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Globalisation and its discontents

In a recent judgment,the Supreme Court chastised the courts for ignoring the plight of the common man...

Written by M.S. Ananth |
January 29, 2010 10:01:16 pm

In a recent judgment,the Supreme Court chastised the courts for ignoring the plight of the common man,bemoaning the influence and effect of globalisation and liberalisation on citizens. The judgement notes that a view has gained currency that courts are no longer “sympathetic” to the plight of workers and notes a discernible “shift” in the attitude of the court. Has there actually been such a “shift”?

In the context of labour law,the scope of its applicability,its breadth and its beneficial aspects were first expounded in the Bangalore Water Supply and Sewerage Board case. At issue was the scope of the word “industry” and consequently the benefits that would follow. Justice Krishna Iyer’s view is still the law of the land. Justice Iyer pointed out to the provisions of Directive Principles in the Constitution,which enjoined the state to provide for means of livelihood and related benefits. The caution held out by the Supreme Court in the recent case was abundantly made clear in the case of Bangalore Water

Supply case 32 years ago . But this was not a one-off case,restricted to the definition of “industries” or merely the view of a single judge. In the case of Hussainbhai v. Alath Factory,the scope of the expressions “employer” and “employee” were examined and the Court speaking through Justice Iyer held that the Court could not ignore the duties cast on employers in terms of the provisions in the Directive Principles.

With the evolution of fundamental rights,the rights of workers came to be recognised and protected not merely under the relevant statutes (Industrial Disputes Act,Minimum Wages Act etc.),but also in collateral proceedings — winding up of companies. The rights of workers to participate in winding up proceedings and in revival measures has been recognised and repeatedly upheld. Parliament has also not been completely oblivious to the rights of workers under such peculiar circumstances. In an effort to protect their rights,section 529A of the Companies Act was added,giving an overriding title to workmen’s dues. The Law Commission of India went a step further and in its report of April 2009 noted that much needed to be done on the subject of welfare legislations,and their “tardy implementation” made the nation “lag behind” — the onus was manifestly on the legislature and the executive.

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Indeed,if this is the law,what precipitated those observations from the Bench? Perhaps the reasons may lie elsewhere,in the context of economic measures taken by the government. In these cases — disinvestment,land acquisition,auctions and tenders etc. — courts have cautiously refrained from interfering with the “prerogative” of the state. The reason is simple,as reiterated by a long line of precedents,that,“ …the legislature understands and correctly appreciates the needs of its own people” and consequently,“the presumption of constitutionality is indeed strong.”

Undoubtedly,courts have been more inclined to interfere when there has been a manifest violation of fundamental rights — clean air,water,land,education etc. The pros and cons of economic measures involve too many imponderables in which the legislature and the executive are better placed with greater resources to make an informed opinion. In this context,the Supreme Court rightly held in BALCO Employees v. Union of India that,“Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any stuttered provision or the Constitution.”

Have courts and judges therefore abandoned or forgotten their obligation under the Constitution? Have the rights guaranteed under the Constitution been forsaken for illusory benefits of liberalisation,privatisation and globalisation? The view expressed by the Bench seems cynical. After,all,the petitioner in that very case,was reinstated — on the basis of the existing law of the land.

The writer practices law in the Supreme Court of India

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