Previously on this blog, we have discussed the doctrine of unconstitutional conditions (government may not make the grant of a privilege conditional upon the relinquishment of a fundamental right, even though there is no prior obligation upon it to accord the privilege in the first place). Recently, my attention was drawn to a statement by Ambedkar that seems to reflect the basic logic of the doctrine:

“Ask those who are unemployed whether what are called Fundamental Rights are of any value to them. If a person who is unemployed is offered a choice between a job of some sort, with some sort of wages, with no fixed hours of labour and with an interdict on joining a union and the exercise of his right to freedom of speech, association, religion etc., can there be any doubt as to what his choice will be ? How can it be otherwise? The fear of starvation, the fear of losing a house, the fear of losing savings, if any, the fear of being compelled to take children away from school, the fear of having to be a burden on public charity, the fear of having to be burned or buried at public cost are factors too strong to permit a man to stand out for his fundamental rights. The unemployed are thus compelled to relinquish their fundamental rights for the sake of securing the privilege to work and to subsist.” (B. Shiva Rao, The Framing of India’s Constitution: Select Documents, 100)

While there is a distinction in nuance – Ambedkar is here concerned with inequality of bargaining power in a contractual relationship between employer and employee, while the unconstitutional conditions doctrine is concerned with State action – the basic idea – that fundamental rights can be indirectly circumvented by conditioning their waiver upon receipt of a privilege that an individual is in no real position to reject – is the same. In her book, Citizenship and its Discontents, Niraja Gopal Jayal quotes this paragraph immediately after claiming that for Ambedkar, it was essential that “an individual should not have to relinquish any of his [fundamental rights] as condition of receiving a privilege.” (148) Indeed, Ambedkar’s own use of the word ‘privilege’ suggests a close affinity with the unconstitutional conditions doctrine.

—

(H/T: Rupali Samuel, for bringing the relevant part of Jayal’s book to my attention)