Right to strike- A Necessary Evil

Introduction

Strike is a means of expressing dissatisfaction or grievances by the refusal to continue to work by the employees. Strikes therefore can be a form of protest against the administration by the workers for the acceptance of certain demands.

Constitutional Interpretation

The right to strike is a derivation of right to freedom guaranteed by article 19 of the Indian Constitution .Article 19 talks about freedom of speech and expression, right to assemble peacefully, to form associations and unions. Therefore a strike is an expression of grievance, it is a form of assembly that the workers form, also it is carried out by unions or associations. A democracy would mean nothing if the basis right of expression is curtailed, when people cannot assemble peaceful. However, article 19 is not absolute in nature; it is conditioned with reasonable restrictions that the court must decide.

Strike is a significant tool for the workers for raising their voice against an unjust decision or policy by the employer. However, since there have been instances for the wrongful use of rights, this right to strike is also regulated, so that it cannot become a tool for workers to make the employers agree to any unjust demands.

Statutory Interpretation

The statutory provision that governs such disputes in India is the Indian Disputes Act, 1947. It defines strike as “cessation 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 to accept employment.”

Section 23 of this act , talks about General Prohibitions of strike and section 24 talks about Illegal strikes. When there is a section discussing illegal strikes, it means that it differentiates between legal and illegal strikes. Therefore this act, asserts the recognition of right to strike.

However this doesn’t says that right to strike is a fundamental right even though it is flowing from some fundamental right.

In the case of Kairbitta Estate v. Rajmanickam , it was held that “In the struggle between capital and labour the weapon of strike is available to labour and is often used by it, so is the weapon of lock- out available to the employer and can be used by him[1].”

Another case of Gujarat Steel Tubes v. Its Mazdoor Sabha”[2] The Court observed that collective bargaining for securing improvement on matters like basic pay, dearness allowance, bonus, provident fund and gratuity leave and holidays was the primary object of a trade union and when demands like these were put forward and thereafter a strike was resorted to in an attempt to induce the company to agree to the demands or at least to open negotiations the strike must prima facie be considered justified.”

At International Platform

International Labour organization (ILO) is a United Nations agency to promote better working conditions for the labours and workers. The Conventions of Collective Bargaining and the Freedom to Form Associations are intrinsic to the ILO. India is a permanent founding member of International Labour Organization (ILO) and by the virtue of being a founding member should at least satisfy the fundamental conventions.

In the United States , the National Labor Relations Act, 1935 was specifically passed to protect the rights of employees and employers, to encourage collective bargaining, and it recognizes the right to strike as a legal right. It not only guarantees them the right to strike but also puts certain limitations on the same.

Article 8 (1)(d) of The International Covenant of Economic, Social and Cultural Rights (ICESCR) states that the state parties to the covenant shall ensure the right to strike provided they don’t violate the existing laws in the country. India is a signatory to this Covenant, therefore should satisfy the obligations.

What does the judiciary concluded about this right?

The Supreme Court in the following cases cleared that right to strike is in no form a fundamental right.

In the case of T.K Rangarajan v. State of Tamil Nadu, the court held that, no such right exists with the government employees and there is no fundamental right to go on strike.

In Ex-Capt. Harish Uppal v. Union of India and Another ,the court held that lawyers have no right to either strike or even call for a strike.

Conclusion

We can conclude that right to strike is not a fundamental right recognized by the constitution neither the judiciary upheld it as a legal right but we have seen that in today’s capitalist society, Strike is a powerful weapon if used properly, to safeguard the interest of the worker class. It is necessary to prevent the unfair exploitation of the labours and the employees who are sometimes exploited by the employers. The judiciary has concluded in the “Rangarajan case” that it is neither a fundamental nor a legal right but has failed to look at the precedents and the statutory provisions about the same. Without this right the worker would be left nothing but to surrender to the demands and wishes of the employers. However it has been said correctly by the Supreme Court that this right should be exercised as a last resort and not misused.

The article is written by Iqra Khan, IInd Yr. Student of B.A.LL.B. (Hons) at Jamia Millia Islamia.

1. The Industrial Disputes Act, 1947.
2. The Constitution of India, 1950
3. All India Bank Employees' Association v. National Industrial Tribunal and others, 1962(3) SCR 269.
4. Ex-Capt. Harish Uppal v. Union of India and Another, 2003(2) SCC 45: 2003(1) SCT 382 (SC).
5. Gujarat Steel Tubes v. It‟s Mazdoor Sabha, (1990) Lab IC 389 SC
6. T K Rangarajan v. State of Tamilnadu, AIR 2003 SC 3032.
7. National Labor Relations Act, 1935
8. International Covenant of Economic, Social and Cultural Rights (ICESCR)
9. Kairbitta Estate v. Rajmanickam,[1960] II L.L.J. 275 (S.C.)
10. Is there a right to strike ?, Available at http://www.indiatogether.org/combatlaw/vol2/issue6/strike.htm , last seen at 13 April 2020.

Warrier, Vishnu S, Right to Strike and Article 19(1) of the Indian Constitution (August 24, 2010). Available at SSRN: https://ssrn.com/abstract=1664452 or http://dx.doi.org/10.2139/ssrn.1664452

1. [1960] II L.L.J. 275 (S.C.)
2. AIR 1980 SC 1896