RIGHT TO STRIKE
,LL.B.,FICWA., FCS.,
Practsing Company Secretary
kpcrao.india@gmail.com
The definition of Strike, according to section 2(q) of The Industrial Disputes Act, 1947 is as follows:
Strike means
1. cessation of work by a body of persons employed in any industry acting in combination; or
2. a concerted refusal of any number of persons who are or have been employed in any industry to continue to work or to accept employment; or
3. a refusal under a common understanding of any number of persons who are or have been employed in industry to continue to work or to accept employment.
Therefore, strike means the stoppage of work by a body of work men acting in concert with a view to bring pressure upon the employer to concede their demands during an industrial dispute. The workmen must be employed in any industry. Mere cessation of work does not come within the purview of strike unless it can be shown that such cessation of work was the concerted action for the enforcement of an industrial demand.
A strike may not be a Fundamental Right but it is recognized by law in all democratic countries that the right to collective bargaining and the right to strike are inherent rights of every worker and they cannot be abridged or taken away except in conformity with statutes. The right to strike in the Indian constitution set up is not absolute right but it flow from the fundamental right to form union. In India by enacting the Industrial Disputes Act, 1947 the legislature itself has recognized that collective bargaining and strike are legitimate weapons in the matter of industrial relations and the Act itself recognizes and defines strike. There are innumerable decisions of the Supreme Court, the various high courts and several other industrial tribunals where the right to strike has been assumes without any whisper of an objection to the contrary.
The case of T.K. Rangarajan v. State of Tamil Nadu[1] has a mighty blow against labour and the working class by declaring all strikes illegal. In this case, the action of the Tamil Nadu government terminating the services of all the employees who have resorted to strike for their demands was challenged before the Hon’ble High court of Madras, by writ petitions under Articles 226/227 of the constitution. On behalf of the government employees, writ petitions were filed challenging the validity of the Tamil Nadu Essential Services Maintenance Act (TESMA), 2002 and also the Tamil Nadu Ordinance 2 of 2003. The division bench of the court set aside the interim order, and pronounced that the writ petitions were not maintainable as the Administrative Tribunal was not approached. Justice M. B. Shah, speaking for a Bench of the Supreme Court consisting of himself and Justice A. R. Lakshmanan, said, “Now coming to the question of right to strike – whether fundamental, statutory or equitable moral right to strike – in our view no such right exists with the government employee.
The judgment appears to be in tune with law which prevailed in England in the nineteenth century when British judges ruled that all strikes were conspiracies (which were punishable). The attitude of the then British judiciary was so anti-labour that even Winston Churchill, a conservative by all means, who much later led the allies to victory World War II had to protest in strong words against the judicial attitudes towards labour. He is reported to have said:
‘The Courts hold justly a high, and I think, unequalled prominence in the respect of the world in criminal cases and in civil cases between man and man, no doubt they deserve and command the respect of all classes of the community but where class issues are involved, it is impossible to pretend that the Courts command the same degree of general confidence.’
He also accused the judges of using language reflecting on trade unions which was extremely ignorant and out of touch with the general development of modern thought, and which had greatly complicated the administration of justice and added bitterness to a sense of distrust of the administration of law.
Lord Justice Scrutton, one of the highly respected English judges, said:
‘Impartiality is rather difficult to attain in any system. I am not of conscious impartiality but the habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgments as you wish. This is one of the great difficulties at present with labour. Labour says: Where are your impartial judges? They all move in the same circle as the employers and they are all educated and nursed in the same ideas as the employers. How can a labour man or trade unionist get impartial justice?’
RIGHT TO STRIKE: CONSTITUTIONAL REALM
The Administrative Tribunals may act as speedy machinery for redressal of the grievances of the employees in the service matters, but when 1,70,000 employees are dismissed en masse ,as in T.K Rangarajan v. State of Tamil Nadu, it is not a trivial service matter but a matter relating to right to life, that is a fundamental right guaranteed under Article 21 of the constitution. It becomes obligatory on the constitutional courts, which exercise the writ jurisdiction to embroil themselves in to the grave situation. Moreover the administrative tribunals are quasi judicial bodies which sometimes act according to the executive whims and fancies rather than judicial principles. Article 19 (c) of the Constitution of India provides freedom to form associations and unions.
Article 43-A of the constitution speaks about the participation of workers in management of industries. It says that the state shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry. If the workers require supporting their stand in parlance with the management an effective action like the right to strike needs to be at their reach. In Radhe Shyam Sharma v. Post Master General[2] it was stated that Article 43-A of the Constitution clearly states that the State shall take steps by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishments or other organisation engaged in any industry.
Things changed considerably and it was acknowledged later that strike was legitimate and a potent weapon in the hands of labour to have their legitimate demands satisfied. It looks as if the recent decisions of the Supreme Court of India in T.K. Rangarajan v. Government of Tamil Nadu and State of Kerala v. James Martin[3] are well designed to take us back to the old British days when all strikes were considered to be conspiracies. Not merely the right to strike but also the right to collective bargaining was denied to workmen in Dharam Dutta and Others v. Union of India and Others[4]. It is true that in some cases the right to Strike is being misused but not definitely in all the cases.
The Court which appeared formerly well set on the road to socialism suddenly struck a mighty blow on the entire working class by declaring the ‘Right to Strike’ illegal, in the case of T.K. Rangarajan v. State of Tamil Nadu. The decision is wholly regressive and totally opposed to the general principles of labour law observed in all democratic countries.
Five years prior to T.K Rangarajan there was yet another decision of the Supreme Court confirming the opinion of the Kerala High Court [5]. According to the learned judges, all ‘bandhs’ were likely to lead to violence and were a menace to peace and public order. Therefore, it was imperative that all bandhs should be banned. The case reads as if the Court assumed to itself the role of the legislature and was giving the statement of objects and reasons and enacting a statute.
The Court would have done well to have looked back on the march past of history which would have revealed to them that during the national struggle for independence there were innumerable strikes and bandhs which were always peaceful.
The decisions require apparent reconsideration by the Supreme Court so that the pre-existing law may be revived without question. It is possible that a strike by workmen of a particular industrial factory is illegal because it contravenes the definition stipulated in the Industrial Disputes Act. But it is inconceivable to declare all strikes as illegal without reference to the Industrial Disputes Act or other provisions of law by which a strike could be declared illegal.
The case of T.K. Rangarajan v. Government of Tamil Nadu is an abyss from which the Court must extricate itself and proceed further along the lines on which it was moving formerly.
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[Published in Corporate Secretary of ICSI, May, 2010]
[Published in Corporate Secretary of ICSI, May, 2010]
[1] T.K. Rangarajan v. State of Tamil Nadu(2003) 6 SCC 581
[2] Radhe Shyam Sharma v. Post Master General; 1965 AIR 311 1964 SCR (7) 403
[3] State of Kerala v. James Martin 2004(2) SCC 203.
[4] Dharam Dutta and Others v. Union of India and Others; (2004) 1 SCC 712
[5] Communist party of india v.Bharat kumar, AIR 1998 SC 184
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