The Right to Strike by K.D. Ewing; Oxford University Press; pages 182, 60. Exploitative Contracts by Rick Bigwood; Oxford University Press; pages 354, 80.
LAL KRISHNA ADVANI and his disciples go about claiming that the Supreme Court has endorsed Hindutva. This is irresponsible electioneering. The court has done nothing of the sort. However, even the judgment it delivered is under review. Justice J.S. Verma's judgment in the Murli Manohar Joshi case, delivered on December 11, 1995, was widely criticised. It was opposed to an earlier ruling of the court, which was delivered, on the same point, on July 14, 1995. What is more, on April 16, 1996, another Bench of the court referred to a larger Bench the judgment pronounced by Justice Verma.
Eight years have rolled by during which two general elections to the Lok Sabha were held - in 1998 and 1999 - and a third is in the offing but the court has not found time to determine so vital an issue. Will it take as long to review its ruling on the right to strike? Its ruling denying that right caused dismay. Its decision to review it came as a relief. The rights and welfare of millions of workers are involved. The court must review the ruling speedily and overturn it.
The Supreme Court has won high praise for its creativity. It must expand the content of labour rights and endorse the concept of an "exploitative contract". It violates the right to livelihood, which is an integral part of the fundamental right to life and liberty embodied in Article 21 of the Constitution. In both tasks, the review and the expansion of labour rights, the court and those assisting it will find these two books invaluable.
Prof. Ewing's work is very relevant to our situation. It considers the position in the English Common Law and proceeds to consider the impact of British, Canadian, United States and Irish statutes. Far more advanced, however, are French, German, Spanish and Italian laws. This is where the fundamental rights enshrined in the Constitution come in. They make all the difference and support the right to strike.
In the concluding chapter, the author proposes specific reforms, including the workers' right to reinstatement and to unemployment and social welfare benefits during the strike. Without them, the right to strike becomes meaningless. Fundamentally, a strike is no breach of the contract of service.
Rick Bigwood, an Australian jurist, remarks: "Judges and legal academics frequently invoke the concept of exploitation in legal reasoning, but seldom do they carefully analyse it. This is unfortunate, not least because exploitation is an `essentially contested' concept. It does not direct us to any particular conception of exploitation for legal operational purposes. But such a conception cannot simply be assumed; it must refer to and arise out of the uses to which it is being put. Moreover, it must have regard to the social institutions both formal and informal, in which exploitation claims arise. In law, especially, exploitation claims are not `free-floating'."
His book explores exploitation in the realm of contract law. In particular, it presents a "legalist" conception of exploitation that is consistent with the liberal conception of contract as applied in the common law of "Anglian" legal systems, which includes Indian too.
The book addresses three questions about the exploitation concept: What does (interpersonal) "exploitation" mean? Why should the law care about it? Is usage of the concept apposite in all the legal contractual applications in which it has figured? The bulk of the book focusses on the first two questions, which are logically prior to the third.
Towards the end of the book, the author questions the descriptive adequacy and proper function of exploitation in connection with contracts traditionally defeated in its name. The doctrines of unconscionable dealings, duress and undue influence are examined in detail in the light of what each reveals about the concept of legal contractual exploitation.
This is, indeed, a pioneering work and is of enormous help not only to lawyers but to all concerned with the rights and the plight of labour in the Third World in this age of globalisation.
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