The Supreme Court's verdict outlawing strikes by government employees restricts the citizen's fundamental freedoms of association and protest, and favours employers.
IT is deeply regrettable that the Supreme Court should have struck at a basic, precious, hard-won labour right, namely the right to strike, without as much as seriously deliberating its relationship to democratic citizenship and fundamental rights. On August 6, Justices M.B. Shah and A.R. Lakshmanan declared that government employees have no "fundamental, legal, moral or equitable right" to go on strike; a strike by them "cannot be justified in the present-day situation", whether their case is "just or unjust". This judgment will have far-reaching harmful effects on the whole edifice of fundamental rights; it will facilitate the redeployment and sacking of workers at the will of globalising capital; and it will contribute to social inequality and strife.
Thus, it is even more depressing that sections of the middle class and the media have welcomed the verdict much in the way, and in virtual imitation of, Big Business, which exults over it. Barring the Left, even our political parties, most of which control some trade unions, have not reacted strongly to the judgment, although it is liable to undermine their interests.
This reaction is partially the result of long-held middle class prejudices against organised labour, in particular state employees, which denigrate all trade unionism, however democratic and responsible. But it is also a sign of how far Indian elite thinking has gone down the road of economic neoliberalism just when that ideology has proved bankrupt and often evokes ridicule in much of the world. The Supreme Court judgment not only concerns government employees in the narrow sense, that is, civil servants, but also the far more numerous workers of industrial and commercial public sector undertakings. Indeed, its ramifications go far beyond the public sector.
The overall effect of the judgment is to ban strikes by more than three-fourths of India's organised workforce, which belongs to the public sector. It will make India the world's only democracy where the bulk of the workers are denied a fundamental right - that of industrial action. Even in the United States, there is no such blanket ban. In most Organisation for Economic Co-operation and Development (OECD) countries, such a ban would be unthinkable.
The judgment essentially consists of five components. First, it says the right to the freedom of speech, expression and assembly and to form associations or unions under Article 19(1) of the Constitution does not guarantee a right to strike. Second, the right to form unions does not mean trade unions have a right to "effective collective bargaining or to strike either as part of collective bargaining or otherwise". Third, agitational actions must be limited by the inconvenience caused to "the public", interpreted here specifically as consumers of certain "services" provided by government employees. Thus, says the verdict: "Strike (sic) as a weapon is mostly misused which results in chaos and total maladministration. Strike affects society as a whole and particularly when two lakh employees go on strike en masse, the entire administration comes to a grinding halt."
Fourth, says the verdict, government employees can take recourse to conciliation and other mechanisms such as wage boards "provided under different statutory provisions" to redress grievances. Besides, in a society that spends a large proportion of its tax revenue or wages (90 per cent cited for Tamil Nadu by its counsel) and where there is large-scale unemployment, strikes cannot be justified on "any equitable ground". And finally, there are obiter dicta such as: "Take strike in any field... the weapon does more harm than any justice. Sufferer (sic) is the society - public at large" and "instead of going on strike, if employees do some more work honestly, diligently and efficiently, such gesture would not only be appreciated by the authority but also by people at large".
Let us ignore the last observation for the moment. The first proposition is seriously flawed. It is hard to understand what the Article 19(1) right to freedom of speech, to assemble peaceably and form associations or unions is all about if it does not also include the right to conduct certain activities freely, including street protests and industrial actions. Is it possible even to conceive of a democracy that guarantees the freedom of belief and expression, but suffocates protest? A right has no meaning if its exercise is banned.
It is accepted in modern ethics and democratic politics that there are certain fundamental or absolute rights, which you cannot abrogate, abridge or subject to limitations by other considerations without undermining the integrity of the system of rights - in the Indian case, the basic structure of the Constitution. The freedom of expression, association and peaceful action (including protest) belongs to this category. It is subject only to certain minor extraneous limitations (barring "public order, decency or morality").
It is illogical to separate the right of association from that of action. Why associate if you cannot act? Why form a party or union if there is no freedom to actualise its programme? It is absurd to divide such rights from one another: it is akin to having the right to form a party, but only insofar as it cannot contest elections. This is at best "guided democracy", at worst, authoritarianism. One can prevent a whole class of actions such as strikes only by hacking away at the system of constitutional freedoms.
Secondly, inherent in the right to form associations/unions is the right to collective bargaining. Individual workers come together basically to improve their ability to drive an agreement collectively with the employer. Collective bargaining is as old as capitalism - and at the same time, a test of capitalism's claim that it can deal with labour in a socially acceptable, decent way. Trade unions are "natural" to capitalism, and represent the spontaneous response of workers to the power of employers: as extremely weak, vulnerable individual employees, they can improve their bargaining power only by coming together and negotiating collectively.
This is "natural" in another sense too. Capitalism claims superiority over all past modes of production and social organisation because it is based on "free" labour, as opposed to coerced or bonded labour. This "freedom" is meaningless unless it includes the freedom of association and action - unionism.
A strike is one method or means to improve workers' bargaining strength. It involves voluntary withdrawal of productive labour and is far from cost-free. Indeed, it involves the immediate sacrifice of current income. Contrast this with the employer's lockout (wrongly equated with the strike). This does usually, stereotypically, involve sacrificing profits. But we know that lockouts are only one of many, many means available to capital to impose its will upon labour, government and society at large.
In today's world, capital, especially multinational Big Business, has any number of ways to manipulate market conditions to gain political strength and economic-social bargaining power: for example, threats to shut down plants or relocate jobs, plans to diversify sources of supply (away from the local area), to declare an investment strike, besides political lobbying, influence-peddling, and working on decision-makers directly or through powerful industry associations, and so on. Contemporary capitalists also have a multitude of assets - physical and financial.
Compared to this, the worker's power is puny, minuscule. The individual worker is so weak as being incapable of defending herself/himself. Given growing casualisation and informalisation of labour, most blue-collar workers are at a huge disadvantage. Associating and acting collectively is their sole means of self-defence against powerful and misanthropic employers and compliant states. It is unfair to deprive workers of the right to collective bargaining in the name of guarding something sacrosanct called "industry and commerce", which, the judgment says, no one is "entitled to paralyse". Labour policies that destroy workers' lives and families are fine, but "industry" is sacred.
However, one only has to consider the possibility of a corporatist tyranny based on collusion between government and corrupt industrialists to realise how unreasonable the injunction not to question its sacred status is. The Emergency regime came pretty close to this, especially under Sanjay Gandhi's shenanigans.
Third, the judgment wrongly counterposes the larger interests of "society" or "people as a whole" to those of workers. This involves highly questionable notions - for example reduction of people to mere consumers, privileging short-term inconvenience over long-term gains from social movements, and so on. If "disruption" or "inconvenience" were the sole criterion of the justness or value of an action, the hartals and satyagrahas of the freedom struggle would be branded undesirable (as indeed they were by the colonial state).
IN democracy, the exercise of fundamental rights can sometimes clash with the convenience of special groups, even governments. But rights must prevail over considerations of convenience, even of efficiency. (Fascism cannot be justified because "trains run on time".) The judgment puts convenience before rights. Its obiter dicta about government employees' work ethic conform to middle class stereotypes: civil servants never work and are always corrupt (as opposed to corporate executives), their demands are always parochial, there are no conceivable circumstances under which a strike by them could be justified.
The implicit assumption is that privatisation of public services is good, unconditionally and always; it would be wrong even for conscientious government employees in, say, the health services to go on strike to defend their services. This dubious proposition derives from neoliberal economics and Market-Driven Politics (the name of an excellent book by Colin Leys, Verso, London, 2002).
Even more questionable is the idea of seeing public services as objects or commodities. Consider the absurdity of inflicting the alien language of buyer and seller or vendor and customer on the public domain. For instance, students are not `customers' of their teachers; the police do not `produce' public order. But as Leys says, this is where "market-driven politics leads". Speaking of Britain's de-democratisation begun by Thatcher and carried on by Blair, he says: the "commodification of public services was thus a logical result of government's increasingly deferential attitude towards market forces in the era of the globalised economy". Leys identifies "four prerequisites for the conversion of non-market spheres into profitable fields for investment... the reconfiguration of services into commodities, the creation of a demand for the commodities, the conversion of the public servants concerned into profit-oriented workforces, and the underwriting of risk". In Britain, the results of this process proved disastrous. India is now being pushed in that direction.
The present judgment, then, belongs squarely within the neoliberal paradigm. The trouble with this political ideology - it's not just "free market" economics - is that it devalues and undermines citizenship and the rights inalienably associated with it. It transforms (equal) citizens into bearers of (unequal) economic power based on their assets, buying capacity, and so - dollar votes, not human votes. This is a grievous attack on the universal values of citizenship and on democracy itself. Democracy is nothing without citizens' rights.
Fourth and last, the judgment errs in assuming that government employees enjoy special options such as conciliation mechanisms and wage boards. These mechanisms, especially the tripartite ones, are breaking down, as the collapse of the National Labour Conference shows. Recent privatisations (Modern Bakery, BALCO, and so on) have taken place in the teeth of employees' opposition and by excluding them. The National Democratic Alliance (NDA) government is a total slave to U.S.-style neoliberalism. Many of its leading ideologues believe unions are evil.
The argument that government employees must not strike when there is large-scale unemployment in society can be, logically, turned on its head. High unemployment is all the more reason to defend existing jobs. India has stopped generating jobs over the past 15 years. In 1983-84, a 10 per cent increase in private sector output created a 6.8 per cent rise in employment. In 1999-2000, the same increase produced only 1.6 per cent more jobs. Given a higher population increase, this means rising unemployment.
The judgment will boost aggressive behaviour on the part of private employers as well as governments. Already, some hysterical leader-writers have started calling unions "cartels". The overall effect is to push India from a model based on minimal labour rights and a semi-inclusive role for unions towards the U.S. pattern: no labour rights, low and declining rate of unionisation, growth of no-union employers (like McDonalds), high job insecurity, and low social welfare.
This will fulfil the dreams of neoliberals, right-wing elitists and industrialists who think the minimum wage is a curse upon the world. The new model would not silence the duplicitous rhetoric of those who shed crocodile tears for unorganised or informal-sector workers but will fight every inch of the way against registering their own menials and paying half-way subsistence wages to them. All trade unions must fight this retrograde verdict. Their fight deserves the support of all those who believe in freedom and citizens' rights.
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