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Right to strike has been an intricate aspect of Labor laws. “Its origin can be traced back to the epoch of socialism. It was during this time that government adopted the policy of protectionism towards industrial workers with concomitant formation of trade unions. These unions initiated the practice of offering collective resistance to exploitation by the employers. The balance of power however, continued to lean heavily in favor of the employers rendering the instrument of collective bargaining inefficacious. Gradually arose the situation where the reluctance of parties to share full information became manifest in the form of trust deficit. Strike, under these circumstances emerged as a visible manifestation of employer-employee conflicts”  . Since then, it has been the most contentious issue creating friction between employer and employees.
International law saw a swift acquiescence of labour rights. The International Labour Organization was established in 1919. The Recommendations and Conventions that ILO adopts form a part of international labour law. Several Conventions have been passed by ILO concerning freedom of association and collective bargaining. All the members are obliged to adhere to the provisions of such Conventions by virtue of their membership.
Article 8 (1) (d) of the International Covenant of Economic, Social and Cultural Rights (hereafter ICESCR) recognizes the right to strike. India ratified this treaty in 1979, thereby undertaking an obligation to respect its provisions and provide a ready mechanism for its enforcement.
The recognition of right to strike in India however, was a gradual process. The Courts started inosculating right to strike and collective bargaining. They took the view that right to strike is central to collective bargaining. It inherently belongs to every worker. They distinguished between peaceful and violent strikes and opined that peaceful strikes are a legitimate exercise of one’s freedom of association and that collective bargaining is unsustainable without a concomitant right to strike. It would however, be reprehensible if violent, thereby impinging upon the rights of others. Strikes are demonstrations opined the Court and that right to strike is a legal right though not elevated to the status of a fundamental right. It is implied by industrial legislation.
T.K. Rangarajan vs. Government of Tamil Nadu  came as a serious blunder in the judicial law making. The Court observed that neither is there any fundamental nor a legal right to go on a strike. At the same time, there is no equitable or moral justification in going on strikes. The reasoning, it advanced rested on the premise that strikes adversely affect the society. Workers should resort to the machinery provided under various statutory mechanisms and that a strike cannot be a substitute to honest, diligent and efficient work. The Court affirmed Kameshwar Prasad and Others vs. State of Bihar and Anr.  and Radhey Shyam Sharma vs. Post Master General Central Circle Nagpur  in observing that there is no fundamental right in workers to go on strikes. All India Bank Employees Association vs. National Industrial Tribunal and Ors.  was an affirmation of the earlier view taken by the Court in above two cases. The Court, in this case further stipulated that even a very wide interpretation of Article 19 cannot guarantee a right to strike to trade unions. It further placed reliance on Ex-Capt. Harish Uppal v. Union of India and Anr  to opine that strike is unjustifiable under all circumstances whether the cause be just or unjust. It also seemed convinced with the view taken by Judges in Communist Party of India (M) vs. Bharat Kumar and Others  , and maintained that the fundamental rights of a section of people cannot override the exercise of similar claims by citizenry as a whole.
It is astonishing to note that the Court missed the then, prevailing law on the matter at the domestic as well as the international level. It is evident from the fact that none of the abovementioned cases found any mention in the judgment let alone the meticulous application thereof. So was the fate of International Labour law standards. This apart, the Court wrongly applied the ratio of Communist Party of India (M) vs. Bharat Kumar and Others  . In addition to the legal fallacies, the Judgment also lacks logical consistency.
This paper explores the niceties of the case. It is argued that the judgment is legally reprehensible and logically unsustainable. A brief account of the major claims, sought to be made is as follows: Firstly, the decision turns a blind eye to the provisions of Industrial Disputes Act, 1947 as regards the legality of strikes. Secondly, it breaches the judicial ethics of decision making by ignoring the law of precedence (misapplication of the cases relied on is also included). Thirdly, it fails to spot the international Labour law standards recognized by the ICESCR, Conventions of International Labour Organization namely (i) Convention no. 87- Convention concerning Freedom of Association and Protection of the Right to Organize. (ii) Convention 98 relating to Right to Organize and Collective Bargaining (ii) Convention no. 151-Labour Relations (Public Service) Convention, 1978 (iii) Convention no. 154- Collective Bargaining Convention, 1981. Fourthly, the judgment is not in line with Part III of Constitution of India. Fifthly, the Court is silent on the normative status of right to strike for the employees of government. Sixthly, the Court failed to distinguish between a ‘strike’ and a ‘hartal’. Lastly, that the Court’s denial of any moral or equitable justification to go on a strike was inapposite. The paper strictly analyses the law on right to strike in context of T.K. Rangarajan vs. Government of Tamil Nadu  and cases immediately preceding it. The body shall briefly develop the arguments on the aforementioned claims by critically analyzing the case. The paper shall end with a reasoned conclusion.
Discord with legislative Provisions
The restrictions placed on right to strike can be found in Sections 10(3), 10A (4A), 22 and 23 of the Industrial Disputes Act, 1947 (hereinafter referred to as Act). Sections 10(3) and 10A (4A) prevent the continuance of strikes. On the other hand, Sections 22 and 23 prohibit strikes at the very inception. These were lucidly discussed in B.R Singh vs. Union of India  .
According to Section 10(3)  appropriate government  may prohibit the continuance of any strike which is in connection with a dispute  referred to one of the fora created under the legislation. Section 10A (4A)  has a similar field of operation. It empowers the appropriate government to prohibit the continuance of any strike where an industrial dispute causing the strike is referred to arbitration and a consequent notification in that behalf is issued under Section 10(3A).
Section 22 provides that a person employed in a ‘public utility service’  shall not proceed on strike unless the requirements stipulated in clauses (a) to (d) of sub-section (1) thereof are complied with. Section 23 is in the nature of a general restriction on the declaration of strikes in breach of contract during the pendency of any of the proceedings stipulated in Clauses (a) to (c).
Section 24 declares illegal any strike commenced in contravention of Section 22 or 23 or continued in contravention of any order passed under Section 10(3) or 10A(4A). ‘It therefore, distinguishes a legal strike from an illegal one. Not all strikes are illegal would be the obvious implication of this provision. In other words, strikes which are not hit by any of the aforementioned provisions shall be legal. The Court in Rangarajan case however, failed to draw this distinction and declared every strike illegal’  .
Conflict with Precedence
The Court in Andhra State Road Transport Corporation Employees’ Union vs. the Andhra State Road Transport Corporation  affirmed the significance of right to strike and added that it is of core significance to the principle of collective bargaining and intrinsically belongs to each worker.
Similar was the stance of Court in Gujarat Steel Tubes Ltd. V. Gujarat Steel Tubes Majdoor Sabha  . Justice Bhagwati drew a nexus between right to strike and collective bargaining. He was of the view that right to strike is an important element of collective bargaining which belongs to the weaker section and empowers the same to resist the powerful. He observed that ‘The right to unionise, the right to strike as part of collective bargaining and, subject to the legality and humanity of the situation, the right of the weaker group, namely, labour, to pressure the stronger party, namely, capital, to negotiate and render justice, are processes recognized by industrial jurisprudence and supported by Social Justice……… The broad basis is that workers are weaker although they are the producers and their struggle to better their lot has the sanction of the rule of law. Part IV of the Constitution, read with Article 19 sows the seeds of this burgeoning jurisprudence’.
Indian Express Newspapers (Bombay) Pvt. Ltd. vs. T.M. Nagarajan  recognized the right to go on peaceful strikes. It was further stipulated that this right cannot be interfered with except on sufficient grounds and that workers have a legitimate right to make legitimate demands which, if not met, to go on legal but peaceful strike. The following excerpt from the Judgment explains this – ‘There is no dispute that the employees can go on a peaceful strike and there can be no interference, except on sufficient grounds…….. It is a legitimate right of the workers to make legitimate demands and, if not met, go on peaceful but legal strike. This right is so recognized under the Labour Laws. Trade Union has a right to pursue its trade union activities by peaceful methods’.
This followed B.R Singh vs. Union of India  where the Court, interestingly, equated strikes to demonstrations. It also went into the causes behind the formation of trade unions and maintained that unions while voicing individual grievances collectively bargain on behalf of its members and, that; strike is a form of demonstration. Banning all forms of demonstrations would disable the collective bargaining aspect of a union, admitted the Court. Workers have a right to demonstrate and, therefore, right to strike is indispensable. The following excerpt makes it amply clear- ‘The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade Unionists act as mouthpieces of labour. The strength of trade unions depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively with the managements. This bargaining power would be considerably reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of demonstration….The right to demonstrate and therefore the right to strike is an important weapon in the armory of workers. This right has been recognized by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognized as a mode of redress for resolving the grievance of workers’.
Right to strike is implied by the requisite industrial legilsation opined the Court in Bank of India v. T.S. Kelawala  . The following excerpt makes its evident- “The working class has indisputably earned the right to strike as an industrial action after a long struggle, so much so that the relevant industrial legislation recognizes it as their implied right”
So was the case in Kerala Vyapari Ekopana Samithi, Ottoppalam and Anr. vs. State of Kerala and Ors  ., where the Court observed that mere calling of a ‘hartal’ is not objectionable when understood in the strict sense of the expression and that a non violent ‘hartal’ is legitimate. This view was expressed in these words- ‘A hartal, therefore unaccompanied by violence or coercion can be understood to be a legitimate form of protest or signification of mourning in the wake of a tragedy, national or local. As we have noticed, the mere calling of a hartal or the advocating of it as understood in the strict sense, cannot be held to be objectionable’.
Fallacy of Precedence
The extremely pedantic approach taken by Court in Rangarajan case overlooks the fact that rare circumstances may necessitate exceptions. Ex-Capt. Harish Uppal v. Union of India and Anr.  explained this fact in these words “in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day”. It apparent that the Court never had any hostility in recognition of right to strike; it merely restricted its exercise to the rarest of rare situations. The Judges in Rangarajan case, however, seemed indifferent to this averment.
The Court heavily relied on Communist Party of India (M) vs. Bharat Kumar and Others  to take the view that ‘There cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental rights of an individual or a section of people notwithstanding the fact that this view was premised on a completely distinct set of facts than the ones it was faced with.
Missing International Labour law Standards
India has been a member of ILO since its inception in 1919 by virtue of which it is obliged to respect, promote and realize in good faith the obligations arising from the provisions provided for by its Conventions  .
Preamble to the Constitution of ILO recognises the principle of freedom of association to be a means of improving conditions of labour and of establishing peace  .
‘Convention no. 87 concerning Freedom of Association and Protection of the Right to Organize empowers the workers and employers to establish and join organizations of their choice, right to draw up their constitutions and rules to elect their representatives in full freedom. It also directs that law of any state should not be such as to impair or applied so as to impair the operation of guarantees, provided for by this Convention’  .
‘Convention no. 98 relating to Right to Organize and Collective Bargaining extends protection to workers against the practice of anti-union discrimination. It also ensures that the employers’ or workers’ organization do not interfere in each other’s affairs’  .
‘Labour Relations (Public Service) Convention, 1978 (Convention 151) reiterates the provisions of Convention 98. It ensures that public employees’ organizations are completely independent from public authorities and are adequately protected from any sort of interference by public authorities in their establishment and administration’  .
Article 8(1) (a) of ICESCR recognizes the right to form/join trade unions for the promotion of one’s social and economic interests. Sub clause (c) empowers the unions to function freely subject only to limitations necessary in the interest of national security or public order. Sub clause (d) explicitly recognizes the right to strike.
Convention 154 defines the expression ‘Collective Bargaining’ in the following words- ‘the term collective bargaining extends to all negotiations which take place between an employer, a group of employers or one or more employers’ organisations, on the one hand, and one or more workers’ organisations, on the other, for-(a) determining working conditions and terms of employment; and/or (b) regulating relations between employers and workers; and/or (c) regulating relations between employers or their organisations and a workers’ organisation or workers’ organisations’  .
Article 5 provides for the promotion of collective bargaining. It also provides that collective bargaining should be made available to all workers and employers in the branches of activity that this convention covers, progressively extended to all matters covered by subparagraphs (a), (b) and (c) of Article 2 of this Convention. Establishment of rules of procedure agreed between workers’ and employers should be encouraged and the absence of such rules should not hamper collective bargaining.
The Judgment quiet apparently failed to spot any of the above mentioned labour law standards.
Clash with Part III
Article 19  of Indian Constitution recognizes the right to form associations and assemble peacefully. However, if the exercise of this right causes violence and leads to the disruption of public order, reasonable restrictions may be imposed under Article 19(2). Restrictions are imposed in holding strikes on the often invoked ground ‘in the interest of public order’. The expression ‘in the interest of public order’ connotes a restriction imposed when an activity has tendency to disrupt the social order of the society  .
It is arguable that a peaceful strike has no tendency to disrupt the social order of any society. This implies that strike is not hit by any of the restrictions mentioned in Article 19 leading to the conclusion that right to strike is a fundamental right guaranteed under Article 19.
Article 23  at the same time, prevents forced labour. An employment which denies collective bargaining should amount to forced labour. The term ‘force’ in the expression ‘forced labour’ also includes the force which arises from compelling economic circumstances forcing the worker to accept exploitative economic conditions  . An employment that denies to its employees the right to strike amounts to forced labour as the employees will no longer be able to collectively bargain with their employers.
Silence on Normative Status of Right to Strike for Government Employees
According to the Court in Rangarajan case, workers should resort to various legal mechanisms provided by statutes instead of going on strikes and that honest and diligent work can effectively substitute a strike. But the Court was silent on the fate of a diligent and an honest employee who seeks redressal of his grievances. It is yet to be answered whether the employees of Government are debarred from claiming right to strike under any circumstance.
Failure to distinguish between ‘hartal’ and ‘strike’
The Court in Kerala Vyapari Ekopana Samithi, Ottoppalam and Anr. vs. State of Kerala and Ors  lucidly discussed the law on ‘hartals’. They discussed the dictionary meaning of the expression as ‘temporary cessation of commercial activity especially as a type of organized passive resistance; stoppage of all work, or business, as a sign of humiliation or protest adopted by Indian Nationals for political purposes’. The essential elements therefore, of a ‘hartal’ are that firstly there is a cessation of commercial activity. Secondly, such cessation is concerted.
It is notable that the elements constituting a ‘hartal’ also constitute a ‘strike’ within the meaning of Section 2(q) of Industrial Disputes Act. This implies that the stance taken by Court on the legality of ‘hartals’ will find application in determining the legality of strikes. It is disappointing however, to note that the Court in Rangarajan case did not go into this analysis.
Denial of any moral or equitable justification in going on strikes was inapposite
A strike is primarily justified by its moral worthiness. Courts always seemed convinced of the moral basis of a strike. The apparent reason behind acceptance of right to strike has been none other than its moral ramifications. Right to strike has been called a legitimate right of the workers supported by industrial jurisprudence.
‘Exploitation of employees in India is a common affair. Absence of recognized rights worsens the already pathetic state of workers leaving them with no choice but to resort to strikes. Denial of any moral basis in such a situation is certainly inapt.  ’ Strikes are, due to this reason even more significant in Indian scenario. Lack of viable alternatives necessitates it even further.
It can thus, be concluded that the Judgment is logically inconsistent as well as legally objectionable as it fails to capture the provisions of Industrial Disputes Act,1947, law of precedence, international labour law standards and Part III of the Indian Constitution. This apart, it leaves several issues unresolved. These are mainly the posiiton of Government employees as regards right to strike and the overlapping state of ‘strike’ and ‘hartal’. The Court also acted inaptly by denying the moral and equitable justification of strikes. This Judgment is therefore, bad in law. Though its effect has been diluted substantially by successive judicial pronouncements nevertheless it needs to be reviewed.
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