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From: Regi P George <george_regi@yahoo.com> Date: Mon Oct 4, 2004 Subject: Workers' Right to Strike Workers' Right to Strike A report of the social dialogue through consultations held across the country to discuss the Supreme Court judgment on the Tamil Nadu government employees' strike, with regard to its constitutional, legal, economic and political dimensions. http://www.epw.org.in/showArticles.php?root=2004&leaf=09&filename=7721&filetype=html The Indian Society of Labour Economics (ISLE) and the Institute for Human Development (IHD) last year took the initiative to conduct a social dialogue through a series of four consultations in various parts of the country. The objective was to thoroughly examine the issue of ???workers and the right to strike??™. The motivation for this social dialogue came from the judgment of the Supreme Court on the Tamil Nadu government employees??™ strike. The apex court gave a landmark judgment explicitly saying that government employees have (a) no fundamental right to go on strike, (b) no legal/statutory right to strike, and (c) no moral or equitable justification to go on strike. The situation reached this point after the Tamil Nadu government, drawing its powers from the Tamil Nadu Essential Services Act (TESMA), 2002, as amended post facto by ordinance number 3 in 2003, terminated the services of all employees who resorted to strike. The ordinance was challenged before the Madras High Court by a writ petition, which directed the state government to keep the suspension and dismissal of employees without conducting an enquiry in abeyance until further orders and that such employees be directed to resume duty. This order was challenged before the Supreme Court by an appeal, and relief was also sought under Article 32 of the Constitution. This pronouncement evoked widespread interest and concern in the country. The report captures the essence of the social dialogue, emerging from the consultations that took place in New Delhi, Hyderabad, Mumbai and Kolkata. Altogether, about 700 persons participated in these consultations representing diverse interests including trade unions, employers, political parties, academics, social activists, media, NGOs, and international organisations. The speakers and resource persons, included N Ram, Sanjaya Baru, Siddhartha Vardharajan (media); Deepak Nayyar, G K Chadha, T S Papola, C P Thakur, L K Deshpande, Kuldeep Mathur, Navin Chandra, D Narasimha Reddy, Jayati Ghosh, Ajeet Mathur, Jan Breman, G Hargopal, B L Mungekar, Sharit Bhowmik, E A Ramaswamy, Ruddar Datt (academics); Chaturanan Mishra, Madhu Dandvate, Jaipal Reddy, Sitaram Yechury, Jagdish Shettigar, B V Raghavulu, Sudhakar Reddy, Bojia Tarakam (political parities); M K Pandhe, Ashok Rao, Janardhan Reddy, Ranga Reddy, A G Golandas (trade unions), Vinay Bharat Ram, I P Anand, M K Chaine (industry); J S Verma, Suresh, K Ramaswamy, K G Kannabiran, Ingua Mallikarjuna, K Balagopal, Nandita Haksar, Sridhar (legal fraternity); and S R Sankaran, Sandeep Pendse (social activists). Salient Issues of Discussions This section provides thematic arrangement of the various dimensions of the Supreme Court verdict as per the viewpoints of the panelists and resource persons in the four consultations. Constitutional and legal dimensions of the judgment: The Tamil Nadu government??™s summary dismissal of 1,70,241 employees threw up two interrelated questions: is the en masse dismissal constitutionally and legally valid? Is the verdict of the highest court of the land appropriate? The Supreme Court in its judgment did not deal with the constitutional validity of TESMA, 2002, and the Tamil Nadu Ordinance number 3, 2003, though the employees had approached the court on the matter. This stand of the apex court was contested on two fronts. It was pointed out that the court chose to remain silent on the issue on which it was approached but instead decided to pronounce an absolutist verdict of banning strikes by government employees (Chaturanan Mishra, K Balgopal, Bojia Tarakam). It was also argued that a pension is an entitlement, and when that entitlement was not honoured, there was a breach of trust thereby inducing the employees to resort to strike (N Ram ). The state government reacted by passing an ordinance for mass dismissal. The ordinance clearly violated the principle of natural justice, since the employees were not given an opportunity to be heard. The second issue related to the declaration of the court regarding the fundamental, statutory, moral/equitable right to strike for the government servant. It was pointed out that Article 19 of the Constitution includes the right to freedom of speech and expression, right to peaceful assembly, right to association, and freedom of movement. The right to a ssociation also logically implies the right to resist (Sudha Mohan, A G Golandas, K G Kannabiran, Kodanda Ram). It is illogical, therefore, to separate the right of association from that of action. The former is meaningless without the latter. It was observed that this is at best a ???guided democracy??™, and at worst, authoritarian repression (Sudha Mohan). Had the court read the right to strike in conjunction with the directive principles, which is also a constitutional requirement, the constitutional validity of the former would have become apparent (Kodanda Ram). It has to be realised that fundamental rights are merely illustrative in a sense and are not at all exhaustive (K G Kannabiran, Sridhar). It is a fact that the concept and practice of civil liberties, the articulation of which constitutes Article 19, have matured in the course of history. It embodies the principle of restriction on the power of the state vis-a-vis the rights of its citizens. In the modern era, civil rights need to be extended and not restricted (J John). Moreover, Article 19 imposes reasonable restrictions on rights through its subsequent sub-articles so much so that the exercise of the rights guaranteed in Article 19 does not adversely affect others or the public interest. While dealing with this broad question, we need to ask: are there not enough laws already in the country which can take care of the situation arising from a strike, so that a strike does not lead to chaos? Curbing or regulating does not imply abrogation of this right (J S Verma). Economic dimension: The views of the panelists and resource persons in all the consultations can broadly be divided as those representing two schools of thought ??“ the supportive school and the critical school. The supportive school panelists subscribe to the neo-liberal philosophy and tend to defend the judgment. The critical school panelists, on the other hand, base their analysis either on liberal philosophy or on radical/Marxist political economic thought and provide a logical critique of the neo-liberal basis of the judgment. The supporters argued that by definition government services are monopolies wherein the workers, the bureaucracy and the management are insulated from the tides of competition and that such monopolies are also not obliged to run at a profit. They maintained that workers in such firms should, therefore, not have the right to strike and only sectors which are exposed to the forces of competition should have this right (Vinay Bharat Ram ). Further, they observed that the employment security provided by the monopoly firms is being used by resorting to strike and that too at the cost of public interest. The permanent workers, who enjoy the benefit of job security, are also the most indisciplined and irregular at work (M K Chaini). They pointed out that the taxpayer??™s legitimate expectation of availability of decent public service remained unfulfilled because of the excessive use of the weapon of strike by public employees (C P Thakur). Given the frequency of strikes it is often difficult to explain the objective of a particular strike. Moreover, it was also pointed out that in a competitive market economy, profit is the driving force of economic activity and one cannot afford the loss of person-days (I P Anand). The critics then asked if monopoly public service providers were to be restrained from resorting to strike, then what would happen in the wake of privatisation, when many of these public goods and services would also be willingly provided by the private sector? The implication of this argument is that the ban on strike could be extended to firms which are now open to competition but hitherto were monopolies (T S Papola ). Moreover, they maintained that the argument that the taxpayers??™ money is wasted when the highly protected workers with guaranteed social security benefits resort to strike, is based on the fallacious assumption or belief that organised workers are responsible for the exploitation of the unorganised workers. This belief stems from the premise that while the organised sector has capital it generates very little employment because of the imposition of many restrictions in terms of protective labour laws. Hence, one needs to encourage flexibility to provide more employment in the organised sector. The unorganised sector, on the other hand, has labour flexibility but suffers from a dearth of capital and therefore cannot grow either. The same stand is taken by the second national labour commission. Therefore, the neo-liberal school argues that if the rigidities in the organised sector and the powers of organised labour are reduced, there will be more investment in the sector and consequently more production and increased productivity. However, the history of independent India has shown us clearly that every attack on the organised working class has reduced the bargaining power and the condition of the unorganised workers (Jayati Ghosh). The critics also felt that the denial of the basic human right to protest also meant that the court had agreed to support the policies favouring privatisation of public sector units, retrenchment schemes, and voluntary retirement schemes. The judgment basically amounts to de-unionisation of the employees by default. Most of the strikes in the past decade were called not for raising wages or for bonus, but for opposing privatisation. Pronouncing such a judgment is the most effective way to quell the powers of the opposing trade unions (Janardan Reddy, Sudhakar Reddy, Sudha Mohan). Moreover, it should not be presumed that if there are no strikes, all is well. There are intangible costs due to demoralisation of the workforce. Strikes are essential because they bring out the conflict of interest between labour and management, and once this is identified the solutions can also be worked out. The cost of any alternative to a strike can be very high. Hence, in a government system, it is essential to have an efficient institution that can bring to light the issues that are the source of conflict, as well as good institutions that can resolve conflicts. Trade unions exemplify the former (L K Deshpande). Political dimensions, governance and democratic rights:All the panelists had converged on the understanding that such a judgment is bound to restrict the democratic space in the country. According to some of them, there is an inherent difficulty in extending such a right in the prevailing socio-economic conditions. Moreover, there are certain questions that need to be addressed: What is the scope and extent of the right to strike? Can one extend the same right to the police force, doctors, or lawyers? What are the categories that cannot have the right at all? Further, if the state decides to extend this right to its employees, then the former should also have a right to declare a lockout (S R Sankaran ). Moreover, strike as a collective bargaining weapon is controlled and used for serving vested interests and so has lost its political legitimacy and social acceptability (Sanjaya Baru). What is needed is a proper balance between the citizen as a taxpayer demanding services in return for the taxes that he pays and the efficient functioning of the executive apparatus. There is no doubt that the executive is not functioning to the extent that it should and to the extent that it is paid for, and consequently the time is now ripe for opposing the right to strike by government employees and their trade unions (C P Thakur). The liberals within the critical school argue that though there are enough channels for grievance redressal, they are defunct and in a shambles (Kuldeep Mathur). And even when the conflict resolution mechanism fails and an open confrontation between the employers and employees is inevitable, there are enough laws to keep the situation under control and avoid public disruption. If laws are lacking, corrective steps can be taken in the domain of public administration by enacting new ones. This does not require the reworking or dis- owning of the political theory that has provided such a right to dissent and collective bargaining (J S Verma). The Tamil Nadu strike and the consequent Supreme Court judgment emanated from the curtailment of the pensionary benefits apparently due to inadequacy of finances with the state government. The issue then is: who pays for state profligacy and financial wastage in the state? We may have top civil servants making policies that are wasteful, but when it comes to stringency and somebody has to pay for it, the axe invariably falls on the weakest. The rightsizing of state bureaucracy under the neo-liberal framework applies only to the third and fourth categories of employees. More and more secretaries have been appointed. This is certainly a situation where the general ambience is one of inequitable distribution, and general grievances cannot be resolved, and so strikes come as the last resort. Therefore, grievance redressal mechanisms should be strengthened before one can really talk about how best to eliminate the right to strike (Kuldeep Mathur). The change sought in the original political philosophy reflects the view that the rights of natural persons are contracting and those of artificial juridical persons are growing, and this balance needs to be examined carefully in the interests of democracy (Ajeet Mathur). The highest judiciary has tended to counterpose fundamental rights to democratic rights and thereby brought about confusion in the discourse on rights. If the court starts taking the ???official??™ government position in pronouncing important judgments, the space for redressal is almost occupied. In a democracy, the exercise of fundamental rights can sometimes clash with the interests of special groups and even governments. But rights of citizens must prevail over considerations of convenience and even efficiency (Sudha Mohan). This judgment also reflects the ongoing inequitable social process in the polity where a tiny section of people, called the middle class, has acquired a measure of importance in society and thus the legitimacy to speak on its behalf. Their concerns seem to be becoming the priority of the ruling class. Thus, the Supreme Court??™s approach to rights appears to be essentially influenced by the concerns and interests of the middle class as is manifested, for example, in its pronouncements on the rights of tribal people and displaced persons (Narmada judgment), and gender relationship (age of air hostess in Air India should not be more than 40). Hence, it takes a very narrow and restricted view of rights and upholds laws that are supposed to remove the malfunctioning of development as perceived by this dominant section of society (Siddhartha Vardharajan). Clearly, when governance is undemocratic and unresponsive to people??™s legitimate needs and aspirations, it certainly does not want the people to assert their rights. The role that a Constitution plays is to protect the rights of people while limiting the authority of the state. The judiciary aims to protect the aspirations of the people while restricting vested interests. It is only then that there can be equilibrium in society. It is to balance the various needs and interests of the people that Part III and Part IV are provided in the Constitution. Part III can be used to enforce Part IV. This is what is called transformative politics or democratic governance. The judgment is alarming because it shows that the Supreme Court no longer seems to be representing the delicate balance between the vested interests and the masses. And this could well mean that there will be increasing authoritarianism, which is bound to lead to increased social tension (G Hargopal). Response of Political Parties A special session of the representatives of major political parties was also organised at the Delhi and Hyderabad consultations. Jagdish Shettigar, member of the Bharatiya Janata Party spoke in favour of the judgment. He pointed out that in the present phase of economic development marked by intense market competition, the country cannot afford a workers??™ strike, which invariably resulted in incalculable loss to the national economy. S Jaipal Reddy of the Congress Party spoke about the manner in which the judgment had shrunk the democratic space in the country. He also pointed out that this was in contravention to numerous international covenants on labour standards and socio-cultural and human rights. Madhu Dandvate of the Janata Dal was aghast that the court could pronounce such an anti-democratic judgment. He pointed out that many countries of the developed world, which had a thriving market economy, also guaranteed this right to their workers. He noted that all the rights now with the workers internationally were the outcome of major strikes. Sitaram Yechury of the Communist Party of India (Marxist) was of the opinion that the judgment was really bizarre from the viewpoint of jurisprudence, in the sense that a very tenuous linkage had been made between the rights and privileges of the rest of society vis-a-vis the workers and employees. The right to strike, according to his understanding, was the logical conclusion of the right to association. Some of the major recommendations of the consultations were as follows: ??“ Workers, whether industrial workers or employed with the national government or state governments, should have an inalienable right to resort to strike. Reasonable restrictions may, however, be identified through effective social dialogue. ??“ Efforts should be made to revoke the present judgment. A representation should be made to all political parties to press for such an enabling legislation. ??“ A positive right to strike may be recognised by either including it as a fundamental right in the Constitution or providing it in the industrial relations acts such as the Industrial Disputes Act, 1947. ??“ The government of India should immediately ratify all the relevant international covenants that respect the dignity of labour, especially important ILO Conventions such as No 87 (1948), the Freedom of Association and Protection of the Right to Organise Convention, and the ILO Convention 98 (1949), the Right to Organise and Collective Bargaining Convention. ??“ Corresponding municipal laws should be enacted immediately so that the substance of international covenants is also respected within the country. ??“ Administrative tribunals and other dispute-resolving mechanisms should be immediately strengthened. ??“ Trade unions have to make special efforts to ensure that their activities are perceived to be democratic and are directed towards increasing the welfare of the working class. ??“ There should never be a call for a lightning strike. All avenues of conflict resolution should be first explored before resorting to such a strike. ??“ As far as possible, resorting to strike by trade unions should be by secret strike ballot. ??“ Striking workers/employees should take care that public life is not unreasonably disrupted. ??“ Institutions should be created for promoting genuine workers??? participation in the management. [The four series of consultations were made possible due to the support of several institutions and individuals. ISLE and IHD are grateful to Action Aid India which had provided a part of the financial support towards organising the consultation in Delhi. G K Chadha, L K Deshpande, T S Papola and Alakh N Sharma provided valuable guidance at every stage, right from conceptualising the issue to the details of organising the consultations. The consultations in Mumbai, Hyderabad, Kolkata would not have been possible but for the help and guidance received from Sharit K Bhowmik, D Narasimha Reddy and Biswajeet Chatterjee, respectively. Thanks are also due to C P Chandrasekhar and G Vijay for their valuable support.] ---------------------------------------------------------- INDIA THINKERS NET quote He therefore is the truest friend to the liberty of his country who tries most to promote its virtue, and who, so far as his power and influence extend, will not suffer a man to be chosen into any office of power and trust who is not a wise and virtuous man...: Samuel Adams ----------------------------------------------------------- |
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| << October04, 2004 - [India Thinkers Net]Rehabilitation Plan for Whistleblowers by YPSinghji |
October04, 2004 - [India Thinkers Net]Caste bias on school mid-day meal menu >> |
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