Justice Nagarathna’s dissent warns of tearing the frayed safety net of labour law

At the heart of Justice B.V. Nagarathna’s 147-page poignant dissent is a stark foreboding that dismantling the expansive definition of ‘industry’ in a 1978 judgment may give free rein to the “skewed bargaining power” that private sector and corporates wield over workers.

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The dissent of Justice Nagarathna casts an apprehensive eye to the future, when industrial disputes under the new Industrial Relations Code 2020 (IRC) would reach courts.

Her dissent questions whether the nine-judge Bench’s majority decision to wipe the slate clean of the 1978 judgment (Bangalore Water Supply and Sewerage Board versus R. Rajappa) while deciding what ‘industry’ means under the IRC may unsheathe a “supercharged” version of the corporate bargaining power.

Labour shield

Justice Nagarathna explained that the 1978 judgment was a child of its times, its pervasive definition of ‘industry’ serving as a “bulwark” against violation of labour rights for nearly half-a-century during the shift to privatisation after Indian markets opened up to liberalisation and globalisation. It also, significantly, ensured that the state did not wriggle out of its obligations to act in the welfare of workers.

The lone woman judge on the nine-judge Bench disagreed with the majority’s conclusion that the 1978 judgment would not act as a precedent in future interpretations of ‘industry’ under the IRC.

“In fact, the earlier case law on the corresponding provision is relevant and may be highly persuasive, even binding, if the statutory language is, after judicial determination, found to be identical,” Justice Nagarathna differed with her colleagues.

The judge referred to an 1880 English case law (Greaves v. Tofield) to point out that when a new law of Parliament, in this case the IRC, replaces the old law, the Industrial Disputes Act 1947, and both share the same subject and purpose, any “well-known” judicial pronouncements on the provisions of the repealed statute would reflect on the new one.

“Any pronouncement on the correctness or otherwise of the judgment of this court in the Bangalore Water Supply case would definitely cast its shadow on the definition of ‘industry’ under Section 2(p) of the IRC,” Justice Nagarathna had cautioned, urging but failing to convince the majority on the Bench to drop the reference as ‘not maintainable’.