M J Antony: Ambiguity over 'industry'

OUT OF COURT

Is it possible that the legislative chambers are too pre-occupied with other pressing business to listen to court signals calling for clarification of ambiguous clauses?" a Constitution bench of the Supreme Court wondered nearly three decades ago.

The situation in the legislative chambers has turned worse over the years. The result is that often the judiciary has to struggle to find meanings for words used by the law-makers.

This insensibility could lead to a lot of misery, as last week's order by a five-judge Constitution bench of the Supreme Court showed (State of UP vs Jai Bir Singh ).

The courts have been agonising over the definition of "industry" in the Industrial Disputes Act for half a century.

Contrary decisions at all levels of the court hierarchy have confounded everyone. The leading judgement on the definition, Bangalore Water Supply vs A Rajappa (1978), is now going to be reviewed by a larger bench, at least of nine judges.

The problem is that as the definition of industry stands now, it is not "comprehensive, clear and conclusive". The Bangalore decision tried to set down a workable solution and laid down certain guidelines to identify industries.

But these rules were found to be too wide. They embraced almost all establishments where there was an employer-employee relationship.

Among those which were declared industry were government hospitals, a gymkhana club, a workshop of a polytechnic, and even municipalities and local authorities.

The list expanded with time and included professions such as lawyers, architects, doctors and chartered accountants. They all employ people, but the rigours of the Act began to envelop them too.

At one stage, a Supreme Court judgement warned that it would kill private enterprise.

The validity of the Bangalore decision itself is now doubted. One of the reasons is the peculiar statements made by some of the seven judges who delivered that leading judgement on February 21, 1978.

The then Chief Justice, who was on the bench, wrote that he had to retire the next day and, therefore, had no time to discuss all the issues argued before him.

Three other judges stated that they would deliver their judgements later. They did so at different dates. Therefore, the majority judges had no opportunity to discuss the issues with the brother judges, who concurred with them on certain points but dissented on others.

There was no exchange of views among the brothers, which is also the norm.

The judges, however, were unanimous on one point. All of them emphasised that the remedy lay in an amendment to the definition clause.

One of them said: "The problem is far too policy-oriented to be satisfactorily settled by judicial decisions. Parliament must step in and legislate in a manner which will leave no doubt as to its intention. That alone can afford a satisfactory solution to the question which has agitated and perplexed the judiciary at all levels."

Parliament did make a series of amendments to the Industrial Disputes Act in 1982. In the amended definition, certain specific types of activities were taken out of the purview of "industry".

While all other amendments to the law were notified, this particular change has not been gazetted till today. The employers now argue that although the implementation of the amendments was piecemeal, the amendment should stand.

The employees contend that since the amendment has not been notified, the Bangalore judgement is binding on all courts.

The five-judge bench that examined the whole issue in the new case stated last week that since the judiciary had waited too long for the government to bring in the amendment, the problem should be solved by the Supreme Court itself.

But it would be unrealistic to expect an early answer. Setting up a bench of nine or more judges is a difficult task, especially when five judges, including the Chief Justice is set to retire in the coming months.

So one should be prepared to grin and bear the confusion for a longer period.