People's Democracy(Weekly Organ of the Communist Party of India (Marxist)
September 10, 2006
Judicial Despotism And The Working Class - II
M K Pandhe
THE right to strike is considered by the ILO as an inalienable part of the right of collective bargaining of workers. Without the right to strike no employer will seriously consider the right of collective bargaining. There is an international acceptance for this right of the working class.
However, when Jayalalitha government in Tamilnadu summarily dismissed thousands of state government employees for their participation in a strike in the year 2001, T K Rengarajan appealed to the Supreme Court on behalf of the CITU against this arbitrary action of the Tamilnadu government. The Supreme Court ruled that the government employees have no right to strike even if their demands are just. The Supreme Court charged the employees of holding the society to ransom by resorting to strike action. The retrograde judgement was opposed by all the trade unions and the state and central government employees. A one-day nationwide strike was organised by the trade unions and the government employees’ organisations in protest against the retrograde judgement of the Supreme Court. The NDA government promised to take some steps to overcome the Supreme Court judgement but no such action was taken The Congress party, which opposed the Supreme Court judgement, also failed to take any action when the UPA government was formed at the centre.
The ILO, however, in its observation to the complaint filed by the CITU and TUI of Public Employees criticised the repressive measures taken by the Tamilnadu government and asserted the legitimacy of the right to strike for the government employees.
The Supreme Court has also upheld the decision of Kerala High Court to ban the bandh call given by political parties thus hitting at the very basis of democratic right of protest of the people when their vital interests are involved. Bandhs were organised in several states after the verdict, nullifying the impact of the Supreme Court judgement.
The judgement of the Kolkata High Court prohibiting demonstrations between 10 am to 5 pm during the day was another attack on TU and democratic rights. The people of Kolkata gave a powerful rebuff to the retrograde judgement by organising a protest demonstration during the same period. The judicial intervention in opposing legitimate democratic protest cannot be curbed in such an arbitrary manner.
The Mumbai High Court decision to impose a fine of Rs 20 lakh on Shiv Sena for organising a protest was also an arbitrary action by the judiciary. The call for action by Shiv Sena was not justified but the action of the High Court was equally unjustified and was opposed by the democratic movement in the country. When judiciary becomes des-potic, its prestige among the society goes down and resistance assumes a part of popular expression of opposition.
IMPACT OF GLOBALISATION
The acceptance of the policies of globalisation by the government of India has its impact on the outlook of judiciary. A number of judgements given by the High Courts and Supreme Court reflected the acceptance of the policies by the judiciary.
When Balco, a premier public sector undertaking, was handed over to a SEBI blacklisted company, the Sterlite, at a throwaway price the workers appealed to the Supreme Court to put a stop to this loot. However the apex court refused to intervene in central government’s policy decision. Thousands of crores of rupees of public money was lost but the apex court was totally unconcerned with the loss.
The Supreme Court through its decision deprived teachers of the benefits of gratuity they were getting earlier on the ground that teachers are not part of the working class as per definition of worker in Payment of Gratuity Act.
In a similar fashion the Supreme Court ruled that daily-wage workers cannot claim the benefits of regular employees as the character of job was different and they were recruited under different terms of service conditions. The apex court further ruled in another case that the casual workers cannot be treated at par with regular employees in view of difference in the nature of their jobs.
In a recent Supreme Court judgement involving the Rajasthan government, the right of a state government to abolish any of its department and throw out the employees on to the streets was accepted. The court by another judgement denied the right of equal remuneration for the casual and daily-wage employees at par with regular employees on the plea that the character of the job was different.
During workers agitation several courts have issued injunction against unions preventing demonstrations within 500 meters of the gate of the establishment. These courts do not issue any order against armed gangsters employed by the management to intimidate and terrorise the workforce. Thus the elementary forms of protests are denied to the workers even if their demands are genuine.
Several thousands of crores of rupees of statutory dues are not being paid to the workers but they do not get justice in obtaining their hard-won earnings. Twelve hours of work is extracted from unorganised workers all over the country in an illegal manner but legal remedy is not available to them. However, when they give a call for strike to resist such exploitation, their strikes are promptly declared as illegal.
The courts have been arbitrarily giving erroneous interpretation to various aspects of working and living conditions of work such as employment on compassionate grounds, unilateral workload imposed by the managements, discriminatory promotion policy based on favouritism to the sycophants, non-implementation of minimum wages paid to the workers in the unorganised sector, wrong methods adopted by the management in holding in-house enquiries, arbitrary termination of services for participating in trade union activities are some of the examples of judicial despotism.
All this has resulted in curtailment of TU and democratic rights of the working class. The atmosphere of international competitiveness is being grossly utilised to intensifying the exploitation of the working class.
MAKE JUDICIARY ACCOUNTABLE
Several cases of judicial malpractices have come to light in the recent past. In Rajasthan, a judge was caught when he offered a favourable judgement to a woman employee if she agreed to give him sexual favour. Some judges were involved in a sex-scandal in Bangalore, which was sought to be hushed up. In Delhi, a judge was found in league with touts in housing allotment scandal. The Bar Council of India gave names of 130 judges before whom their own relatives cases are coming. The CITU had an occasion to submit a memorandum to the union labour ministry signed by labour lawyers of Chennai complaining about a particular presiding officer of a Labour Court who invariably was giving awards against the workers. Cases of malpractices by judges in Punjab have also been reported in the press. Allotment of prime land to some judges by the government of Maharashtra in return against some favourable action was also revealed.
These are only a tip of the iceberg and many cases can be sighted if judicial accountability is ensured by bringing them under the ambit of penal action. As a matter of fact, there is no law in the country to ensure accountability of the judges.
The discriminatory attitude and caste bias of the judiciary was clearly seen in the recent past. When the doctors in AIIMS in New Delhi went on a prolonged strike against the reservation of seats for OBCs in medical colleges, the Delhi High Court ordered for full payment of salaries to the doctors though they did not work and caused acute sufferings to a vast multitude of patients. The same court held that there would be no wages paid to the workmen of Flood Control Department of the Delhi government for going on strike. The Industrial Tribunal earlier awarded payment of wages since the demand of the employees was just. The decision was overturned by the High Court on the ground of ‘No Work No Pay’. Since both the judgements were given in the same year and in the same state and by the same court, it clearly indicates the sympathy for the upper caste persons and animosity for the ordinary workers.
NEED FOR A NATIONAL JUDICIAL COMMISSION
There is an urgent need to appoint a National Judicial Commission to monitor the working of the judiciary. The appointment of judges should be done in a transparent manner and no favouritism should be shown in the matter. Justice Sawant, former judge of the Supreme Court, has stated that the appointment of members of the commission should be done purely on the basis of merit and integrity.
There should be a public debate on the present role of judiciary. Workers’ consciousness should be roused against the negative role played by the judiciary today in the matter of labour rights and industrial disputes. The contempt of court concept is being used against persons who criticise the unfair role of the judiciary. This concept is being carrying forward since the British days and no review has been made about it till date. There should be proper consideration of whole concept of contempt of court in the light of recent developments so that unnecessary harassment of critiques of judiciary is avoided.
The central government has powers to amend the laws to overcome the difficulties created due to retrograde judgements of the courts. However, the central government is not using the powers, which is making the matters worse for the trade unions. The executive and judiciary today are moving in unison to carry forward the policies of globalisation. The trade union movement in India has to strengthen its struggle, both against the judiciary and the executive, if judicial despotism is to be checked squarely.