Constituting a Right to Association: A Postcolonial Exploration

Abstract

In this article, I emphasize the social realm, rather than legislative action or judicial enumeration, as the preferred site for understanding the constitution of the legal right to association. I argue that the substance of a right – what we understand when we claim a right – emerges through contextual socio-historical processes before it penetrates the imagination of either the legislature or the judiciary. This emphasis on the social realm in understanding the contour of a right is particularly important for postcolonial societies such as India, where a Western universalist rights language is constitutionally adopted to unify a country that comprises heterogeneous socio-cultural milieux. Partha Chatterjee articulates this disjuncture by offering a distinction between the formal (constitutional) civil society and the informal political society. Drawing on Chatterjee’s distinction and interpreting historical ideas and their continued relevance on the nature of industrial relations, I show how the judiciary failed to take note of, and the legislature only belatedly reacted to, the validity of worker cooperatives as a legal right to association even when it received broad social recognition.