Labour legacies at a loss
In a society where hagiography is the norm, one approaches with trepidation a book proclaiming to be an account of the contributions of a single individual to the sphere of labour jurisprudence. Though it is difficult to judge the achievements of one person in any particular field, Justice Krishna Iyer stands out as an indubitably interesting figure. A minister in the world's first elected communist government, in Kerala in 1957, Iyer took an uncommon route to becoming a judge in the Indian Supreme Court, when a collective quest for equality that pervaded the post-Independence years led to his being appointed to the position.
Along with judges D A Desai and Chinappa Reddy, Iyer strove to create a dynamism in the field of labour jurisprudence. This triumvirate set the precedent of interpreting legislations in line with the Indian Constitution's Directive Principles, which enjoin the state to secure social, economic and political justice; to minimise inequalities; to secure adequate means of livelihood for all; and to provide for just and humane working conditions. Iyer has remained active in the field of law since his retirement in 1980, remaining at the forefront of the movement to abolish capital punishment and to create legislation for unorganised workers. Through the course of the 15 chapters of Social Justice and Labour Jurisprudence: Justice V R Krishna Iyer's contributions, I Sharath Babu and Rashmi Shetty, both law scholars in Bangalore, describe the significant impact that Iyer's courtroom judgements have had on a broad spectrum of issues.
The foreword, written by Justice Iyer himself, addresses the issue of class in the context of the biases of judges reflected in cases of management-worker disputes. In the present era of liberalisation, in which the market is more important than anything else, these prejudices come into blatant relief, and Iyer pulls no punches. "Judges have their biases because they belong to the bourgeoisie," he writes. For those who remember how veteran communist leader E M S Namboodiripad was convicted in 1970 of contempt of court for stating that judges are guided by "class interests, class hatred and class prejudices", this foreword will be a delight to read.
Anyone who has waded through the complexities of Iyer's judgments, each entwining little-known terms and archaic phrases, will already know that his writing is less than concise. But this is a small weakness for a great jurist. Iyer's treatment of the issue of class in Indian jurisprudence is truly powerful, and makes more noticeable the lack of a similar approach to gender and caste. While there have been some feminist writings on jurisprudence in India, caste remains largely ignored.
In a book that foregrounds the socialist spirit reflected in the Preamble of the Indian Constitution and the egalitarian push enshrined in the Directive Principles, it is disconcerting that Babu and Shetty regularly refer to Iyer as "his lordship", despite the decision taken by Supreme Court judges and the Supreme Court Bar Association back in the early 1970s to abandon the practice. It is perhaps a reflection of a continuingly prevalent feudal and colonial mindset that the practice continues to flourish in courts (and published works) to this day. Then again, as a colleague of this reviewer remarked recently, "Today, judges laugh if you cite a Krishna Iyer judgement." Indeed, Iyer himself notes in his foreword that these days, "A majority of judges … are inclined to ignore the progressive Preamble and the labour law set out in Part IV of the Constitution." The authors themselves devote a mere two and a half pages to "Labour Issues – Attitude of the Judiciary of Late".
Subservience to capital
Law students in India for the past three decades have cut their teeth on the expansive definition of 'industry' given by Krishna Iyer in the famous Bangalore Water Supply case of 1978. Iyer's definition included charitable organisations and hospitals, and thus allowed the employees of such institutions to access the provisions of the Industrial Disputes Act, 1947. Babu and Shetty also include the subsequent development of the Bangalore Water Supply judgment's referral to a larger bench for reconsideration, with specific regard to that definition. But even in this sole attempt to put Iyer's 'contributions' in the context of later developments, the authors fail to mention that, for the present, the challenge to Iyer's interpretation of 'industry' has been turned down by the Supreme Court, which is today pro-management and industry proprietor. As a counterpoint, an excerpt from a 1975 judgment represents Iyer's perspective on this regard: "Our industrial jurisprudence strives to treat capitalists and labour as co-sharers, and to break away from the tradition of labour's subservience to capital."
Today, despite the pressures of globalisation, labour legislations such as the Industrial Disputes Act have yet to be either amended or scrapped. The Directive Principles, which informed many of Iyer's judgements, remain very much a part of the Constitution. But then, the attitude of the current crop of judges in the apex and high courts, whose philosophy of laissez-faire and belief in the market is shared and encouraged by the corporate media, is bringing about a sea change in labour jurisprudence.
This trend vitally affects the relations between capital and labour, management and employee, and can hardly be addressed within a three-page chapter, as is offered by Babu and Shetty. It is jarring, to say the least, to pick up a book published in 2007 and read: "The law is so meticulous that even a tiny lapse on the part of the employer in affording a 'fair hearing' to the delinquent workman would render the whole process of the proceedings void." Today it is, in fact, the principle of non-interference in disciplinary-administrative proceedings that is being cemented into tradition by judgements such as Damoh Panna Sagar Regional Bank v Munna Lal Jain (2005). The two major grounds of interference by courts in disciplinary proceedings are: violation of the principles of natural justice, and harsh punishment shockingly disproportionate to the gravity of the misconduct of the employee.
Vague concepts such as 'natural justice' and 'shockingly disproportionate' leave much room for the subjectivity of individual judges. Earlier, courts were more inclined to take into account socio-economic factors (high unemployment, difficulties of getting a job, dependence of a family on the sole breadwinner), and judges would often impose lesser penalties, on grounds of violation of principles of natural justice or disproportionate punishment. Increasingly, however, the courts are intervening less and less, as in the Munna Lal Jain case, and are delivering judgements in tune with the present understanding of 'hire and fire' being a prerogative of management. Gradually, the face of industrial jurisprudence is changing – moving away from that evolved by Messrs Desai, Reddy and Iyer, which looked upon the Directive Principles as a lodestar guiding interpretation of statutes concerning employer-employee issues.
Maya of appearances
Social Justice and Labour Jurisprudence celebrates other legacies of Krishna Iyer that are also under threat. A chapter entitled "Labour Employed through Middlemen – their Rights" is comprised almost entirely of a historic 1978 judgement in which Iyer describes the need to "lift the veil", shrouding the reality that a worker's employer is the management of the institution that he or she works for, and not the intermediate contractor. The judgement exhorts the courts "not to be misled by the maya of legal appearances", and to work to achieve the true purpose of labour-welfare legislation.
In the 1980s, Indian courts directed companies to absorb contract workers in cases where the work was of a permanent nature. Today, both the private and the public sector contract out more and more work, even as this legislation remains on the books. Recent judgements declare that there would be no automatic absorption of workers by the principal employer, even after contract labour is prohibited in an establishment.
Meanwhile, principles such as 'equal pay for equal work', evolved by the courts through the 1970s and 1980s, are being diluted through recent judgments such as State of West Bengal v T K Ghosh (2005). This case concerned draftsmen of varying qualifications working in the West Bengal Subordinate Engineering Service and being paid differing wages. The Calcutta High Court had held that the work was similar, and that prescribing different pay scales was thus illegal. This was overturned, however, by the Supreme Court.
Social Justice and Labour Jurisprudence is a labour of love, a paean of praise, and a faithful recording of Krishna Iyer's work. Its collection of interpretations and judgements, steeped in Iyer's egalitarianism and humanitarian philosophy, is no doubt valuable in itself. Presenting such works in the public domain, however, requires consideration of factors other than the merits of the man's work. Important though they remain in the arena of law, long extracts from Iyer's judgements in the middle of chapters tend to break up the text's readability, particularly for a lay reader. A lawyer looking up a judgment, on the other hand, would prefer to read the full text.
More importantly, achievements of the past are important to remember, but cannot be divorced from the forces that shape their legacies today. This book would have benefited greatly if the authors had critically engaged with current judicial pronouncements with regards to the issues on which Iyer made his contributions to labour law – especially where those contributions must be kept alive.