Right to Strike and Indian Constitution

Article 19  of the Indian Constitution, the rainbow of the fundamental rights, originally guaranteed seven freedoms, one of which, the right to property, had been by the 44th amendment , made a constitutional right and had ceased to be a fundamental right. The unique feature of the freedoms guaranteed by Article 19 is that they are not absolute terms and, and clauses (2) to (6) provide for reasonable restrictions imposed on these freedoms. The restrictions may be procedural or substantive, but both must satisfy the test of reasonableness. Whether a restriction is reasonable or not is to be determined by the Court.

Demonstrations and processions usually involve three fundamental rights; freedom of speech, freedom of assembly, and freedom of movement. Many a times the question arose before the court that whether the above stated fundamental rights includes the right to strike. Before coming in to that let’s try to understand what strike is.

Strike is a cessation of work by the employees for any length of time under a common understanding to put pressure on an employer to accept their demands. Strike is a powerful weapon in the armoury of workmen. It is available when there is a dispute between employer and employee. Skilful use of this weapon may help the workmen to force the employer to accept their demands. Strike is a weapon that disempowered to fight in oppressive cases when no constructive option is left. It is the last resort taken out of exasperation. It is a weapon that provides an opportunity for collective bargaining.

The state of India’s economy calls for more and more production. Thus reckless use of strike by the workmen creates the risk of unnecessary stoppages. These stoppages create worse tensions and frictions and may results in the violation of law and order. India cannot tolerate frequent stoppages of work for frivolous reasons. Above all from the public point of view they retard the nation’s economic development.

In this research the researcher tried to analyse the emergence of the concept of right to strike under the Article 19(1) of the Indian Constitution, by analysing various decided case laws in this matter.

Strike, is a work stoppage caused by the mass refusal of employees to perform work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became important in factories and mines. In most countries, they were quickly made illegal, as factory owners had far more political power than workers. Most western countries partially legalized striking in the late 19th or early 20th centuries.

Strike means a cassation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding of any number of persons who are or have been so employed to continue to work or accept employment .

Article 19  of the Indian Constitution, the rainbow of the fundamental rights, originally guaranteed seven freedoms, one of which, the right to property, had been by the 44th amendment , made a constitutional right and had ceased to be a fundamental right. The unique feature of the freedoms guaranteed by Article 19 is that they are not absolute terms and, and clauses (2) to (6) provide for reasonable restrictions imposed on these freedoms. The restrictions may be procedural or substantive, but both must satisfy the test of reasonableness. Whether a restriction is reasonable or not is to be determined by the Court .

Reasonableness of the restriction means that “any limitation imposed on an individual in the enjoyment of his right should not be arbitrary or of excessive nature, beyond what is required in the interest of public.”

According to Bhagwati J. the principle of reasonableness which legally as well as philosophically, is an essential element of equality and non- arbitrariness pervades Article 14 like brooding omnipresence of the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right, just, fair, and not arbitrary, fanciful or oppressive, otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied .

Article 19 guarantees the following freedoms:

a)Freedom of speech and expression.

b)Freedom to assemble peacefully and without arms.

c)Freedom to form association and unions.

d)Freedom to move freely throughout the territory of India.

e)Freedom to reside and settle in any part of the territory of India.

f)Freedom to practice any profession or to carry on any occupation, trade or business.

A suppression of speech, in its most painful consequence would be mental sterilization. Freedoms of speech are comprehensive, and include freedom of expression concerning both public and private affairs. In guaranteeing the freedom of speech and in subjecting it to reasonable restrictions, our Constitution has to resolve the dilemma, since the choice is not between order and liberty; it is between liberty and anarchy.

Restrictions on freedom of speech may be imposed in the interests of the “sovereignty and integrity of India, the security of State, friendly relationship with foreign sates, public order, decency and morality in relation to contempt court, defamation or incitement of an offence.”

 Democracy would have no meaning if freedom to assemble is not guaranteed. Thus, public meetings in open spaces and public streets have formed part of our national life and people have come to regard it as part of their privileges and immunities. Similarly, the right to take out a procession on the highways and Public Street is part of the right to assemble which the people have regarded as part of Indian law, even before the commencement of Constitution . Reasonable restrictions may be imposed in the interests of the sovereignty and integrity of India or public order.

Social functioning of organised societies is based on multiplicity of associations and organisations. No democracy can function without freedom to form associations and unions. Political parties, trade unions, social and other organisations are part of democratic functioning of the society and the government. Article 19(1) (c) guaranteed freedom to form associations and unions, though reasonable restrictions on the freedom may be imposed in the interest of integrity and sovereignty of India, public order and morality.

In India unlike America right to strike is not expressly recognized by the law. The trade union Act, 1926 for the first time provided limited right to strike by legalizing certain activities of a registered trade union in furtherance of a trade dispute which otherwise breach of common economic law. The Trade Unions Act, 1926 also recognizes the right to strike. Sections 18 and 19 of the Act confer immunity upon trade unions on strike from civil liability. Now days a right to strike is recognized only to limited extent permissible under the limits laid down by the law itself, as a legitimate weapon of Trade Unions.

The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide interpretation of the term ‘industry’ by the courts includes hospitals, educational institutions, and clubs and government departments. Section 2 (q)  of the Act defines ‘strike’. Sections 22 , 23 , and 24  all recognize the right to strike. Section 24 differentiates between a ‘legal strike’ and an ‘illegal strike’.

It defines ‘illegal strikes’ as those which are in contravention to the procedure of going to strike, as laid down under Sections 22 and 23. The provision thereby implies that all strikes are not illegal and strikes in conformity with the procedure laid down, are legally recognized. Further, Justice Krishna Iyer had opined that “a strike could be legal or illegal and even an illegal strike could be a justified one” in Gujarat Steel Tubes v. It’s Mazdoor Sabha,  is thus beyond doubt that the Industrial Disputes Act, 1947 contemplates a right to strike.

The statutory provisions thus make a distinction between the legality and illegality of strike. It is for the judiciary to examine whether it is legal or illegal and not to declare that there exists no right to strike.

Article 8 (1) (d)  provides that the States Parties to the Covenant shall undertake to ensure: “the right to strike, provided that it is exercised in conformity with the laws of the particular country. Article 2 (1)  of the Covenant provides: “Each State Party to the present Covenant undertakes to take steps, … with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”.

India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other appropriate means.

The right to strike in the Indian constitution set up is not absolute right but it flow from the fundamental right to form union. As every other fundamental right is subject to reasonable restrictions, the same is also the case to form trade unions to give a call to the workers to go on strike and the state can impose reasonable restrictions.

In All India Bank Employees’ Association v. National Industrial Tribunal and others , the Court   specifically held that even very liberal interpretation of sub-clause (C)  of clause (1) of Article 19 cannot lead to the conclusion that trade unions have a guaranteed right to an effective collective bargaining or to strike, either as part of collective bargaining or otherwise.

Thus, there is a guaranteed fundamental right to form association or Labour unions but there is no fundamental right to go on strike. Under the Industrial Dispute Act, 1947 the ground and condition are laid down for the legal strike and if those provisions and conditions are not fulfilled then the strike will be illegal.

Strike is a weapon that empowers the disempowered to fight in oppressive cases when no constructive option is left. It is a weapon of the last resort taken out of exasperation. It is this weapon, which provides an opportunity for collective bargaining. The modern form of strikes had its origin in the era of industrial revolution and assumed its multifarious forms and dimensions during the Indian national movement varying from bandh, hartal, and protestation to hunger strike, Satyagraha, non co-operation and civil disobedience etc., it was considered inalienable right and duty of a patriot to protest against the mighty colonial rule. People who took part in protests were regarded as patriots. Paradoxically, after 50 years of Independence the act of participation in a strike even for a good cause is considered illegal.

To avoid strikes is everyone’s responsibility. But to assert that strikes under any circumstances are illegal, immoral, inequitable and unjustified is contrary to our law and industrial jurisprudence. Striking work is integral to the process of wage bargaining in an industrial economy, as classical political economy and post-Keynesian economics demonstrated long ago in the analysis of real wage determination. A worker has no other means of defending her/his real wage other than seeking an increased money wage.

If a capitalist does not grant such an increase, he/she can be forced to come to a negotiating table by striking workers. This he/she can do because the earnings of the capitalist are contingent upon the worker continuing to work. The argument is drawn from and Marxian classical political economy that shows how the employer’s income is nothing other than what is alienated from the worker in the process of production. When workers stop working, capitalists stop earning. The same applies to government servants as well. When they strike work, it is not the authorities that suffer a loss of income or disruption of their income generating process but the general public. Here, authorities come to a negotiating table mainly under political pressure or in deference to public opinion.

The right to strike is organically linked with the right to collective bargaining and will continue to remain an inalienable part of various modes of response/expression by the working people, wherever the employer-employee relationship exists, whether recognized or not. The Apex court failed to comprehend this dynamics of the evolution of the right to strike.

In B.R. Singh v. Union of India,  Justice Ahmadi opined “The Trade Unions with sufficient membership strength are able to bargain more effectively with the management than individual workman. The bargaining strength would be considerably reduced if it were not permitted to demonstrate by adopting agitation methods such as ‘work to rule’, ‘go-slow’, ‘absenteeism’, ‘sit-down strike’, and ‘strike’. This has been recognized by almost all democratic countries”.

In Gujarat Steel Tubes v. Its Mazdoor Sabha,  JUSTICE Bhagwati opined that right to strike is integral of collective bargaining. He further stated that this right is a process recognized by industrial jurisprudence and supported by social justice.

Justice Shah’s judgment in Rangarajan case does not seem to be right when saying: “There is no statutory provision empowering the employees to go on strike.” Going further, the judge then declared that there was “no moral or equitable justification to go on strike”. This observation does ignore the legal provisions under the Indian Law and International conventions.

The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide interpretation of the term ‘industry’ by the courts includes hospitals, educational institutions, and clubs and government departments. Section 2 (q)  of the Act defines ‘strike’. Sections 22 , 23 , and 24  all recognize the right to strike. Section 24 differentiates between a ‘legal strike’ and an ‘illegal strike’. It defines ‘illegal strikes’ as those which are in contravention to the procedure of going to strike, as laid down under Sections 22 and 23. The provision thereby implies that all strikes are not illegal and strikes in conformity with the procedure laid down, are legally recognized.

Further, Justice Krishna Iyer had opined that “a strike could be legal or illegal and even an illegal strike could be a justified one” in Gujarat Steel Tubes v. It’s Mazdoor Sabha,  is thus beyond doubt that the Industrial Disputes Act, 1947 contemplates a right to strike.

The statutory provisions thus make a distinction between the legality and illegality of strike. It is for the judiciary to examine whether it is legal or illegal and not to declare that there exists no right to strike.

Besides the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 also recognizes the right to strike. Sections 18 and 19 of the Act confer immunity upon trade unions on strike from civil liability.

Article 8 (1) (d)  provides that the States Parties to the Covenant shall undertake to ensure: “the right to strike, provided that it is exercised in conformity with the laws of the particular country. Article 2 (1)  of the Covenant provides: “Each State Party to the present Covenant undertakes to take steps, … with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”.

India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other appropriate means.

The blanket ban on the right to strike also transgresses the limits of the following Conventions of the International Labour Organization (ILO):

•Freedom of Association and Protection of the Right to Organize .

•The Right to Organize and Collective Bargaining .

•Collective Bargaining Convention, 1981 .

•Labour Relations (Public Service) Convention, 1978 .

Article 9  of the Convention provides: “Public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions”.

By virtue of being a member of the ILO, India is under obligation to satisfy at least the fundamental rights promoted by the Conventions, irrespective of it having ratified them or not. With the Rangarajan verdict, the Apex court has refused to adhere to the fundamental tenets of the ILO.

Further, the right to strike being well recognized under the scheme of central legislation i.e. the Industrial Disputes Act, and forming an inalienable part and parcel of the same, could not be taken away by way of enacting legislation by the state assembly or by merely issuing a notification or any other executive action which necessarily involves but only a subordinate, delegated or residue jurisdiction and capacity, inferior to that of the central legislature in any case, and as such is incapable of overreaching the rights created or recognized by the central legislature.

 The provisions of the enactment passed by the state legislature – TESMA, the service rules, specifically Rule 22 of the Conduct Rules and the Ordinance of 2003, imposing a ban on the right to strike, all belong to such category of inferior legislation and thus as far as they subvert or even restrict the sweep of the ‘right to strike’ available to the employees under the central legislation Industrial Disputes Act, are all illegal, ultra virus to the legislature and should have been struck down on this ground alone.

In a state of conflict between ‘recognition’ of such rights by central legislation and their ‘abrogation’ by the state legislation through TESMA or rules framed under the residue power of the executive like the conduct rules, the provisions of the central legislation would doubtlessly hold the ground. As such, the rights, benefits, protection accruing under the Industrial Disputes Act including the right to strike are doubtlessly available to the government employees, and their status of being under the employment of the government neither has any relevance nor makes a difference for the purpose of availability of such right.