Changing Face of Law: The Judicial Route

scales of justice

Under the Constitution, Parliament is entrusted with the responsibility of making laws. At times an easier route to change the legal jurisprudence to sail with the interests of the establishment seems to be through the judiciary.

 The Covid epidemic and the draconian powers under the Disaster Management Act were opportunistically used to repeal 29 legislations providing protection to workers like the Industrial Disputes Act, 1947, Factories Act and Minimum Wages Act. However, the judiciary had been changing the very face of industrial jurisprudence over the past thirty years. The courts had been quietly jettisoning well established principles like reinstatement with back wages in cases of wrongful dismissal of workers. The judges moved the law towards “hire and fire policy” being the prerogative of the employers, eroding protections and security of service of workers and employees and refused to interfere in cases of disproportionate punishments like dismissal for trivial acts of misconduct. The principles of ‘Equal work for equal work’ and abolition of contract labor for permanent work were steadily diluted by the courts.

An even more insidious and vital change has been the steady change of the quasi-federal nature of the Constitution of India through judicial interpretations. In any dispute between a State and the Centre, the majority view in judgments since the establishment of the Supreme Court in 1950 has consistently been to strengthen the Centre.  The centralization and more and more concentration of power in the Centre may not have been in the best interests of harmonious governance and contributed to fissiparous tendencies in the country. Judges like Justice K. Subbarao, a former Chief Justice of India and the author of many minority dissenting judgments in these matters, may well turn out to have taken the wiser constitutional view. At present the disputes as to right of states and Center to tax minerals on land and the curbs on borrowing limits by the state are being adjudicated by the apex court.

Changes in laws affecting significant sections of society may lead to protests and agitations which then pose a problem and have to be tackled. The attempt to change agricultural laws and the massive protests are a case in point. The changes in the working of the law may be brought about insidiously and gradually through the route of judicial interpretation attracting little attention. In addition, unpopular decisions by the courts provide a fig leaf and help the government of the day in distancing and achieving the desired result in practice.

Secularism remains enshrined in the Preamble of the Constitution and the Places of Worship Act (Special Provisions) Act, 1991 (‘Worship Act’) remains on the statute books. In fact, the Ayodhya judgment handing over the premises for the construction of a Ram temple, used the preservation of all the rest of the places of worship as on 15 August 1947 in the Worship Act, as one of the principal pillars of the verdict. It seemed to unequivocally declare a closure on disputes over other places of worship.

However, in the face of the clear provisions of the Worship Act, relied upon in the Ayodhya judgment, somewhat like a conjurer’s sleight of hand, the Apex Court took the view that the survey of the Kashi Gyanvapi mosque was permissible and did not change the character of the place of worship and was not violative of the Worship Act.  Far from putting a closure to the initial slogan “Ayodhya to Jhanki hai, Kashi-Mathura baki hai (Ayodhya is a mere trailer, Kashi and Mathura are still left) the Court has in its “wisdom” chosen to open a Pandora’s box to “Ayodhya is a mere trailer, Lucknow, Ajmer, Sringapatna, Qutub Minar …are still left”.   

A number of petitions challenging the cutoff date of 15th August 1947 as arbitrary and irrational for maintaining the character of place of worship encroached upon by “fundamentalist barbaric invaders and law-breakers” and violative of the rights to equality and freedom of religion were filed in the Supreme Court . The Court has chosen to entertain the petitions filed by Ashwini Kumar Upadhyaya and Subramaniam Swamy amongst others and issued notice to the Center to file a reply. The Court observed that there is no stay of the Worship Act but refused to put on hold proceedings in various courts across the country related to places of worship. The flood gates have been opened and more and more are petitions being filed against mosques across the country. Amen.

Hazy long forgotten lines by the greatest connoisseur of human nature and society seem to emerge in the mind as an epitaph to the times to come.

Double, double toil and trouble

Fire burn and cauldron bubble

Make the gruel thick and slab

For the ingredients of our cauldron.

Three witches Act 4 Scene 1 Macbeth (Shakespeare)

Rakesh Shukla is a Member of the Supreme Court Bar Association and Consultant, International Psychoanalytic Association Committee for Law and Psychoanalysis.

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