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Labour judicial activism

Judicial activism, which germinated in the premises of the Supreme Court of India during Mid 1970, soon graduated into a sort of imperialism. Judicial Imperialism by Labour Courts, Labour Appellate Tribunal and National Industrial Relations Commission can be defined as the principle or policy adopted by these Institutions to introduce the principles of equity.

It is recalled that Justice Iyer in the Husssainbhai case observed that the presence of intermediate contractors with whom alone the workers had immediate or direct relationship if contractual was of no consequences, and that on lifting the veil the naked truth could be discerned though draped in different perfect papers arrangements, that the real employer was the management, not the immediate contractor. This quotation, time and again has even been borrowed by our judiciary.

Slowness of legislative process is no ground for the Labour Judiciary to display its activism and indulge in basic legislation at times. If legislatures are divided either by politics, overburdened with myriad other activities, it is not only in Sub-Continent but in all democratic societies and that is the price people have to pay for opting for democratic system of government. If legislatures exceeds its power, judiciary steps in. If the executive exceeds its powers, judiciary steps in. If Labour Judiciary exceeds its power what can industry do. The only proper solution is the observance of restraint by Labour Judiciary. The expression “social conscience” used by Labour Judiciary to justify its decisions is an intangible abstraction.

It is often claimed that Labour legislations are beneficial and for the welfare of workers alone which is misconceived. To say that Industrial Relations Act is a worker-oriented legislation is a misnomer. It is for the common welfare of workers and employer and for society and the country. The temptation to treat labour legislation as a moral legal norm for modus vivendi between partners in management, namely, capital and labour is misconceived. In our society, no doubt capital shall be the brother and keeper of labour and should not disown its obligation. Notwithstanding its concern for the welfare of working class, nowhere has our Constitution proclaimed that gross indiscipline, fraud, violence and disorderly behavior on the part of workers should be rewarded by generous court orders restraining employer to exercise his legal and statutory rights aimed at initiating disciplinary action, and even orders by reinstatement with full back benefits. No law has given a blank cheque to our Labour Judiciary to brand illegal strikes, slowdown in work, misappropriation and defalcation in banks, who act as custodian of public trust in banking institutions, as legitimate trade union activity. Justice Frankfurter once said, if subordinate judiciary wants to be primary shapers of policy, they should discard their robes and enter the legislature for translating their ideology into law. Labour Judiciary must realize its survival depends on labour and the survival of labour depends on industry. It is a pyramid. If one crater is removed all will crash. It will have to be realistic but under no circumstances fanatical or emotional in dealing with labour cases.

Mr. Justice Hidayatullah, a distinguished former Chief Justice of India and subsequently Vice President of India rightly described these dysfunctional and decrepit decisions, especially of Labour Judiciary as “corkscrew judgments” and went on to observe: “It has become a fashion now to try our off-way cases rather than the run of the Mills cases which are pending in the hundred of thousands and for several years. … Some pink intellectuals at the Bar and also a few on the Bench who are anxious to get to the front pages of newspapers to build up a reputation as champions of the weak and the downtrodden.”

M. C. Setalvad, a prominent former Attorney General of India and one of the foremost leading Advocate of India aptly remarked that advocates must be paid. Advocates who render valuable assistance to a Court ought to be well paid. But for the Court including Labour Judiciary to order invariably in all cases reinstatement and grant for years back benefits very much like a medieval emperor flagging’s bag of good coins to a person who has pleased him be avoided. If Labour Judiciary treats employer with disdain, if it exercises powers not conferred on it and on subjects when it is not competent to handle, if it encroaches on fields which are essentially legislative or executive, there is a very real danger of its powers being curbed as legislative and executive branches of Government which are both more democratic and more powerful will no long tolerate a judicial encroachment on their fields.

The United Nations Secretary General Ban-ki Moon in a different context recently remarked: “our foot is struck on the acceleration and we are leading towards an abyss”. One wonders if he had in mind the subordinate Labour Judiciary. Today this Labour Judiciary is floating free in the sea. It is rudderless. We only hope it does not sink.

Faisal Mahmood Ghani, "Labour judicial activism," Business Recorder. 2017-11-06.
Keywords: Law and Humanities , Accountability law , administration law , Corporate law , Labour law , Labour legislation , Justice Hidayatullah , Ban Ki-moon , India