TCS Daily

A Blow to the Labour Mafia

By Sharad Joshi - September 10, 2003 12:00 AM

The best of Constitutions, invariably, are not colourless; they tend to take on hues through government policies and judicial interpretations. Dr. B. R. Ambedkar, considered the father of the Indian Constitution, created a liberal document, one that did not impede the invasion of socialistic institutions, one that is proving no obstacle to economic reforms. The recent judgment of the Indian Supreme Court rejecting the right of government staff to strike work reveals the dexterous nature of the Constitution quite forcefully.

The people of India gave themselves a Constitution in 1950. It was drafted by the best legal luminaries of the age, people who scoured texts and treatises the world over for the most enlightened constitutional provisions, and incorporated them in the hope of making India a model liberal, democratic and humanist republic. In the concluding session of the constituent Assembly that year, speaker after speaker expressed considerable satisfaction and confidence that they had charted an effective even epoch-making roadmap for the new Republic. One of the speakers, apprehensive that the Constitution might not prove sufficiently flexible, referred to Thomas Jefferson and underlined the need to ensure the existence of a Constitution did not mean rule by past generations over the present one.

The Constitution termed the new republic sovereign and democratic, giving its people a structured apparatus to ensure that citizens enjoy certain inalienable fundamental rights.

Those were the days of "peoples'" and "socialist" republics. The Constitution of India, however, did not pick up these fashionable labels, nor did it adopt the credo of the French Revolution of "Liberty, Fraternity and Equality." It did not call itself secular or egalitarian. Socialism was, in any case, anathema to a large number of senior members of the constituent Assembly, deeply religious people who believed that Mahatma Gandhi represented the best in the Indian tradition. A secular state as defined by the Oxford dictionary -- skeptical of all religious dogma -- was not acceptable, and neither was adopting a unified Hindu Code.

The new Constitution was perceived to be restrictive in the very first year of a republic that had started on its misadventure towards a socialistic pattern of society that would soon be undistinguishable from the Soviet Five-Year-Plan model. The very first amendment to the Constitution was made, ostensibly to move against the tyranny of feudal landlords but it diluted one of the most fundamental rights of a citizen -- the right to acquire, maintain and dispose of property. The process, thus started, ultimately resulted in the abolition of the fundamental right to property in 1978.

The Gandhian vision of a village-centric economy was abandoned and a Planning Commission created, without Constitutional mandate, to lord over the government of India. Similarly, a Prime Minister's Office (PMO) came up as a cabinet-within-the-cabinet, again with no Constitutional sanction. Restrictive legislation like the Essential Commodities Act, and import-export restrictions were imposed; labour was given the right to form unions, the right of collective bargaining, and also the right to strike. On the other hand, the exit policy for an employer, enabling him to shut down an unviable enterprise, became strict and rigid. It became difficult, if not impossible, to dismiss a recalcitrant employee. Discipline and productivity suffered but employers were denied the right to shut down even those enterprises that were beyond salvation. 

The courts allowed all this to happen, accepting the argument that it was consistent with the socialist character of the state, even though the word "socialist" did not then figure in the Constitution. India was formally called a democratic socialistic secular republic only during the days of emergency.

In 1991, Dr. Manmohan Singh hesitantly opened the doors to liberalization. Today, the foreign exchange fund has been so spectacularly successful that people are beginning to accept the superiority of an open system sans built-in privileges. Disinvestment in failing public sector enterprises and employees being offered golden handshakes and let go, is no longer uncommon. 

However, government employees scored yet again in 1997 when Mr. I. K. Gujaral, Prime Minister, conceded the 5th Pay Commission recommendations and index-based salaries. Government babus (bureaucrats) had the power, the salaries, the perks, the extra income, were protected against inflation, and became the counterparts of the thugs of Lord Bentick during the British Colonial era. A new exit policy that would give the employers the right to hire and fire is long overdue.

The judiciary has often been criticized for interventionism and activism. It ventures to take the initiative in areas where the legislatures are hesitant to tread. Right of collective negotiations does not mean the right to strike; particularly in the case of privileged employees and where the employers' right of "lock-out" is not recognized. The Supreme Court has delivered a blow to the labour Mafia and cleared the way for a rational exit policy.

Sharad Joshi is Founder of Shetkari Sanghatana, one of the largest farmers' organizations in India. He was the chairman of the first Task Force on Agriculture set up by the Government of India.


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