One of the central concepts in modern constitutionalism is the public/private divide. Constitutional norms of equality, fairness etc. are supposed to apply to “public acts” (often equated with “State action”), and to the “public sphere”. Beyond this lies the “private sphere”, which is characterised by the freedom to act as one wills, unencumbered by constitutional norms. The reason for this is historical: when the first Constitutions emerged, during the time of the American and French Revolutions, “public” power was concentrated in the State, and the dominant philosophy required a separation of State and “society”, with an autonomous sphere of action for the latter (see, for instance, Dieter Grimm, Constitutionalism: Past, Present, and Future (2016)).
In recent years, the public/private divide has been challenged. It is now understood that the State is not the only coercive agent in a polity, and that walling off the “private sphere” from constitutional scrutiny serves only to mask structural and institutional inequalities. This blog focuses on two areas which have classically been considered to be “private”, but where institutional coercion is pervasive: the workplace and the family.
The blog’s focus will be on Indian labour and family jurisprudence, from a critical perspective. Its goal is to argue for a “constitutionalisation” of labour and family laws (i.e., infusing constitutional norms into our understanding of labour and family laws), and to analyse and critique Indian judicial decisions from this perspective.
A judge of the Delhi High Court once remarked that bringing the Constitution into the home would be akin to setting loose a “bull in a china shop”. In these pages, we shall respectfully dissent.