Judicary and Working Class

Judiciary and working class-Prabhat Patnaik

There are at least five clearly discernible tendencies which emerge when we look at a number of verdicts handed down by the higher courts, including the Supreme Court, in the last few years. The first is a tendency to restrict the rights of the working people. The Supreme Court’s verdict in the case of the Tamilnadu government employees, denying their right to go on strike, the Kerala High Court’s judgment against bandhs, and the Calcutta High Court’s ban on public demonstrations (and that too because one judge’s car got held up owing to a demonstration) are examples of such encroachments. These no doubt are particular verdicts, but unless the particularity of the particular is emphasized, what is decreed in one case is open for extension to all cases. In short, the Kerala High Court’s order, or the Calcutta High Court’s order, or the Supreme Court’s order in the case of government employees, is open for more general replication.
Of course, a bandh, a strike, or a demonstration do cause inconvenience for a large number of people, but that is precisely why they are effective weapons in the hands of workers. They never adopt such measures lightly. To believe otherwise is precisely to fall prey to upper class prejudices, as the judiciary has been doing. And if the avoidance of inconvenience to others were the over-riding objective, then a directive to the government to avoid situations that call forth such actions would not have been inapposite. No such directive however accompanied the verdicts. Instead, the right to strike enjoyed by the working class all over the world, and obtained after long years of struggle; the right to call bandhs which were a part of India’s freedom struggle and cannot suddenly be termed illegitimate; and the right to hold demonstrations which is an accepted part of any democratic society, and widely used all over the world, including recently in the metropolitan centers of the advanced countries against the invasion of Iraq by their own governments; were all taken away at one stroke of a whimsical pen.
In the same category incidentally is a whole set of judgements, including by the Supreme Court, sanctioning the dismissal of an employee for misbehaving with the management. In a case relating to the dismissal of two Bennett Coleman (BCCL) workmen for fighting with their officers, the Supreme Court ruled that not only could the employee be dismissed, but even his gratuity could be forfeited. Likewise, upholding an order dismissing an employee of the Madhya Pradesh Electricity Board (MPEB) who had fought with an officer, a Supreme Court bench sternly pronounced that discipline is the “sine qua non for the efficient working of the organisation” and that “obedience to authority in a workplace is not slavery”. In another case, the Supreme Court upheld the dismissal of an employee by Bharat Forge who had fallen asleep. The bench made the sweeping statement that falling asleep at work amounted to a level of misconduct that could justify dismissal. It also upheld, on an appeal filed by Mahindra and Mahindra, the company’s decision to dismiss an employee for using “filthy” language against his boss 11 years earlier. According to the judgement, using abusive language against a superior at the workplace is reason enough for dismissal.
It is nobody’s argument of course that misbehavior should be condoned, but as any Primary School teacher knows, what appears as misbehavior on the part of one could well have been provoked by the actions of the other, so that deciding culpability is not easy. To give management carte blanche under these circumstances is tantamount to encroaching on the rights of the workers, to abetting the victimization of workers by management.
The second tendency is to “roll back” affirmative action. The most obvious example is the recent verdict that “reservations” in admissions need not be adhered to in the case of educational institutions which receive no funding from the State. This verdict not only is against affirmative action but also arbitrarily restricts the domain of State intervention. It is equivalent to saying that the State has no right to levy income taxes on employees outside the public sector. The proposition that the State is an overarching entity whose domain of intervention covers the entire universe of civil society and is not confined to only that part which is financed by it, is accepted in every modern society; and yet the Supreme Court has chosen to jettison it for reasons having little to do with any serious social philosophy and with consequences that are far-reaching and dangerous.
The third tendency is an encroachment on people’s livelihoods and rights of domicile in the name of improving the environment. The classic case of this was the shutting down of factories in Delhi for the sake of reducing pollution, and the throwing out of work of thousands of workers. More recently, pronouncements from the Supreme Court bench that “Delhi should not be allowed to go the way of Mumbai”, meaning that restrictions must be placed on the people’s right to domicile in the metropolis in order to avoid undue strains on civic amenities, suggest a judicial endorsement of an attack on the livelihood of the metropolitan poor and on a basic right which they have enjoyed for long. To be sure, strains on civic amenities should be avoided, and polluting industries should be shut down. But these are issues whose settlement requires proper redressal for those adversely affected. The modus operandi of such settlement moreover is through discussion and the emergence of a social consensus. To attempt to “solve” them through judicial diktats is not just ham-handed; it is profoundly anti-people and betrays typical upper class prejudice.
The fourth tendency is the encroachment on the lives of the people in the name of preventing illegal immigration. The worst example of this is the recent striking down of the IMDT Act by the Supreme Court. Illegal migration is a bogey raised by the Right. While the perniciousness of this bogey comes home to us when it is used as a means to harass Indians in metropolitan countries (the most obnoxious instance of such harassment being the so-called “virginity tests” that used to be carried out in Britain), the use of the same bogey at home as a means of harassing the poor, especially those belonging to the minority community, in the name of preventing Bangladeshi immigration, scarcely arouses anger. And the judiciary, in yielding to this bogey, echoes the prejudices of the Right which in turn reflect upper class prejudices.
The fifth tendency is a general endorsement by the judiciary of the neo-liberal outlook. This is manifest in innumerable judgements, notably on the BALCO privatization issue, the Orissa Bauxite case, and the Rajasthan mining issue. It is also manifest in the rather sympathetic treatment meted out by the Supreme Court to Union Carbide on the Bhopal Gas Tragedy issue, which was very much in keeping with the neo-liberal spirit of bending over backwards to accommodate multinational corporations.
The foregoing discussion is far from exhaustive, both in the listing of tendencies and in the listing of cases. I have not included in my review the socially reactionary judgements handed down by the judiciary, such as the recent infamous judgement of the Delhi High Court allowing child marriage (of a girl as young as 15 years). I have focussed here only on those cases which impinge on the rights of the oppressed classes and have done so only through a few illustrative cases. A more detailed, though again by no means exhaustive, list of cases where the judiciary has given important verdicts against the common people in recent years can be found in the Appendix to this paper.
Three caveats are in order here. First, to say that the judiciary has shown an anti-people attitude in important verdicts in recent years does not mean that its record is uniformly dismal. There have no doubt been other instances where it has shown concern for the poor, a notable example being the Supreme Court’s directive for the distribution of foodgrains to the BPL population. Much no doubt depends upon the individual judges. Such concern for the poor on the part of the judiciary, however, has been on the whole the exception rather than the rule.
The second caveat is that notwithstanding its open espousal of current bourgeois attitudes, or of the social philosophy of what someone has aptly called “muscular liberalism”, in cases relating to the denial of basic rights to individuals, the judiciary has been more sympathetic. But that is entirely in keeping with the bourgeois outlook. An attenuation of the rights of the people as a whole can go very well with, and indeed does go very well with, scrupulousness in safeguarding of the rights of individuals qua individuals. What is more, this scrupulousness also tends to obscure the larger picture of the judiciary’s playing the leading role in attenuating the democratic rights of the people as a whole.
The third caveat is that this role of the judiciary should not be attributed to any malevolence on its part. It is as much subject to the neo-liberal barrage unleashed by the media, and by imperialist agencies generally, as anybody else, and it imbibes these ideas and prejudices. But precisely because it is in the position of being an arbiter on people’s lives, without facing the constraints that other organs of the State face, its attitudes and prejudices have a far more profound impact in restricting people’s democratic space than those of any other organ of the State. In short its acquiring a leading role in essaying a “thermidor” in the Indian context has to be located within specific historical circumstances rather than in any individual or collective malevolence on the part of the judicial luminaries. And an inevitable fall-out of these circumstances is the judiciary’s thrusting itself forward as superior to the other two organs of the State.
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