This article is written by Aarif Shah.

Introduction

“Workers of the world unite; you have nothing to lose but your chains.”

-Karl Marx

Article 19 (1)(c) which reads as:

• To form associations or unions [cooperative societies] and to strike peacefully.

While as Article 19(4) reads as:

• Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause and the strike undertaken under said sub-clause shall be reasonable and brought in notice to the employer.

The Constitution of India has very well taken care of the rights of its citizens. Using this Mother Statute, various legislations are passed to protect the socio-economic, religious, political and cultural values of the society. But all of these rights come with their duties. The more powerful the right is, more will be the underlying duties. Part III of the Indian Constitution embodies these powerful privileges called as Fundamental Rights. One of these fundamental rights as enshrined in Article 19(1)(c) states that citizens of India have the right to freedom to form associations or unions [cooperative societies]. But in a large democratic society like India with a huge number of economic transactions and well developed industrial sector, it is very much required to bring about policies for the welfare of people engaged as mentioned in Article 38 of the Constitution. When we talk about the corporate sector including private and public companies, industries etc., the people working there should be given the priority and their reasonable demands should be satisfied such as issues related to minimum wages, working hours, health and hygiene, etc. Article 19(1)(c) may be able to provide them the right to form association and trade unions, but it is not enough. Sometimes, the circumstances require the workers to go one step beyond and start strike by stopping the work to push the employer to get the demands fulfilled.

The word ‘strike’ means a cessation of work or a concerted refusal to work based on common understating by the employees of any industry to get their demands fulfilled. Today, almost all the nations whether socialist, democratic or capitalistic, provide right to strike to its workers. But it should be used as a weapon of last resort. If misused, it can undermine the industrial functioning and ultimate loss to the economy of the country.

Right to Strike is not a fundamental right in India. It was only after the enactment of Industrial Disputes Act in 1947 that the right to strike was recognized in India as a statutory right. Section 22(1)(a) of the Act states that employees can go for the strike in case of breach of contract provided a prior notice is given to the employer within 6 weeks of such strike. It also includes government employees. The said right is not freely given in the statute. There are certain conditions, which only if satisfied can the workers go on strike. The right is an important weapon in the hands of workers for seeking redressal and safeguarding their liberties. There was a general presumption that employer is always at dominating position and there may the chance of him imposing cruel terms and condition of service on the employees. So, the need was of a tool for collective bargaining. As the Supreme Court has said that good relations between employer and employee and collective bargaining are the essential objectives of Industrial Disputes Act, 1947.

Article 19(1)(c) gives the right to form association and trade unions. If there is no right to strike, the right to form associations will be hollow. Then why such right is given at first place. The Indian judiciary through the series of judicial decisions emphasized on the legality or illegality of strike, but didn’t impose a ban on the right to strike. The Apex Court held that the membership of trade union if sufficient is able to bargain. But such bargaining power is highly reduced when no right to strike is given to the workers. 

International Labour Organization mandates that a right to organize and collective bargaining shall be given to the employees. Although, there are no express provisions on the right to strike. But ILO Committee of experts has highly regarded this right as indispensable and an integral part of the right to organize. India has implemented and promoted almost all the principles embodied in these two conventions except the right to strike. Universal Declaration of Human Rights, 1948 provides for the protection of workers’ interests. They have the right to form trade unions and associations. And the right to strike is a sequel of their constitutional privilege to form association. International Covenant of Economic, Social and Cultural Rights, 1966 also provides for the recognition of the right to strike with the condition that it is in conformity with the law of the member states.

The English judiciary has been very amenable towards the right to strike. They have recognized the said right as justiciable one. Lord Denning held that strike is the last remedy and that it has emerged as an inherent right of the worker which forms the essence of collective bargaining.

Even in the US, the National Labor Relations Act, 1935 provides the right to strike to bargain for better wages and working conditions, health and hygiene etc. However, no such recognition has been given to the aforesaid right in India. It is just a statutory right.

Right to Strike

The word ‘strike’ comes from ‘strican to go’ which means to quit, hit or impress in case of a trade dispute. It is the most effective and final resort in the hands of workers to secure economic justice. This meaning of strike has undergone various changes across the world and most of the nations have given the right to strike to the workers. The right to strike is a statutory right in India guaranteed under Section 22(1)(a) of the Industrial Disputes Act, 1957. The section provides that in case of breach of contract in public utility service, the workers can go for the strike with a prior notice to be given to the employer within 6 weeks of such strike. Right to strike is a very important tool in the hands of workers. It helps the workers to negotiate for the better working environment and proper wages etc. Right to strike is the very essence of collective bargaining.

Section 22(1)(a) provides various conditions to be satisfied before going for such strike. The Supreme Court has said that workers have the right to go on peaceful strike. But the demands they claim should be legitimate. Justice Krishna Iyer and PN Bhagwati in a case held that strike can be illegal or legal one and even the illegal strike can sometimes be justified. It is the principle of social justice and well recognized by industrial jurisprudence. It is available to the employees as their legal right also and they can go for the peaceful strike to negotiate for their demands with the employer. It is Collective bargaining and the right to strike go hand in hand. Industrial Disputes Act has differentiated between legal and illegal strikes. So, it can be said that upon compliance of all requirements as mentioned in §22 and 23, a strike can be legal and justified one.

Although, it has been given importance by the foreign nations and international laws, but India still hasn’t provided fundamental status to this right. The judiciary has failed to consider the dynamic structure and evolution of right to strike.

Indian Judiciary on Right to Strike

Indian judiciary has recognized the right to strike both as a legal and statutory right. Strike in an integral part of wage bargaining in the industrial economy. Some limited right to strike was given by the Trade Union Act, 1926. And it was finally made a statutory right under §22 of the Industrial Disputes Act, 1947. Article 19(10)(c) of the Constitution gives freedom to the citizens to form associations and trade unions. But right to strike in an ancillary right. If not given, the right to form associations will be hollow and illusory. While recognizing the objectives of IDA of 1947, Apex Court said that strike is a weapon available to workers to force their employer to fulfill workers’ demands. It is a legitimate and indispensable weapon available to the employees and can be used in case of urgency. It will be unreasonable to make the workers to wait for notice in that case. In the case of Crompton Greaves Ltd. v Its Workmen, the Supreme Court held that strike is a legal weapon available to workers. Whether the strike is justified or not will depend upon the facts and circumstances of each case. Court has also said that sometimes even an illegal strike can be justified. In the case of Indian Express Newspapers Bombay Pvt. Ltd. v TM Nagarajan, the court held that peaceful strikes can be conducted by the workers to force the employer to fulfill their demands. Justice Ahmadi in the case of B.R. Singh v Union of India, held that it is very essential for the trade union to have sufficient membership which can be secured through agitation methods such as strike, go slow etc. He further held that strike is an inherent right which protects the liberty of workers. It a recent decision of Supreme Court on this matter, it was held that the right to strike is a legal right and not fundamental right. It went further on to hold that if such right is made fundamental in nature, it will undermine the economic structure of the country.

International Law on Right to Strike

International Labour Organization mandates that a right to organize and collective bargaining shall be given to the employees. Although, there are no express provisions on the right to strike. But ILO Committee of experts has regarded this right indispensable and an integral part of the right to organize. India has implemented and promoted almost all the principles embodied in these two conventions except the right to strike. The preamble of ILO has emphasized on the right to strike as an essence of collective bargaining.

Universal Declaration of Human Rights, 1948 provides for the protection of workers’ interests. They have the right to form trade unions and associations. And the right to strike is a sequel of their constitutional privilege to form association. International Covenant of Economic, Social and Cultural Rights, 1966 also provides for the recognition of the right to strike with the condition that it is in conformity with the law of the member states.

Even in the US, the National Labor Relations Act, 1935 provides the right to strike to bargain for better wages and working conditions, health and hygiene etc. The US Supreme Court has even read this right under the 14th Amendment of the US Constitution. The English judiciary has been very amenable towards the right to strike. They have recognized the said right as justiciable one. Lord Denning held that strike is the last remedy and that it has emerged as an inherent right of the worker which forms the essence of collective bargaining. Article 253 of the Constitution gives powers to the Parliament to ratify the international conventions, treaties, etc. India has even ratified an obligation to accept international law regarding workers but it has still failed to recognize the right to strike as a fundamental right in India.

Strike as a Fundamental Right

No fundamental right status has been given to the right to strike. It is still a legal and statutory right. Article 51(c) of the Indian Constitution says that the state shall have to respect for international law and treaties and Article 253 of the Constitution says that such international laws and treaties should be ratified by the Indian parliament. All the international laws and conventions such as the International Labour Organization and Universal Declaration of Human Rights, 1948 has adopted in its very basic structure the right to strike. Although it is the essence of collective bargaining which all the international conventions regarding workers talk about but no heed has been paid to these conventions by India. Even the judiciary has failed to consider the dynamic transformation of right to strike. There is a dire need of right to strike to be given as a fundamental right. Because the right to form associations and trade unions will have no effect if right to strike is not given as a fundamental right. Such rights will become hollow and illusory. Right to strike is very important in the modern economic transactions. It is the ultimate weapon in the hands of the workers to get their demands satisfied from the employer.

Giving fundamental States to the right to strike will not only improve the economic structure of the country but will also improve the economic well-being of workers, proper wages, health and hygiene etc. In the modern civilised world, right to strike should be inalienable and inherent right to be given to the workers.

The argument that the strike can lead to economic laws by virtue of dysfunctioning of the industries can be negated by the fact that if the right to strike is not given as a fundamental right, it will anyway disrupt the economic structure. The membership of the trade unions and associations will decrease resulting in economic losses to industries and eventually to the country.

Recommendations

In the case of Apparel Export Promotion Council vs A.K. Chopra, Supreme Court held that international covenants such as ICESCR etc are like an obligation on India to be fulfilled. It is the duty of the courts to interpret and incorporate the principles of these covenants in their judgements. The international laws clearly ask for the strike as a fundamental right of the workers. ILO, UDHR and ICESCR have in its basic structure adopted this right. India except right to strike, has adopted almost all the principles of these conventions. The need is to look at the industrial adjudication in India. In order to increase the membership of trade unions and associations formed in these industries, the collective bargaining forms a vital part which even judiciary has recognized. But such collective bargaining is only possible if the right to strike is made as a fundamental right under Article 19(1)(c). The restriction can also be attached to such right such as the strike to be peaceful and legal etc.

It is a very important weapon for the employees which will help them to negotiate for their demands with employer. It will also reduce the employer-employee domination in the industries. There are still a large number of industries in India especially in the rural areas which don’t provide even minimum wages to the workers. The working environment is also in dismal state and exploitation is the ultimate result. In these circumstances, strike becomes the ultimate remedy to these workers.

The right to strike also has some social aspects. The workers come from families. They have to earn for better livelihood. If not adequate wages are provided to them, it will harm their livelihood. If there is no concern for their health and hygiene, it will impact their social needs. Also mentioned in Part IV of the Constitution, it is the duty of the State to provide better working environment to workers. It can be concluded that in a country like India, strike should be made the fundamental right so that its industrial and economic sector flourish.

Conclusion

In a large democratic society like India with a huge number of economic transactions and well developed industrial sector, it is very much required to bring about policies for the welfare of people engaged as mentioned in Article 38 of the Constitution. Article 19(1)(c) may be able to provide them the right to form association and trade unions, but it is not enough. Sometimes, the circumstances require the workers to go one step beyond and start strike by stopping the work to push the employer to get the demands fulfilled. Right to strike is a statutory right in India guaranteed by Section 22 of the Industrial Disputes Act, 1947. There are certain conditions, which only if satisfied can the workers go on to strike. The right is an important weapon in the hands of workers for seeking redressal and safeguarding their liberties. The international laws mandates strike to be given as a fundamental right to workers. ILO, UDHR and ICESCR have in its basic structure adopted this right. India except right to strike, has adopted almost all the principles of these conventions. The need is to look at the industrial adjudication in India. Collective bargaining is the essence of trade unions and associations but it is only possible if right to strike is given the fundamental right status. Considering the dismal conditions of industries, employer domination, minimum wage issues and social aspects of the strike, it casts a legal and constitutional obligation on the State to made strike as a fundamental right under Article 19(1)(c).

Bibliography

Constitution and Other Laws

• Industrial Disputes Act, No. 14 of 1947 (India).
• Trade Union Act, 1926 (India).
• Constitution of India.
• Constitution of the United States.
• National Labor Relations Act, 1935 (US).

International Laws and Conventions

• International Labour Organization, 1919, Convention No. 87, 98.
• International Covenant of Economic, Social and Cultural Rights (ICESCR), 1966, Article 7, 8(1).
• Universal Declaration of Human Rights, 1948.

Indian and Foreign Cases

• Apparel Export Promotion Council vs A.K. Chopra AIR 1999 SC 625 (India).
• B.R. Singh & Ors. Etc. v Union of India 1989 SCR Supl. (1) 257, ¶9 (India).
• Workmen of Dimakuchi Tea Estate v Management of Dimakuchi Tea Estate AIR 1958 SC 353 21 (India).
• Morgan v Rice 3 All E.R. 1008 (H.L.) (UK).
• Gujarat Steel Tubes Ltd. v Gujarat Steel Tubes Majdoor AIR 1980 SC 1896 (India).\
• All India Bank Employees Association v National Industrial Tribunal and others AIR 1962 SC 171 (India).
• Management of Kairbetta Estate, Kotagiri v Rajamanickan AIR 1960 SC 893 (India).
• Management of Chandramalai Estate, Ernakulam v Its Workmen & Anr. AIR 1960 SC 902 (India).
• Crompton Greeves Ltd. v Its Workmen AIR 1978 SC 1489 (India).
• Indian Express Newspapers Bombay Pvt. Ltd. v TM Nagarajan 1987 (15) DRJ 212 (India).
• TK Rangarajan v State of Tamil Nadu 2003(6) SCALE 84 (India).
• Kameshwar Prasad v. Territory of Bihar AIR 1962 SC 1166 (India).

Books

• Dr. VG Goswami, Law of Industrial Relations in India, 2 CENTRAL LAW AGENCY 212 (9th Ed. 2011).

Journal and Web Articles

• A.G. Noorani, A Legitimate Right, 20 FRONTLINE 3 (2003).
• Alex Gourevitch, The Right to Strike: A Radical View, 1 AMERICAN POLITICAL SCIENCE REVIEW 5 (2018).
• Blake Emerson, Nature and Scope of Right to Strike, 49 THE YALE LAW JOURNAL 521 (1940).
• Marc. J Bloch, Public Employees’ Right to Strike, 69 CLEVELAND STATE LAW REVIEW 394 (1969).
• Rajesh Tyagi, The Supreme Court Pronouncement and the Right to Strike, REVOLUTIONARYDEMOCRACY (Oct. 23, 2019 16:33), https://www.revolutionarydemocracy.org/rdv9n2/strike.htm.
• Vijay M. Gawas, Right to Strike under Industrial Disputes Act, 1947 and other laws, 4 INTERNATIONAL JOURNAL OF LAW 28 (2018).
• Seth Kupferberg, Political Strikes, Labor Law and Democratic Rights, 71 VIRGINIA LAW REVIEW 686 (1985).
• Mallikarjun Sharma, Right to Strike, 46 INDIAN LAW INSTT. 523 (2004).

Reports

• Journal of National Human Rights Commission, India, 11 Vol. 7, p. (2008).

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.