" Our Constitution is primarily shaped and moulded for the common man ... It is a Constitution not meant for the ruler 'but the ranker, the tramp of the road'." – N.A. Palkhivala.
The January 5 judgment of a two-judge Bench of the Supreme Court of India (reported in The Hindu, January 30, 2010), which allowed an appeal by Harjinder Singh, a retrenched worker of the Punjab State Warehousing Corporation, and restored a labour court's award in his favour, is significant in two respects. This is perhaps one of the first pro-worker judgments in about two decades, during which period the policies of liberalisation and globalisation have been in operation. But the Bench comprising Justice G.S. Singhvi and Justice Asok Kumar Ganguly went further by recording strong remarks against the tendency among judges at various levels to protect the reigning economic policies of liberalisation and globalisation even at the cost of the genuine interests and hard-won rights of workers.
The Supreme Court also held that the High Court had unjustifiably disapproved of a well-reasoned labour court award and thus deprived the appellant of what might be the only source of his and his family's sustenance.
Plight of workers
The judges, in their separate but concurring judgments, expressed their deep concern over the plight of workers being thrown out of jobs under the cover of liberalisation and globalisation. They said that there was a visible shift in the courts' approach to cases relating to interpretation of social welfare legislation. These observations are called obiter dicta, which are "a judge's expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent."
Justice Singhvi did not mince words: "The attractive mantras of globalisation and liberalisation are fast becoming the raison d'etreof the judicial process and an impression has been created that the Constitutional courts are no longer sympathetic to the plight of industrial and unorganised workers."
"In a large number of cases, like the present one," the judge went on to observe, "relief has been denied to the employees falling in the category of workmen, who are illegally retrenched by creating bylanes and side lanes in the jurisprudence developed by this court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement will put an unbearable burden on the financial health of the establishment."
Another observation by Justice Singhvi was that the High Courts ought to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislation. They must be interpreted "keeping in view the Preamble to the Constitution and the provisions contained in the Directive Principles, which mandate that the state should secure a social order for the promotion of welfare of the people ... and also ensure that the workers get their dues."
Duty of the court
Justice Singhvi reminded the highest court in the land as well as the High Courts that if a person was deprived of his livelihood, he was deprived of all his fundamental and constitutional rights. This meant for him the goal of social and economic justice, equality of status and of opportunity, and the freedoms enshrined in the Constitution remained illusory.
Justice Ganguly emphasised with equal force: "If the judges fail to discharge their duty in making an effort to make the preambular promise a reality, they fail to uphold and abide by the Constitution, which is their oath of their office." He reminded the court of its duty to interpret statutes with social welfare benefits "in such a way as to further the statutory goal and not to frustrate it." The judge warned that any attempt to dilute the constitutional imperatives in order to promote the so-called trends of ' globalisation' might result in precarious consequences.
Justice Ganguly added that judges and especially the judges of the highest court have a vital role in ensuring that the promise is fulfilled. If the judges fail to discharge their duty in making an effort to make the Preambular promise a reality, they fail to uphold and abide by the Constitution, which is their oath of office.
Unsurprisingly, the binding part of this pro-labour judgment as well as the extraordinarily bold observations of the two judges have raised hopes in the trade union movement and among workers in the organised sector. But what about workers in the unorganised sectors who might not have access to the relevant information?
As in the case of the social issues discussed in my preceding columns, the news media, especially newspapers, have a special responsibility as well as an unusual opportunity here.
The responsibility is to better inform readers — in an accurate, detailed, and factual way — on such significant developments in the field of law and justice. It is to give these developments prominence by front-paging the news or, in the case of news television, highlighting them repeatedly in news bulletins. It is to bring to the subject a variety and diversity of views by interviewing lawyers, retired judges, trade union leaders, industrialists, management specialists, ordinary workers. It is to go beyond the informational role by providing competent analysis, background, interpretation, and comment on the significance of the Supreme Court's against-the-current judgment.
The opportunity is to engage readers more meaningfully on concrete issues close to their lives. It is to win their affection and trust by covering truthfully, intelligibly, readably, and sensitively subjects that rarely figure in the mainstream news media these days. In a word, it is an opportunity to strengthen the bond between the newspaper or the broadcast channel and the reader.
