Introduction

Individual liberty, contractual freedom and market participation are justiciable fundamental rights under the Indian Constitution. Individual rights to freedom of trade, business, profession and occupation are the bases of contractual freedom under the Constitution. However, freedom of contract is not identical to freedom of trade or profession. The scope of the latter is much broader than the former. An individual's profession, occupation, trade or business is also an expression of individual choices and aspirations – things that individuals value in their lives – when such choices are not substantially constrained. Contractual freedom is of a narrower import compared to the freedom of trade or profession, but an important one that also facilitates the aforementioned individual aspirations under market conditions. An exclusive focus on contractual freedom as an indicator to evaluate the scope (and realisation) of freedom of trade sidelines other motivations of workers to engage in a specific profession, occupation or business. An exclusive focus on the freedom of market exchange (that is, contract) also comes at the cost of ignoring the prerequisites and corequisites of such exchange. Such focus does not capture the role of education, training, skills, resources, social circumstances, cultural sensitivities and other factors that help expand the real freedom of the parties to such an exchange.

To elaborate, there is a valid basis to argue, as John Gardner does, that an isolated focus on the freedom of contract is restrictive of overall individual freedom. In the context of the employment relationship, if the primary legal emphasis lies on preserving or promoting the contractual feature of the relationship, the employee identity narrows down to that of an instrument of exchange (of labour), or contractor. As instruments of exchange employees remain merely as means of performing the (employer’s) contract. This instrumental understanding of employees articulates a narrow view of an employee's freedom, including her right to freedom of trade, by denying the capacity of choice and aspiration of such employee. Work or employment is broader than mere contractual exchange since it also signifies a worker's aspiration and self-fulfilment. This (or any) human aspiration is bound to be broader than an instrumental – means to something – understanding of one's freedom of contract. Accordingly, a mere contractual understanding of employment, without also referring to other social commitments (including other individual freedoms), is restrictive of the very freedom (that is, freedom of trade) that it purports to promote.