PROJECT

LABOUR LAW
On
RIGHT TO STRIKE APROPUS CONSTITUTIONAL VALIDITY

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 TABLE OF CONTENTS

S No. Particulars Page No.

4. Introduction 03

5. Research Methodology 03-05

Research Question 03

Objectives of the Study 03

Sources of data collection 03

Scope and Limitations of the Study 04

6. Chapterisation 04-05

Chapter - 1 05-06

Chapter - 2 06-08

Chapter - 3 08-09

7. Conclusion and Suggestions 10

8. Bibliography 11

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 RIGHT TO STRIKE APPROPUS CONSTITUTIONAL VALIDITY

INTRODUCTION
Labour law is a legal framework which encompasses administrative rulings, and precedents
related to the rights, regulations and restrictions of the organizations and the people working for
it. It is also known as employment law. The Labour law enumerates in detail the rights and
obligations of the union members, workers and the employers and the employees in the
workplace. In other words, the law mediates or tries to bring to an agreement between the trade
union and the employer and the employees in various aspects. The law covers diversified topics
and Three different legislations i.e., The Trade Unions Act, 1962, The Industrial Dispute Act,
1947, The Industrial Employment (Standing Orders) Act, 1946. The common topics which are
covered by these laws are Industrial relations- Collective bargaining and tries to build
harmonious industrial relations, Certification and registration of unions, unfair trade and labour
practices, labour management relations, health and safety in workplace, minimum wage,
employment standards etc. The law has two board categories, First, it administers and protects
the individual rights of the labour’s and secondly, it regulates the tripartite relationship between
the union and employer and the employees which could be called as collective labour law 1. The
Labour movement was evolved shortly after the Industrial revolution in the 19th and the 20th
century. The people belonging to this class works extremely hard in arduous situation so, to be
able to afford two square meals a day. They have been deprived of basic rights for a very long
time and therefore the continuous demand for the fair return and their hard work has been arising
time and again. The people belonging to this class has a lower and weaker bargaining power as
compared to the management for whom they work. The management has a better position in
bargaining and in dictating its terms and conditions. Thence, strike is a powerful and important
weapon for the laborer’s for strengthening and gaining their bargaining power.

1
“Garima Saxena, Right to strike and constitutional validity, Legal Bites, May 25, 2020.
https://www.legalbites.in/right-to-strike/#:~:text=Article%2019(1)%20(c,under%20Article%2019(4).”

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 RESEACH METHODOLOGY

The research and study of this project work has been executed by referring to the secondary data
present in the internet. Certain legal points and data has been taken from the site Ministry of
Labour and Employment. Other information has been taken from relevant websites.
The study work has been concluded after analyzing the data and information from various
sources and site to reach a conclusion with reference to the project topic.

Research Question
· To understand the constitutional validity of strike.
· To know and understand the relevance of the rule of right to strike in India.
Objectives of the study
· The main focus and objective of this project work is to study and understand the principle
of right to strike.
· To understand how it evolved indigenously and its relevance in present day context and
· To study about various laws related to right to strike.

Sources of data collection

This project work required analysis of various articles and case laws. The information and data
for carrying out the study has been taken from the internet with the help of article, news and case
laws related to the topic.

Scope and limitation of the study

Every work and research have its own limitations and same is the case with this project work.
Also, due to this unprecedented situation of coronavirus the scope of this study has been limited
to the limited resource present in internet and also due to the time constraint.

Organization/Chaptersation of the study

Chapter 1-

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 · The Evolution of Labour legislation in India.
· Right to strike: Constitutional realm; as statutory rights; as legal rights.

Chapter 2-
· Legislative Provisions Related to strike.
· Indian Judiciary on Right to Strike

Chapter 3-
· International Laws and Conventions on Right to Strike.
· Relevant Case laws.
· Conclusion.

CHAPTER 1-THE EVOLUTION OF LABOUR LEGISLATION IN INDIA

The Industrial revolution in England had a great impact on the world and in India as well. The
Industrial revolution indirectly paved the path for the evolution of labour legislation in India. The
evolution of labour legislation can be divided into two phases i.e., The British Colonial phase
and the Post British Colonial phase. The labour legislation enacted by the Britishers were solely
based on protecting the rights and interests of the British employers. The actual development of
labour legislation can be traced back to the creation and formulation of International Labour
Organization (ILO) in the year 1919. After the Independence of India i.e., Post-colonial era, Our
Country demanded for a direct relationship between the labour and capital. In December 1947, in
a tripartite conference, it was compiled and acknowledged that the laborers would get fair wage
and working conditions and their would-be fullest cooperation from labours for continuous
production and higher productivity for the development of the national economic strategy 2. The
Labour legislation in India is dynamic and is continuously adapting to the new social norms,
rules and needs. The labor policy in India promotes economic and national development and
social justice. This policy facilitates the employers, employees and their representatives a
platform for communicating work related problems, it also acts as an important conveyance for

2
“Deepak Raju, right to strike under Industrial Dispute act, 1947, Legal service India.
http://www.legalserviceindia.com/articles/dispute.htm.”

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reaching harmonious industrial relations, it also promotes productive individuals, productive
economy and collective employment relations.

RIGHT TO STRIKE: CONSTITUTIONAL REALM; AS STATUTORY

RIGHTS; AS LEGAL RIGHTS
The origin and development of Strike is nothing but an outcome of labour struggle. The struggle
for demanding a fair return, for a fair and compatible work environment, for basic rights at work
place, for resisting to decrease in wages, and for benefits and allowances etc. Since the
employees or an individual labour has a weaker bargaining power as compared to the employer
or the management who stands at a better position to dictate its terms and conditions therefore,
strike is a powerful weapon for the people belonging to a weaker position for strengthening its
bargaining power. In other words, a strike is also considered as a workman’s weapon which
gives is the power and the ability to stand against their management and protects its dignity and
remove the unfair and unwanted actions. The right to strike is a strong and important weapon but
it should be the last resort to be used. A strike give rise to production and financial problems in
the industries which eventually affects the economy of the country and it also affects the daily
lives of various people related to it. Therefore, it should be the last resort to be used and since it
is a powerful weapon there is always a possibility of it being misused3.

The right to strike is a legal right and there is restriction secured to it in the Industrial dispute
Act, 1947. The right to strike should not be confused with the right to protest which is a
fundamental right mentioned under article 19 of the Indian Constitution.

The definition of strike has been subjected to constant change/ Transformation based on the
essence or the basic concept.
According to the Section 2 (q) of Industrial Dispute Act 1947, a strike is defined as “cessation of
work by a body of persons employed in any industry acting in combination, or a concerted
refusal, or 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”.
According to the said act, the following are the essentials to constitute a strike:
3
“Diva Rai, Right to Strike: Proposed amendment in the Indian Constitution, Ipleaders, Jan 2, 2020.
https://blog.ipleaders.in/right-to-strike-proposed-amendment-in-the-indian-constitution/.”

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 · The person going in a strike i.e., the workmen must be employed in an industry.
· There must be refusal to perform duties or cessation of work by the workmen.
· The cessation of work or refusal to perform duties must be done under a mutual or
common understanding.
· The cessation should be the result because of an Industrial Dispute.
· There must be a Contract of Employment.

CHAPTER 2- EGISLATIVE PROVISIONS RELATED TO STRIKE

Trade Union’s Act-

The Trade Union’s Act 1926 was the first statute to recognize and provide limited right to strike.
The Act legalized certain activities for the registered trade union in advancement of any trade
dispute which would otherwise breach the common law of economics. Today, the right to strike
is recognized only to a limited extent. The right to strike is not a fundamental right but the right
to form a union is and as the other fundamental rights are not absolute, the same is also with
forming a union and hence, is subjected to reasonable restrictions. As section 2 (q) of the
Industrial Dispute Act 1926 mentions about the essentials to constitute a legal strike, Section 22
(1) of the same act mentions the essentials which if unfulfilled will lead toward a illegal strike.
Whenever there is any industrial dispute and the workmen or the employees wants to go on a
strike they have to fulfil certain conditions or they have to follow certain procedure provided by
the Industrial Dispute Act, else it would be deemed as an illegal strike. Section 22 (1) mentions
following requirement for a legal strike and it lays down that “no person employed in public
utility service shall go on strike in breach of contract”:
· The workmen or employees must give a notice to strike to the employer within six weeks
before going on a strike; or
· Within 2 weeks of giving such notice; or
· “Before the expiry of the date of strike specified in any such notice as aforesaid”; or
· “During the pendency of any conciliation proceedings before a conciliation officer and
one week after the conclusion of such proceedings”.

These conditions do not constrain any workmen or employees from going on a strike but it
requires that these conditions must be fulfilled before they go on a strike.

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 INDIAN JUDICIARY ON RIGHT TO STRIKE

Inconsistent to the international laws on the matter of right to strike, where strike is usually
considered as a fundamental and indispensable human right; however, in India right to strike is
not considered as a fundamental right although it is recognized by the law but it is not an
absolute right and is subjected to reasonable restriction which could be imposed by the state.
Part III of the Indian Constitution from article 12 to 35 mentions about fundamental rights.
Article 19 and its sub clauses of the constitution mentions about freedom of speech and
expression and article 19 (1) guarantees certain freedom as fundamental rights. The Constitution
of India mentions under 19 (1) that every citizen shall have the right “To freedom of speech and
expression, to assemble peaceably and without arms, to form associations or union, to move
freely throughout the territory of India, to reside and settle in any part of the territory of India,
and to practice any profession, or to carry any occupation, trade or business”. However, the
Right to strike is not defined as a fundamental right but the right to form an association or union
is expressly defined and recognized as a fundamental right under Indian Constitution.
The Supreme court of India is of the view that the right to strike is an important weapon of
employees or workmen as a mode of redressal. It is a right which has been earned by the
employees as a form of direct action from their long struggle. The right to strike is an inherent
right of every workmen and employee. Despite of the fact that it is an inherent right, it cannot be
elevated or the status of fundamental right cannot be given to it.
The Industrial Dispute Act, 1947, and the Indian Constitution have the same view that the right
to strike is a legal right which is also subjected to reasonable restrictions. “The significance of
the right to strike is the core of the significance to the principle of collective bargaining of each
worker”4.

CHAPTER 3- INTERNATIONAL LAWS AND CONVENTIONS ON RIGHT TO STRIKE

The concept of right to strike has been acknowledged by various nationals and international legal
frameworks. As it has been mentioned earlier that “strike is the collective stoppage of work by
concerted refusal to work by a body of persons employed”. The International Covenant of Economic,
4
“Diva Rai, Right to Strike: Proposed amendment in the Indian Constitution, Ipleaders, Jan 2, 2020.
https://blog.ipleaders.in/right-to-strike-proposed-amendment-in-the-indian-constitution/.”

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Social, and Cultural Rights grants that every State which is a party to the Covenant shall guarantee to
ensure “the right to strike, provided that it is exercised in conformity with the laws of the particular
country”. As it is evident that the struggle of the workers to negotiate and collective bargain has
started shortly after industrial revolution and it has been achieved almost after three centuries. The
International Labour Organization (ILO) was established in 1919 and it guarantees the right to strike
and many other rights off labour through international conventions. India is one of the founding
members of ILO and hence, it is established that it does not violate any international labour
standards. There are two most important conventions related to right to strike. The convention
number 87 (The 1948, Freedom of Association and Protection of the Right to Organize Convention)
and the convention number 98 (The 1949, Right to Organize and Collective Bargaining Convention).
Although these conventions are not directly related to right to strike but the ILO committee regards it
as an important and basic part for organizing. The government of India has not ratified any of the
above-mentioned convention and the main reason behind that is the failure to promote unionization
of the government servants in a politicized trade union system of the country 5. According to the
experts of the ILO committee, as long as the demands of the employees is been completed through an
alternate remedy there is no objection on restricting the right to strike. The government of India
promotes and enforce all the principles, guidelines and rights mentioned in the conventions. The
constitution of India guarantees and secures social security, job security fair wages, fair working
conditions to the government employees. The employees have also been equipped with grievance
redressal systems like Central Administrative Tribunal, Joint consultative Machinery etc.

RELEVANT CASES

In the case of Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, the
apex court highlighted the principle onjectives of the Industrial Dispute Act, 1947. The Court held
that “there should be promotion of measures for securing amity and good relations between the
wmployer and the workmen, there should relief to workmen in the matter of lay off, retrenchment
and closure of an undertaking, and finally there should be collective bargaining.”

5
“Srinivas Medusetty, Right to strike- a legitimate Illegality, Legal Service India.
http://www.legalserviceindia.com/legal/article-2904-right-to-strike-a-fundamental-right-or-not-.html”

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All India Bank Employees Association v. I.T., in this case the supreme Court gave the verdict that
“the right to strike or right to declare lockout may be controlled or restricted by appropriate industrial
legislation and the validity of such legislation would have to be tested not regarding the criteria laid
down in clause (4) of article 19 but by totally different considerations”. Hence, to form an association
is a fundamental right, but the right to go on a strike is not.

The courts in India have different views and opinions on the validity and illegality on the right to
strike. However, these differences still did not inflict the ban on right to strike. In the case of
Kotagiri v. Rajamanickan, the court is of the view that “just as a strike is a weapon available to the
employees for enforcing their individual demands, a lockout is a weapon available to the employer to
persuade by a coercive process the employees to see his point of view and to accept his demands. It
was also helping that, strike a weapon to force the employer to accede to employees demand and it
gives them the legitimate dues is a strike which is recognized under the Industrial Disputes Act”.

CONCLUSION

The right to strike is a legal right and not a fundamental right. As it has been mentioned earlier,
that the right to strike is an important and essential weapon in the hands of the employees.
However, there are certain restrictions and pre-requisites which are to be fulfilled for constituting
a valid and legal strike. These requirements have been mentioned above in this project work. The
courts also emphasis on not misusing this right, as it may lead to hamper the development of the
economy. The rule of right to strike has been also recognized internationally. There are various
international instruments and conventions protecting labours rights and interests. Theses
international instruments and conventions sets out guidelines and principle for proper function
between the employer, employees, management and the government.

REFERANCE

“Srinivas Medusetty, Right to strike- a legitimate Illegality, Legal Service India.

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http://www.legalserviceindia.com/legal/article-2904-right-to-strike-a-
fundamental-right-or-not-.html”

“Diva Rai, Right to Strike: Proposed amendment in the Indian Constitution,

Ipleaders, Jan 2, 2020.
https://blog.ipleaders.in/right-to-strike-proposed-amendment-in-the-indian-
constitution/.”

“Deepak Raju, right to strike under Industrial Dispute act, 1947, Legal service
India.
http://www.legalserviceindia.com/articles/dispute.htm.”

“Garima Saxena, Right to strike and constitutional validity, Legal Bites, May 25,
2020.
https://www.legalbites.in/right-to-strike/#:~:text=Article
%2019(1)%20(c,under%20Article%2019(4).”

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