Supreme Court In Liberalised Times
By Prakash Karat
09 August, 2003
The Supreme Court judgement regarding the dismissal of 170,000 state
government employees in Tamilnadu constitutes a severe assault on the
rights of the working class. The two-member bench, hearing a batch of
petitions challenging the mass dismissals based on the draconian
ordinance which amended the Tamilnadu Essential Services Maintenance
Act, not only refused to strike down the ordinance but justified the
state government's drastic action against the striking employees. The
bench observed "state has taken appropriate action as there is no
alternative today to deal with the strike". However, the court asked the
state government to "show magnanimity and grace" and take back the
dismissed employees on their tendering an unconditional apology for
joining the "illegal strike" and an undertaking that they would abide by
the conduct rules in future.Later, delivering the judgement on August 6, disposing off the petitions
regarding the dismissal of the employees, the court stated that
government employees "under no circumstances have any fundamental legal
or moral right to go on strike....Even the trade unions, who have a
guaranteed right for collective bargaining, have no right to go on
strike." Going further with their anti-strike tirade, the bench said "No
political party or organisation can claim a right to paralyse the
economic and industrial activities of a state or inconvenience the
citizens."This unprecedented judgement unfortunately goes against the fundamental
rights of workers to form associations and unions, to collective
bargaining and to resort to strike action following the procedures set
out by law. The government of India is a signatory to the ILO convention
which recognizes the civil and political rights of public employees just
as of other workers. ILO conventions have set out some core rights of
workers and employees which are violated by the observations of the
Supreme Court bench. The Tamilnadu employees strike has been brutally
suppressed. The judgement of the court has paved the way for the
reinstatement of the bulk of the employees by their individually
tendering apologies. But it has been done by the court on humanitarian
grounds while negating their right to strike and to organise. The
working class movement cannot accept this judicial assault on the basic
rights of the workers and the citizens of the country.CHANGE IN ATTITUDE
This judgement by the highest court in the country, while it directly
affects the rights of lakhs of government employees in the country, has
also serious implications for the fundamental rights of the working
people. They must be seen as part of an increasingly unsympathetic and
negative attitude to the rights of workers and a consequent bias in
favour of employers and those who command the means of production. In
the last one decade the attitude of the higher judiciary to disputes
between workers and managements and the question of the rights of the
working class to collectively protest and go on strike has undergone a
change. It reflects the new ethos of liberalisation, the market
principle and the sanctity of contract influencing the outlook of the
judiciary. The dominant outlook of the ruling classes cannot but affect
the various instruments of the state including the judiciary.
For the ordinary working people of the country, the changed outlook and
values displayed by the judiciary is a matter of serious concern. In the
seventies and upto the mid-eighties, the higher judiciary and the
Supreme Court in particular had set out a jurisprudence and given out a
series of landmark judgements, which had to a certain extent
strengthened the rights of the working people which helped maintain a
balance between the law and equity.
It is no more so. In the decade since liberalisation, the higher
judiciary has adapted itself to the new values which are espoused by the
dominant sections of society. In 1996, the then chief justice of the
Supreme Court had in a lecture stated that "liberalisation was
consistent with socialism because equitable distribution first required
wealth creation". Along with the undue reluctance and failure to
judicially intervene to check the growing abuse and misuse of the
privatisation drive, the higher judiciary showed itself hostile to the
assertion of the working people of their rights through strikes and
protest actions. The Supreme Court in this period has failed to check
the gross misuse of procedures and laws by multinationals and instances
of privatisation. Its failure to stop the sanction to Enron to set up
the Dabhol power plant is the most glaring. In the case of Cogentrix,
Balco and other such instances, the courts refused to entertain them
even when there were sufficient grounds to show that they were done in
contravention of existing laws and procedures. Right now, the court is
to hear petitions challenging the decision to sell off the HPCL and BPCL
by the government. It was done by bypassing parliament which had
nationalised these companies through legislation.
In contrast, the Supreme Court upheld the Kerala High Court's judgement
in 1997 banning bandhs. This was followed up by the Supreme Court
refusing to set aside the Kerala High Court decision to prohibit
hartals. From declaring bandhs and "forcible" hartals illegal, the next
step has been taken in the Tamilnadu judgement where the right to strike
itself has been questioned and arbitrary observations made about how it
creates chaos and has to be dealt with firmly by the authorities.
An analysis of the trends of the judgements by the Supreme Court which
concern the working class in the last one decade will be a revealing
exercise. Increasingly, the Supreme Court is coming out as a
conservative court which does not empathise with the vast mass of the
people who are adversely affected by the liberalisation process. In
2001, the Supreme Court reversed an earlier judgement which sought to
protect the rights of the contract workers. On an appeal by the Steel
Authority of India Ltd and some other public sector undertakings, the
Supreme Court nullified the gains made by the contract workers through
decades of struggle to assert their right for becoming permanent
employees if they are employed in jobs of a perennial nature. In the
earlier judgement of the court in the Air India case, the contract
workers had won the right to become permanent in certain circumstances.
The judgement saw all the trade unions unitedly protesting what they
termed a retrograde and regressive step.
In the recent period, there were at least two judgements by the court
which struck down the decision of various high courts which had ordered
that a dismissed worker who was reinstated, should get full back wages.
In one of the judgements setting aside the high court decision, the
Supreme Court bench observed "applying the legal principles the
inevitable conclusion is that the high court committed an error in
upholding that the award of full back wages was a natural consequence"
when the dismissal of a worker is set aside. (reference: Hindustan
Motors Vs Tapan Kumar Bhattacharya, 2002 and Post Graduate Institute of
Medical Education and Research, Chandigarh Vs Rajkumar, 2001 )FAVOURING MARKETS
The values fostered by liberalisation and the market principle are
getting sanctified judicially. What the BJP-led government would like to
push through as labour reforms by making the entire working force
casualised and the capitalists having unfettered rights to hire and
fire, is finding support through judicial intervention.
Two other recent judgements can be cited to underscore the new attitude.
An eleven-member Constitutional Bench of the Supreme Court took a
retrograde decision this year regarding the educational system. In the
case of TMA Pai Vs the State of Karnataka, the Supreme Court had to
clarify the role and scope of the minority educational institutions in
the country. While undertaking this job, the Constitutional Bench went
much beyond the subject before them. It decreed that private educational
institutions in general have unfettered rights to decide on both the
norms for admission and the fees that they should charge. It reversed
the earlier Supreme Court judgement in the Unnikrishnan case which had
prescribed that the state can regulate the norms for admission and fees
in professional colleges. This led to the chaos which was witnessed
recently in the educational system. Private managements raised their
fees to astronomical levels in many states. The court judgement was
cited for charging fees to the tune of rupees three to four lakhs in
some of the professional colleges and to challenge the state
government's scope to regulate them.
Here again, as in the case of its attitude to the working class, the
judgement is governed by the court's favourable view of market
"competition" and the sanctity of the right of private managements to
decide what fees to set and what profits to make.
Another recent judgement decreed that air hostesses of Air India have to
be grounded at the age of 50. This reversed the Mumbai High Court's
sensible decision that women flight staff could serve till the age of 58
just like the male staff. In this case, the bench seems to have not only
reinforced gender discrimination but also paid heed to the need for
women to have a "pleasing appearance" as dictated by the market.
The Supreme Court has played an important role at crucial junctures,
especially in upholding the secular principle of the Indian state. It
has a justified reputation of being the guardian of the Constitution and
the rights of citizens. Unfortunately, more and more, the court is seen
as hostile to the collective interests of different sections of the
working people while being willing to intervene to redress the
grievances of individual citizens. This again reflects the attitude of
the judiciary under the liberalised dispensation. Individual rights are
addressed while the rights of classes who are exploited, or, who do not
control the means of production are not taken cognizance of.