Tag Archive | Equality before law

Judges Urged To Help Counter Vote Bank Casteism – By Mukesh Jhangiani

Different Castes and reservations available in...

Different Castes and reservations available in India. (Photo: Wikipedia)

                                                                                                                       July 6, 2003

Judges Urged To Help Counter Vote Bank Casteism

By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Indian Judges have been urged to help counter the caste system which lost economic bearings long ago but is ”fostered and sustained socially” by ”vested interests for vote bank politics.”

The suggestion came from a fellow Judge of the Allahabad High Court in an academic paper arguing that the Gujarat and other killings in the name of religion and caste belie hopes that a modern constitution by itself would make a society modern.

Justice Markandey Katju’s paper titled ‘Access to Justice With Special Reference To Socio-Economic Rights’ was published as part of the proceedings of a seminar held recently in the Capital.
Although long outlawed, caste discrimination largely affecting 240 million of India’s dalits and tribals has far from disappeared.
Published accounts say two Dalits are murdered and three Dalit women raped every day across India. Activists say that is an underestimate.
”The belief that by merely importing and transplanting a modern Constitution from above will result in our society quickly becoming modern has proved to be mistaken,” Justice Katju wrote.
He cited as proof ”what… happened in Gujarat” and the barbaric ”honour killings” of young men and women aspiring to marry out of caste in Meerut and Muzaffarnagar in Western Uttar Pradesh.
”People have killed each other in the name of religion in the year 2002– as they did at the time of Partition in 1947– although the Constitution has been in force since 1950.
”Similarly, the ‘honour’ killing of young couples of different castes by their kith and kin shows how casteist we still are,” the paper said.
This, it pointed out, was notwithstanding the fact that things had ”totally changed” insofar as caste was no longer a decisive factor in how a person makes a living.
”The son of a badhai (carpenter) now does not become badhai, he comes to the city and becomes an electrician or motor mechanic, or having acquired education, he becomes a clerk, or a lawyer, engineer, doctor.”
Division of labour now ”has to be on the basis of technical skills. A factory recognises no caste or religion but only efficient production based on technology.”
The judge saw similarity between the Indian caste system and the division of labour in feudal Europe.
”The same thing happened in Europe, too, up to the feudal age. Even today many Englishmen have surnames like Taylor, Smith, Carpenter, Potter, Gardener, Barber… which indicates that their forefathers belonged to these professions.”
Noting that in India, too, individuals were no longer confined to pursuing ancestral vocations, Justice Katju said ”this has largely destroyed the economic foundation of the caste system.”
But he warned that ”the caste system is being deliberately fostered and sustained socially by certain vested interests for vote bank politics.”
Experts say caste polarisation is more pronounced around election time.
A government-appointed commission headed by former Chief Justice M N Venkatachaliah recommended mandatory punishment for anyone — including candidates — fomenting caste or communal hatred during elections.
”Any election campaigning on the basis of caste or religion and any attempt to spread caste and communal hatred during elections should be punishable with mandatory imprisonment,” it said.
But experts and activists say record of such prosecution even under existing laws is thin.
National Minorities Commission Chairman Tarlochan Singh placed the blame on political parties which even pick candidates on such considerations.
National Commission for Scheduled Castes and Scheduled Tribes Chairman Bizay Sonkar Shastri said casteism was not ‘officially’ a factor in such considerations, but its role needed to be determined.
The trouble in India, critics say, is that laws and the legal system are not effective.
Justice Katju said underdeveloped countries such as India were going through a transitional stage– from feudal, agricultural society to a modern, industrial society, which ”is a very painful and agonising period.”
England went through such transition during the 16th-18th centuries and France during the 18th-19th centuries– periods ”full of turbulence, turmoil, revolutions, intellectual ferment. Only after going through this fire… modern society emerged in Europe.
”India is presently going through this fire… Our national aim must therefore be to get over this transitional period as quickly as possible, reducing the agony, which to some extent is inevitable in this period.
It said justice in such context meant creating a social order in which every human gets a decent life– a process in which the judiciary could play a supportive role by upholding the Constitution in its true spirit, giving it teeth and content, rather than limiting itself to deciding disputes.
It stressed a ”powerful cultural struggle” to combat feudal and backward ideas such as casteism and communalism. ”The Indian judiciary, too, must contribute to the progress of the nation and to our goal of creating India as a strong, modern, Industrial State.
It asked the judiciary to strike backward, feudal laws, customs and practices violative of Article 14 — Equality Before Law — and Article 21 — Life and Personal Liberty and uphold political rights and civil liberties inscribed in Part III of the Constitution.
It also suggested encouraging business and industry — rapid industrialisation can create jobs and wealth for people — and ensuring that the State looks after the people’s welfare in providing food, water and employment.
Justice Katju said freedoms of speech, expression, travel and trade guaranteed by the Constitution were meaningless for someone hungry or unemployed or with no money for those pursuits.
He recalled sarcasm levelled in the 19th century by an English Judge at his country’s judicial system. In Justice Darling’s words: ”The law-courts of England are open to all men like the doors of the Ritz Hotel.”
UNI MJ MM AKK1034

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Jurisprudence To Shudder At ! – By Mukesh Jhangiani

                                                                                                                                        April 22, 2009

Jurisprudence To Shudder At !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Labour litigation in India may have hit a new low with workmen fired 30 years ago and ordered reinstated even by the highest court getting no redress– only another court notice.

Critics say the matter pertaining to three workmen of Uttar Pradesh, the most populous State, is a reflection of what Indian workforce is up against– even without a licence to hire and fire.

Mahendra Singh, Veer Pal Singh and Jhamman Lal were engaged by UP State Electricity Board as ‘muster roll employees’ between July 1977 and January 1978. Their services were severed in January 1979.

According to court documents, a labour dispute was raised in 1985 which the UP government referred to the Labour Court at Agra in July 1987.

The UPSEB deposed before the Labour Court that the workmen were ”engaged only… to carry out the required work”– ”never appointed” in its service.

The Labour Court took eight more years to determine that each employee had worked more than 240 days in a year but got neither the statutory notice nor retrenchment compensation.

In December 1995, Presiding Officer S P Singh dubbed the sackings ”not valid” and ordered each workman reinstated ”within 30 days” and paid Rs 8,000 each ”towards the back wages.”

Counting from 1979, Rs 8,000 amounts to barely Rs 500 a year– or Rs 41 a month.

Although India’s Industrial Disputes Act 1947 provides up to six months imprisonment for ”any unfair labour practice” as well as costs to victims, neither provision was exercised.

Experts say that is not unusual and the enforcement of labour laws is possibly the shoddiest.

They acknowledge that the odds are stacked heavily against workers– notwithstanding Article 14 of the Indian Constitution guaranteeing citizens equality before law.

”It is an unequal fight,” says A D Nagpal, secretary of Hind Mazdoor Sabha, which is counted among India’s five major trade unions, and perhaps the only one not politically affiliated.

The view was echoed by a leading New Delhi-based human resource expert, C S Venkata Ratnam of International Management Institute, who compared the higher judiciary’s responses in each situation.

Redress ”is more quick” for industrialists and politicians than for ordinary people and industrial workers, Dr Ratnam remarked in a telephone interview with United News of India Special Correspondent Mukesh Jhangiani.

He pointed out how workers ”languish for years” before their cases come up for hearing, ”and decades before” they are disposed of.

Impressions like that abound in a society in which scholarship has yet to authentically grapple with realities and inform decision-making.

Experts say India has 134– 43 Central and 91 State– labour laws covering issues ranging from minimum wages to pension and provident fund, many entailing jail terms for violators.

The problem, they say, is that although violations are determined in thousands of cases, the process takes years and consequences are seldom effective in deterring employer misbehaviour.

Indian courts hardly ever award costs and compensatory damages– let alone punitive damages– or send unfair employers behind bars.

Even when incarceration may be unavoidable, authorities appear to bend way over backwards to spare offenders.

An employer arrested in Calcutta in 2003 for not paying provident fund dues and remanded to judicial custody was admitted instead to hospital until a bail was obtained three days later.

That this happened in a bastion of the supposedly pro-worker left, may only be a reflection of what happens elsewhere in India.

In UP, the management– not the victims– challenged the award in the Allahabad High Court, which adjudicated for ten years before holding in May 2005 that ”no interference is called for in the findings of the labour court.”

Observing that ”the termination of workmen in each of the above writ petitions was in violation of provisions of Section 6-N of the UP Industrial Disputes Act, 1947,” Justice Ashok Bhushan said the writ petitions lacked ”merit and are accordingly dismissed.”

With taxpayers still footing the bill, the UPSEB appealed to the nation’s highest court.

In December 2006, Supreme Court Judges S B Sinha and Markandey Katju dismissed the appeal ”on the ground of delay as also on merit.”

While the workmen awaited relief, what they got was a notice directing them to appear before a Labour Court in Agra on November 17, 2007, says advocate Anjani K Mishra who had represented them before the Apex Court.

In August 2007, a UPSEB executive engineer had petitioned the Labour Court citing a 19-year-old Supreme Court order about 800 employees who had been ”out of employment.”

In July 1990, Justices Ranganath Mishra, M M Punchchi and S C Agrawal had ordered their ‘re-employment’ ”without any claim for backwages or seniority if they approach the Board within three months from now.”

The case had been filed by an employees union but only two of the 800 workmen sought re-employment and one actually took it ”as per the principle laid down by the apex court,” the UPSEB acknowledged.

Oddly, the executive engineer argued that the three workmen had ”clearly suppressed the principle laid down” in the 1990 order.

There was nothing to show that the three workmen were even aware of the order the management was directed by the apex court to carry out.

On the other hand, there is no explanation why the management had failed to bring it up during the various stages of hearings which lasted more than 16 years after the order was given.

More than half a dozen adjournments later, Mishra says the matter is still pending in an Agra court. Presiding officer M L Sharma, who issued the notice, retired four months ago and is yet to be replaced.

In effect, the workmen fired 30 years ago, and ordered reinstated 16 years ago by the Labour Court at Agra, are yet to be reinstated or receive back wages or any relief until after a judge is posted.

”Every time we have approached the High Court for interim relief, the UPSEB lawyers have secured a stay,” Mishra said.

A lawyer for the UPSEB declined comment.

Critics say if this is workers’ plight with laws supposedly ‘protective,’ the thought of what might be in store under changes industry wants is bound to cause a shudder!

UNI MJ