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How independent is India’s labour law framework from the state’s changing economic policies?

Published online by Cambridge University Press:  01 January 2023

Santanu Sarkar
Santanu Sarkar*
Affiliation:
XLRI – Xavier School of Management, India
*
Santanu Sarkar, XLRI – Xavier School of Management, C. H. Area East, Jamshedpur 831001, Jharkhand, India. Email: ssarkar@xlri.ac.in
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Abstract

Judicial interpretation of statute law in common-law countries means that the judiciary may mediate the social impact of legislation. In the case of the protection of labour rights in India, this article examines the extent to which the judiciary acts independently from the government of the day, and the extent to which court judgements are swayed by prevailing administrative policies. Specifically, to what extent have economic liberalisation and labour market flexibility policies influenced court decisions in cases challenging worker dismissals? Drawing on a review of 270 judgements delivered by the Supreme Court of India and the state High Courts between 1950 and 2010, a relationship is traced between a shifting pattern of Courts’ judgements and policy changes initiated by the Indian government in response to economic conditions. The objective of the study is to understand the effect of a structural shift in the economy on the cases of consented and contested decrees related to dismissal of workers under the relevant laws in India. It is found that the specific statute has not greatly changed through legal reforms, but the judiciary’s interpretations of it have changed over six decades based on dominant socio-political currents, in tune with government economic policies. This raises profound questions about judicial independence in defence of labour rights.

Keywords

K31Economic liberalisationimpugned dismissalIndiajudicial independencelabour dispute resolutionunfair dismissal
Type
Articles
Information
The Economic and Labour Relations Review , Volume 30 , Issue 3: Labour Standards: New International Cases of Erosion and Defence , September 2019 , pp. 422 - 440
Copyright
© The Author(s) 2019

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References

Arup, C, Gahan, P, Howe, J , et al. (eds) (2006) Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships. Sydney, NSW, Australia: The Federation Press.Google Scholar
Ashenfelter, O, Eisenberg, T, Schwab, SJ (1995) Politics and the judiciary: the influence of judicial background on case outcomes. Journal of Legal Studies 24(2): 257–281.CrossRefGoogle Scholar
Baum, L (1997) The Puzzle of Judicial Behaviour. Ann Arbor, MI: University of Michigan Press.CrossRefGoogle Scholar
Baxi, U (1994) Inhuman Wrongs and Human Rights: Unconventional Essays. New Delhi, India: Haranand Publications.Google Scholar
Bergara, M, Richman, BD, Spiller, PT (2003) Modeling Supreme Court strategic decision making: the congressional constraint. Legislative Studies Quarterly 28(2): 247–280.CrossRefGoogle Scholar
Bhattacherjee, D (2001) The evolution of Indian industrial relations: a comparative perspective. Industrial Relations Journal 32(3): 244–263.CrossRefGoogle Scholar
Chandrachud, A (2014) ‘Powerful governments have attacked judicial independence’, Interviewed by V. Vekatesan. Frontline, 25 July. Available at: http://www.frontline.in/the-nation/powerful-Governments-have-attacked-judicial-independence/article6185834.ece (accessed 7 May 2017).Google Scholar
Chaudhuri, S (1995) Government and transnationals: new economic policies since 1991. Economic and Political Weekly 30: 999–1012.Google Scholar
Chodosh, HE, Mayo, SA, Ahmadi, AM , et al. (1997–1998) Indian civil justice system reform: limitation and preservation of the adversarial process’. New York University Journal of International Law and Politics 30(1–2): 1–78.Google Scholar
Coutts, K, Gudgin, G (2016) The macroeconomic impact of liberal economic policies in the UK. Economic and Labour Relations Review 27(2): 139–146.CrossRefGoogle Scholar
Gadbois, GH Jr (1985) The Supreme Court of India as a political institution. In: Dhavan, R, Sudarshan, R, Khurshid, S (eds) Judges and the Judicial Power: Essays in Honour of Justice V.R. Krishna Iyer. London: Sweet and Maxwell; Bombay, India: Tripathi, pp. 250–267.Google Scholar
Galanter, M (1989) Law and Society in Modern India. Delhi, India; Bombay, India; Calcutta, India; Madras, India: Oxford University Press.Google Scholar
Garner, BA (2004) Black’s Law Dictionary. 8th ed. St. Paul, MN: Thomson/West.Google Scholar
Goldar, B (2000) Employment growth in organised manufacturing in India. Economic and Political Weekly 35(14): 1–7.Google Scholar
Grossman, JB (1967) Social background and judicial decisions: notes for a theory. The Journal of Politics 29(2): 334–351.CrossRefGoogle Scholar
Grossman, JB, Sarat, A (1971) Political culture and judicial research. Washington University Law Quarterly 2(2): 177–207.Google Scholar
Hall, PA, Thelen, K (2009) Institutional change in varieties of capitalism. Socio-Economic Review 7(1): 7–34.CrossRefGoogle Scholar
Hausegger, L, Riddell, T, Henniger, M (2013) Does patronage matter? Connecting influences on judicial appointments with judicial decision making. Canadian Journal of Political Science 46(2): 665–690.CrossRefGoogle Scholar
Iaryczower, M, Spiller, PT, Tommasi, M (2006) Judicial lobbying: the politics of labor law constitutional interpretation. American Political Science Review 100(1): 85–97.CrossRefGoogle Scholar
La Porta, R, Lopez-de-Silanes, F, Shleifer, A , et al. (1998) Law and finance. Journal of Political Economy 106(6): 1113–1155.CrossRefGoogle Scholar
Labour Law Journal Editorial Committee (2005) 57 Years Consolidated Index to Labour Law Journal, 1949-2005. Nagpur: Wadhwa and Company.Google Scholar
McCarthy, WEJ (1990) The case for Labour Courts. Industrial Relations Journal 21(2): 98–111.CrossRefGoogle Scholar
McCubbins, MD, Noll, RG, Weingast, BR (1995) Politics and the Courts: a positive theory of judicial doctrine and the rule of law. Southern California Law Review 68: 1631–1683.Google Scholar
Markesinis, B (1997) Law Making, Law Finding and Law Shaping: The Diverse Influences. Oxford: Oxford University Press.Google Scholar
Maveety, N (2003) The study of judicial behavior and the discipline of political science. In: Maveety, N (ed.) The Pioneers of Judicial Behavior. Ann Arbor, MI: University of Michigan Press, pp. 1–51.Google Scholar
Nagel, SS (1962) Testing relations between judicial characteristics and judicial decision-making. The Western Political Quarterly 15(3): 425–437.CrossRefGoogle Scholar
Nasrudin, M, Akhir, M, Kim, KH , et al. (2013) Structure and agency in the Malaysian government’s policies for economic development. Economic and Labour Relations Review 24(4): 495–516.Google Scholar
Rachlinsku, JJ, Wistrich, AJ (2017) Judging the judiciary by the numbers: empirical research on judges. Annual Review of Law and Social Science 13: 203–229.CrossRefGoogle Scholar
Roychowdhury, A (2019) Application of job security laws, workers’ bargaining power and employment outcomes in India. Economic and Labour Relations Review 30(1): 120–141.CrossRefGoogle Scholar
Rudolph, LI, Rudolph, SH (1987) In Pursuit of Lakshmi: The Political Economy of the Indian State. Chicago, IL: University of Chicago Press.Google Scholar
Sarkar, S (2017) Changing judicial pronouncements on impugned discharge and dismissal under Industrial Disputes Act, 1947. Indian Journal of Industrial Relations 53(2): 200–207.Google Scholar
Sharma, DD (1968) ‘Independence of judiciary and impartiality in India’ 1968(II) SCJ [Supreme Court Judgments] 24.Google Scholar
Sudarshan, R (1985) Judges, state and society in India. In: Dhavan, R, Sudarshan, R, Khurshid, S (eds) Judges and the Judicial Power: Essays in Honour of Justice V.R. Krishna Iyer. London: Sweet and Maxwell; Bombay, India: Tripathi, pp. 268–288.Google Scholar
Venkataratnam, CS (1996) Industrial relations in India. Paper presented to a seminar on labour market and industrial relations in South Asia: Emerging issues and policy options India International Centre, New Delhi, India, 18–20 September.Google Scholar
World Bank Report (2004) World Development Report 2005: A Better Investment Climate for Everyone. New York: Oxford University Press.Google Scholar
Zorn, CJ, Bowrie, JB (2010) Ideological influences on decision making in the federal judicial hierarchy: an empirical assessment. Journal of Politics 72(4): 1212–1221.CrossRefGoogle Scholar