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Let the judges search their souls!: The Hindustan Times
California, Aug 22: First, a recap of what we discussed last week. In a judgement of far-reaching implications, the Supreme Court in a major ruling has said that the government employees have no `fundamental, legal, moral or equitable right` to go on strike and hold the society to ransom. In a 21-page judgment, the apex Court held that the government employees had neither any fundamental, legal or statutory right nor moral or equitable justification to go on strike.
California, Aug 22: First, a recap of what we discussed last week. In a judgement of far-reaching implications, the Supreme Court in a major ruling has said that the government employees have no "fundamental, legal, moral or equitable right" to go on strike and hold the society to ransom. In a 21-page judgment, the apex Court held that the government employees had neither any fundamental, legal or statutory right nor moral or equitable justification to go on strike.
On the question of right to strike, whether fundamental, statutory or equitable/moral right, a Bench comprising justice MB Shah and Justice AR Lakshmanan said "in our view, no such right exists with the government employees." This ruling was given by the Court while disposing of petitions pertaining to dismissal of nearly two lakh employees by Tamil Nadu Government for going on strike from July 2. Justice Shah, writing for the Bench, said that the law on this subject is well settled and it has been repeatedly held by this Court that the employees have no fundamental right to resort to strike.
Extracting a 41-year old constitution Bench judgment relating to bank employees, the Bench said the Apex Court had specifically held that even a very liberal interpretation of constitutional provisions "cannot lead to the conclusion that trade unions have a fundamental right to an effective collective bargaining or to strike, either as part of collective bargaining or otherwise".
What has surprised me most is the plain impotent attitude of the mainstream political parties in India. Excepting the CPI(M), none of the political parties have expressed any firm opinion on the Supreme Court's latest ruling. It is a conspiracy of silence. This is in fact shocking because each of these political parties, including the Congress and the BJP, have very active and large trade union appendages whose platforms serve as channels of communication with the unionized workers in the country.
Only the political bureau of the CPI (M) expressed its grave concern over the observations made by the Supreme Court in the Tamil Nadu state government employees case. The observations, according to the party, amount to a denial of the hard won democratic right of the workers and employees to strike work. It was pointed out by them that stoppage of work is recognized as an unalienable right, a democratic expression of opinion and as a legitimate method of protest in all civilized societies and that the denial of such a democratic right will lead to dangerous consequences. In their opinion, the Tamil Nadu ordinance is a grave attack on the basic right of employees to security in employment and an attack on the fundamental rights of citizens. It is unfortunate that the Court has not considered this aspect.
Whether one believes in the ideological underpinnings of the Communist Party or not, all those in favor of democratic rights believe that those who govern should do so with the mandate of the governed; that Government is a social contract between the governed and the governing; that taxation without participation is tantamount to tyranny; that worker rights are integrally part of the whole edifice of human rights; that good governance and democracy are the only tools that can guarantee transparency and accountability to the electorate which consists largely of workers or the salaried masses; that it is only the upholding of social justice (which includes workers' rights) that can guarantee upholding the rule of law.
The only inescapable conclusion which flows from all the assumptions made above is, in fact, a very disturbing one, which is, that the pronouncements of such sweeping judgments which potentially overturn the established principles of governance without adequate public debate amount to the issue of a fatwa, or a rule by decree. Unfortunately, any rule by decree is tantamount to feudalism and has no place in democratic society.
Having said that, it is important to understand that the latest ruling by the Court was in fact the culmination of wholesale changes which have occurred in the west in the past two-three decades. In countries like Canada and Britain, several categories of workers, including agricultural and horticultural workers, are excluded from the application of labor relations legislation and therefore from the protection this provides. For universities, the laws governing industrial relations authorize the Board of Governors to say which staff members may or may not form a trade union.
The law on labor relations in the civil service bans strikes by all hospital workers including a whole series of workers who do not fall into the category of essential services. Strikers involved in illegal strikes are liable to heavy fines and even prison sentences. The law authorizes extensive intervention by the authorities in collective bargaining and allows the employer to bypass the trade union as a bargaining agent, and to use replacement workers in a strike.
In British Columbia, for example, nurses lost their right to strike when the provincial government passed the Health Care Services Continuation Act in 2001. The Act ordered an end to the limited industrial action being taken by nurses over a collective bargaining dispute and allowed the government to impose a "cooling off" period of up to 60 days during which strike action by nurses and other health care workers was deemed illegal.
In fact, several countries have designated 'Education' as an "essential service" under the new industrial relations acts. These have made unionization among teachers and education support workers much more difficult and have given the authorities the power to deny them the right to strike.
Fair enough! The question that we should be addressing to the Supreme Court in India is very simply this: Are the socio-economic conditions in the country such that western-style industrial relations laws and hire-and-fire work-practices can be adopted blindly? Can you have such stiff 'industrial relations' in India as the western liberal democracies without creating a similar social security net for those who get left behind? Let the judges search their souls! (Or is it asking for too much?)
Extracting a 41-year old constitution Bench judgment relating to bank employees, the Bench said the Apex Court had specifically held that even a very liberal interpretation of constitutional provisions "cannot lead to the conclusion that trade unions have a fundamental right to an effective collective bargaining or to strike, either as part of collective bargaining or otherwise".
What has surprised me most is the plain impotent attitude of the mainstream political parties in India. Excepting the CPI(M), none of the political parties have expressed any firm opinion on the Supreme Court's latest ruling. It is a conspiracy of silence. This is in fact shocking because each of these political parties, including the Congress and the BJP, have very active and large trade union appendages whose platforms serve as channels of communication with the unionized workers in the country.
Only the political bureau of the CPI (M) expressed its grave concern over the observations made by the Supreme Court in the Tamil Nadu state government employees case. The observations, according to the party, amount to a denial of the hard won democratic right of the workers and employees to strike work. It was pointed out by them that stoppage of work is recognized as an unalienable right, a democratic expression of opinion and as a legitimate method of protest in all civilized societies and that the denial of such a democratic right will lead to dangerous consequences. In their opinion, the Tamil Nadu ordinance is a grave attack on the basic right of employees to security in employment and an attack on the fundamental rights of citizens. It is unfortunate that the Court has not considered this aspect.
Whether one believes in the ideological underpinnings of the Communist Party or not, all those in favor of democratic rights believe that those who govern should do so with the mandate of the governed; that Government is a social contract between the governed and the governing; that taxation without participation is tantamount to tyranny; that worker rights are integrally part of the whole edifice of human rights; that good governance and democracy are the only tools that can guarantee transparency and accountability to the electorate which consists largely of workers or the salaried masses; that it is only the upholding of social justice (which includes workers' rights) that can guarantee upholding the rule of law.
The only inescapable conclusion which flows from all the assumptions made above is, in fact, a very disturbing one, which is, that the pronouncements of such sweeping judgments which potentially overturn the established principles of governance without adequate public debate amount to the issue of a fatwa, or a rule by decree. Unfortunately, any rule by decree is tantamount to feudalism and has no place in democratic society.
Having said that, it is important to understand that the latest ruling by the Court was in fact the culmination of wholesale changes which have occurred in the west in the past two-three decades. In countries like Canada and Britain, several categories of workers, including agricultural and horticultural workers, are excluded from the application of labor relations legislation and therefore from the protection this provides. For universities, the laws governing industrial relations authorize the Board of Governors to say which staff members may or may not form a trade union.
The law on labor relations in the civil service bans strikes by all hospital workers including a whole series of workers who do not fall into the category of essential services. Strikers involved in illegal strikes are liable to heavy fines and even prison sentences. The law authorizes extensive intervention by the authorities in collective bargaining and allows the employer to bypass the trade union as a bargaining agent, and to use replacement workers in a strike.
In British Columbia, for example, nurses lost their right to strike when the provincial government passed the Health Care Services Continuation Act in 2001. The Act ordered an end to the limited industrial action being taken by nurses over a collective bargaining dispute and allowed the government to impose a "cooling off" period of up to 60 days during which strike action by nurses and other health care workers was deemed illegal.
In fact, several countries have designated 'Education' as an "essential service" under the new industrial relations acts. These have made unionization among teachers and education support workers much more difficult and have given the authorities the power to deny them the right to strike.
Fair enough! The question that we should be addressing to the Supreme Court in India is very simply this: Are the socio-economic conditions in the country such that western-style industrial relations laws and hire-and-fire work-practices can be adopted blindly? Can you have such stiff 'industrial relations' in India as the western liberal democracies without creating a similar social security net for those who get left behind? Let the judges search their souls! (Or is it asking for too much?)