Why the right to strike is a Constitutional Right?

By:- Neha Ladhani

INTRODUCTION:

As the largest democracy in the world, India as a nation has to come across a lot of problems regarding the rights and duties of citizens. In that also balancing all such keeping in mind the welfare of the whole nation is again a tough job. The Constitution of India is considered to be the supreme law of the land and thus law which the legislature legislates has to be in pursuance of the constitution otherwise it will be considered invalid. Right to Strike is a right given to the workers for safeguarding their interests and to protect themselves from the arbitrary dominance and cruel rules of their employers. However, it is to be noted that nowhere in our constitution there is any specific provision providing for the right to strike.

Then the question here arises is whether it even is a right that the constitution grants? To answer this we need to go into the very basics of strike and the widest interpretation of the constitution by the judiciary of India. “Strike” means a cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment.”[1]

A strike is not a new concept, it is as old as the work itself. The concept of the strike was recognized to protect the weaker section of society from harassment. It was also evident in the history of India that how the dominants exploited the labors and made profits out of it. Thus, this concept got birth to protect the labour class. Now taking into consideration, the interpretation of the constitution, our judiciary has very clearly explained and interpreted the provisions regarding the same.

Right To Strike & International Law

POSITION UNDER ICESCR
(INTERNATIONAL CONVENTION ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS)

  • Article 8(1) (d)[2]

It states that all the states which are party to the present covenant should ensure the right to strike, subject to conformity with the domestic laws of that state.

  • Article 2(1)[3]

It states that all the states who are party to this covenant shall undertake steps individually, with international assistance and co-operation, to utilize its resources to the maximum capacity, with the view to achieve the full realization of all the rights recognized in this covenant, by appropriate means, adopting legislative measures specifically. Thus, it can be made clear from the above two articles that how a party to such covenant is under an obligation to recognize rights conferred under it. Right to strike is a part of it thus got recognition as an essential right. So, the state parties are under an obligation to legislate for enforcing such right.

Position Under International Labour Organization (Ilo)

International labour organization grants right to organize and collective bargaining to the employees. However, there is no such express provision on the right to strike but the ILO committee of experts considers it as an integral part of the right to organize.

Constitutional provision for Implementing International Covenants, etc.

It states that nothing in chapter 9 of this constitution shall prevent the parliament of the country to make law for the whole country or any part of it for enforcing or implementing any treaty, convention or agreement with any other country or countries or any other decision made at any international association, conference or other body. Thus, it clearly gives the power to the Indian parliament to legislate for the country as a whole or any part thereof to implement any international treaty, convention or agreement or any decision so made in international conference, association or other such body.

  • ARTICLE 51(c)[5]

It states that the state shall foster the feeling of respect for international treaty, international laws etc.

Thus it obligates the state to respect any treaty or agreement or law or convention subject to which it is a party.

As it is very much clear how the constitution of India regards and accepts the conventions as a part of the law which can be made applicable in the absence of any specific law and also to implement such international law, agreement, treaty or convention the state has the power to legislate law in that behalf for its strict implementation.

View On Article 19(1) (C) Of Indian Constitution

There was a debate however regarding the right to strike is a fundamental right or not in the light of Article 19(1) (c) which provides for freedom to form associations or unions (including trade unions in its ambit).

Thus, there were assumptions of it being a fundamental right as it provides freedom of association under it but our judiciary has in the number of cases interpreting it in the widest sense so to make it clear that the right to strike is not a fundamental right.

However, it can be seen that many of the freedoms mentioned under article 19(1) form an important part of it like freedom of expression, association, to form unions but still it is not regarded as a fundamental right.

In the case of  All India bank Employees’ Association v. National Industrial Tribunal[6]

In this case, the Honorable Supreme Court held that Article 19(1) (c) guarantees freedom to form unions and associations and not the right to strike as a strike could be of any intensity which may cause economic dislocation. Thus, it was mentioned very clearly that it is not a fundamental right, but it does not mean that it is not a constitutional right as they both are different and should not be mixed with each other. Fundamental rights provided under part 3 of the Constitution do form a very important part but it is not the whole constitution. There are other provisions involved too.

Indian Laws With Regard To Right To Strike

There are two main laws which provide for Right to Strike for the protection and safeguard of labor’s right, which may be for increase in wages or resistance to decrease in wages or against any cruel terms and conditions of employers or against any harassment.

  • INDUSTRIAL DISPUTES ACT, 1947

Section 2(q) of the Industrial Disputes act,1947 provides for the definition of the term “strike” which says that it is a stoppage of work by a group of employees under common consent who work in any industry or any refusal made by the employees who are or have been employed in any industry to continue to work. It happens mainly for wages or any other condition laid by an employer or for any grant of a holiday or other benefits which the employees want from their employers.

Moreover, besides this Section 22, 23 and 24 also provides certain conditions for the strike. Section 22 and 23 provide conditions for the prohibition of the strike in certain situations.

Section 22(1) provides for persons employed in public utility services to not go on strike before six weeks of going on strike from the date of notice given to the employer or within 14 days of it or before the expiry of the date of a strike as mentioned in the notice or when any conciliation proceeding is going on or seven days after the conclusion of that conciliation.

Section 23 provides for persons employed in general industries and not those employed in public utility services that no workman shall go on strike during the pendency of any conciliation process before board or after seven days of the conclusion thereof or during the pendency of any proceeding before any Labor court or tribunal or National tribunal or after 2 months of the conclusion of such proceeding or during the pendency of any arbitration proceeding or two months after the conclusion of such arbitration or during any period when any award or settlement is in operation.

Section 24 provides for the distinction between legal and illegal strike which clearly establishes that a strike is illegal if it is in contravention of sections 22 and 23 or if its continuance is prohibited under section 10(3) or section 10-A(4-A) of the act.

Thus it is amply clear that the Right to strike is not an absolute right but is subject to certain restrictions. These are certain specific provisions provided under Industrial Dispute Act,1947, which deal with Strike.

  • TRADE UNIONS ACT, 1926

Section 18 of the act provides for the immunity of the workers of the registered trade union under certain conditions.

Though the immunity provided is not inadequate but still provides some relief to the workers. Thus as mentioned above are the two legislations which recognize strike as a right of workers to aid them against the dominant rule of employers and thus is sometimes referred to as the weapon of the workers.

JUDICIAL VIEW ON STRIKE

  • Crompton greaves ltd v. It’s workmen[7]

In this case, it was held that the workers were entitled to wages for the period of a strike as the strike was a legal one and the appellants have been failed to prove the use of any force or violence by the workmen.

  • INDIAN EXPRESS NEWSPAPER BOMBAY PVT LTD v. T.M NAGARAJAN[8]

In this case it was held by the court that the workers are entitled to right to strike but in peaceful manner for getting their demands fulfilled by the employers.

  • GUJARAT STEEL TUBES LTD v. IT’s MAZDOOR SABHA[9]

In this case it was held that right to strike is the part of collective bargaining and it has a backing of social justice.

  • SYNDICATE BANK v. K UMESH NAYAK[10]

In this case, it was held by the court that for a strike to be legal or illegal, justified or unjustified a number of things are to be considered i.e. the urgency of the matter, the working conditions, the demands of the employees, cause of strike etc. Thus, all this is to be taken into consideration along with keeping in mind the welfare of society at large as there would be an indirect effect on the economy which will affect the society.

CONCLUSION

As discussed above it is very much clear that the right to strike is a constitutional right because if it was not it could have been deleted from the statutes it is part of (as the constitution is supreme law of the land). Moreover, as the very words of the preamble explain the motive of Social Justice to be guaranteed to the citizens, we can say that the Right to Strike is a constitutional right as it gives a right to the weaker section of the society to ask for the fulfilment of their demands.


Neha ladhani , a 4th-year student, pursuing law from GLS Law College Ahmedabad. I want to chase my dreams and make reading articles simple and interesting by my writing capacity.


[1] Industrial dispute act, 1947

[2] ICESCR

[3]ICESCR

[4] Constitution of India,1950

[5] Constitution of India,1949

[6] (1962) 3 SCR 269

[7] AIR 1978 SC 1489

[8] AIR 1978 SC 1489

[9] 1987 (15) DRJ 212

[10] 1980 AIR 1896

[11] 1980 AIR 1896

[12] 1994 SCC (5) 572