SANJOY Ghose is a senior advocate at the Supreme Court of India. He regularly appears before the Supreme Court of India, the High Court of Delhi, other high courts across India (including Madhya Pradesh, Punjab & Haryana, Allahabad and Uttarakhand), and judicial forums, including the Central Administrative Tribunal, the National Company Law Tribunal, the National Company Law Appellate Tribunal and National Consumer Disputes Redressal Commission on matters involving civil, commercial and criminal law.
In an exclusive interview with The Leaflet, Ghose expresses his views on a wide array of issues including constitutional amendments to protect workers’ rights, declining judicial standards and the need for reforms in the judiciary to increase transparency, accountability and improvements in judicial appointments.
Excerpts from the interview
Abhish K. Bose: The pandemic-induced economic downturn has exposed vulnerabilities in private-sector employment, with widespread layoffs and inadequate protections for workers. This raises fundamental questions about the balance of power between corporate interests and employee rights.
To what extent have private sector employers historically exploited legal loopholes to circumvent labour protections? What reforms are necessary to establish robust safeguards for employees and ensure corporate accountability?
Sanjoy Ghose: Traditionally, labour law administration has been tripartite. There are three players. The industry, which could be the private sector or the public sector, which is one part referred to in labour laws as the management.
The other part would be the workmen, that is the employees. These employees can be in the formal sector and the informal sector, referred to as organised and unorganised sectors respectively, though most labour laws address the formal sector. The third part of this tripartite structure is the labour enforcement authority.
The traditional wisdom was that given the unequal bargaining status and the economic position of the management and the workmen, in order to create a level playing field, it was essential for the State through its labour department to intervene. The history of labour enforcement since independence, however, has left both the management and the workmen in despair.
The management is content that the vast and pervasive powers given to the labour authorities such as the power to inspect, prosecute, sanction, closure and make references of disputes has led to an inspector raj which is not conducive for an economy that wants to portray itself globally as investor-friendly.
Workmen have also complained that given the economic power of the management, the labour authorities more often than not act on the management’s behalf rather than protecting the interest of the workers and the trade unions.
Pursuant to the mandate of ‘maximum governance, minimum government’, the Modi government enacted new labour codes to replace existing labour laws. The objective was to get rid of the inspector raj and bring in an era of voluntary compliance.
Many have argued that the new codes are merely old wine in new bottles. Be that as it may, the government is yet to notify the new codes.
In my opinion, the manner in which the private sector has stolen a march over the workers has been by compromising the trade union movement. This process was initiated by the Narasimha Rao government when it brought in the economic reforms in the 1990s and the judicial decisions from that era which sought to reverse labour jurisprudence that tilted in favour of the underdog— namely the workmen.
The judicial backing for the practice of awarding paltry compensation instead of reinstatement with full back wages in cases of workers’ strikes further undermined the trade union movement in India.
Trade unions today hardly agitate what in law is known as ‘interest disputes’— that is, disputes other than termination, usually relating to wage revisions, bonuses, special allowances, etc. In the last two decades, courts have also not favourably viewed workers resorting to tools of collective bargaining such as strikes, demonstrations and ticketing at factory gates.
Therefore, according to me, the key to restoring an equilibrium in industrial relations would be to effectively promote responsible trade unionism when the workers are in fact properly represented in trade unions that are not political and truly representative.
The new court makes a modest attempt at trade union law reform. However, we are yet to see the law implemented. In fact, another area that requires attention is the organisation of the unorganised sector.
Post the Covid-19 pandemic, India has also seen a massive growth in the gig economy with platforms such as Uber, Swiggy, Zomato, and Ola becoming the new driving force of the economy.
While the new code makes a beginning by requiring the registration of all gig workers, it does not go much further. The promises therein of creating a fund and providing for a contingency such as accidents are also weak without any kind of timelines.
