The Supreme Court’s January 29 order disposing of Penn Thozhilalargal Sangam v Union of India – uploaded on the Supreme Court’s website on February 4 – represents a troubling abdication of judicial responsibility. By refusing to declare that domestic workers possess a fundamental right to minimum wage under Article 23, the top court has not merely declined to issue a mandamus but it has also contradicted its own transformative constitutional jurisprudence spanning over four decades. This retreat is particularly bewildering given that the petitioners sought exactly the kind of relief the Court has routinely granted since 1982.What the petitioners actually soughtTen trade unions and associations representing domestic workers from across India approached the top court with a straightforward constitutional claim: that economic circumstances which compel a person to work against his will on less than minimum wage constitute forced labour prohibited by Article 23. They asked the Supreme Court to:Declare the fundamental right to minimum wage under Articles 21 and 23Strike down the exclusion of domestic workers from minimum wage legislation as unconstitutionalDirect governments to include domestic workers in wage protection frameworksMandate consultation with workers in determining minimum wagesThese prayers were not novel. They echoed arguments the Supreme Court has accepted for over 40 years. The petitioners were essentially asking the apex court to apply existing constitutional law to domestic workers – not to legislate from the bench.Supreme Court’s own precedents: Article 23 as a living rightThe Supreme Court’s Article 23 jurisprudence, beginning with the landmark 1982 decision in People’s Union for Democratic Rights v. Union of India, established clear and expansive principles that should have compelled a different outcome in the domestic workers’ case.In the PUDR case, Justice P.N. Bhagwati held: ” It is not merely ‘begar’ which is prohibited under this Article. This Article strikes at forced labour in whichever form it may exist as it violates human dignity and opposes the basic human values.” Critically, the Supreme Court held that force includes “compulsion arising from hunger and poverty, want and destitution” and that “where a person provides labour or services to another for remuneration which is less than the minimum wage, the labour or service provided by them clearly falls within the scope and ambit of the words ‘forced labour’ under Article 23”.The PUDR court went further, explicitly recognising that workers subject to such exploitation would be entitled to come to the court for enforcement of their fundamental right under Article 23 by asking the court to direct payment of the minimum wage to them so that the labour or service provided by them ceases to be ‘forced labour’. The top court declared this a directly enforceable fundamental right, not a matter requiring legislative intervention.The consistent thread since PUDR is this: Article 23 is self-executing. It does not require legislative action to be enforceable. Economic compulsion that forces workers to accept sub-minimum wages is forced labour, period.The Penn Thozhilalargal contradictionAgainst this backdrop, the Supreme Court’s refusal to grant relief to domestic workers is constitutionally indefensible. Chief Justice Surya Kant, writing for the bench, stated that “on a combined reading of the prayers, especially prayers ‘A’ and ‘B’, no enforceable decree or order can be passed by this Court unless the legislature is asked to enact a suitable law.”This is simply wrong as a matter of constitutional law.Prayer ‘A’ sought a declaration that domestic workers have a fundamental right to minimum wage under Articles 21 and 23. This is not asking for new legislation – it is asking the Court to apply PUDR and its progeny. The PUDR court faced the exact same situation: workers paid below minimum wage in violation of existing law. The court did not say “wait for the legislature” – it declared that such payment constitutes forced labour and directed compliance with minimum wage laws.Prayer ‘B’ sought to strike down the exclusion of domestic workers from minimum wage legislation as unconstitutional. Again, this requires no new law. The top court has routinely examined whether legislative exclusions violate fundamental rights. When the court finds such exclusions arbitrary or discriminatory under Articles 14, 21 or 23, it strikes them down. That is textbook judicial review, not legislative overreach.The Supreme Court’s reliance on separation of powers is particularly puzzling given its own activism in PUDR. In that case, the top court did not wait for parliament to amend the Minimum Wages Act or enact new protections. It interpreted Article 23 expansively, directed enforcement of existing laws, and held government contractors accountable. It exercised continuing mandamus and issued detailed directions about working conditions, wage payments, and rehabilitation.If the Supreme Court could do all this for construction workers in 1982 without violating separation of powers, why not for domestic workers in 2026?The economic compulsion test: domestic workers clearly qualifyApplying the PUDR test to domestic workers yields an obvious conclusion. Domestic workers – predominantly women from Dalit, Adivasi and economically-marginalised communities – are subject to precisely the economic compulsion Justice Bhagwati described. They suffer from “hunger or starvation”, have “no resources at all to fight disease or to feed [their families]”, and “utter grinding poverty has broken [their] back and reduced [them] to a state of helplessness and despair”.They have no choice but to accept whatever wage is offered, often far below any reasonable minimum. They work without contracts, without fixed hours, without social security, without even the basic dignity of being recognised as “workers” under labour law. If this is not forced labour under Article 23, then the term has no meaning. The Supreme Court itself acknowledged this reality in Ajay Malik v State of Uttarakhand noting the “plight of domestic workers in India, arising from the lack of legal protection” and observing that they are excluded from “various Labour Laws, such as the Payment of Wages Act, Equal Remuneration Act, etc.” Yet, having recognised the problem, the Supreme Court refused to apply the constitutional remedy it established 44 years ago.Separation of powers a smokescreenThe Supreme Court’s invocation of separation of powers is particularly troubling because it mischaracterises what the petitioners sought. Declaring that Article 23 guarantees minimum wage to domestic workers is not “legislating from the bench” – it is constitutional interpretation, the core judicial function. Consider what the Court has done in other contexts:In Vishaka v. State of Rajasthan (1997), facing legislative inaction on sexual harassment, the Court laid down binding guidelines until Parliament actedIn MC Mehta cases, the Court issued detailed environmental directions without waiting for comprehensive legislationIn Bandhua Mukti Morcha, it directed state action on bonded labor rehabilitation with specificity that arguably crossed into policy-makingIn PUDR itself, the Court effectively rewrote labor law implementation through continuing mandamusNone of these were criticised as violations of separation of powers because they involved enforcement of fundamental rights. The Penn Thozhilalargal case involves the same enforcement mechanism, yet the top court suddenly discovers constitutional modesty.The Supreme Court’s concern about directing the legislature rings hollow for another reason: the petitioners offered the top court an obvious alternative. Even without ordering new legislation, the Court could have: 1. Declared that Article 23 guarantees minimum wage to all workers, including domestic workers 2. Struck down the exclusion of domestic workers from minimum wage schedules as arbitrary under Article 14 3. Directed states to immediately extend existing minimum wage protections to domestic workers through executive action 4. Established an interim framework pending comprehensive legislation, as in VishakaNone of these require “enactment of any law”. They require judicial enforcement of existing constitutional guarantees.The cost of judicial restraintThe Supreme Court’s refusal to act has real consequences. Millions of domestic workers will continue working in conditions that the court itself recognises as exploitative. They will remain excluded from legal protections, vulnerable to wage theft, arbitrary dismissal, and worse. Women and girls from marginalised communities will continue to be trapped in a sector that the court has acknowledged lacks even basic regulatory frameworks.Meanwhile, the Ajay Malik expert committee – which the top court noted was given six months to report – appears to have vanished into bureaucratic ether. The current order makes no mention of that committee’s recommendations or even whether it has reported. If the committee has reported, why isn’t the court examining its findings? If it hasn’t, why isn’t the Court enforcing its own deadline?The top court’s passive approach – expressing “hope and trust” that states will act, allowing petitioners to “forward copies of this writ petition” as representations – is an abdication dressed up as deference. It places faith in the same legislative process that has failed domestic workers for decades. Multiple bills have been introduced and allowed to lapse. States have shown no urgency. The central government deflects responsibility to states.This is precisely the situation that demands judicial intervention under Article 32.Selective interpretation of constitutional dutyPerhaps, most troubling is the selective nature of the Supreme Court’s restraint. The same court that found “no effective legislative or executive action” in Ajay Malik now accepts at face value that the issue is “under active consideration” by states. The same court that acknowledged domestic workers are denied “basic legal protection” now refuses to provide that protection through constitutional interpretation.The apex court in Ajay Malik cited international norms and standards for domestic worker protection. It noted India’s ratification of various ILO conventions. It acknowledged the “plight” of these workers. Yet, when asked to apply the constitution’s fundamental rights chapter to remedy that plight, the court invokes separation of powers and dismisses the petition.This is constitutional evasion.A rights-free zoneThe Penn Thozhilalargal order creates an anomalous constitutional zone where Article 23’s protections somehow do not apply. Construction workers paid below minimum wage are victims of forced labour. Prison laborers working without remuneration are victims of forced labour. Even famine relief workers underpaid by the state are victims of forced labour. But domestic workers – predominantly poor, predominantly female, predominantly from marginalised communities – must wait for the legislature. Justice Bhagwati wrote in PUDR that Article 23 strikes at forced labour in whichever form it may exist as it violates human dignity and opposes the basic human values. Forty-four years later, the Supreme Court has carved out an exception: forced labour is prohibited in whichever form it exists – except domestic work.The top court possessed ample precedent, clear constitutional text, and compelling facts. It chose not to act. In doing so, it has left millions of India’s most vulnerable workers without the protection that the constitution guarantees and that the Court’s own jurisprudence demands.The petitioners did not ask the Supreme Court to legislate. They asked it to adjudicate – to declare rights, strike down unconstitutional exclusions, and enforce fundamental guarantees. That the court refused reveals not constitutional necessity but judicial choice.It is a choice that betrays four decades of Article 23 jurisprudence and abandons domestic workers to continued exploitation under the guise of respecting legislative prerogatives that legislators themselves have shown no inclination to exercise.This is the first part of an analytical series on the domestic workers judgment.