On Proposed Labour Reforms

(By Thampan Thomas, Vice President of SARTUC, Advisor of ILO,
Former Member of Parliament, Former President of HMS and a Practicing Lawyer)

In the background of ‘Make in India’ declaration by the Prime Minister a plethora of Labour Law Reforms is mooted out by the Ministry of Labour, Union of India. They are the Labour Code on Industrial Relations Bill 2015, Labour Code on Wages 2015, New Factories Act and Apprenticeship Act, Small Factories (Regulation of Employment of Service Bill) and for exemption from furnishing Returns. These are brought for the purpose of consolidation of laws relating to Labour and for expediency. The Industrial Relations Code consolidates Trade Union Act 1926; Standing Order Act 1946 and Industrial Dispute Act 1947; The Wage Code consolidate; Minimum Wages Act, Payment of Wages Act, Payment of Bonus Act and Equal Remuneration Act. A new Apprenticeship Act and Factories Act and a Bill regulating the employment and conditions of service bill and for exemption from filing returns for small establishment are now under the consideration of Standing Labour Committee.

The Labour Laws are in the concurrent list of the Constitution of India. Both State and Central can legislate the matter relating to Labour. But it shall not contradict the Central Act. There are about 44 central enactments and 150 State Laws concerning Labour. Recently Rajasthan Government brought out a retrograded Labour Law legislation taking away many of the Labour rights and giving facility for the employer to have a free hand. Prime Minister’s Office issued copies of these Laws to all other States so as to bring similar enactments.

The jurisprudence of Indian Labour Laws are ILO Conventions, International Covenants, Constitutional Guarantees, Supreme Court decisions, Recommendation of 1st and 2nd National Commission on Labour and Resolutions of Indian Labour Conferences. ILO Conventions 87 and 98 are Core Conventions which guarantees freedom of association and collective bargaining. India being a founder member of ILO is bound to implement these Conventions. Article 19 of the Constitution of India provides the freedom of association and Industrial Dispute Act read with Trade Union Act, provide collective bargaining including right to strike. Right to strike is a statutory right. The Supreme Court has upheld this right except in an exceptional case Rankarajan v. State of Tamil Nadu. Worker being an exploited class – all the Labour Laws are considered to be Welfare Laws. The workers in India were agitating in not implementing all the laws and are also complaining about the lack of enforcement machinery of Labour Law. Two National Commissions were formed. Justice Gajendra Gadkar, the 1st National Commission and Shri. G.Ravindra Varma, 2nd National Commission gave their recommendations to frame Labour Laws. Justice Gajendra Gadkar emphasized legislative process to protect the rights at work. Shri. G. Ravindra Varma recommended social security and safety measures and the right of unorganized sector workers. The Indian Labour Conferences, a tripartite since from 1942, which is known as Workers Parliament discussed the Labour issues and made their recommendations.

In India there are about 480 million work force. Out of which only 10% are organized in trade unions. Unemployment can only be addressed by Employment generation. The jobs which are created are to be decent job and the rights at work are to be respected. The millennium goal Decent Work Agenda and Global Job Pact was accepted by G-20 Countries including India. The declared policy of United Nations as a millennium goal is decent work agenda. While in this background the workers demanding a frame work of Industrial Relations Law. But the Government of India proposes an Industrial Relations Law which is akin to development and ‘Make in India’. A mere GDP growth will not improve the conditions of workers and common man – unbridled exploitation will further deteriorate and will further distance the society and worker will be subjected to exploitation. On account of advancement of Science & Technology a structural change has taken place in production methods. Workers having legal rights were thrown out to informal sector. Machines and tools, Robot and Technology replaced workers. Capital became predominant and practically capital captured the world of production marginalizing the workers. Profit and concentration of wealth in few hands and impoverishment of worker, distancing the society as 1% the richest and 99% becoming poor is the order of the day.

The proposed Industrial Relation Code is not providing a mandatory clause for recognition of trade union by the employer. Collective Bargaining is the essence of Industrial Relation. Absence of a trade union enables employer to enter into individual agreement with the worker. This is against public policy. Formation of trade union also has become difficult. 10% or 100 persons have to apply for registration of a trade union. Outside leadership is prohibited in organized sector. Even retired employees of the same concern cannot become Office bearers. Only in unorganized sector two persons from outside are permitted to become office bearers under new Law. The Government is given arbitrary powers including penal actions against the official of the trade union and cancellation of registration. The strike is the last resort of workers to get their grievances settled. If the workers are not in a position to adopt the course of strike the management will have no obligation to settle any dispute. There can never be a legal strike according to the proposed code. Ordinary establishment also are brought in the purview of essential services. Demonstration, ‘Gherao’, Go Slow are made punishable. Infact right of strike is a fundamental right and it is accepted internationally by the International Court of Justice, International Labour Organisation etc. No employer will part with his gain unless there is a threat to his profit. Strike and notice of strike have been ever since the real tool for arriving at a proper settlement. For adjudication and arbitration workers being a weaker section, outsider's help is required. The legal practitioners are prohibited in various proceedings. The trade union capacity building is minimal. Hence adjudication and arbitration will become ineffective and will be one sided in favour of employer. The draconian provisions contained in the Law relating to confidentiality and punishment, right of dismissal etc are hindrance for collective bargaining. The employer is given powers to close down the factory without permission of Government in respect of establishment having less than 300 employees. The powers given to enter into agreement with individual worker in the matter of compensation and other rights are an encroachment in the right of collective bargaining. The denial of issue of documents and giving details of proceedings is a violation of right to information under the R.T.I. Act and as well as against the principles of transparency. The exorbitant amount of fine which can be imposed on the worker and trade union is intended to deny the legal rights of the workers. This will create imbalance between stake holders. The definition given to various terms in the proposed Industrial Relation Code are obnoxious. The worker should include everybody other than a person having power to appoint and dismiss as laid down in Bangalore Water Supply case. The proposed law exempts Executives or Administrators or Supervisors out of category of worker. In the present mode of computerization and invisible employer and corporate capitalism there can be no distinction between a worker and an Executive. The definition given to strike that it includes casual leave of 50 % absence is nothing but a mockery. The role of trade union is completely nullified and the employer is given the right to hire and fire. It also brings the master and servant relationship and Government is becoming a facilitator for the employer. This is nothing but the introduction of a new bonded labour system in the new era of corporatism which is the product of globalization and 3rd Industrial Revolution.

The proposed Codification of Laws relating to wages is intended to give free hand to the employer to decide wages for a worker. There is no minimum wages decided by Central Government. Employer is not liable to pay any minimum wage and minimum hours of work. The wages are not in any way co-related to production cost. Less than 10% of production cost is the labour cost at present. The person may be compelled to work 131/2 hours a day and his wages will be fixed hourly. Overtime is increased from 75 hours to 125 hours in a quarter. This will reduce employment opportunities. Women are compelled to work in night shifts. This is infact a violation of ILO Convention from Minimum Wages, Minimum Hours of Work etc. Article 39 and 43 of the Constitution of India in the Directive Principles for a Living Wage and not to permit concentration of wealth and give better facility to the workers are given a go-by. The repeal of Equal Remuneration Act in Wage Code without any provision to pay equal wages for equal work violates Article 14 of Constitution of India which prohibits discrimination. Bonus is a deferred wage. Taking away the concept of bonus as deferred wage and putting it out of collective bargaining and giving unquestionable acceptance of balance sheet will lead to manipulation of accounts and accumulation of wealth. Wages are right of the workers and if an employer can escape without paying the wages after getting the work done and if there is no machinery to check such practices, the Labour Law will become nothing but a license for the employer for abject exploitation. The Government themselves take the position of facilitator rather than an umpire machinery to protect the legitimate interest of the workers.

The Amendments now effected in the Factories Act endanger security and safety. The machinery provided for lapses of security are now restricted. The safety of not only the worker but also the people around has to be a concern for the Government in the new methods of production. This was the lesson from Bhopal Tragedy. Any material which may affect human life or destroy environment has to be restricted. Occupational safety and health is a human right. The present Factories Act is having sufficient safe guards to protect the interest of workers and public at large. The machinery provided for inspection and implementation of legal provisions is capable to see that Industrial accidents and colossal disaster for the mankind is not taking place at the hands of profit motivated employer. But now the Government is giving a free hand to any employer to come forward and exploit human being, nature and employment. This is a disaster to the humanity. Enhancing the number from 10 to 20 and 20 to 40 from the obligation of implementation of Factories Act and the restricted inspections to be carried out by the Inspectors is giving full freedom for exploitation without any checking.

The proposed amendment to Apprenticeship Act gives opportunity to an entrepreneur to appoint student or anybody for years together and get production done using them. The present law prohibits appointment of apprentices beyond a limit and not to use them as workers. Now by the amendment the employer can use apprentices as a worker and continues to use them. This will generate vulnerable and precarious jobs. In an economy where large number of people are jobless and look for a job will accept the apprenticeship and continue to work under the employer for meagre wages. No doubt training is necessary. But in the name of training poor persons shall not be used as apprentices in the place of workers.

The Exemption of Small Factories Establishment from filing returns and giving opportunity for self certification can also be misused widely. The provision enabling Small Factories employing less than 40 employees from the purview of 14 labour legislation will enable them to carry on their business without any obligation under law. Now on account of the development of science with small number of people big factories taking much higher production can operate. 70% of the factories in India will be out of any statutory obligations on enacting a law of this nature. There is no consideration by any means, the quantum of produce, use of machinery while the Government is exempting all the establishment having below 40 persons employed. It is possible at present even in a larger factory to divide to separate units to employees less than 40 persons. The major duty of a production centre will be of assembling whereas production will take place in different factories with less than 40 employees. These establishments are also exempted from all inspections which mean there will be no need of accountability of such establishment. Naturally contractual employment, driving of formal to informal sector, concentration of wealth and impoverishment of common man will be the result of proposed Labour Law Reforms. 

AN INDEFENSIBLE DECISION

(By Kaleeswaram Raj, Advocate, Supreme Court & Kerala High Court)

Chief Justice H.L Dattu has refused to participate in the National Judicial Appointment Commission (N.J.A.C.) which practically “stalled any immediate chances of constituting the new judicial appointments body” (Krishnadas Rajagopal,The Hindu, 28.4.2015). Thus, even without a judicial interdiction against N.J.A.C., an impediment has been created by the Chief Justice by his personal decision to stay away from the Commission.

The vacuum due to non-constitution of the N.J.A.C. also is a serious matter. Before the Supreme Court, the centre has promised Constitution of the Commission for the “limited purpose of considering the extension of tenure of existing additional Judges of several High Courts” and for a ‘judge generated reason’ it did not happen. This again poses serious questions.

H.M. Seervai, in his classic treatise on Constitutional Law perceived a dichotomy between two conventional duties performed by the Chief Justice. Seervai wrote: - “When the Chief Justice of India presides over the bench he is primus inter pares- the first among equals”. He also indicated that “in administrative matters the Chief Justice of India has sole and Supreme authority” (Constitutional Law of India.Vol.3, 4th Edition, Page 2849). But the present N.J.A.C. dilemma reveals a Constitutional role which is clearly different and distinct from both the judicial or administrative functions of the Chief Justice. The Chief Justice of India is also a constitutional functionary. The question therefore is whether a constitutional duty could be dispensed with by the Chief Justice on the basis of his personal opinion. Thus there is an unprecedented situation where the parliamentary legislations that led to amendment of the Constitution and promulgation of the N.J.A.C. Act, has come to a standstill due the Chief Justice physically staying away from the Commission. In my view, the decision is clearly without authority and illegal apart from being terribly undemocratic.

I may not be mistaken as supporting the system envisaged by the new N.J.A.C.The new system carries all the drawbacks of the collegium and in no way it is better. I have opposed it for multiple reasons which still hold well (See, Federalism in Judicial Appointments, The Hindu, 17.9.2014). The point however, is whether the Chief Justice can defeat the legislative will by sending a letter that reflects his individual convictions. The Constitution Bench of the Supreme Court, headed by Justice J.S.Khehar is in seizure of the N.J.A.C. case. Chief Justice Dattu is not part of the bench hearing the matter. A recusal from a bench is clearly justified as a gesture of integrity to keep away from areas prone to conflict of interests. For removing the slightest feeling of the ‘personal bias’ or ‘subject matter bias’ also, it is proper if the CJI does not hear the lis against NJAC that includes him with a pivotal role.

But in the letter to Prime Minister Modi, the C.J.I. said- “It is neither appropriate nor desirable to attend the meeting or be part of the N.J.A.C. till the Supreme Court decides its validity” (The Hindu, 28.4.2015). This reason is least convincing. As of now the Supreme Court has not invalidated the N.J.A.C. Nor the proceedings are stayed. Therefore, the N.J.A.C. law prevails as on today and the Chief Justice of the country is bound by it. N.J.A.C. is more than a statutory creation. It is part of the country’s Constitution, as evident from the newly incorporated Article 124A. The Chief Justice of India cannot therefore refuse to obey the law of the land even by his absenteeism. Personal choices cannot undo the law made by the Parliament, in any working democracy – And the Chief Justice is no exception.

 In very many modern democracies, the Chief justices are constitutional functionaries as well. Judiciary is part of the modern State and the judicial head cannot therefore simply abstain from the affairs of the State unless there are valid reasons backed by the Constitution or any other relevant law. The Chief Justice of the U.S is described as “the head of the judicial branch of the federal Government”. Unlike the associate Judges, he has to act as the Chief Administrative Officer for the federal Courts and also as the head of the Judicial Conferences of the U.S. He has to work as the spokesman of the judicial branch. He has to preside over the trials in the senate in the event of impeachment motions. The Chief Justice of Australia has to act as the Governor General’s deputy. In that capacity he is supposed to be present as and when the new Parliament is constituted after the election. In Ireland, the Chief Justice has to act as the Chairman of the Courts Service Board, the Judicial Appointments Advisory Board, Judicial Studies Institute and also the Superior Court Rules Committee.

 Even during the pre- N.J.A.C. phase, the constitution never visualised a situation where the Chief Justice is absent or not available. Due to the multiple extra judicial functions attached to the office of the Chief Justice of India, it cannot remain vacant. Thus, Article 126 of the Constitution mandated that “when the office of the Chief Justice of India is vacant or when the Chief Justice is… unable to perform the duties of his office”, another Judge should be appointed as Acting Chief Justice. The Constitution thereby makes it clear that “office of the Chief Justice” has constitutional duties to perform which are distinct from the adjudicatory and administrative role.

The situation after incorporation of Article 124A to the Constitution with effect from 31.12.2014 by the 99th Constitution Amendment Act is categorically clear. The N.J.A.C. Act,by way of section2(b), only transplants the constitutional machinery for judicial appointments into the statute. Though the quorum in the N.J.A.C. could be regulated by the N.J.A.C. Act, the composition of N.J.A.C. is prescribed by the Constitution of India which is binding on the Chief Justice. Article 124A speaks about the composition. As per Article 124A(1)(d), ‘two eminent persons’ are to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the leader of the opposition/leader of the single largest opposition party. One of the two ‘eminent persons’ should be nominated from among the persons belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women. Article 124B tells about the functions of the Commission, in recommending the names of the Judges in the Constitutional Courts.

Therefore, Chief Justice Dattu’s withdrawal would be evaluated by the citizenry in the context of the amended Constitution. The direct and drastic consequence of the amendment is reflected in Article 127. As per the pre-amendment clause, “the Chief Justice of India with previous consent of the President” was to make appointment of ad hoc Judges. After the amendment the power vests with the N.J.A.C. and the Chief Justice can only make a reference to it, with the previous consent of the President. There is a similar transformation of power with respect to Article 128 of the Constitution that deals with appointment of retired Judges also. To put it bluntly, the new amendment takes away the prerogatives vested with the Chief Justice in the matter of judicial appointments. It assimilates the reason given by Dr.B.R.Ambedkar who defended the original text of the Constitution that did not provide any supremacy for the Chief Justice in the matter –

“To allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day”.

(Constituent Assembly Debates. Vol.VIII, May, 1949).

This situation was however altered by the Supreme Court in 2nd Judges case (1993) and the 3rd Judges case (1998) by inventing “the collegium system” which practically positioned the Chief Justice of India as the ‘ultimate authority’ in the appointment process.

Viewed so, the incumbent Chief Justice’s unwillingness will be more convincingly described as a gesture of non co-operation with a constitutional process that attenuates the power which his office enjoyed prior to the constitutional amendment. It is therefore his absence in the NJAC that reflects a sense of inappropriateness.

Indeed A Glorious Judgment

(K. Ramakumar, Sr. Advocate, High Court of Kerala)

Shreya Singhal  (2015 (2) KLT 1 (SC) is indeed a great judgment coming from the Supreme Court after a span of several years, during which that Court had disappointed numerous freedom lovers in the country. It has restored back the credibility of an institution criticized by some as suspected to be kowtowing the executive line.  In the Fifties the Court had really acted as a ‘sentinel on the qui vive’ by rendering judgments such as A.K. Gopalan, Brij Bushan, V .G. Rao, Sakal Papers, etc., highlighting the right to freedom of expression guaranteed under the Constitution of India.  In the Seventies while the Princes (Madhava Rao Scinda), the Bankers (RC Cooper) and the Land lords (Kesavananda Bharathi) had received sustenance from the Supreme Court, the struggling salariat were thoroughly disillusioned with Thulsi Ram Patel and Satyaveer Singh. The thin line between the judiciary and the executive was getting further thinner and blurred. Then followed the dark dreaded and disgraceful period of emergency with ADM Jabalpur allegedly hammered down the neck of the highest court of the country buckling and caving in, while even the Supreme Court of Pakistan had the courage and grit to declare the Martial Law illegal.

It is not for nothing that lovers of freedom of expression in the country are rejoiced over Shreya Singhal.  Two eminent judges maintaining sturdy independence had the courage to speak in favour of the cherished freedom of expression and against the power of the executive to curb and crib freedom of expression under Section 66A of the Information Technology Act.  The provisions were declared vague, uncertain, indefinite etc., making any citizen fall at the mercy of a police-man. The Court has indeed done a signal service to the right of free expression, part of our fundamental rights, which are described as the ‘soul’ of our constitution.  The judgment is acclaimed worldwide not merely by Lawyers but Law teachers, journalists, academicians, etal. 

Please remember this is at a time when the executive is attempting to cower down the judiciary by offering them fabulous post retiral benefits and providing reservation in several enactments to Judges demitting Office including huge arrears ordinarily impermissible for constitutional functionaries. Retirement is now really a paradise with lots of perquisites, privileges and ensuring continuity until death.  Never before had our retired judges such a good time than now with commissions, post retiral positions not to speak of unlimited number of arbitrations fetching fantastic financial benefits. Will you believe me ? Not less than four Judges of the Apex Court while in office submitted applications for the post of Lok Ayukta, which of course none of them got. This reminds one of the wise words of Smt. Ruma Pal (Retd. J.) a man among judges clad in sari against the inherent threats of tribunalisation and the so called alternate redressal forums (an alibi for self confession of inadequacy) to the only institution still commanding some credibility among the common people of the country – the judiciary. It is time to fix a cooling period of at least three years for our Retired Judges to take up any new assignment.

Justices Sarvasree Chelameswar and Nariman therefore, deserve immense gratitude from the people of the country for speaking out loud and clear in favour of ‘freedom of expression’ and protecting individual freedom while forbidding executive excesses.

Archana Vargheese v. District Collector (2015 (1) KLT 937) --
A Brave, Pragmatic & Ingenious Judicial Experiment to
Solve AVexed Problem

(By T.J. Michael, Advocate, High Court of Kerala)

It is an explicit fact that large tracts of paddy lands have been filled up and converted into garden land in the State of Kerala for justifiable and unjustifiable reasons. It is long since paddy cultivation had become unprofitable and  impractical in our State, the reasons for which  need not be set out here.  Even lands which had lost the nature and character of paddy land more than half a century ago still continue to be classified as Paddy land (Nilam) in Revenue Records. Local Self Goverment Institutions and Other Statutory Authorities persistently refuse to deny permission/NOC for use of such lands for other purposes for the very same reason mainly  because of the embargo created by  the Kerala Land Utilisation Order 1967 and the subsequently enactment of the ‘Conservation of Paddy Land and Wet Lands Act 2008’. Attempts  for using erstwhile paddy lands which are presently unfit for paddy cultivation  for other useful purposes very often  for earning a livelihood  or starting new ventures capable of generating employment opportunities and augmenting production were frustrated by the taboo for using filled up and converted paddy lands. We also need land for infra-structural developments. I am not forgetting that large scale filling of paddy land brings down paddy production and creates ecological problems  and pushes us to the  need for desperate dependence on neighbour States for our staple food. But we have to face this vexed problem in a realistic and  pragmatic manner. No government or Ruler can compel its subjects to embark and sustain on a non-profitable and impractical activity however loadable the objective is; wilful observance of the law abiding majority being the guarantee for obedience.

The above scenario had pushed owners of converted paddy lands to invoke the remedy of writ jurisdiction under Article 226 of the Constitution of India. The Hon’ble High Court of Kerala presumably being aware of the factual scenario had adopted a pragmatic approach very cautiously holding that erstwhile paddy lands which had been converted long back and which are presently unsuitable for paddy cultivation can be permitted to be used for other purposes by altering their classification in the revenue records. This view was relied and reiterated in many decisions of single  as well as division benches of the Kerala High Court.

Fortunately or unfortunately the matter was taken up in appeal by the State of Kerala. In the appeal the Hon’ble Supreme Court of India had delivered Judgment in Revenue Divisional Officer v.Jalaja Dileep (2015(1) KLT 984 (SC)) wherein it was held that by the enactment of the Conservation of Paddy Land and Wetlands Act 2008,  paddy lands as on date of coming into force of that Act cannot be allowed to be converted for any other purposes except otherwise than as laid down in the said Act. It was further laid down that in case of erstwhile paddy lands which were converted prior to   such commencement, the Kerala Land Utilisation Order 1967 holds the field and conversions can be allowed only according to the provisions of the said  Order. It was also held that the District Collector or Tahsildar has no jurisdiction or Authority under Kerala Land Tax Act  to change the nature of the land in the revenue records for the reason that the paddy land is left uncultivated with paddy for a long period. This pronouncement had thrown a dismal picture in the prevailing scenario throwing the wave down the nerve in legal circles with the belief that legislative intervention is the only escape from the stalemate. It was at that juncture that  Archana Vargheese ( 2015( 1) KLT 937) was delivered by a single bench of the Kerala High Court.  By this judgment delivered with ingenuity and pragmatism, a single bench of the Hon’ble High Court has held that The Kerala Land Utilisation Order 1967 which is only a subordinate legislation has its root and legislative competence in the Essential Commodities Act and it was rather a temporary measure to dispel dwindling food production to get over which was an urgent need of the day when it was promulgated. The said Order would not invest the District Collector  with any substantive power or jurisdiction to impose restrictions on cultivation or for that matter the usage of land by its owners where the former  had failed to take timely action when the real need arose. The jurisdiction and power to grant exemptions or issue direction to restore paddy or food cultivation is not an ever available power or jurisdiction of the Collector which if allowed would deprive the owner of land his right for lawful use of the same which is beyond the scope of the Kerala Land Utilisation Order or the Rule making Power of the Government under the relevant statute. The said decision boldly lays down that lands converted prior to the coming into force of the Conservation of Paddy Land and Wetlands Act 2008 and which are not included in the Data Bank or Draft Data Bank under the said Act does not  require any permission from the District Collector or Revenue Divisional Officer for their use for purposes other than paddy cultivation which would also eliminate chances for corruption.

The Court has also recommended to the Government the need for suitable legislation with pragmatism and sagacity devising means to make paddy cultivation profitable and feasible by introducing technology and avoiding fragmentation of land if necessary even by amending the Kerala Land Reforms Act. Hasty and ill- conceived legislations will not help.

The Province and Primacy of Law -- VI

(By Dr. K.B. Mohamedkutty, Senior Advocate and Former Law Dean)

Few people think of what law is, though it follows them as their shadow. Fewer people think what it was. As the way of law is hard and steep, it is not easy to follow its pursuit. Therefore the defiance of law is as old as Adam’s wife! People began to defy the law as a barrier to freedom and an instrument of coercion in the hands of those who had power. The resistance against the oppression of law as mass movement developed later. The laissez faire which stood for non-interference with industrial freedom and its acceptance in some countries came into being in this way. Such freedom appeared to be the need for the expanding industrial economy of the nineteenth century. Those who believed in it thought that every law is an evil or infraction of liberty. The Anarchists who opposed all kinds of laws went a step further and thought that people were imprisoned in the cage of law. Today nobody would support Anarchism as it represented the ethos of a by-gone age. Or, perhaps, as Jawaharlal Nehru says in his Glimpses of World History, we have not grown to think upto such eminence for living in harmony and co-operation without the coercion of law! The Anarchist philosophers stood for such an ideal society, but they were grossly misunderstood as peace-breakers, while in fact they were not. Most of them were peaceful and philosophical and did everything for eschewing violence. Of course, there were exceptions.

Experience however shows that Law is not strong enough to put an end to tears falling the wrinkling face of the common man and remove his worries and anxieties. Vaikom Mohamed Basheer, the renowned novelist, observed that life is a strange mixture of physical and mental forces; we find in it many things such as downright foolishness, extreme cruelty, horrible enmity and bitterness, sublime spirituality, great kindness and immeasurable love and affection. Law deals with them all. When we look back we realize that law is memory of countless things in the life of the nation and the people; it records a long running conversation between the people and their rulers. The U.S. President Obama, who was a Law Professor, observes that a nation argues its conscience through her laws. Law is not a monologue. 

 Law extends rights and imposes duties on the people. However, law fails to cover all needs. It is just like a train of people cannot travel on a bicycle or an auto-rickshaw or a car. However, by the second half of the twentieth century Constitutions and the laws sprang up in various countries. But today we find that more and more laws breed more and more corruption. If people are honest there is no need for too many laws. Moreover the unpleasant fact is that laws count for nothing when Government, Ministers and Officials are the worst offenders. Though we sow enough seeds of law, only a few out of them reap. Some laws are like sowing the wind and reaping the whirl-wind. There are secrets of the day and secrets of the night in the administration of law. For its misuse law is not at fault. About laws of yesterday and laws of today we are free to express our views in a democracy, but about laws of tomorrow none can say as it is a dream. 

In teaching the law and applying the law our leanings are towards western jurisprudence. We follow western concepts blindly. But in many parts of Asia and Africa there were legal systems much earlier to western legal system and they flourished and met the exigencies they faced. The western jurisprudence, according to some authors, cannot have a better claim than the jurisprudence of Eastern Civilizations. The West has in fact absorbed immensely from the Eastern Legal Systems.

Ancient vs. Modern

We had stone carving of laws during the days of Budha (600 BC). Ancient western law carved on a slab is kept in Paris Museum. The ancient laws were not amenable to change. They were static. For example, the writings of Jewish law were originally kept in a wooden chest named “arch”. Things changed later, but not the law kept in the chest. In all legal systems, sometimes laws shape events and sometimes events shape law. This goes on as an unending process. In India after independence, there have been hectic law-making by the Union and the States. During the British, Mughal and ancient periods of history the law was distanced from the people. Law then served the rulers and their interests. Later, we find the great march of law in India which resembles an orchestra, whose players are the people. But we find too much regimentation of law in some areas or complete lawlessness in certain other areas. Those who oppose the rigour of the law say that they are at the beating end of the law without enjoying any benefit. When the law-makers break the law themselves with impunity, as we witness today, the question is “who is to watch the watch –man himself?

 Changing  Momentum

Today the need for law chiefly arises out of economic slow-down and scarce resources.  Laws enacted however are not sufficient enough to meet all contingencies.  The proclamation of law alone does not bring about peace and prosperity.  Daniel Defoe who has tasted both sides of life and who had been “thirteen times rich and thirteen times poor” said that law and liberty do not consist in open doors and free egress and ingress of locomotion.  It must meet changing needs of man and the society.  Change in life is fantastic today; refrigerators mail us when they run out of milk.  Computer does miraculous things and they occupy pockets of men and handbags of women.  The change in life style leads to making new laws or changing existing laws. The growth of law is not confined to frontiers of nations. 

 Law’s growth resembles germination of a seed in a congenial atmosphere and its development through different stages, namely, budding, flowering, fruit-bearing and keeping in its stump hardwood for future generation.   The fragrance of its flowers reaches far and wide. The law grows like that.  It is not only for the present but for the future as well.   Its vastness is obvious.  Numerous ideas are shaped into law from time to time. To express the vastness of the law, we say law is oceanic.   The expression ‘oceanic’ indicates that law is wide-spread and the same thing with the same identity, whereever it is.  About seventy-five present of the earth’s surface is surrounded by ocean.  The ocean lies between continents. The demarcation and naming of ocean as Pacific Ocean, Atlantic Ocean, Indian Ocean and the like is just to indicate particular area on earth surrounded by water. Likewise, no legal system stands in isolation as no country is an island.  Inter-action and inter-mingling of laws take place in abundant measure.  Science does not claim that there is pure stock of blood.   In the same manner, there is no pure stock of law, except perhaps personal law, like the Hindu Law, the Muslim Law of inheritance etc.

A large chunk of Indian laws are taken from England, the U.S.A, Canada, and Australia.  But blind adoption of law from other counties without taking into account the socio-legal climate of the country may not be workable.  For example, the U.S.A.  developed concepts like ‘Compelling Reasons’ ‘Strict Scrutiny’, ‘Affirmative Action’, ‘Narrow-Tailoring’ and other concepts. They were developed in that country as a helping hand to Afro-Americans, Ameri-Indians etc.  In India such concepts have no relevance.   The English law, however, imbibed many legal norms from Rome.  The principle that king must temper his power by the law and the principles of equity were in existence in ancient societies.  Such a measure was necessary to bridle power and to insist that kings and emperors too may have to live according to law.  It is the people who conferred upon them the sovereign power.  But history tells us that law could do very little to regulate such potential power centers.

Vast  horizon

The law has past, present and future. Journeying through sometimes turbulent and sometimes peaceful path of law, man has become not only a tool-making animal but also a law-making organism.  We find many a legal system.  Each one of them has its own background, culture and tradition.   To learn them all is not just possible. You cannot learn the law as you learn other disciplines.  There is a saying that “you can make even a parrot into a learned political economist” – all that you must learn are the two words, ‘supply’ and ‘demand’.  Law is different.    A life time study of law takes you only to the fringe of its vast horizon which is ever expanding. Law, like life, is vibrant and full of change and not the same in the next moment.  It has a tendency to expand itself as it interacts with people and their issues.  Every case coming up for decision before law courts is a page torn out from the book of life.   We find in it the blood-stain of life.   We find in it victories of man, his ambition, evil design, treachery, rise and fall.  The stream of law flows searching for a dawn.  The future of law like future of life is not predictable.   But future cannot disown yesterdays with all their failures and success.

The  Primacy  of  Law

One can experience the beauty, liveliness and dynamism of law only when it is enforced or put into action.  Law enacted and kept in statutes without enforcement is like dead wood.  Voluntary compliance of law regulating human conduct and interest is few and far between.  As Bertrand Russell observed, “a stupid child will only pay attention to what has to be learned while the teacher is there to insist upon the subject matter of the lesson.  Today violence, terror, terrible and scandalous corruption and fraud exhibit distressing trend.  In such a society the primacy of law is to establish order in the society first by force, if necessary.  You cannot enjoy the beauty of a flower if the same is kept in a hidden place.  Law in statute-form is like that.   Attempt to implement law may have to face resistance.  Like infant leaves of a plant must be protected from attack of insect, law too needs protection when there is sharp fall in human conduct.   It is a pre-requisite for economic growth and development.  The political parties must resolve problems facing the country without adopting too much negative attitude in order to safeguard national interest, with unity and gentle spirit of accommodation.  Khalil  Gibran’s  little story spells out the horror of disunity. 

“Said the Eye one day, “I see beyond these valleys a mountain veiled with blue mist.  Is it not beautiful?”

 The Ear listened, and after listening intensity awhile, said, “But where is any mountain? I do not hear it.”

Then the Hand spoke and said, “I am trying in vain to feel it or touch it, and I can find no mountain.”

And the Nose said, “There is no mountain, I cannot smell it.”

Then the Eye turned the other way, and they all began to talk together about the Eye’s strange delusion.” 

We must remember that great civilizations perished in the absence of gentle spirit of accommodation.   In modern times, want of unity led to the downfall of Iraq, the wonderland of civilization, where the magic city of Arabian Nights flourished.  What happened to the stupendous Indus Valley Civilization?  Where is the glory and wonder of ancient Greece today?  Certainly the decline of legal system and intolerance of conflicting factions might have weakened world civilizations one way or the other.   For dawn of the rising sun, the lamp of law must be kept  unextinguished  along with other sublime social forces.