People's Democracy(Weekly Organ of the Communist Party of India (Marxist)
September 03, 2006
Judicial Despotism And The Working Class
M K Pandhe
SEVERAL decisions of the Supreme Court as well as different High Courts have recently gone against the interest of the working class and the common people of India. Such cases have become more pronounced with the advent of the policies of globalisation and liberalisation. Workers who were hoping that they would get justice in the courts are now feeling disillusioned about the judicial process as it exists today. Many, however, do not realise that in a capitalist system the democratic right of justice is available only for the dominant classes in the society.
The Manifesto of the Communist Party in 1848 clearly pointed out how jurisprudence in the capitalist system mainly serves the interests of the capitalist class. It gives justice to a small minority and supports its exploitation of the vast majority of the population. While castigating the capitalist class the Communist Manifesto declared: “Your very ideas are but the outgrowth of the conditions of your bourgeois production and bourgeois property, just as your jurisprudence is but the will of your class made into a law for all, a will, whose essential character and direction are determined by the economical conditions of existence of your class” (Page 501 Karl Marx and Fredrick Engles, Collected Works. Vol.6).
MALFUNCTIONING OF JUDICIARY
The malfunctioning of the judiciary has found its way in legal literature. It has assumed such a serious proportion, of late, that it has even entered the Oxford dictionary. For instance, the term judicial murder acquired the meaning for a legal but unjust death sentence. Punitive infatuation of the judges has been characterised as judicial blindness. Though judicial activism does not find a place in Oxford dictionary it is invariably used in legal literature indicating extra-enthusiasm shown by the judiciary in making legal pronouncements. In a similar manner the term judicial despotism is being used today to explain arbitrariness by the judiciary in giving judicial verdicts.
Indian judiciary is not free from class bias in favour of the capitalist landlord classes. The colonial legacy of the judiciary is still being carried forward even after independence. The dilatory method of according justice is proving the dictum: “Justice delayed is justice denied."
Trade union movement in India launched several struggles over a period which compelled the government to adopt labour laws to give some concessions to the working class without basically changing the exploitative system. Several welfare legislations have been brought, though in practice applicable to a small section of the working class.
While adopting the laws several loopholes were left to suit the interests of the capitalist class. Working class had to fight a bitter struggle even to put an end to some of the loopholes. The capitalist landlord government on its own never brought any labour law to grant benefits to the working class. The trade union movement had to conduct sustained struggles even to implement the labour laws passed by parliament and state legislatures.
The power to refer the dispute to adjudication has been kept with the appropriate government resulting in several genuine disputes not getting referred to the courts. For instance, over Rs 1500 crore of provident fund dues are not paid by the employers but the government does not prosecute them. Though the law provides imprisonment for not depositing the PF dues, employers hardly get any punishment for blatant violation of the Act.
Even if the trade unions get a favourable judgement in the lower court, the employers generally go to the Supreme Court on every issue. With big financial resources, they are in a position to tire out the trade unions whose resources are extremely limited and are unable to engage best lawyers available in the country.
Lawyers committed ideologically to defend the working class interests constitute a microscopic minority among legal fraternity. Lawyers influenced by bourgeois ideology are unable to argue the case of the trade unions effectively, which results in employers winning the case in the legal battles.
High rate of fees charged by the lawyers is making legal proceedings costly for the trade unions. Some of the professional lawyers charge more than a lakh of rupees per appearance in the court which is posing serious difficulties for the unions to fight a legal battle. The employers are in a position to take advantage of the situation and utilise the difficulties of the trade unions in their favour. Thus, the present legal system, in its entirety, is heavily loaded against the working class.
MISUSE OF CONCEPT OF INTERPRETATION
A memorandum submitted by the Association of Trade Unions at Ahmedabad has pointed out some cases in which in the name of interpreting the law the very concept of the legal provision has been tampered with. It notes, “In an amazing judgement the Supreme Court has practically quashed section 33 of the Industrial Disputes Act, 1947 wherein an industrial worker has been assured to recover any money as dues from the employer. This fundamental and basic law has been quashed by the Supreme Court and workers are forced to adjudicate the whole issue through years and years to establish that the claimed dues are genuine and thereafter apply section 33C of the Act (Civil Appeal No.5910 of 2005 decided on September 27, 2005 by the Supreme Court.)
In another case the memorandum notes, “Similarly it is ruled that the worker has to prove that he was the employee of the factory or the company against which he raised an industrial dispute by producing authentic documents but the law implementing authority like the Labour Commissionerate and the Factories Inspectors are not directed to ensure that each workers’ name is enrolled, wage slips, identity card, attendance cards are being issued and legal benefits are being allotted. How can a worker produce the documents of employment when they are not being given such things?
It further points out, “If a worker abuses his superior, he should be terminated from service, is another ruling. But no action against the superior if the superior abuses a worker. If an employee or a worker fails to complete 240 working days in one year period just before his retirement or resignation or dischargement he will lose the entire legal benefits even if he had worked for 20 years. It is evident that in the name of supremacy the highest legal forum is suppressing the low-ridden, financially handicapped and penurious working class by firmly closing all the ways while widely opening all possible ways to those who were born with golden spoon in their mouths.”
KRISHNA IYER’S HISTORIC JUDGEMENTS
Justice V R Krishna Iyer, when he was Supreme Court judge, gave a number of historic judgements which had given valuable remedies to the working class. His remarkable judgement on the definition of industry in which he pointed out that educational institutes, research organisations, hospitals, charitable organisations, solicitors firms etc, should be considered as an industry under the Industrial Disputes Act, 1947. This significant judgement gave a new social orientation to the entire concept of industrial disputes.
All the trade unions welcomed the judgement but the employers’ organisations were very unhappy with his interpretation. After the advent of globalisation policies, the government found the new interpretation inconvenient and deliberately failed to give legal sanction to this interpretation.
After retirement of Justice Krishna Iyer, the Supreme Court judges virtually discarded the interpretation and gave judgements in total contradiction to what Justice Krishna Iyer interpreted. His various other landmark judgements protecting the interests of the downtrodden section of the society were made meaningless by subsequent judgements of the Supreme Court.
JUSTICE DENIED TO CONTRACT WORKERS
In a landmark judgement in Air India case, the Supreme Court gave a verdict that the contract workers who were working in an undertaking should be absorbed in the regular jobs after the abolition of the contract labour in a permanent and perennial nature of jobs. This judgement came as a relief to the contract workers in several undertakings in public and private sectors in the country who were absorbed as regular employees.
However, while dealing with a review petition in the Supreme Court filed by the Steel Authority of India Ltd, the Court gave a judgement totally contradictory to what it said earlier in the Air India case. The Supreme Court awarded that the employers need not engage the contract workers after declaring prohibition of contract labour in a particular department. Thus the contract workers who fought for regularisation had to lose their jobs when contract labour is abolished in their category. This retrograde judgement blunted the edge of the struggle of the contract workers for regularisation in permanent jobs. The Supreme Court judgement reversing its own judgement gave a big boost to the employers in engaging more and more contract workers.
(To be continued)