THE RIGHT TO STRIKE IN INDIA

DISSERTATION IS SUBMITTED TO NATIONAL UNIVERSITY OF STUDY AND

(2012-2017)

SUBMITTED BY:

VEERA MEHRA

L.L.B. (SEM X)

ROLL NO. 194

UNDER THE GUIDANCE AND SUPERVISION OF

MR. SUBIR KUMAR

(ASSISTANT PROFESSOR OF LAW)

NUSRL

DATE OF SUBMISSION: 19th MAY, 2017

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 DECLARATION

I, Veera Mehra LL.B. Xth Semester, Roll No. 194, declares that the dissertation work entitled
“The Right to Strike in India” is based on my original research work, carried out during the
course of my studies, under the guidance of Mr. Subir Kumar of National University of Study
and Research in Law, Ranchi

I assert that the statements made and the conclusion drawn is the outcome of the said
research work.

I declare that it is to the best of my knowledge and belief that the dissertation does not
contain any part of any work that has been submitted for the Award of any other degree in
this University or in any other University.

Place: Ranchi VEERA MEHRA

Date: 19th May 2017 LL.B. (2012-2017)

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 ACKNOWLEDGEMENT

First of all, I take this opportunity with a deep sense of gratitude and immense pleasure to
offer my special thanks to my Parents who has been my source of Inspiration and guiding
force and who created and maintained a congenial atmosphere for writing this Paper.
I am extremely thankful to my Mentor “Subir Kumar”, for his invaluable guidance, constant
encouragement and co-operation for completing the project. He has been a constant pillar of
support for me.
I respectfully acknowledge the altruistic support of the administration and library staff for
providing assistance in my work.

“I express my gratitude to the faculty of NUSRL, RANCHI for the necessary guidance in
the subject which has been the base for this small piece of work”

Veera Mehra
19.05.2017

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CONTENTS

Research Methodology…………………………………………………………………….. 4

Hypothesis…………………………………………………………………..………….…… 4

Research question …………………………………………………………………………….4

Theme of paper……………………………………………………………………………… 5

Introduction…………………………………………………………………………..…….. 6

Right to Strike and Article 19(1) of Indian Constitution……………………………………. 8

Right to Strike as a legal rights…………………………………………………………….. 12

Right to Strike as a Statutory Right…………………………………………………………. 14

Misapplication of Harish Uppal Case and Bharat Palicha Case……………………………. 19

International Treaties ………………………………………………………………………..21

Foreign Constitutionl Outlook on Strike …………………………………………………….23

Current position in India …………………………………………………………………….24

Suggestions and Conclusion………………………………………………………………… 27

Bibliography …………………………………………………………………………………30

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RESEARCH METHODOLOGY

In this research primary sources of data collection in the form of case laws and various

statutes will be used. Secondary source of data collection method will also be adopted. All

the materials will be collected from the library sources, books, news paper articles, internet

etc. Qualitative method of content analysis and analytical deduction, will be used throughout

the course of the proposed study.

HYPOTHESIS

The freedoms guaranteed under the Article 19(1) do not include the right to strike. But, if we

look into the wider interpretation of the provisions, exercise of such rights are subjected to

the reasonable restrictions which are imposed under the sub- clauses (2) – (6) of the very

same Article. Hence, it is clear that those provisions are wide enough to include the right to

strike.

Moreover, the recognition of the concept of strike under the Trade Unions Act as well as the

Industrial Disputes Act along with resolutions of the International Labour Organisation on the

right to strike leads to the notion that the right to strike is a well recognised concept in India

as well as at the international level. but, it not clear as to what is the extent and nature of this

right.

RESEARCH QUESTION

Whether, the freedom guaranteed under the Article 19(1) is wide enough to include the

concept of right to strike. It intends to make an analysis of the scope of Article 19 with

respect to the concept of right to strike. This paper would also attempt to study the emergence

of the concept of right to strike as being a statutory and legal right under the provisions of the

Industrial Disputes Act, 1946.

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THEME OF THE PAPER

It can be said that the right to strike is not fundamental and absolute right in India in any

special and common law. This is a conditional right only available after certain pre-

conditions are fulfilled. If the constitution makers had intended to confer on the citizen as a

fundamental right the right to go on strike, they should have expressly said so. The

observation in Corpus Juris Secundum was that the right to strike is a relative right which can

be exercised with due regard to the rights of others. Neither the common law nor the

fourteenth Amendment to the federal constitution confers an absolute right to strike.

However, the right to strike as a statutory right is a concept that has not yet been denied by

the Courts in India. Various provisions under the Trade Unions Act as well as the Industrial

Disputes Act, 1946 have shown that there are express enactments to make right to strike as a

statutory right. This is indicative of the fact of the Legislative intent of the Law makers.

However, this right should be used as a last resort and in a manner as per the procedures laid

down in the said statute under which this right is recognised.

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INTRODUCTION

India is a democratic country and so attention has always been drawn towards various rights

that are provided to its citizens. However, we know that where there is right, there is also

some duty attached. The right to strike is a concept that, in simple words, can be defined as a

collective industrial action in which the workers tend to go for some bargaining power.1

Thus, the right to strike can be considered as a part and parcel of the concept of collective

bargaining under the Industrial Law.

There are some basic needs that the workmen sector always demands from their employers.

These may include- increase in their wages, payment of bonus and grant of allowances and

other kinds of benefits to them. But a worker alone cannot succeed in demanding such things

as they lack strong bargaining power and there are chances that his demands may easily be

crushed by the persons in power. Thus, they tend to go into strikes and other kinds of

processions so that a strong impact is made over the employers.

In India, the right to strike is not expressly recognised by law. 2 This particular statute had

legalised certain activities that the trade unions took in furtherance of a trade dispute. Thus, in

a way they had intended to provide the right to strike for the first time.

The Indian Courts have, through various decisions, thrown light over the controversy in the

form of two main issues- Whether the right to strike is a fundamental right or not and;

whether a statutory right has been conferred with respect to strike under any Labour Law

legislations in India.

It may be noted that the scenario today has shown that there is reckless use of strikes by the

workmen and this creates unnecessary stoppages. 3 These stoppages create worse tensions and

frictions and many times there is violation of law and order. India cannot tolerate frequent
1
Right to Strike: A Comparative Analysis available at https://www.academia.edu/5667906
2
Ibid.
3
Keith D. Ewing, ‘Myth and Reality of the Right to Strike as a Fundamental Labour Right’ (2013), International
Journal of Comparative Labour Law and Industrial Relations, Issue 2

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stoppages of work for frivolous reasons. When the strikes are for frivolous reasons, in those

cases it is bad from the public point of view because all the work is at a halt. At the national

level, this causes the economic retardation of the country.

Every right comes with its own duties. Most powerful rights have more duties attached to

them. Today, each country whether it is democratic, capitalist, socialist, give right to strike to

the workers. But this right must be the weapon of last resort because if this right is misused, it

will create a problem in the production and financial profit of the industry. This would

ultimately affect the economy of the country.4 Today, most of the countries, especially India,

are dependent upon foreign investment and under these circumstances it is necessary that

countries who seeks foreign investment must keep some safeguard in their respective

industrial laws so that there will be no misuse of right of strike. In India, right to protest is a

fundamental right under Article 19 of the Constitution of India. But right to strike is not a

fundamental right rather; it is a legal right and with this right statutory restriction is attached

in the Industrial Dispute Act, 1947.

In this research paper, there is an attempt to analyse the emergence of the concept of right to

strike as a fundamental right under the Article 19(1) of the Indian Constitution and the

concept of right to strike as a statutory right under Industrial Disputes Act, 1946 as well as

the Trade Unions Act, 1926. This has been done by analysing various decided case laws and

various articles.

RIGHT TO STRIKE AND ARTICLE 19(1) OF THE INDIAN CONSTITUTION

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Part III of our Constitution guarantees the fundamental rights to the citizens of India. Among

these rights, Article 195 talks about the freedom of speech and expression. It envisages six

rights under it. However, these rights are not absolute in nature as they are subject to

reasonable restriction under Article 19(2) of the Constitution. The concept of what is

‘reasonable’ and what is not has to be looked into by the Courts based on the facts and

circumstances of each case. In general sense and the precedents laid down on the matter,

reasonable will be those which is not arbitrary and against the public interest. This is because

if the said restriction will be unreasonable, it will tend to violate Article 14.

The right to strike has also been recognized in all democratic societies. Reasonable restrain

use of this right is also recognized. Similarly the employers also have the freedom to use the

weapon of lock-out in case workers fail to follow the rules of contract of employment. The

degree of freedom granted for its exercise varies according to the social, economic and

political variants in the system for safe guarding the public interest, the resort to strike or

lock-out and in some cases the duration of either subject to rules and regulations or

voluntarily agreed to by the parties or statutorily imposed this has been criterion underline the

earlier legislation for regulating industrial relations in the country. The strikes and lock – outs

are useful and powerful weapons in the armoury of workmen and employers and are available

when a dispute are struggle arises between them. Threats of their use even more than their

actually use, influence the course of the contest. The threat is often explicit much more often

tacit but not for that reasonless effective.

Generally, a strike can be described as having three elements- concerted action, stoppage of

work and there should be a nexus between the purpose of the cessation of work and the
5
19. Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or to carry on any occupation, trade or business

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physical condition of the work.6 Thus, strike takes place when there is no option for collective

bargaining left and thus the workers tend to resort to strike as a means to fulfil their demands.

It is well known that strike is a kind of demonstration in which the masses collectively resort

to a mass action to refuse to work. Thus, the strike would attract three fundamental rights

under Article 19(1). These are- the right to speech, the right to assembly and the right to

movement. The question, therefore, is that whether right to strike can be included under these

three or not. Even if this right is within the ambit of Article 19(1), these will have to be

subject to restrictions that are reasonable as otherwise it would become a tool of oppression

in the hands of the employee and the number of strikes will go on to increase and create

unnecessary stoppages of work.7

Various precedents have been laid down on the matter as to whether right to strike is a

fundamental right or not. The first case on this matter was the All India Banks Employees

Association v National Industrial Tribunal & Ors.8 in which upheld that even if we go by

the literal interpretation of Article 19(1)(c), it cannot be inferred that right to strike can be

included under its ambit. The Honourable Court held that “there is a guaranteed right to

form association under Article 19(1)(c) but no such absolute right to go on a strike is

included under it.” This case was considered to be an authority by the cases following it on

the similar subject matter and thus it was laid down that right to strike is not a fundamental

right guaranteed under Part III of the Constitution of India.9

However, it is important to note that the above case did not pertain to strikes at all. The issue

of strike was merely an illusion relied by the Courts. The Court only analysed whether strike

falls under the ambit of rights under Article 19(1)(c) and it did not mention the said right in

6
Tyagi, R., ‘Supreme Court pronouncement and the Right to Strike’ available at
http://www.revolutionarydemocracy.org/rdv9n2/strike.htm
7
Supra.
8
1962(3) SCR 269.
9
Communist Party of India (M) v. Bharat Kumar and others, 1998(1) SCC 201; Ex-Capt. Harish Uppal v.
Union of India and Another, 2003(2) SCC 45.

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context to Article 19(1)(a) and Article 19(1)(b). The issue of right to strike was not even

brought up before the Court. Thus what the Court observed with regards to the issue of right

to strike was the obiter dicta and thus, not binding upon the future matters. The Court in later

on cases erroneously considered the observation in the Bank Employees case as the ratio of

the said case and thus considered it to be binding upon the later on decisions.

In the year 2003, Justice M.B. Shah in the case of T.K. Rangarajan v Government of Tamil

Nadu10, had laid down the law of right to strike with respect to the government employees. In

this case, there was mass strike organised by the Tamil Nadu government employees who

were agitating against there being no certain benefits accorded to them. The Government,

through a statute, had suspended and dismissed the employees and ordered arrest of some of

them. This was challenged under Article 226 of the Constitution. The Court held that,

“Government employees have no fundamental, statutory, moral or equitable right to strike.”

This judgement faced a lot of criticism on many grounds. 11 Even if it is considered that they

considered right to strike to not be a fundamental right, criticism flowed on the point that

government employees had no legal, moral or equitable right of strike. This is because the

law on strike as a fundamental right had been established by the Courts earlier, but the right

to strike as a legal and statutory right had never been considered in any Court of law. The

Court in this case only focussed on Article 19, thereby neglecting the provisions of the

Industrial Disputes Act, 1946, Trade Unions Act, 1926 and many other International

Covenants. Thus, the decision in the Rangarajan case12 was a flawed one13 but it still is an

authority in India because no other subsequent case law has overruled it yet.

10
AIR 2003 SC 3032.
11
Ibid.
12
Supra at 4.
13
Tyagi, R., ‘Supreme Court pronouncement and the Right to Strike’ available at
http://www.revolutionarydemocracy.org/rdv9n2/strike.htm

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RIGHT TO STRIKE AS A LEGAL RIGHT

When we talk about the concept of industries, the bargaining process is something that is

inalienable from the working of the industrial process. This is because a worker has no other

option to increase his wages except by demanding them from their employer and force them

to consent to the terms of negotiation.

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The right to strike is an implied right under the collective bargaining process. 14 The right to

collective bargaining is covered by the “Right to Organise and Collective Bargaining

Convention, 1949.” Collective bargaining process has been defined 15 as the voluntary process

through which the employers and workers discuss and negotiate their relations in particular

terms. It is aimed to achieve mutual goals. This process is initiated to solve issues of workers

and arrive at a negotiation. When both the parties fail to arrive at a collective agreement then

strike is resorted to. Thus, strike is embedded in one of the stages of the process of collective

bargaining. This right of the workers to bargain freely with the employers is essential in terms

of freedom of association under Article 19. Thus, it is concluded that right to strike is a legal

right implied under the right of collective bargaining.16

The Ricardian and Marxian principles have laid down that the amount of money that the

employer earns is dependent upon the workers continuing to work. If the workers stop

working due to some reason, then their employers will also stop earning. This will affect the

whole economy in an adverse way.17 For instance, when the government servants refuse to

work and go on a strike then it is the general public who suffers the most. This forces the

authorities to come to a negotiation table.

Thus, we can conclude that this is the basic concept of evolution of the right to strike. The

Apex Court in Rangarajan Case had ignored this concept. The strike should be a destructive

weapon in the hands of both the workers as well as the employers.

It is observed by the Courts that it is true that in some cases the right to strike is being

misused but that is no reason why all strikes should be condemned as immoral. The right to
14
Indian Trade Union & Collective bargaining, Nishith Desai Associates,
http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/India-Trade-Unions-and-
Collective-Bargaining.pdf
15
Indian Trade Union & Collective bargaining, Nishith Desai Associates,
http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/India-Trade-Unions-and-
Collective-Bargaining.pdf
16
Ibid.
17
The Hindu, ‘The right to Strike’ Sep 10, 2003, available at
http://www.thehindu.com/2003/09/10/stories/2003091000671000.htm

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strike can be a crucial instrument for ensuring the basic socio-economic rights of workers and

all citizens.18 In Kairbitta Estate v. Rajmanickam,19 Justice Gajendragadkar opined: “In the

struggle between the capital and labour, the weapon of strike is available to labour and is

often used, as is the weapon of lock-out available to the employer and can be used by him.”

In Gujarat Steel Tubes v. Its Mazdoor Sabha20, Justice Bhagwati opined that right to strike is

integral of collective bargaining. He further stated that this right is a process recognized by

industrial jurisprudence and supported by social justice. Gujarat Steel Tubes is a three-judge

bench decision and cannot be overruled by the division bench decision of Rangarajan. In

the Rangarajan case the court had no authority to wash out completely the legal right evolved

by judicial legislation.

RIGHT TO STRIKE AS A STATUTORY RIGHT

The concept of right to strike as a right emanating from the statutes can be understood in the

light of Industrial Disputes Act, 1946 and Trade Unions Act, 1926.

a.) Industrial Disputes Act, 1946

18
The Right to Strike, available at http://www.hinduonnet.com/2003/09/10/stories/2003091000671000.htm
19
1960 AIR (3) 371
20
980 AIR 1896

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The right to strike has been contemplated under the scheme of the Industrial Disputes Act,

1946. Section 2(q) of the Act defines the term ‘strike’. Strike means a cassation 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 accept employment. 21 There is an implied right of strike in

the industries as per this statute and the term industries has been given a very wide

connotation. Sections 2222, 2323 and 2424 of the Act all recognise the right of strike vested in

the workers and the right to lockout vested in the employers. Section 22 lays down some

conditions to be fulfilled before a worker can go for a strike. Section 23 lays down the

general prohibitions as to strikes. Section 24 elucidates the concept of illegal strike and it is

known that until the case is not attracted by the conditions laid down under Section 22 and 23

of the Act, the strike cannot be termed as illegal. Section 24 implies that the Act

contemplated a difference between a legal and illegal strike. Unless the strike attracts the ban

under Sec 22 (1) of the Industrial Disputes Act, it cannot be termed as illegal under Sec 24 of

the Act.

Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an

illegal strike could be a justified one" in Gujarat Steel Tubes v. It’s Mazdoor Sabha 25, is thus

beyond doubt that the Industrial Disputes Act, 1947 contemplates a right to strike.

A worker who is involved in an illegal strike may be penalized with imprisonment of up to a

month and/ or fine. As per the IDA, no person shall provide any sort of financial aid to any

illegal strike. Any person who knowingly provides such a help in support of any illegal strike

is punishable with imprisonment up to six months and/or fine.

21
Section 2(q), Industrial Disputes Act, 1946
22
Prohibition of strikes and lock-outs.
23
General prohibition of strikes and lock-outs.
24
Illegal strikes and lock-outs.
25
Supra at 8.

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Another consequence of an illegal strike is the denial of wages to the workers involved.

Furthermore, the Supreme Court has held that workers shall only be entitled to wages during

a strike which is not only legal, but also “justified”. A strike shall be deemed unjustified

where “the reasons for it are entirely perverse and unreasonable which is a question of fact,

which has to be judged in the light of the fact and circumstances of each case… the use of

force, coercion, violence or acts of sabotage resorted to by the workmen during the strike

period which was legal and justified would also disentitle them to wages during the strike

period.” The Supreme Court has also held that whether or not a strike is “unjustified depends

on such factors as “the service conditions of the workmen, the nature of demands of the

workmen, the cause which led to the strike, the urgency of the cause or the demands of the

workmen, the reason for not resorting to the dispute resolving machinery provided by the

IDA or the contract of employment or the service rules and regulations etc.”

Thus, it can be concluded that there is a distinction between legal and illegal strike and it is

for the judiciary to examine the difference between the two. It is correct for the judiciary to

straightway declare that there is no such thing as the right to strike. 26

Thus, going by the scheme of the statute, we can conclude that the legislature did not intend

that there shall be no right to strike for a worker. Rather, they recognised it as a morally

justifiable right. This can be inferred from the fact that where on one hand Section 24 lays

down as to what are illegal strikes, this means that those which do not attract the provisions

of Section 24 are considered to be legal strikes. Moreover, Section 22 of the Act does not say

that there is no right to strike; rather it lays down conditions to be fulfilled before a person

can go for a strike, for example giving prior notice of the strike. Thus, if the conditions are

duly fulfilled then the strike is to be considered valid and lawful. The Supreme Court has also

held that whether or not a strike is “unjustified depends on such factors as “the service
26
Singh Paul, V.V., ‘Right to Strike under Industrial Disputes Act, 1947’, March 9, 2004 available at
http://www.mondaq.com/india/x/24797/Workforce+Management/Right+to+Strike+Under+Industrial+Dispute+
Act+1947

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conditions of the workmen, the nature of demands of the workmen, the cause which led to the

strike, the urgency of the cause or the demands of the workmen, the reason for not resorting

to the dispute resolving machinery provided by the IDA or the contract of employment or the

service rules and regulations etc.”27 It should be noted that a strike that was in existence at the

time of reference to a board, arbitrator, court or tribunal may be continued, provided it was

legal at the time of its commencement. Furthermore, a strike staged in response to an illegal

lockout shall be legal. In Mineral Miner Union v. Kudremukh Iron Ore Co. Ltd.28, it was

held that the provisions of section 22 are mandatory and the date on which the workmen

proposed to go on strike should be specified in the notice. If meanwhile the date of strike

specified in the notice of strike expires, workmen have to give fresh notice. It may be noted

that if a lock out is already in existence and employees want to resort to strike, it is not

necessary to give notice as is otherwise required.

The workers’ right to strike is complemented by the employers’ right to lock-out, thus

maintaining a balance of powers between the two. 29 However, the Rangarajan judgement, by

prohibiting strikes in all forms but leaving the right to lock-out untouched, tilts the balance of

power in favour of the employer class. The workers’ right to strike is complemented by the

employer’s right to lock-out, thus maintaining a balance of powers between the two.

However, the Rangarajan judgement, by prohibiting strikes in all forms but leaving the right

to lock-out un-touched, tilts the balance of power in favour of the employer class.

The Industrial Disputes Act, 1947 refrains generally the trade unions from going on strike.

Its focal thrust is on more efficient alternative mechanisms for dispute settlement, such as

reference to Industrial Tribunals, compulsory adjudication, conciliation, etc. In fact the very

27
Syndicate Bank v. K. Umesh Nayak (1995 AIR 319) at para 27.
28
ILR 1988 Kar 2878.
29
Professor Dr. Bernd Waas, ‘Strike as a Fundamental Right of the Workers and its Risks of Conflicting with
other Fundamental Rights of the Citizens’, General Report III, September, 2012 available at http://islssl.org/wp-
content/uploads/2013/01/Strike-Waas.pdf

17 | P a g e
intention behind its enactment as illustrated in the statement of objects and reasons, was to

overcome the defect in the Trade Unions Act, 1926, which was, that it imposed restraints on

the right to strike but did not provide for alternative settlement of the disputes.30

The Statement further reads as under “The power to refer disputes to Industrial Tribunals and

enforce their awards is an essential corollary to the obligation that lies on the Government to

secure conclusive determination of the disputes with a view to redressing the legitimate

grievances of the parties thereto, such obligation arising from the imposition of restraints on

the rights of strike and lock-out, which must remain inviolate, except where considerations of

public interest override such right”.

Thus, the concept of alternative settlement mechanisms in industrial disputes was statutorily

ushered in the Act with a view to providing a forum and compelling parties to resort to the

forum for arbitration so as to avoid confrontation and dislocation in industry, that a

developing country like India can ill-afford.31 Peace and harmony in industry and

uninterrupted production being the demand of the time, it was considered wise to arm the

Government with the power to compel the parties to resort to arbitration and a necessary

corollary to avoid confrontation and trial of strength which are considered wasteful from

national and public interest point of view.

The principal objects of the Industrial Disputes Act 1947, as analysed by the Supreme Court

in the case of Workmen of Dimakuchi Tea estate v. Management of Dimakuchi Tea

Estate32 , promotion of measures for securing amity and good relations between the employer

and workmen; relief to workmen in the matter of lay off, retrenchment and closure of an

undertaking and collective bargaining.

30
Raju, D, ‘Right to Strike under Industrial disputes Act, 1946: A Statutory Analysis’, Legal Service India
31
Professor Dr. Bernd Waas, ‘Strike as a Fundamental Right of the Workers and its Risks of Conflicting with
other Fundamental Rights of the Citizens’, General Report III, September, 2012 available at http://islssl.org/wp-
content/uploads/2013/01/Strike-Waas.pdf

32
1958 AIR 1156.

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Thus the point of issue is with regards to the legality of a strike and not as to whether there is

a right to strike. The Apex Court’s decision in the Rangarajan case stating there is no

statutory provision empowering the employees to go on a strike is to be held bad in law as it

is beyond doubt that the Industrial Disputes Act, 1946 contemplates a right to strike.

b.) Trade Unions Act, 1926

This particular statute had legalised certain activities that the trade unions took in furtherance

of a trade dispute. Thus, in a way they had intended to provide the right to strike for the first

time. Section 18 and 19 provide for the right to strike. Section 18 gives the immunity from

civil suits to any registered trade union or any of its members who does any act in

contemplation of a trade dispute. Also, Section 19 lays down that no agreement between the

members of a registered trade union shall be void merely by reason of the fact that any of the

objects of the agreement are in restraint of trade.

In B.R. Singh v. Union of India,33 Justice Ahmadi opined that "The Trade Unions with

sufficient membership strength are able to bargain more effectively with the management

than individual workmen. The bargaining strength would be considerably reduced if it is not

permitted to demonstrate by adopting agitational methods such as 'work to rule', 'go-slow',

'absenteeism', 'sit-down strike', and 'strike'. This has been recognized by almost all democratic

countries". This shows the legislative intent that in some cases the strike would be held legal

and valid if it is not in violation of any of the provisions of this Act.

MISAPPLICATION OF HARISH UPPAL CASE AND BHARAT KR. PALICHA

CASE

The Rangarajan case relies on a number of case laws dating back to the 1960s (Kameshwar

Prasad & AIBE Association)34. The only recent judgments that the Court relied upon -

33
(1990) Lab IC 389 SC 396.
34
1962 AIR 1166

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namely, Harish Uppal35 and Bharat Kr. Palicha36 - to demonstrate that there is no right to

strike seem to have been misapplied, contrary to their letter and spirit.

In Harish Uppal the court held that advocates have no right to strike. However the court also

opined “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 to a protest abstention from work for not

more than one day”. The court, therefore, acknowledges that the right to strike exists and

which can be exercised if a rare situation demands so. The apex court has only tried to restrict

the right to strike of advocates with regards to the significant role they play in the

administration of justice. For all others, this sacred right holds good force.

The judgment especially recognizes the right with regard to industrial workers where it states

that advocates do not have a right to strike 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”.37

In Communist Party of India (M) v. Bharat Kumar and others 38 the apex court has held

‘bundhs’ to be unconstitutional. The same is relied upon in the Rangarajan case. However

the court failed to notice that the judgment does not keep a 'bundh' and a general strike on the

same pedestal. Where, on the one hand, a 'bundh' is unconstitutional, a ‘hartal’ or a general

strike is very much legal. The Rangarajan case suffers from an illegality insofar as it attempts

to place a blanket ban on all kinds of strikes irrespective of whether they are ‘hartals’ or

‘bundhs’.

The same difference was lucidly explained in Bharat Kr. Palicha, where Justice

Balasubramanyan opined: “Bundh” is a Hindi word meaning “closed” or “locked”. The

expression therefore conveys an idea that everything is to be blocked or closed. Therefore,

35
2003(2) SCC 45
36
1998(1) SCC 201
37
Raju, D, ‘Right to Strike under Industrial disputes Act, 1946: A Statutory Analysis’, Legal Service India
38
Ibid

20 | P a g e
when the organisers of a bundh call for a bundh, they clearly express their intention that they

expect all activities to come to a standstill on the day of the bundh.

A call for a bundh is obviously distinct and different from the call for a general strike or the

call for a hartal. The intention of the callers of the bundh is to ensure that no activity either

public or private is carried on that day. Thus, it is sought to suggest that a right to strike is a

recognized legal right and the Rangarajan case is per incuriam on the above mentioned

grounds.39

It is indisputable that there exists a right to strike. In support of this, we put forth two

hypothesis:40 1) That the main object of the Industrial Disputes Act, 1947 is to promote

alternative mechanisms for dispute settlement as against strikes. 2) Strike is a 'weapon of last

resort' and must be sparingly used. s

INTERNATIONAL TREATIES

Many of the democratic nations have recognised this right to strike. Even though it is not

considered to be on such a high platform like the fundamental rights, yet it should still be

recognised as a redressed mode in the hands of the employee. This is because there is a need

39
Pradeep Kumar, ‘Strikes in India: An Analysis’, Oct 10, 1964 available at
http://www.epw.in/system/files/pdf/1964_16/41/strikes_in_indiaan_analysis.pdf
40
Ibid.

21 | P a g e
to give a tool like the strike to the workers so that they can raise their voice against

oppression of their employers.41

India is a signatory to the International Covenant of Economic, Social and Cultural Rights

(ICESCR). Article 8(1) (d) of the said covenant provides that “the right to strike provided

that it is exercised in conformity with the laws of the particular country.” Article 2 (1) of the

Covenant provides that "Each State Party to the present Covenant undertakes to take steps

with a view to achieving progressively the full realization of the rights recognized in the

present Covenant by all appropriate means, including particularly the adoption of legislative

measures". This implies that this particular treaty recognises the right to strike and India

being a party to it; is bound by it.

India is not a member of any of the International Labour Organisation Convention. However,

India being the member of the International Labour Organisation is bound to abide by its

conventions in general as the ILO declares so in their preamble. Convention 87 relates to

Freedom of Association and Protection of the Right to Organize. Convention 98 refers to the

Right to Organize and Collective Bargaining.42

Therefore, by virtue of being a member of the ILO, India is under obligation to satisfy at least

the fundamental rights promoted by the Conventions, irrespective of it having ratified them or

not because it is one of the founding members of the ILO. As per the Indian Constitution

Article 51(c) the State shall endeavour to foster respect for international law and treaty

obligations in the dealings of organized people with one another. The right to strike has

acquired an implied authorization from the Universal Declaration of Human Rights (1948).

Articles 23,24 and 25 of the declarations assert every one’s right to work, right to just and

favourable remuneration and right to form and join trade unions and also the right to rest,

leisure, leave etc. and the right for fair living conditions with necessary social benefits.
41
Keith D. Ewing, ‘Myth and Reality of the Right to Strike as a Fundamental Labour Right’ (2013),
International Journal of Comparative Labour Law and Industrial Relations, Issue 2
42
Ibid.

22 | P a g e
The blanket ban on the right to strike also transgresses the limits of the following

Conventions of the International Labour Organization (ILO):

 Freedom of Association and Protection of the Right to Organize43.

 The Right to Organize and Collective Bargaining44.

 Collective Bargaining Convention, 198145.

 Labour Relations (Public Service) Convention, 197846.

Article 947 of the Convention provides: “Public employees shall have, as other workers, the

civil and political rights which are essential for the normal exercise of freedom of association,

subject only to the obligations arising from their status and the nature of their functions”.

FOREIGN CONSTITUTIONAL OUTLOOK ON STRIKE

Strike, means ‘concerned stoppage of work by workers done with a view to improving their

wages or conditions, or giving vent to a grievance or making a protest about something or the

other, or supporting or sympathizing with other workers in such endeavour’. The right to

strike has acquired an implied authorization from the Universal Declaration of Human Rights
43
Article 87
44
Article 98
45
Article 154
46
Article 151
47
Article 151.

23 | P a g e
(1948). Articles 23,24 and 25 of the declarations assert every one’s right to work, right to just

and favourable remuneration and right to form and join trade unions and also the right to rest,

leisure, leave etc. and the right for fair living conditions with necessary social benefits.48

The English Courts have already recognised this right as a justifiable right. Lord Denning in

Morgan v. Fry stated that strike is labour’s ultimate weapon and in the course of hundred

years it has emerged as the inherent right of every worker. It is an element which is of the

very essence of the principle of collective bargaining. Right from the industrial revolution the

reasonable right of the wo\\rkers to strike work is recognised in various countries. Article 32

of the Constitution of Rwanda lays down that-

"The right to strike shall be exercised within the laws by which it is regulated. It may not

infringe upon the freedom to work". Article 42 of the constitution of Ethiopia provides the

right to strike to the workers and also enjoins the state to provide such right, subject to any

restrictions, even to the government employees. Article 34 of the constitution of Angola

guarantees right to strike and prohibit lockouts. Brazil, the developing Latin American

country also guarantees the right to strike under Article 9 of the Constitution. Capitalist

countries like Japan under Article 28 and South Korea under Article 33 of their respective

constitutions provide the right to strike. This shows that the International Conventions must

be applied within the domestic laws of India as per the doctrine of harmonious construction

so as to give effect to both the laws.49

CURRENT POSITION

48
Keith D. Ewing, ‘Myth and Reality of the Right to Strike as a Fundamental Labour Right’ (2013),
International Journal of Comparative Labour Law and Industrial Relations, Issue 2

49
Pradeep Kumar, ‘Strikes in India: An Analysis’, Oct 10, 1964 available at
http://www.epw.in/system/files/pdf/1964_16/41/strikes_in_indiaan_analysis.pdf

24 | P a g e
Strike is a procession and demonstration. It is known that these demonstrations and

processions usually involve three fundamental rights; freedom of speech, freedom of

assembly, and freedom of movement. Many a times the question arose before the court that

whether the above stated fundamental rights includes the right to strike.

The Constitutional Bench in the case of T K Rangarajan v. State of Tamil Nadu 50 held that no

fundamental right exists with the Government employees to go on strike.

The Honourable Supreme 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 otherwise51. The Court further held that a perusal of Article 19(1) (a) shows that

there is no fundamental right to strike.52

However, there was huge criticism of the above judgement of the Court. It was observed that

even though the Court held that there is no fundamental right to strike under Article 19, the

Bench in the above case did not deny the right to strike as a legal, moral and equitable right.

The question of strike as a ‘statutory right’ had not been considered in this decision.

Another criticism of the above judgement was that the Court relied upon the Harish Uppal

case. However, the Court misapplied the ratio of the said case. In Harish Uppal 53the court

held that advocates have no right to strike. However the court also opined "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". The court, therefore, acknowledged that the right to strike exists and which

can be exercised if a rare situation demands so. The apex court has only tried to restrict the

50
T K Rangarajan v. State of Tamilnadu, AIR 2003 SC 3032
51
All India Bank Employees' Association v. National Industrial Tribunal and others, (1962) 3 SCR 269
52
Radhey Shyam Sharma v. The Post Master General Central Circle, Nagpur, (1964) 7 SCR 403
53
AIR 2003 SC 43

25 | P a g e
right to strike of advocates with regards to the significant role they play in the administration

of justice. For all others' this sacred right holds good force.

Strike as a statutory right has been recognised under the Industrial Disputes Act, 1946 under

Section 22, 23 and 24. It can be analysed that Section 24 shows the difference between legal

and illegal strikes. This implies that strikes which are legal are very well recognised. Thus, it

was concluded beyond doubt that Industrial Disputes Act identifies the right to strike. The

same article discussed that even though there has been provided a statutory right for strike, it

should be used as a weapon of last resort.

In another Article, the author Manfred Davidmann discusses and defines the right to strike,

the extent to which people can strike and what this implies. 54 It was stated that this right to

strike cannot be denied altogether because even the International Labour Organisation (ILO)

has passed two resolutions which recognize this right. The Article stated that 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. The

workers' right to strike is complemented by the employers' right to lock-out, thus maintaining

a balance of powers between the two. However in some cases, by prohibiting strikes in all

forms but leaving the right to lock-out untouched, tilts the balance of power in favour of the

employer class. The same article went on to show that there are International Treaties also

which throw light over the right to strike. Article 8 (1) (d) of the International Covenant of

Economic, Social and Cultural Rights (ICESCR) provides that the States 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.”

54
The Right to Strike, available at http://www.solhaam.org/articles/right.html

26 | P a g e
SUGGESTIONS AND CONCLUSION

It can be concluded that the right to strike is not fundamental and absolute right in India in

any special and common law. This is a conditional right only available after certain pre-

conditions are fulfilled under the provisions of the Industrial Disputes Act, 1946. Thus, even

though we cannot raise the right to strike to such a high position as fundamental rights under

27 | P a g e
Part III, still it cannot be denied that it a well defined and recognised statutory right under the

Industrial Disputes Act, 1946 and Trades Disputes Act, 1926. 55

Where on one hand, strike is a weapon in the hands of the workers; on the other hand lock-

out is a weapon on the hands of the employers. Thus, there should be a balance between the

two weapons vested in them. Both these powers are complimentary to each other. The Court

in the Rangarajan case, prohibited all forms of strikes, and by not prohibiting lock-outs it

tried to tilt the balance in favour of the employers. This would lead to cases of oppression of

the workers in a labour intensive country like India. According to a research published in the

Annual Report of the Union Labour Ministry (2002-2003), in the year 2001 the losses due to

lock outs were three times more than those due to strikes. So, it would be wrong to conclude

that the workers are holding the production process to a standstill by resorting to strikes.

To avoid strikes is everyone's responsibility.56 But to assert that strikes under any

circumstances are illegal, immoral, inequitable and unjustified is contrary to our law and

industrial jurisprudence. Striking work is integral to the process of wage bargaining in an

industrial economy, as classical political economy and post-Keynesian economics

demonstrated long ago in the analysis of real wage determination.57 A worker has no other

means of defending her/his real wage other than seeking an increased money wage.

The right to strike is organically linked with the right to collective bargaining and will

continue to remain an inalienable part of various modes of response/expression by the

working people, wherever the employer-employee relationship exists, whether recognized or

not. The Apex court failed to comprehend this dynamics of the evolution of the right to strike.

55
Professor Dr. Bernd Waas, ‘Strike as a Fundamental Right of the Workers and its Risks of Conflicting with
other Fundamental Rights of the Citizens’, General Report III, September, 2012 available at http://islssl.org/wp-
content/uploads/2013/01/Strike-Waas.pdf
56
Pradeep Kumar, ‘Strikes in India: An Analysis’, Oct 10, 1964 available at
http://www.epw.in/system/files/pdf/1964_16/41/strikes_in_indiaan_analysis.pdf
57
Right to Strike: A Comparative Analysis available at https://www.academia.edu/5667906

28 | P a g e
In B.R. Singh v. Union of India,58 Justice Ahmadi opined “The Trade Unions with sufficient

membership strength are able to bargain more effectively with the management than

individual workman. The bargaining strength would be considerably reduced if it were not

permitted to demonstrate by adopting agitation methods such as 'work to rule', 'go-slow',

'absenteeism', 'sit-down strike', and 'strike'. This has been recognized by almost all democratic

countries”.

In Gujarat Steel Tubes v. Its Mazdoor Sabha,59 Justice Bhagwati opined that right to strike is

integral of collective bargaining. He further stated that this right is a process recognized by

industrial jurisprudence and supported by social justice.

Thus, there is a need for proper welfare legislations for the workers so that they can take part

in various undertakings and management tasks. In some cases, where they need a standing

against oppression or unfair labour practices, in the case strike must be available to them to

get their employers agree on a negotiation point. As Article 43A of our Constitution also

mentions that the State shall take steps by suitable legislation to secure the participation of

workers in industry works. Thus, the Government should work towards forming legislations

that would abrogate the said problems. Moreover, there is a need for the Courts to lay down a

clear ratio as to the right of strike available to the workers by overruling the decision of T.N.

Rangarajan case.

Justice Shah's judgment in Rangarajan case does not seem to be right when saying: "There is

no statutory provision empowering the employees to go on strike." Going further, the judge

then declared that there was "no moral or equitable justification to go on strike”. This

observation does ignore the legal provisions under the Indian Law and International

conventions.

58
(1990) Lab IC 389 SC 396
59
1980 AIR 1896

29 | P a g e
BIBLIOGRAPHY

PRIMARY SOURCES

CITATION FOR LEGISLATIONS

 The Industrial Disputes Act, 1946

 Trade Unions Act, 1926

30 | P a g e
  The Constitution of India, 1950

 Universal Declaration of Human Rights, 1948

CITATION FOR CASES

 T K Rangarajan v. State of Tamil Nadu, AIR 2003 SC 3032.

 All India Bank Employees' Association v. National Industrial Tribunal and others,

1962(3) SCR 269.

 Communist Party of India (M) v. Bharat Kumar and others, 1998(1) SCC 201.

 Kameshwar Prasad & AIBE Association, 1962 AIR 1166.

 Ex-Capt. Harish Uppal v. Union of India and Another, 2003(2) SCC 45: 2003(1) SCT

382 (SC).

 Gujarat Steel Tubes v. It’s Mazdoor Sabha, 1980 AIR 1896.

 B.R. Singh v. Union of India, (1990) Lab IC 389 SC 396

 Kairbitta Estate v. Rajmanickam, 1960 AIR (3) 371

 Workmen of Dimakuchi Tea estate v. Management of Dimakuchi Tea Estate, 1958

AIR 1156

 Mineral Miner Union v. Kudremukh Iron Ore Co. Ltd, ILR 1988 Kar 2878

 Syndicate Bank v. K. Umesh Nayak, 1995 AIR 319

SECONDARY SOURCES

CITATION FOR BOOKS

 Seervai H M, Constitutional Law of India, 4th Edition, Silver Jubilee Edition, Volume

2, Universal Law Publishing Co. Pvt. Ltd.

31 | P a g e
  Singh M P, V N Shukla’s Constitution of India, Eleventh Edition, Eastern Book

Company.

CITATION FOR ARTICLES

 Raju, D, ‘Right to Strike under Industrial disputes Act, 1946: A Statutory Analysis’,

Legal Service India

 Ettabonia, V., ‘Trade Unions and Right to Strike in India’, 2013

 Keith D. Ewing, ‘Myth and Reality of the Right to Strike as a Fundamental Labour

Right’ (2013), International Journal of Comparative Labour Law and Industrial

Relations, Issue 2

 Right to Strike: A Comparative Analysis available at

https://www.academia.edu/5667906

 Tyagi, R., ‘Supreme Court pronouncement and the Right to Strike’ available at

http://www.revolutionarydemocracy.org/rdv9n2/strike.htm

 The Hindu, ‘The right to Strike’ Sep 10, 2003, available at

http://www.thehindu.com/2003/09/10/stories/2003091000671000.htm

 Professor Dr. Bernd Waas, ‘Strike as a Fundamental Right of the Workers and its

Risks of Conflicting with other Fundamental Rights of the Citizens’, General Report

III, September, 2012 available at http://islssl.org/wp-content/uploads/2013/01/Strike-

Waas.pdf

 ‘Right to Strike and Indian Constitution’, May 25, 2012 available at http://lex-

warrier.in/2012/05/right-to-strike-and-indian-constitution

 Singh Paul, V.V., ‘Right to Strike under Industrial Disputes Act, 1947’, March 9,

2004 available at

http://www.mondaq.com/india/x/24797/Workforce+Management/Right+to+Strike+U

nder+Industrial+Dispute+Act+1947

32 | P a g e
 Pradeep Kumar, ‘Strikes in India: An Analysis’, Oct 10, 1964 available at

http://www.epw.in/system/files/pdf/1964_16/41/strikes_in_indiaan_analysis.pdf

33 | P a g e