September 30, 2022

Right to Strike: An Analysis

‘The worker of the world, UNITE’

Karl Marx

The whole philosophy behind the concept of strike completely include in this slogan of Karl Marx, when he called to all workers of the world to unite against the feudalistic mentality of employers, and after a long course of the period, the right to strike became the constitutional or legal right in almost all constitution and legal system of the world.

Meaning of Strike

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. This is refusal, under a common-understanding of any number of persons who are or have been so employed to continue to work or accept employment.

Legacy of Indian Freedom Fight

In the freedom struggle, the lesson regarding the effect of protest on the functioning of the political system had been learned. A public protest involving a threat to public order and satyagraha came to be recognized as a not improper response to alleged failures of government and as a useful tool for compelling official attention and constraining decision making.

Strike Right under Constitution

Article 19 of the Indian Constitution, the rainbow of the fundamental rights, originally guaranteed seven freedom (right to property omitted by 44th amendment). The unique feature of the freedoms guaranteed by Article 19 is that they are not absolute terms and clause (2) to (6) provide for reasonable restrictions imposed on these freedoms. The restriction may procedural and 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-

  1. Freedom of speech [19 (a)]
  2. Freedom of assembly [19 (b)]
  3. Freedom of movement [19 (d)]

The right to strike in the Indian Constitution set up is not absolute right. As every other fundamental rights is subject to reasonable restrictions, the same is also the case to form trade unions to give a call to go on strike and the state can impose reasonable restriction. In All India Bank Employees Association v. National Industrial Tribunal and others[1]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.

 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 then the strike will be illegal.

Right to strike as a statutory right

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. Nowadays a right to strike is recognized only to limit laid down by the law itself, as a legitimate weapon of trade unions. Under the Industrial Dispute Act, 1947, the ground and condition are laid down for the legal strike. Strike 2(q) of said Act defines the term ‘Strike’, and provides that whenever employees want to go on strike they have to follow the procedure provided by the Act otherwise there strike deemed to be an illegal strike.

Section 22(1) of Industrial Dispute Act, 1947 put certain prohibition on the right to strike. It is to be noted that provisions do not prohibit the workmen from going on strike but require them to fulfill the condition before going on strike. Further these provision apply to a public utility service only.

International Treatise

Article 8 (1) (d) of the International Covenant of Economic, Social and Cultural Rights (ICESCR)[2]provides that the state 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.”

India is a signatory to the covenant and is therefore bound under these articles. Thus the aforesaid domestic laws are the by-products of the International obligation and cannot be read casually as had been done in Rangrajan Case[3].

The blanket ban on the right to strike also transgresses the limits of the convention of the International Labour Organization (ILO)[4]. By virtue of being a member of the ILO, India is under obligation to satisfy at least the fundamental rights promoted by the convention, irrespective of its having ratified or not.

Legal Interpretation of the right to strike

Demonstration and picketing are visible manifestation of one’s ideas and in effect a form of speech and expression. However in order to be protected under Article 19 (1) (a), the demonstration and picketing must not be violent and disorderly. Picketing, which does not go beyond the limit of persuasion or inducement and which does not restrain others from doing what they pleasure would be saved under Article 19 (1) (a).

The fact that the demonstration in which a person is alleged to have participated actively, were organized in connection with the strike itself, similarly, the charge that took active part in the preparations made for the strike also does not mean, in fact or in law, that he participated in the strike.

“The Right to go on strike” has not been held to be included within the scope and ambit of “the freedom of speech and expression.”[5]

No Right to Government Employees

In the case of T.K. Rangrajan v. Government of Tamilnadu[6],SC held that there is no right to strike for government employees. The case T.K. Rangrajan v. Government of Tamil Naduarose from a mass strike organized by Tamil Nadu Government employees, who were agitating against the denial of certain benefits to them. In response, the TN Government, empowered by the Tamil Nadu Essential service maintenance Act, 2003 (TESMA), dismissed or suspended all striking employees, and ordered the arrest of many. This order and the TESMA challenged before the High court, and a division bench found for the state, ordering the employees to exhaust statutory remedies before preferring a writ.

The Supreme Court heard the matter on appeal, and the bench, comprising Justice shah and Lakshman, concluded that government employees have no fundamental, statutory, moral or equitable right to strike. The division bench ruled- “Apart from the statutory rights, the government employees cannot claim that they can hold society to ransom by going to strike.”

Taking a though stand on government employees using strike as a weapon to get their demands fulfilled, the Apex court said that strike as a weapon had been mostly misused, resulting in chaos and total maladministration. Such an action by the government employees, the court said, affected society as a whole and brought the administration to a grinding halt. If they presumed that injustice had been done to them, there was a machinery provided in a welfare state for the redressal of their grievances.

Expressing the concern over the declining work culture, the Apex Court observed:

“For redressing their grievances, instead of going on strike, if employees do some more work honestly, diligently and efficiently, such gesture would not only be appreciated by authority but also by people at large.[7] 

Right to strike is not a fundamental right

In the case of kameshwar Prasad v. State of Bihar13, where rule 4A of the Bihar Government Servant’s Conduct Rules, 1956 , which prohibits ‘any form of demonstration’ for the redress of the grievances of Government servants was contended to be violative of the fundamental rights guaranteed to them under Art. 19 (1) (a) and (b) of the constitution of India and should, therefore, be struck down by the practitioners. But the Court observed that “the rule is so far as it prohibits a strike cannot be struck down since there is no fundamental right to resort to a strike.[8]

Forming labour unions or Association is a Fundamental rights but strike is not

In All India Bank Employees Association v. National Industrial Tribunal, the court specifically held that even very liberal interpretation of sub clause (c) of clause (f) Article 19 cannot lead to conclusion that trade unions have a guaranteed right to an effective collective bargaining or strike. Thus, there is a guaranteed fundamental right to form association or Labour unions but there is no fundamental right to go on strike.

Doctor have no right to deny medical treatment on ground of strike

In the case of Motilal Yadav v. State of U.P[9] the court held that doctors have no right to deny medical treatment/ administration of medicine, care to ailing people on the ground that they are on a strike or any of its different terminology like protest, abstention etc. having effect of denying medical treatment/ administration of medicine, care to ailing people.

Lawyers have no right to go on strike

As regards the lawyers a Constitution Bench of Apex Court in Harish Uppal v. Union of India[10]

Categorically pronounced that the lawyers had no right to go on a strike or give a call for boycott, not even a taken strike.

The Court further said:

“The lawyers, who are the officers of court, cannot use strike as a weapon against the court or against the client.”

An advocate stands in a locoparentis towards the litigants. In relation to them, he occupies a position of trust.[11]Law is not a ‘trade’and ‘briefs’ of the litigants not merchandise.[12]

The court may, however, ignore, protest, abstention from work by lawyers for one day in rarest of rare cases: where the dignity, integrity and independency of the Bar and/or the Bench are at stake.Standing in clear terms that any interference from anybody or authority in the daily administration of justice cannot tolerated and that the court can and will take disciplinary action against an advocate for non-appearances by reason of a call for strike or boycott. It has been suggested that the Advocates can get redressal of their grievances by  passing resolutions, making representations, and taking out silent processions, holding dharnas or to resort to relay fast, having discussions by giving T.V. interviews and press statement.

No Right to call or Enforce Bandh, Hartals, Blockade

The expression ‘hartals, Bandh, Blockades (chakkajam) is of Indian origin. These are the types of strike, a way of cessation the work for their demands. ‘Bandh’ is general strike, but these ways of protest can be valid and legal until it not affect the fundamental rights of citizens.

In Communist Party of India (M) v. Bharat kumars[13] and others, a three judge Bench of the Supreme Court, upholding the full bench judgment of the kerala High Court held that calling for and holding of ‘Bundh’ by political party or organization is unconstitutional and is hence illegal as it violates the fundamental rights of the citizens guaranteed by Article 19 (1) (a) and 21 of the constitution in addition to causing national loss.

The judgement of the Kerala high court was that- No political party has right to call for Bundh on the ground that it is part of its fundamental right of freedom of speech and expression under Article 19 (1) (a). Nothing stands in this way of political parties calling for a general strike or hartal unaccompanied by express or implied threat of violence to enforce it. And after that Supreme Court also upheld the kerala high Court’s decision.

Critical Analysis of the Supreme Court’s Decision in the case of strike

In the case of General Strike (Bandh)-

The Court has ample jurisdiction to grant declatory relief to the petitions in this case of the petitioner which is based on the violation of their fundamental rights. The Court cannot also ignore the destruction of public and private property when a bundh is enforced by political parties and other organization. The state cannot shirk its responsibility of taking steps to recouping the loss from the sponsors and organizing such Bundh.[14]

The High Court’s decision is highly appreciated, this is based on practical situation, and no one can be compelled to strike without one’s wish.

In the case of worker’s strike

In T.K. Rangrajan’s case, the court decided that the government employees have no, moral and equitable right to strike. This decision evoked outraged in many quarter, and was also criticized by the Attorney general. In Rangrajan case, the court consider the previous case as, All Indian Bank Employees Association, Kameshwar Prasadwhich are not the case to consider about the strike at all, the case of strike was never urged before the court at all. Subsequent cases like Harish Uppal casehave merely cited the above two cases as authority for the proposition that there is no right to strike. Therefore it is cleared that these cases cannot be cited to consider that right to strike is a fundamental right, because each cases, without analyzing ‘strike’ as part of the rights to free expression and assembly rather than to analyze in Article 19 (1) (c) a mistake repeated by the court in T.K Rangrajan. The only other case cited in the judgement, Communist party of India’s case, actually distinguished between coerced bundhs (which are illegal) and peaceful strikes (which are not), and therefore supported the petitioner case, not the government. The Rangrajan case simply ignore statutory provisions in the Industrial Dispute Act 1926, and an equal number of case laws laid down by larger benches that have recognized the right to strike. It also fails to consider International Covenants that pave way for this right as a basic tenet of International labor standards. In Harish Uppal Case, it was states that advocates do not have a right as “Strike was a weapon used for getting justice by downtrodden, poor persons or industrial employees who were not having any other method of redressing their grievances.”

As this, this judgment especially recognizes the regard to industrial workers.

Conclusion

In is indisputable fact, that working class achieved the right to strike after a long struggle against the capitalist, this is their moral, equitable right. But when Indian Court says that government employees have no ‘legal, moral and equitable’ right to strike. When general public suffers loss, here authorities comes to negotiating table mainly under political pressure, because it is not easy to make ready to employers or authorities for their demands.

 This is why, employers goes on strike, and when a court ban this and said that it is immoral, then the court evolves a new industrial jurisprudence, different from common sense. Employees are also the people from the society, they also chooses the government, and if government do not agree on their demands, they have no other option beside to go on strikes. However it is not right to go on strike for every demands, because everything cannot sort out by strike.


[1] (1962) 3 SCR 269

[2] 16 Dec 1966

[3] AIR 2003 SC 3032

[4] 29 October, 1919 

[5] All India National Bank employees v. National Industrial tribunal, AIR 1962 SC 171

[6] AIR 2003 SC 3032

[7] T.K. Rangrajan v. Government of Tamil Nadu, AIR 2003 SC 3032

[8] Kameshwar Prasad v. State of Bihar AIR 1962 SC 171

[9] AIR 1951 All 257

[10] AIR 2003 SC 739

[11] Pandurang D. Khandekar v. Bar Council of Maharashtra AIR 1984 SC 110

[12] Raman Service Pvt. Ltd v. Subash Kapoor 2001 SC 207

[13] AIR 1998 SC 184

[14] CPI (M) V. Bharat kumar AIR 1998 SC 184

Books Reference

  1. S.C Dube, India since Independence, Vikas Publication house Pvt. Ltd., New delhi, 1977
  2. Narendra kumar, Constitution law of India, Allahabad law agency, Faridabad (Haryana), 2018
  3. J.N Pandey, Constitution law of India, Central Law Agency, Allahabad, 2019
Author: Arshi Hayat Gangohi, ll.b 2nd year, Department of Laws, Panjab University Chandigarh
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