Project on Constitutional Law

Right to Strike

Project on the Indian Constitution

Submitted by,

Saurabh Mishra

4th semester

Faculty of Law

Jamia Millia Islamia

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Acknowledgement

Writing the Acknowledgement for the project in the subject of Constitution is a

fairly simple undertaking for anyone who has attended even a single class of Dr.
Asad Malik. The clarity, the command and the humour he brings into every
class is infectious, making any student believe that there can be no easier
subject that the Indian Constitution and that anyone can master it, provided he
gives the subject the respect and recognition that Sir himself gives the subject.

Furthermore I would like to thank all those people who gave the subject their
time and wrote books which I eventually referred. In this matter, I would
particularly like to thank Dr. C. D. Jha, whose book was precise and the largest
reference in this work.

My father, a professor with large access to books of value has been of great help
to me.

Without the contribution of the above said people I could have never completed
this project.

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Introduction
In one of the earliest landmark judgments delivered in the Country in relation to the 3 rd part
of the Constitution, it was stated that Fundamental Rights are the modern name for what have
been traditionally been known as ‘natural rights’.1

The fundamental rights, by and large, are the extension, combinations or permutations of the
natural rights of life, liberty and equality, possessed by the people by virtue of the fact that
they are human beings and that these rights were reserved by the people for themselves when
the framed the constitution and cannot be taken away or abridged by a constituent authority
like Parliament.2

The doctrine of natural rights is itself an offshoot of the doctrine of natural law. Since Natural
Law consists of rules founded on the primary instincts of man as modified by his inborn
perception of what is right and wrong, it follows that natural rights constitute the primary
rights and obligations of men to one another as soon as they begin to like in a society, i.e., in
association with others. Since the rules of natural law are of universal application, natural
rights also inhere in every human being, in all ages and in all climes.3

It has thus been seen that the Fundamental rights have been derived from the Natural Rights
which in itself is a derivative of the Natural Laws. The natural laws were formulated to
establish the relationship between a person and his surrounding environment, i.e., the society
that that person lives in. To the same effect the citizen of the Country has been guaranteed the
rights to freedom of freedom of speech and expression4 and the right to assemble peacefully
and without arms5 and to move freely within the territory of the Country.6

The question that arises in such a scenario is whether the rights guaranteed as Fundamental
Rights under Part III of the Constitution also allow for the right to strike?

1
Golak Nath v. State of Punjab, AIR 1967 SC 1643, at p. 1656, para. 16
2
Keshavananda Bharati v. State of Kerala, AIR 1973 SC 14561
3
Preamble of the Universal Declaration of Human Rights
4
Art. 19(1)(a)
5
Art. 19(1)(b)
6
Art. 19(1)(d)

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What is a Strike?

A strike is defined as,

‘A temporary stoppage of work by a group of employees in order to express a grievance or to

enforce a demand concerning changes in work conditions.’7

Strikes have also been known to be used for hard-handing employers into conceding to the
demands of the employees. Strikes have at all times affected the economy of the Country and
caused widespread discomfort in the social life of the people residing in the particular areas
where strikes or bandhs have been enforced.

India, given its social and economic structure has been witness to many strikes in the recent
past, this has had a very deep impact upon the methods of administration and the mode of
economic growth that has been adopted by the Country.

In the view of the many strikes that have taken place in the Indian State in recent times, there
have been many questions raised as to whether these strikes have the constitutional validity,
whether the people have a right to ignore their economic duties that lead to nation building
and indulge in activities that may or may not result in self-preservation.

There are alternate forums which allow for the resolution of Workmen and industry related
matters, for example, through the process of Industrial Adjudication. Through the above
mentioned process, there is provision for the remedy of any such grievance that an employee
may have and there is no possible loss suffered by the employer as his production or the
process that he creates in his industry does not get affected by any suspension or termination
of work. The idea of a strike has exceeded the position of a moral position being adopted;
instead strikes have increasingly been used as a weapon of coercion by the employees against
the employer. In addition to the same, the effect of a strike affects a community at large, thus
making it in contravention of the Natural Rights of a person who adopts these rights in
accordance to the natural law so as to survive in a community. When activities, such as
strikes, which disturb community life, are allowed legal or constitutional sanction, then, the
very idea of having fundamental rights is defeated. It is also to be noted that the Fundamental

7
Oxford dictionary

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Rights themselves come with reasonable restrictions which are provided for in the present
case in the very article that provides for the right to assemble, form unions and travel.8

In the Constitutional Assembly Debates, which provide much material on many matters that
our Constitutional Drafters found of National Importance, the topic of the right to strike has
been discussed in many parts, it has been stated that,

‘It is all well to talk about a right to strike, but I know not of a law that allows for a man or a
group of men to strike at a society at large. It is nothing more or nothing less than to claim a
right to inflict suffering on an innocent person in order to gain personal ends. This is a state
of affair that cannot be tolerated in a civilized society.’9

Repeated resort to strikes have been seen as the parasitic behavior of members of a society
who cause more harm to the society that they live in than to cause any shimmer of gain. In
keeping this view there have been many industries that are of importance to the Social well-
being which have been expressly denied the Right to Strike.10

The Judiciary has also over the period of time, recognized the fact that the Indian
Constitution does not under any provision allow for a right to strike. There is a need to
interpret every Fundamental Right individually and in such a case, a strike, which allows for
there being economic neglect and force being exerted by the employee classes, cannot be
included in the list of rights.

There is a very basic and fundamental difference between a Strike and a Protest.

 While a Strike has definite economic connotations, a protest does not need to have
any economic repercussions as a determining factor of its existence.
 Protests are not in direct detriment to the social structure and economic standing of
the society. Strikes on the other hand, allow for there being an absolute challenge to
the basic social and economic stands taken by the employer. Thus, while a protest can
be against any entity, a strike is always against a society.

8
Restrictions are provided for in Art. 19(2) – Art. 19(6)
9
CAD, p. 48
10
For example, Employees in Postal Services, Telecom Services, Health Services and Judicial Services cannot go
on strike.

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Rights of employees
The employees of an entity have some very basic and inalienable rights which should be
respected by every employer. This includes,

 Right to dignity
 Right to pay
 Right to Work

The most important amongst the above being the right to work and the right to pay for the
work that has been performed by the employee.

The father of the concept of ‘the right to work’ is said to be Charles Fourier, a Frenchman
who declared that Politics extol the rights of men and do not guarantee the one most
important right, the right to work.11 The above statement marks the origin and establishment
of the right to work as a political concept.

The Right to Work, as a human right, is provided for in several International Treaties.
Though not explicitly stated, it is implicit in 2 documents of the International Labor
Organization.12 The right to work is also included in the Universal Declaration of Human
Rights, 1948 and the International Covenant on Economic, Social and Cultural Rights, 1966.

According to the UDHR13 and the ICESCR14, everyone is entitled to the right to work. It can
only be guaranteed in the cases of full employment, the importance of which has been
discussed in the United Nations Charter and Declaration of Philadelphia.

There has been much debate about the right to work in the Supreme Court, there have been
contradictory judgments which have been delivered by the Apex Court in the cases of Delhi
Transport Corporation v. DTC Mazdoor Congress15 and in Delhi Development Horticulture
Employees’ Association v. Delhi Administration16. In the former case, while the Court was of
the view that income is the foundation of many of the rights that have been classified as being

11
Justice Pana Chand Jain, Lawyers and the boycott of Courts, (1995) 5 SCC (Jour) 21
12
The Constitution of 1919 and Declaration of Philadelphia of 1944
13
Universal Declaration of Human Rights
14
International Covenant of Economic, Social and Cultural Rights
15
1991 Supp (1) SCC 600
16
(1992) 4 SCC 99

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fundamental in nature. Thus when work is the source of income, the right to work in itself
becomes fundamental in nature.17

In the latter case, a divisional bench of the S.C. found that there has been a failure in the part
of the Administrative units of the Country in making the Country self-sustaining in nature,
wherein it could provide a right to livelihood to all of its citizens. The reason behind the same
was given as the inability of the country to attain that position of economic and social
strength wherein such guarantees could be fulfilled, not the unwillingness of the Country to
guarantee the same to its people or considers it any-less-fundamental to the life of its
citizens18.

In keeping with the view of the above said judgment, it can be said that in India, there is no
Right to Work. If there is no right to work, drawing the analogy of reasoning of the SC in
inferring the negative rights out of the positive rights, it can be said that there is no right not
to work.19

The Right not to work can be interpreted as a Right to Strike. The word strike has been
defined under sec. 2(q) of the Industrial Disputes Act, 1947. Strike is defined as the act of
stopping work by a body of workmen with a purpose of coercing the employer into concede
to the demand of the Workmen which would have been put in front of him by them. A
perusal of the various provisions of the Industrial Disputes Act leads to the understanding that
there is no absolute right to strike that is vested upon the employees of any entity. This
interpretation can be arrived because of the following provisions:-

 Sec. 22 lays down that Strikes in Public Utility Services are prohibited.
 Sec. 23 imposes certain restrictions upon Workmen going on strikes. There are
certain circumstances enumerated therein where workmen cannot go on strikes.
 Sec. 24 lays down that any strike which is in contravention of sec. 22 and 23 shall be
declared void. In addition to those strikes which are in contravention to sub-sec. (3)
of sec. 10 and sub-sec. 4-A of Sec. 10A of the Act.

Thus, from the statutes enumerated above, it can be clearly seen that the rights of a workman
do not include the right to go on a strike, though no statute does not expressly ban the same in

17
ibid
18
ibid
19
supra, note 11

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every scenario, there are restrictions imposed on the same in the scenario given in sec. 23 of
the IDA, 1947.

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Is there a right to strike?

In the year 1961, the Supreme Court had held in Kameshwar Prasad v. State of Bihar20 that
even a very liberal interpretation of article 19 (1) (c) could not lead to the conclusion that the
trade unions have a guaranteed fundamental right to strike. In All India Bank Employees'
Association v. National Industrial Tribunal21 also it was contended that the right to form an
association guaranteed by Article 19(1)(c) of the Constitution, also carried with it the
concomitant right to strike for otherwise the right to form association would be rendered
illusory. The Supreme Court rejected this construction of the Constitution: "to read each
guaranteed right as involving the concomitant right necessary to achieve the object which
might be supposed to underlie the grant of each of such rights, for such a construction would,
by ever expanding circles in the shape of rights concomitant to concomitant right and so on,
lead to an almost grotesque result."

It was a culmination of the ratios of the Kameshwar Prasad and the A.I.B.E. cases that
resulted in the decision in the highly contentious Rangarajan22 case. In reliance of these
judgments, the Apex court was correct in opining that there exists no fundamental right to
strike. But in stating that Government employees have no "legal, moral or equitable right",
the Court evolved a new industrial jurisprudence un-thought of earlier. It is true that the
judgments mentioned above have rejected the right to strike as a fundamental right, but not as
a legal, moral or equitable right. The question of 'strike' not being a statutory or a legal right
has never even been considered in the court. Further the expression 'no moral or equitable
right' was uncalled for. A court of law is concerned with legal and constitutional issues and
not with issues of morality and equity.

The Rangarajan case simply ignores statutory provisions in the Industrial Disputes Act, 1947
and the Trade Unions Act, 1926, and an equal number of case laws laid down by larger
benches that have recognized the right to strike. It also fails to consider International
Covenants that pave the way for this right as a basic tenet of international labour standards.

20
(1962) Supp 3 SCR 369
21
AIR 1962 SC 171
22
T. K. Rangarajan v. Govt. of T.N. (2003) 6 SCC 581

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Strike as a legal right

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.23 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.

A worker has no other means of defending her/his real wage other than seeking an increased
money wage. If a capitalist does not grant such an increase, s/he can be forced to come to a
negotiating table by striking workers. This s/he can do because the earnings of the capitalist
are contingent upon the worker continuing to work. The argument is drawn from Ricardian
and Marxian classical political economy that shows how the employer's income is nothing
other than what is alienated from the worker in the process of production. When workers stop
working, capitalists stop earning. The same applies to government servants as well. When
they strike work, it is not the authorities who suffer a loss of income or disruption of their
income generating process but the general public. Here, authorities come to a negotiating
table mainly under political pressure or in deference to public opinion.

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 dynamic of the evolution of the right to strike.

In B.R. Singh v. Union of India24, 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".

In Gujarat Steel Tubes v. ITS Mazdoor Sabha25, 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

23
Bank of India v. T.S. Kelawala, 1990 (4) SCC 744
24
[1990] Lab I.C. 389 (396) (S.C.)
25
AIR 1980 SC 1896

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bench decision and cannot be overruled by the division bench decision of Rangarajan26. In
the Rangarajan27 case the court had no authority to wash out completely the legal right
evolved by judicial legislation.

Strike as a statutory right

The scheme of the Industrial Disputes Act, 1947 implies a right to strike28 in industries. A
wide interpretation of the term 'industry'29 by the courts includes hospitals, educational
institutions, clubs and government departments. Section 2 (q) of the Act defines 'strike'.
Sections 22, 23, and 24 all recognize the right to strike. Section 24 differentiates between a
'legal strike' and an 'illegal strike'. It defines 'illegal strikes' as those which are in
contravention to the procedure of going to strike, as laid down under Sections 22 and 23. The
provision thereby implies that all strikes are not illegal and strikes in conformity with the
procedure laid down, are legally recognized. Further, Justice Krishna Iyer had opined that "a
strike could be legal or illegal and even an illegal strike could be a justified one"30. It is thus
beyond doubt that the Industrial Disputes Act, 1947 contemplates a right to strike.

The statutory provisions thus make a distinction between the legality and illegality of strike.
It is for the judiciary to examine whether it is legal or illegal.

Further, Sections 22, 23 and 24 of the Act imply a right to strike for workers and a right to
lock-out for the employers. In Kairbitta Estate v. Rajmanickam31, 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"32. The workers' right to strike is complemented by the employers' 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 untouched, tilts
the balance of power in favour of the employer class.

The Court, in opining that strikes 'hold the society at ransom', should have taken into account
that the number of man days lost due to strikes has gone down substantially during the last

26
supra, note 22
27
ibid
28
It was held that the right to strike as a mode of redress of the legitimate grievances of the workers and the
employees is expressly recognized under the ID Act. 1979 Lab IC 1079 (1084) (DB) (Punj)
29
Bangalore Water Supply & Sewerage Board v. A. Rajappa, AIR 1978 SC 548
30
Supra, note 25
31
[1960] II L.L.J. 275 (S.C.)
32
Ibid.

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five years. Whereas there has been a steep rise in the man days lost due to lock-outs, due to
closures and lay-offs.33 In 2001, man days lost due to lock-outs were three times more than
those due to strikes. In 2002 (January-September) lockouts wasted four times more man days
than strikes. The Apex court preferred to overlook the recent strike by the business class
against the value added tax and also the transport companies' strike against the judicial
directive on usage of non-polluting fuel, both of which created much more chaos and
inconvenience to the common people. It is submitted that the court came to a conclusion
without looking at the industrial scenario in the present times. Should the apex court not
consider banning closures, lock-outs, muscle-flexing by the business class etc., which not
only put people to inconvenience but also throw the workers at risk of starvation.34

Besides the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 also recognizes the
right to strike. Sections 1835 and 1936 of the Act confer immunity upon trade unions on strike
from civil liability.

Industrial Disputes Act, 1947

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
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.

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".

33
Annual Report of the Union Labour Ministry (2002-03)
34
Sen, Tapan, Right to Strike is Inalienable, People's Democracy, Vol. XXVII, No. 35, Aug. 31, 2003
35
S. 18 provides for immunity from legal proceedings in respect of any act done in contemplation or
furtherance of any trade dispute on the sole ground of inducing person to break a contract of employment.
36
19. Enforceability of agreements.- Notwithstanding anything contained in any other law for the time being in
force, an agreement between the members of a registered trade Union shall not be void or voidable merely by
reason of the fact that any of the objects of the agreement are in restraint of trade.

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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. 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.37

Sections 4, 5, 6, 7, 7A, 7B, 9, 10 and 10A of the Industrial Disputes Act, 1947 provide
alternative measures for settlement of industrial disputes elaborately. Section 438 of the Act
provides for a diplomatic procedure which endeavours to settle a controversy by assisting
parties to reach a voluntary agreement and the ultimate decision is made by the parties
themselves.39 The conciliation machinery provided for in the Act, can take note of the
existing as well as apprehended disputes either on its own or on being approached by either
of the parties. Since the final decision is with the parties themselves, they cannot complain
that their practical freedom has been impaired or that they have been forced into a settlement
which is unacceptable to them40.

Section 6 provides for the constitution of a Court of Inquiry, that enquires into the merits of
the issues and prepares a report on them that is "intended to serve as the focus of public
opinion and of pressure from Government authorities"41. Section 10 A provides for voluntary
arbitration. Voluntary arbitration seems to be the best method for settlement of all types of
industrial disputes. The disputes can be resolved speedily and is less formal than trials. The

37
Workmen of Hindustan Lever Ltd. v. Hindustan Lever Ltd., [1984] Lab I.C. 276 (SC), per Desai, J
38
4. Conciliation Officers.- (1) The appropriate Government may, by notification in the Official Gazette, appoint
such number of persons as it thinks fit, to be conciliation officers, charged with the duty of mediating in and
promoting the settlement of industrial disputes.
39
Malhotra, O.P., The Law of Industrial Disputes, Vol. I, 5th Ed., Universal Law Publishing Co., Delhi, 1998 at p.
12.
40
One of the most important Section are 10 and 10A, which talk about references of Disputes to Boards,
Courts or Tribunal. Section 10(1) states: Where the appropriate Government is of the opinion that any
Industrial Dispute exists or is apprehended, it may at any time, by order in writing, Refer the dispute to the
Board for promoting a settlement thereof. Refer any matter appearing to be connected with or relevant to the
dispute to a court for inquiry. Refer the dispute to a Labour Court. Further Section 10A talks about voluntary
reference of disputes to Arbitration. Section10 A (1) states that "Where any industrial dispute exists or is
apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may at any
time before the dispute has been referred to under Section 10, by a written agreement refer the dispute to
arbitration and the reference shall be to such person or persons as an arbitrators as may be s[specified in the
arbitration agreement".
41
International Encyclopedia of Social Sciences, Vol. 8, p. 508.

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greatest advantage of arbitration is that there is no right of appeal, review or writ petition.
Besides, it may well reduce a company's litigation costs and its potential exposure to ruinous
liability apart from redeeming the workmen from frustration. 42 Apart from these, Sections 7,
7A and 7B deal with the constitution of adjudicatory authorities, viz., Labour Courts,
Tribunals or National Tribunals, respectively.

It is submitted that these alternative machinery for settlement of industrial disputes are
proving to be highly effective. Report of the National Commission on Labour43, according to
which,

"During the years 1959-66, out of the total disputes handled by each year, the percentage of
settlements had varied between 57 and 83. The remaining disputes, it is reported, were
settled mutually referred to voluntary arbitration or arbitration under the Act or to
adjudication or were not pursued by the parties. During the period 1965-67, the percentage
of settlements reached in Bihar ranged from 51 to 86, in Assam from 65.5 to 92.3. In U.P.,
Punjab and Delhi, in the year 1966, the percentage of disputes settled was 60, whereas in
Kerala it ranged around 80 per cent. The statistics for settlement of disputes by alternative
mechanism are greater those for that by strike where the disputes are mainly left
unresolved.”

The provision of such an elaborate and effective mechanism for settlement of industrial
disputes, along with a reading of the Statement of Objects and Reasons, is a definitive
indication of the fact that the statute enshrines a preference to these alternative mechanisms
over strikes.

42
Karnal Leather Karamchari Sanghathan v. Liberty Footwear Co. [1990] Lab I.C. 301 at 307 (SC), per
Jagannatha Shetty, J.
43
Chapter 3.- Industrial Relations-1, under the heading 'Conciliation', para 23, 16 at p. 322

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International Treaties

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”44.

The Covenant further provides: "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".45

India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for
the right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other
appropriate means. Thus, the aforesaid domestic laws are the by-products of the international
obligations and cannot be read casually as has been done in the Rangarajan case46.

The blanket ban on the right to strike also transgresses the limits of the Conventions of the
International Labour Organization (ILO),

 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.
 Both Conventions have been ratified by 142 and 153 nations respectively including
Australia, France, Germany, Italy, Japan, Pakistan, Sri Lanka, Pakistan and the United
Kingdom. Both the conventions, along with eight other conventions, have also been
identified by the ILO's Governing Council to be its core conventions.
 Convention 154 is the Collective Bargaining Convention, 1981. The Preamble to this
Convention reaffirms the provision of the Declaration of Philadelphia recognizing
"the solemn obligation of the International Labour Organisation to further among the
nations of the world programmes which will achieve … the effective recognition of
the right of collective bargaining". Further the Convention is not restricted to labour
trade unions. Article 1 of the Convention states "Convention shall apply to all
branches of economic activity". Public employees are also not exempted from the
above.
44
Article 8(1)(d)
45
Article 2 (1)
46
supra, note 22

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 Convention 151 is the Labour Relations (Public Service) Convention, 1978. Article 9
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".

Though India is not a signatory to any of the above-mentioned ILO Conventions, it has been
a member of the ILO since 1919. The ILO Declaration on Fundamental Principles and Rights
at Work states: "The International Labour Conference, ... Declares that all Members, even if
they have not ratified the Conventions in question, have an obligation arising from the very
fact of membership in the Organization, to respect, to promote and to realize, in good faith
and in accordance with the Constitution, the principles concerning the fundamental rights
which are the subject of those Conventions, namely: freedom of association and the effective
recognition of the right to collective bargaining".

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. Further, India is not an ordinary member of the ILO, but one of the founding members of
the Organization. After 85 years of this relationship that India has had with the Organization,
our Apex court has refused to adhere to the fundamental tenets of the ILO.

Legal Interpretation to be in consonance with international covenants

The Directive Principles of State Policy enshrined in Part IV of the Constitution impose a
non-enforceable duty on the state to adhere to its provisions. Article 51(c) provides that the
State shall endeavour to foster respect for international law and treaty obligations in the
dealings of organized people with one another.

Article 37 of Part IV reads as under:

“Application of the principles contained in this Part.- The provisions contained in this Part
shall not be enforceable by any court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the duty of the State to apply
these principles in making laws".

A conjoint reading of Articles 51(c) and 37 implies that principles laid down in international
conventions and treaties must be respected and applied in governance of the country.

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In Vishaka v. State of Rajasthan47 Justice Verma opined that any international convention not
inconsistent with the fundamental rights and in harmony with its spirit must be read into these
provisions to enlarge the meaning and content thereof, to promote the object of the
constitutional guarantee. This is implicit from Article 51(c) and the enabling power of
Parliament to enact laws for implementing the international conventions and norms by virtue
of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution.

In People's Union for Democratic Rights v. Union of India48, the Court followed the
International Covenant of Civil and Political Rights (ICCPR), the International Covenant on
Economic, Social and Cultural Rights (ICESCR), the Universal Declaration of Human Rights
(UDHR) and International Labour Organization's conventions, to interpret and expand the
ambit of Article 21 of the Constitution. In Life Insurance Corporation of India v. Consumer
Education and Research Centre49 it was held that fundamental rights are subject to the
directives enshrined in Part IV of the Constitution, the UDHR, the European Convention of
Social, Economic and Cultural Rights, and other international treaties such as the Convention
on Rights to Development for Socio-Economic Justice.

It is thus settled that the raison d' etre of Article 51(c) is to introduce and implement various
international instruments particularly the UDHR, ICCPR and the ICESCR in the
interpretation of fundamental and legal rights.50 Therefore, the right to strike as contemplated
by these Covenants and by the ILO conventions is well within the ambit of constitutional51
as well as legal provisions.52 Thus, the decision in Rangarajan53 stands in disrespect to the
provisions of international law.

47
(1997) 6 SCC 241 at 249
48
AIR 1982 SC 1473 at 1487
49
(1995) 5 SCR 482
50
Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526; Mackinnon Mackenzie and Co. Ltd. v. Andrey D'
Costa, (1987) 2 SCC 469; Sheela Barse v. Secy., Children's Aid Society, (1987) 3 SCC 50, 54; Vishakha v. State of
Rajasthan, (1997) 6 SCC 241; People's Union for Civil Liberties v. Union of India, (1997) 3 SCC 433; D.K. Basu v.
State of W.B., (1997) 1 SCC 416, 438; Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759.
51
Articles 19 & 21
52
Trade Unions Act, 1926, & Industrial Disputes Act, 1947
53
supra

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Misapplication of judicial precedents

The Rangarajan case relies on a number of case laws dating back to the 1960s.54 The only
recent judgments that the Court relied upon - namely, Harish Uppal55 and Bharat Kr.
Palicha56 - 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 (turn a blind eye) 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".

In Communist Party of India (M) v. Bharat Kumar and others57, 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,
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.

54
Kameshwar Prasad & AIBE Association
55
Ex. Capt. Harish Uppal v. Union of India, AIR 2003 SC 43
56
Bharat Kumar K. Palicha v. State of Kerala, 1998 (1) SCC 202
57
(1998) 1 SCC 201

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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 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.

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

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.

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Weapon of last resort

While on the one hand it has to be remembered that a strike is a legitimate and sometime
unavoidable weapon in the hands of labour, it is equally important that indiscriminate and
hasty use of this weapon should not be encouraged. It will not be right for labour to think that
any kind of demand for a 'strike' can be commenced with impunity without exhausting the
reasonable avenues for peaceful achievement of the objects. There may be cases where the
demand is of such an urgent and serious nature that it would not be reasonable to expect the
labour to wait after asking the government to make a reference. In such cases the strike, even
before such a request has been made, may very well be justified58

In Syndicate Bank v. K. Umesh Nayak59, Justice Sawant opined: "The strike, as a weapon,
was evolved by the workers as a form of direct action during their long struggle with the
employer, it is essentially a weapon of last resort being an abnormal aspect of employer-
employee relationship and involves withdrawal of labor disrupting production, services and
the running of enterprise. It is a use by the labour of their economic power to bring the
employer to meet their viewpoint over the dispute between them. The cessation or stoppage
of works whether by the employees or by the employer is detrimental to the production and
economy and to the well-being of the society as a whole. It is for this reason that the
industrial legislation, while not denying for the rights of workmen to strike, has tried to
regulate it along with the rights of the employers to lockout and has also provided a
machinery for peaceful investigation, settlement arbitration and adjudication of dispute
between them. The strike or lockout is not be resorted to because the concerned party has a
superior bargaining power or the requisite economic muscle to compel the other party to
accept its demands. Such indiscriminate case of power is nothing but assertion of the rule of
'might is right'".

Thus, initially, employees must resort to dispute settlement by alternative mechanisms. Only
under extreme situations when the alternative mechanisms have totally failed to provide any
amicable settlement, can they resort to a strike as a last resort.

58
Chandra Malai Estate, Ernakulum v. Its Workmen31, per Das Gupta, J.
59
[1994] II L.L.J 836 (SC)

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Conclusion
In Kameshwar Prasad the Apex court had settled that the right to strike is not a fundamental
right. But time and again the Court has also settled that the right to strike is a legal right, one
that is recognized by most democratic countries of the world. In ignoring this, Rangarajan is
a mere passionate rendering of a judge's personal views. It is said that law is 'reason without
passion'. And Rangarajan fails to scintillate our reason.

Evidently, the Supreme Court was carried away by the fact that merely two lakh Government
employees went on strike in the instant case and the Government machinery came to a
standstill. It seems to have also been influenced by the fact stated by senior counsel for the
State Government, K. K. Venugopal, that 90 per cent of the State's revenue in Tamilnadu is
spent on salaries of Government servants60. The court was, thus, swayed by liberal
economics. It is true that Government employees everywhere are paid better salaries and
enjoy more privileges and amenities than other employees. The public sympathy is generally
against Government employees who go on strike. But that is no justification for the Supreme
Court to say that Government employees have no moral justification to go on strike in every
case.61

In any event, when an action can be justified in law, there is no need to invoke morality and
equity. At the same time it is also avowed that an unrestricted right to strike is unsought for.
Therefore, it is important to pursue strengthening of alternate mechanisms for dispute
settlement on the lines of the Industrial Disputes Act, 1947. For government servants62 also
efforts were made to establish a Joint Management Council to act as an alternative
mechanism for settlement of disputes. It was a good attempt in this direction and needs to be
revived. Only under extreme circumstances and when these alternate mechanisms have failed
to render an amicable solution, must the right to strike be used as a weapon of last resort.

60
A. Kuppuswami, The Right to Strike, The Hindu, Sep 10,2003,at 10. (Accessible as a web-edition)
61
ibid
62
Article 8 of Convention 151 of the ILO - Labour Relations (Public Service) Convention, 1978, that provides:
The settlement of disputes arising in connection with the determination of terms and conditions of
employment shall be sought, as may be appropriate to national conditions, through negotiation between the
parties or through independent and impartial machinery, such as mediation, conciliation and arbitration,
established in such a manner as to ensure the confidence of the parties involved.

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Bibliography
Books:

 Human Rights in Constitutional Law – Durga Das Basu

 The Constitutional Law of India - Dr. J. N. Pandey
 Constitution of India - M. P. Jain
 Commentary on the Constitution of India- Arvind Datar
 Commentary on the Constitution of India- D. D. Basu
 Constitutional Law of India – H. M. Seervai
Websites:

 www.scconline.com
 www.manupatra.com
 www.indiankanoon.com
 www.advocatekhoj.com
 www.indiatogether.org

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