Changing Judicial Pronouncements on Impugned Discharge & Dismissal under Industrial Disputes Act, 1947.
| Author | Sarkar, Santanu |
Introduction
Indian constitution has tried to insulate the country's judiciary from outside influence, from both the executive and the legislature. At the same time we know that judicial interpretation of statutes is a very important trait of common law system which is what the Indian judicial system follows. Parties under the auspices of legal realism in common law win or lose legal battles because of the interpretation of the statutes by the judges rather than the actual law scribed in the statutes. Law acts in favor of the 'desires and preferences of the society's most powerful members', which include the government as it embodies those in power and those who withstood the electoral challenge. So, when the same government and its organs try to attack the independence of judiciary to achieve its objectives, it is difficult to believe that the judiciary can protect its independence under the auspices of legal realism.
This very government is under pressure to revive the economy particularly in an emerging economy context. The revitalization initiatives are very often backed by policy reforms, which are supported not by the legislature alone but also get defended by the judiciary. The dominant public opinion affects the legislature's preferred policies, and simultaneously alters the judicial decisions (Bergara, Richman & Spiller, 2003 cited in Iaryczower, Spiller & Tommasi, 2006). Hence, the legislature that is committed to reform policies leaves a lasting impact on the courts. We study the effects of nation's changing economic and related labor policies on India's judiciary and check if policy changes have made government attack the judicial independence. The effort is to see if the judicial rulings that were in favor of labor during immediate post-Independence have changed with majority rulings in the subsequent decades getting in favor of employers on account of the government's neo-liberal economic policy initiatives where the country moved from a so called coordinated economy to a more liberal market economy. So, the important question is whether we will witness the legal discourse getting tainted by the changing policies while comparing the judicial pronouncements delivered in the pre-liberalization era with those delivered in the post-liberalization era.
Literature
Extant literature in relation to the role of diverse factors affecting judiciary suggests that such factors can affect judicial independence. They can range from political and economic factors to even judges' predispositions. Studies that suggest that improved judiciary minimizes the risks that firms face and promote their motivation to invest more (1) points towards a justice system that is amicable to the political process where the government strikes a balance between its (economic) policies and judicial doctrines so that the latter do not hinder the smooth implementation of the former. Evidences gathered by La Porta, Lopez-de-Silanes, Shleifer and Vishny (1997; 1998) have proven that a justice system attuned to political process is a strong predictor of economic development. According to La Porta et al (1997; 1998), where the appointment of judges is wholly in the hands of politicians, the government determines the structures, kind of people recruited in those structures, and the norms that govern behaviors. Not only does the scope of government activity affect the litigation rate (Grossman & Sarat, 1971), the behavior of judiciary too gets influenced by the government's policies under such conditions. Iaryczower et al (2006) found that Argentina's Supreme Court has faced threats from the political powers, and has adjusted its behavior accordingly (Helmke, 2002; Iaryczower et al 2002). Per Ashenfelter et al (1995:263) judge's "worldview as revealed by party affiliation.... (often) dominates over some competing sources of court rulings" . For instance, the Democratic judges in the US were found to be more tending to vote for labor union compared to the Republican judges (Aliotta, 1988; Songer; 1982; Tate, 1981).
Data
We examined the changes in judicial pronouncements on impugned dismissal and discharge under the Industrial Disputes Act of 1947 in India by using data on the Supreme Court's and high courts' decisions delivered between 1950 and 2010. The case laws were selected from three time frames viz., 1950-70, 1970-90, and 1990-2010 considering the maximum number of times they were cited by other courts while deciding cases. By reviewing the case facts, ratio decidendi, and the decisions of the highest office(s) of judiciary...
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