JUDICIARY & RIGHT TO STRIKE

A Legacy Of Authoritarianism

Ardhendu Dakshi

ON September 24, 2004, the judiciary handed down yet another judgement striking at the right of the working class to go on strike. It banned the attempt of the employees and officers of the Airports Authority of India Ltd from going on a mass casual leave on September 27.

This proposed action was a joint programme where members of Airport Authority Employees Union, Airport Authority Officers Association, Aeronautical Communication Officers Association and International Airports Authority of India Officers Association were to take part as they had jointly served notice for this common programme on an important common cause.

It was a unique occasion because the issue on which such diverse organisations and interests came to a common platform was not an ordinary issue of general trade union nature. It was on the broader issue of indiscriminate privatisation and handing over of Indian airports to private parties, either foreign or those controlled by foreign multinationals. The employees, technical staff and officers deserve thanks from the people of India for the just cause they are fighting for.

But the judiciary thought otherwise, and the employees and officers were restrained by an injunction directing them not to go for any disruption of air traffic as well as not to go for any agitation as they had planned. The injunction came from the Delhi High Court on September 24.

This particular order has shocked the democratic minds and organisations in the country. In fact, many in the country believed that the mandate of the general election in 2004 was an emphatic and unequivocal rebuff to those who were pushing for privatisation, disinvestments and curtailing the right to strike. The verdict was clear and loud and every organ of political management and every arm of governance were expected to take note of the meaning of the verdict and act as the people of India have wished them to act. Alas! After the September 24 court order it appears that nothing has been learnt and the battle has to be intensified further to greater heights to make the rulers of the country aware of the ground realities.

THE LEGACY OF NDA REGIME

The learned judge in his judgement has relied heavily on two important pronouncements by the Supreme Court – firstly on Balco privatisation and secondly on Tamil Nadu government employees’ strike (T K Rengarajan Vs Govt of Tamil Nadu). Reference to these two cases is unfortunate, particularly because in the general election the people have clearly spoken against these two judgements.

In retrospect, let us go through the Balco judgement. It says, inter alia, “There is no case made out by the petitioner (Balco Employees Union) that the decision to disinvest in Balco is in any way capricious, arbitrary, illegal or uninformed. Even though the workers may have interest in the manner in which the company is conducting its business, in as much as its policy decision may have an impact on the workers’ rights, nevertheless it is in an incidence of service for an employee to accept a decision of the employer which has been honestly taken and which is not contrary to law” (emphasis added).

The Supreme Court decision on Balco disinvestments case had a serious impact on the total economic management of the country against which the workers had every right to go on strike. However the apex court had a different view and it reflected in the judgement. But the judgement was rejected by the people of the country who through their electoral verdict supported the workers. Therefore the Balco judgement should not have been cited in the latest case by the High Court.

The other judgement quoted, T K Rengarajan Vs Govt of Tamil Nadu, practically bans all strike actions in the country not only by the government employees but also by the entire working class. There are four types of laws that enforce order and discipline in the society.  There are common laws, the constitutional laws, the statutes passed by legislatures and, lastly, the case laws. By case laws, judicial verdicts delivered on different cases also become binding on the people and acquire the strength of law. The above judgement was delivered on August 6, 2003. The judge in the AAI case while delivering his restraining order on September 24, 2004 overlooked the fact that in this intervening period there were a spate of strikes all over the country and the biggest challenge was thrown by the government employees, both at the centre as well as in the states, by observing a total strike on February 24, 2004. But a bigger rebuff was given by the people of India in general and the people of Tamil Nadu in particular only a few weeks after that.

MAY 13, 2004 – THE WATERSHED

The apex court judgement on August 6, 2003 came out openly in favour of the Tamil Nadu government’s acts of largescale dismissals, arrests, court cases, intimidations and what not. The judgement was a blow to democratic movement. But the people, who are the ultimate judge, gave a bigger blow by defeating all the candidates of the ruling party in Tamil Nadu on May 13, 2004. It was not only a humiliating defeat of a political party but an indictment against the Tamil Nadu government’s stand on the employees’ right to strike. The judiciary has failed to note that it was also a rejection of its judgement.

The political managers of the ruling party and the Tamil Nadu government, however, did not miss to read the message and they retraced their steps. All victimisations were withdrawn, all the dismissed employees were reinstated which was de facto, an admission and endorsement of the employees right to strike.

On the policy framework, the new government at the centre has unequivocally declared that profit making public sector units would not be privatised or disinvested. This announcement in the CMP by implication proves that Balco disinvestment was wrong and such wrong actions would not be repeated in future.

The recent judgement in the AAI case has to be analysed and evaluated in this context. Rarely an occasion comes when a particular observation by the apex court comes under scrutiny of the entire population so soon and their opinion of disapproval is conveyed through such a clear mandate. This message of the people should be understood by all the organs of State, including the judiciary. 

The Balco disinvestment decision was not taken in good faith or in a transparent manner. The valuation was absolutely arbitrary and the arbitrariness emanated from the fact that there is no law to govern such valuation process. The following example can be educative –– The Durgapur Steel Plant was given hundreds of acres of land in 1955 at the value of Rs 800 per acre. Now, the company leases out the same land at Rs 35 lakh per acre to outsiders. In spite of this huge appreciation of land value, the book value still remains at Rs 800 per acre even today. The valuer in Balco did not take note of the real value of the land and other assets that itself may have run into more than Rs 500 crore.

Similarly, the Tamil Nadu judgement has become irrelevant today for the reasons stated above. Let those verdicts be in legal records but common sense says that those case laws cannot be cited for any practical purpose.

NOT HEEDING THE MANDATE

The May 13, 2004 election should have put at rest the efforts to privatise and disinvest. Unfortunately, the pro-privatisation forces in the present UPA government are not willing to heed the mandate, and therefore the struggle continues. The political reality today for the government is that privatisation decisions cannot be bulldozed by it the way it was done by the NDA regime. Therefore there must be a dialogue at all levels. The Airport Authority employees planned to go on mass casual leave because the government wanted to bulldoze its decision to privatise two important airports of India.

In all fairness, the trial court advised the parties to settle the matter through dialogue. However, it is unfortunate and regrettable that the court took note of the workers’ notice to go on a one day mass causal leave but failed to take into account the reason which had driven the workers to take such a step. The reason was the management’s refusal to have a meaningful dialogue with the workers on this vital issue. By all means, the employees have a right to demand a discussion on privatisation of Mumbai and Delhi airports because the step would have negative impact not only on their service condition but also on the overall finances of Airport Authority of India. The employees’ concern over the issue should have been recognised instead of muzzling their voice.

Resorting to strikes and holding demonstrations are the basic democratic rights of workers. They do not resort to these for fun. A decision to go on strike comes after a prolonged painstaking process of trying other means of conciliation, both at official and unofficial level. In majority of cases the workers relent and accept a compromise. Strike comes at the end, and only if all the avenues of reconciliation are exhausted. But one cannot miss the point that strike decisions have the widest support of workers and that it is a collective expression of dissent. This is a part of democratic process. The recent trend by judiciary – as manifested in Tamil Nadu case, Bokaro Steel Plant case or Airport Authority case – can be termed as attempts to choke the voice of the workers, stop their right to go on strike and leave them to the mercy of the management or the political rulers.

This is a dangerous trend. The basic reason for the rise of private violence as well as organised violence is not difficult to find. Lack of proper grievance redressal machinery, denial of social justice, trampling down the rights of people by the powerful, and now, choking of voice and stoppage of democratic action by judiciary are all contributing towards a situation in which violence automatically emerges even if it is unpalatable to workers. If the judiciary does not allow the workers the right to peacefully air their grievances, it can only create a situation that is conducive for the emergence of a police state.