THE TAMILNADU JUDGEMENT

Supreme Court In Liberalised Times

 Prakash Karat

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.