ideal, is to play a role in constitutional adjudication, then it cannot do without a thorough fleshing out of a key question: in a deeply stratified and unequal society, is it permissible for the State to place the burden of fraternity upon those already disadvantaged — and if so, to what extent? If ‘fraternity’ is about sacrificing individual interests for the good of the society, then can the State ask those already among the worst off to take the hit for the greater good of the collective? Is it a purely utilitarian calculus that ought to drive these decisions? And if so, is there any point to having a Constitution with individual rights and personal freedoms in the first place?

A facile constitutional conception of ‘fraternity’ that ignores these crucial questions – as is present in the Court’s decision – only risks further division and alienation, and surely could not have been what Dr. Ambedkar had in mind.