How much more anti-labour can the government be? Senior Advocate Colin Gonsalves [Part I]

How much more anti-labour can the government be? Senior Advocate Colin Gonsalves [Part I]

Aditya AK

Senior Advocate Colin Gonsalves has been one of the staunchest crusader of human rights in the Supreme Court for a number of years. In recognition of his work in the field, Gonsalves, the founder of Human Rights Law Network (HRLN) was recently conferred the 2017 Right Livelihood award.

In the first part of this interview, Gonsalves talks about his involvement in the labour movement, the efficacy of the PIL in safeguarding the rights of the downtrodden, labour laws in India, and more.

What drew the civil engineer from IIT to do law?

Well, it was the period of the mid-70s. There were all kinds of movements taking place in the country; there was the emergency, a railways strike, a textile strike etc. And students were quite politicized in that period. So, there were a lot of young people like me in IIT who were taken up by the movement. Some of my colleagues tried to break the railways strike by pretending to run the locomotive trains during the strike! Then, Indira Gandhi actually ordered the throwing out of the railway workers from their quarters at midnight. And some of the IIT students, including Praful Bidwai, the famous journalist, were very active in trying to get relief for the railway workers thrown out. It was quite a volatile period.

You had appeared in courts long before you got your law degree.

I argued 100-200 cases before I got my degree in law. That is because I was a representative of the Union, and in labour law, you can represent a Union. So it makes no difference if you are not a lawyer. I must have argued some of my biggest cases during that period – lockout of 4000 workers, strikes of 3000 workers. I had no senior, no guidance, no law books, I had nothing. I learnt on the job.

What inspired the formation of People’s Law Network and HRLN?

I went from engineering into the housing rights movement, where there was an organization in Bombay called the Bombay Slum Dweller’s United Front. And I worked there trying to organize against the eviction of slum dwellers. While doing that work, I lived in a textile workers’ colony in Bombay, in a chawl, which was occupied by textile workers. They used to live eight workers to one room, and they would sleep in shifts as they came in.

Then I actually joined as a mazdoor in the Bombay Port Trust Docks. And I hid my IIT qualification because then they would smell a rat, so to speak! We worked with the idea of starting a union in the docks, which didn’t work out because the union operating over there didn’t like any competition. And, I suspect, also because we were very amateurish in our ways – very revolutionary.

Trade Union leader Datta Samant was Gonsalves’ guru
Trade Union leader Datta Samant was Gonsalves’ guru

I went through many phases and finally, I found my guru in life. A most unlikely guru, that was Dr Datta Samant, who was a militant trade unionist. He believed the law was treacherous. And he was right, because the labour courts in those days were taking 7-8 years to give workers a wage increase of 300 rupees. So, he took the law into his own hands and he taught some lessons about social movements and social change, which I thought were invaluable. He taught me that the working class must know to take the law into their own hands, organize and agitate.

Baba Saheb Ambedkar said the same thing: Educate, organize, agitate. And not necessarily go to the law courts and waste your time and do all that kind of nonsense if you can agitate and get your victories on the ground.

Do you still hold those views?

I hold those views even more today, because the situation is so extreme, and the legal system in our country, apart from a few superior courts here and there, is so bad that the working class people have abandoned it. All tribals in the country have abandoned the legal system, although they suffer terrible, terrible injustice. Tribals don’t come to the courts, Dalits never come to the courts – a stray case here and there. Minorities are by and large avoiding the court system.

So the legal system has turned out to be a great engine of oppression. The only fragments of the judiciary that prevail are some of the higher courts and the Supreme Court. It’s a dying light, so to speak, a flickering light, you know. And it stays alive, but we don’t know for how long.

How do you think the PIL has helped the cause of the downtrodden?

See, in a country like India where governance is zero, where the government is so uncaring and cruel to its people, the PIL is like a straw to which you clutch on to. You’re drowning, and you grab a straw. And it’s a system which allows people, with a certain degree of hard work, to achieve some reasonable results. If you look at it overall, in the context of injustice in the country, it’s a small thing in a mighty ocean. But if you look at what you can achieve nevertheless, it’s still something important.

I have faced many skeptics of the PIL system, professors with a long history of skepticism. I have gone abroad to certain universities – which I won’t name for obvious reasons – where professors have asked me this question. And my answer has been a simple answer. When clients come to you, when tribals come to you, when Dalits come to you, when slum-dwellers come to you, when trafficked women come to you, when tortured persons come to you, when families of disappeared persons come to you, what will you tell them? That PIL is just strengthening capitalism? Or that the judiciary is corrupt? They don’t want that, they know that. They are coming to you because they think that you can help them.

These professors – they mess with their minds and they say, ‘It [PIL] only strengthens capitalism, it only strengthens the status quo’
These professors – they mess with their minds and they say, ‘It [PIL] only strengthens capitalism, it only strengthens the status quo’

Young students want to do something with their lives as lawyers. And these pundits or professors – they mess with their minds and they say, ‘It only strengthens capitalism, it only strengthens the status quo’. These students are not going to become Che Gueveras or Naxalites. God knows how many generations of these young students have been messed with, with this kind of skepticism. In society today, whatever you can do, you must do. We have no illusion, it’s a capitalist system. We only know that we can, in certain circumstances, win some battles. So we are staying on the battlefield.

Would you agree with the observation that the courts have shifted their stance from being pro-poor to anti-poor over the years?

Yes, this is correct. You don’t see it so much in the Supreme Court and in some of the high courts. For example, the Delhi High Court is still a very remarkable court. But if you go across the country and you look at the attitude of judges to PIL, it’s such a frightening scenario. Even the judiciary doesn’t take account of the kind of backtracking that has happened in the high courts. At times it is hazardous, even in the most meritorious case, to go even near the high court! And judges are imposing costs of Rs. 50 thousand, 1 lakh, they’re scolding the advocates.

What is actually a very revolutionary system compared to legal systems anywhere in the world, has been crushed. And that’s why I feel very sad when courts use the term “publicity interest litigation”. The trend is so bad in the higher courts, that if any court uses this term, you know it strengthens the feeling that we’ve got to crush PILs.

Moving on to some developments in Labour Laws, a nine-judge bench of the Supreme Court is deciding on the definition of the term industry. How significant is this matter?

It’s very significant, and actually I am a little bit upset by the manner in which that review was done. The five-judge bench referral order to a seven-judge bench was very casually written. And the reference from seven to nine was done in a few minutes. I don’t know what will ultimately happen, but I feel the reference is a sign that things of majesty done by the Supreme Court in respect of poor people is now sought to be dismantled. I don’t say that the Supreme Court is trying to dismantle it. I say the advocates who are arguing for the dismantling are making some progress.

In 2014, the Modi government had made some amendments to the Factories Act and the Minimum Wages Act. Three years on, are the ramifications of those changes?

Well, that’s now obsolete because you have three bills being introduced. One is the Labour court on wages, the second is the Labour court on industrial relations and there’s a third Labour court coming in. And they are making sweeping changes in the law. First of all, they are going to dismantle adjudication for labour. Every section of society can go to court. If you are a tenant you can go to court against the landlord, wife against the husband etc. But for labour, when they have disagreements with their employer, there will be no adjudication system.

They’re dismantling the labour courts and the industrial tribunals. How much more anti-labour can the Modi government be? Then they are putting restrictions on trade unions – how trade unions can be formed, who will be its members, who can be its officer bearers. As if trade unions are the biggest enemies of society. But that’s the feeling – many judges have this feeling also – that trade unions are the enemies of society. And I’ve heard very hostile anti-trade union views, anti-labour views being articulated by judges. So what can we say? The Modi government is out to crush the labour movement.

All that I can say is all these things teach labour a very good lesson, which is – that the legislature can’t be trusted, the courts probably can’t be trusted, and what Datta Samant said – which is to get into the streets and start social movements and agitations and uprisings – that may be the correct way forward. But that’s not what any democracy wants. Democracy wants the labour system to be strengthened, law to be strengthened, judges to act as independent persons adjudicating.

Government wants to turn the labourers into terrorists. And it has happened; in different parts of the country, they are burning down factories, and killing people. Why does it happen? Because labourers realize that they don’t have access to courts. The Labour Commisioner’s Offices across the country are cesspools of corruption. These Labour Commissioners make so much of money.

Why do you think India has not ratified the UN Convention on Torture after signing it?

Well, the answer is simple I think. The Convention on Torture will expose India to International scrutiny as to it standards, practices and so on. India is a country where torture is endemic, probably where the highest levels of torture take place in any democracy. So, they don’t care. You write about it in the newspapers, you file cases, the Indian government doesn’t care. But if it comes up abroad that this great perceived bastion of democracy is not genuine, then they don’t want the world to know.

And once you join the UN Convention then you have periodic meetings, periodic reviews. When you make your law – which they say they want to make – together with other countries, they will scold you and say take away this provision, put in this provision. Now, India doesn’t like globalization, really. India likes commercial globalization, it doesn’t like globalization of human rights. So, they have opposed it tooth and nail and we are in the company of China, Saudi Arabia, etc.

You had appeared as Amicus in a related petition filed by Ashwani Kumar in the Supreme Court.

See, Ashwani Kumar’s petition was a good petition, he argued very well in the Supreme Court and all that, but he’s still under the wrong understanding that in order to ratify a Convention you must make a law. The United Nations has a hundred times clarified that it is not a precondition to ratification. In fact, once you ratify it, then the making of your law becomes easier, because there is a global process and you get inputs from other countries.

Ex-Law Minister Ashwani Kumar had filed a petition in the SC
Ex-Law Minister Ashwani Kumar had filed a petition in the SC

In 2012, India wanted to come on to the Human Rights Council of United Nations. Now you may find it difficult to come on to that Council if you don’t ratify the Torture Convention. So, India made a solemn pledge to ratify it. India does to the UN what India does to its own people, namely, give them assurances and never implement it.

Stay tuned for Part II.

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