COURTS AND DEMOCRATIC RIGHTS

I had occasion to criticize two court judgements in Business World of 29 September 2003 - a ban on strikes, and one on processions in Calcutta on weekdays. It was strange for me, a liberal, to argue for workers' rights; and both strikes and demonstrations were extremely disruptive of the economy of Calcutta. But they needed to be regulated, not banned by courts. 

Do workers have rights?

In July, the Supreme Court denied workers the right to strike. Now the Calcutta High Court has banned processions on weekdays. The right to strike and the right to demonstrate are the most cherished of workers’ rights. Both rights are dear to the left; their denial is sure to convince leftist parties that the courts are a tool of rampaging capitalism. But even those who are not diehard communists must wonder whether the courts have sufficiently applied their minds when ruling on what are regarded as the most fundamental rights in all democracies of the world.

Of the two, the limitations placed by the Calcutta High Court on processions are more understandable. Pooja has become as established a period of idleness for Bengalis as Christmas is for Britons; and under the benign aegis of the workers’ government, the period of rest has grown longer. It is boring to sit at home for so many days; and although evenings can be whiled away at the neighbourhood Pooja pandal, days drag. So political organizers of various persuasions arrange processions and rallies for their members’ entertainment. The three days before the High Court’s ban saw eight rallies. Processionists have the unfettered right of way in Calcutta; as a result, judges reached their courts late, and travelers missed trains and planes. Demonstrators’ rights have to be balanced against the right of citizens to use thoroughfares; Justice Amitava Lala’s ban on rallies during the week is an attempt to balance the two.

But there are travelers at weekends as well; and no one can schedule an accident or a heart attack for a weekday. If inconvenience to the public is to be minimized, the best solution would be to order that rallies and meetings could be held only at night, after 8 PM; that would give everyone a chance to get home before demonstrators block roads. Such an arrangement would have the additional benefit that it would more fully utilize roads as well as transport facilities. The police may not like to work at night; but they would do so if they were paid overtime. There must be an overtime rate at which they would gladly work at night. If its cost were recovered from the demonstrators in advance, then a certain economic justice would also be done.

Timing is not the only variable available for manipulation; the place for rallies and demonstrations can also be decided on the basis of convenience. The maidan in Calcutta is ideally located if rallyists headed for it want to block traffic. Azad Maidan in Bombay is equally centrally located; but luckily for Bombay, hardly any workers that might want to strike work or live near it. Ramlila Grounds in Delhi are equally central; but a meeting there would inconvenience few people who matter. So rallies in Delhi pass unnoticed unless they are attended by families of farmers driving up from the countryside in tractors. Today, when transport is easy to organize and all parties have unaccounted money, it would be possible to assemble supporters anywhere; every state should create a meeting ground a good few miles away from the state capital. Restrictions on rallies in capitals would then be reasonable.

If the Supreme Court’s ban on strikes is unusual, the justification it gave was unreasoned. Many who would be cheered by the ban would still be uncomfortable about the drastic constraint on workers’ collective rights it imposes. There are strikes every few years in General Motors, the world’s largest manufacturing company located in the world’s largest democracy; it is unthinkable that the US Supreme Court would ever declare them illegal. The unease might have been less if, like the Calcutta High Court in the case of demonstrations, the Supreme Court had spelt out conditions under which strikes would be justified. But evidently, in its present incarnation it believes they are unjustified in all circumstances.

How did it come to such a drastic conclusion? Its taciturn judgment does not give much of a clue; but it seems to be of the opinion that the machinery available for collective bargaining, consultation, conciliation and arbitration is sufficient to avoid the need for strikes. In the particular case in which it came down against strikes, such an assertion would need to be defended. For in the case of governments, the entire dispute resolution machinery is manned and run by civil servants, who turn out to be employers or their flunkeys. Thus the prospects for neutral, objective dispute settlement in a dispute between the government and its employees are not bright.

The impasse created by the Supreme Court might in other times have been dealt with – not necessarily satisfactorily – by Parliament. But the rightist government at the center is unlikely to be seized with the problem. So we will have to wait for another form of resolution – which we can only hope will not be too conflictual.