Friday, August 12, 2011

Liberalisation, Contract Teachers, and Constitutional Moments

Liberalisation transformed India's economy and workforce. Government employees have been just as affected as their private counterparts, and perhaps even more so, as the government has increasingly employed contract workers to perform various state functions. Varun Gauri and myself look at how the judiciary has reacted to this shift in government labor policy in the education sector in this recent article in which we track all contract teacher cases that we could find over the last thirty years in the Supreme Court and the High Courts of Kerala, West Bengal, Gujarat, and Bihar. The paper finds that although almost never explicitly overturning precedent, the judiciary has increasingly become less sympathetic to contract teachers' demands.

This is particularly clear at the Supreme Court level - think about the general turn of events for government contract workers between Piara Singh in 1992 (in which the Court says regular employees should be the norm and lays out a path for regularization of contract workers) and Uma Devi in 2006 (where the Court stops judge-ordered regularization and says it's up to the government if there should be regularization). The Court eventually makes this general shift towards a more liberalized view of contract employees, but it lags behind the actual policy shift of the government, not fully adopting this position until the 2000s (with even some holdout judges currently on the bench). The High Courts generally lag even further behind than the Supreme Court.

The article concludes by arguing that the Supreme Court should consider reengaging with the government (and state governments) about appropriate labor policies that not only achieve better results for students, but better working conditions for teachers (some of this recommendation is complicated by provisions in the Right to Education Act, which depending on how it is interpreted may limit or ban contract teachers, but in actual practice hasn't done this yet).

Working on this article got me thinking about how many areas of supreme court precedent have likely had to essentially reverse or substantially change themselves to accommodate "liberalisation" (a term I am using loosely in this post for lack of space). Usually this was done without ever explicitly overturning precedent. This is an interesting phenomenon worth further exploration. But it also led me to reflect if the Constitution itself had provisions that no longer seemed to apply, that like old precedent in the contract labor example had essentially been overturned even if they had not been removed. In other words, to borrow Bruce Ackerman's language momentarily, did India in the early 1990's have a constitutional moment, but not amend its constitution to account for it? And are the judges accounting for it on their own instead through case law?

Indira Gandhi's Emergency can be considered a constitutional moment. It arguably left India with a Basic Structure Doctrine that at least in the short to mid-term was seen as unassailable, which profoundly shaped our understanding of the constitution going forward. However, that was not the only mark left on the Constitution. Indira Gandhi's trumpeting of a socialist reordering of the economy, which went beyond even her father's vision, ensured that the preamble would now read that India was a "socialist" state. The Directive Principles were also amended through the 42nd amendment to include 43A: "The state shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry."

When the Emergency ended the new government repudiated Indira Gandhi's authoritarian overreach by passing the 44th amendment to remove provisions she had added to the Constitution that dubiously protected herself and her power during the Emergency. However, the 44th amendment did not remove the provisions that reoriented India towards a more socialist economy. Instead, it further strengthened this reorientation by removing property as a fundamental right and adding in the directive principles 38(2): "The State shall . . . strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities, and opportunities . . ." It essentially reconfirmed India's socialist entrenchment.

Now many of the provisions of the Indian Constitution even if conceived of as operating against the backdrop of a socialist or quasi-socialist state don't explicitly require such an economic system. For example, Article 43's provision of the state endeavouring to provide its citizens a living wage through suitable economic organisation does not require that the means of production of the economy be in state hands . However, I would argue 38(2) and 43A do come close to requiring this, and at least they can't be achieved under liberalisation as embraced by India in the 1990's. In the case of 43A making sure workers help run the companies they work for runs directly counter to liberalisation's focus on privately run industry. In the case of 38(2), liberalisation is seen by its supporters as a way to make everyone richer than they would be without it, but even its most ardent proponents would have a difficult time claiming that it reduces income inequality.

One might point out 38(2) and 43A are just directive principles, which are not judicially enforceable. And yet, in the late 1970's the government went to considerable lengths to add them to the Constitution to signal that a certain type of socialism popular in that time was now the guiding constitutional vision for the economy. Why didn't the liberalisers of the early 1990's do the same? (a lack of popular mandate springs easily to mind as one possible answer) But more to the point, what is the implication of the fact that they have not entrenched this changed economic policy in the constitution? And that the Constitution in some specific parts seem to directly contradict liberalisation's policies and in other parts arguably does in spirit? How should this affect judges when they try to interpret a document that clearly had envisioned a different economic ordering? Perhaps this means that liberalisation wasn't a constitutional moment (it certainly is still contested). Or maybe it signals a different approach by Parliament towards how the constitution will be viewed to relate to economic policy.
Post a Comment