Right to Strike and Constitutional Validity

By | May 25, 2020
Right to Strike and Constitutional Validity

Right to Strike and Constitutional Validity | Overview

The right to strike has been recognized under various national and international statutes. Strike is the collective stoppage of work by concerted refusal to work by a body of persons employed. The right to unionize, the right to strike as part of collective bargaining and, subject to the legality and humanity of the situation, the right of the weaker group, viz., labour, to pressure the stronger party, viz., capital, to negotiate and render justice, are recognized by industrial jurisprudence and supported by Social Justice.[1]

Introduction

The right to strike has been recognized under various national and international statutes. Article 8(1)(d) of the International Covenant of Economic, Social and Cultural Rights provides that the States that are 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.”

The right to strike is also recognized under various conventions of the International Labour Organization. Freedom of Association and Protection of the Right to Organize[2], The Right to Organize and Collective Bargaining[3], Collective Bargaining Convention 1981[4], Labour Relations (Public Service) Convention, 1978[5] recognize the right.

Article 9[6] 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.” Strike as a weapon of the weak is recognized under The Industrial Disputes Act, 1947 and the Trade Unions Act, 1929. It, however, is not a fundamental right under Article 19 of the Constitution of India.

Legislative Provisions related to Strike – A defensible rationale

Before 1926, there was no law regarding industrial conflicts. With the introduction of the Trade Unions Act, 1926, the right to strike was indirectly recognized. Members and office-bearers of registered trade unions were given certain immunities. The Trade Unions Act, 1926 recognizes the right to strike under Sections 18 and 19. These sections confer immunity upon trade unions on strike from civil liability.

The right to strike of employees and the right to lockout of the employers were later recognized by The Industrial Disputes Act, 1947 under Chapter V. This right is not absolute and is regulated by the provisions of the same Act. The term “strike” has been defined under Section 2(q) of the Act.

According to Section 2(q), “strike means a cessation 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.” In order to go on a strike or declare a lockout, the procedure laid down under the Act is to be followed otherwise the strike is considered to be illegal.

Section 22 of the Industrial Disputes Act, 1947 deals with prohibition of strikes and lock-outs.

Section 22(1) provides that no person employed in a public utility service shall go on strike in breach of contract:

  1. without giving to the employer notice of the strike, as hereinafter provided, within six weeks before striking
  2. within fourteen days of giving such notice
  3. before the expiry of the date of strike specified in any such notice as aforesaid
  4. during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

The provision does not prohibit the employees from going on a strike. It only lays down certain conditions which need to be complied with before going on a strike. The provisions under Section 22 only apply to employers and employees of public utility services.

In a notice of strike required to be issued under Section 22(1) of the Act, the date on which the workmen intended to go on strike should be specified and its non-specification renders the strike illegal.[7] As provided under Section 22(3), the notice of strike or lockout is not necessary in a case where there is already in existence a strike or, as the case may be, lock-out in the public utility service.

Section 23 of the Industrial Dispute Act, 1947 deals with the general prohibition of strikes and lock-out.  Under Section 23, no workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out:

  1. during the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings
  2. during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal and two months after the conclusion of such proceedings
  3. during the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings, where a notification has been issued under sub-section (3A) of section 10A
  4. during any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award

Section 23 is general in nature and is applicable to all strikes and lockouts irrespective of the subject matter.

Section 24 deals with illegal strikes and lockouts. Under Section 24, strikes and lockouts are deemed to be illegal if:

  1. it is commenced or declared in contravention of section 22 or section 23
  2. it is continued in contravention of an order made under sub-section (3) of section 10 or sub-section (4A) of section 10A

Section 10(3) deals with prohibition of a strike by an order of the appropriate government if an industrial dispute is referred to Labour Court, Tribunal or National Tribunal. Section 10A(4A) deals with prohibition of a strike by an order of the appropriate government if an industrial dispute is referred to arbitration. If a strike is continued in contravention of such orders, it is deemed to be illegal.

 Consequences of Illegal Strike

The penalty for commencing, continuing or furthering strikes in contravention of Section 24 is laid down under Section 26.

According to Section 26(1),

“any workman who commences, continues or otherwise acts in furtherance of, a strike which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees, or with both.”

Another consequence of an illegal strike deduction or denial of wages. The Supreme Court in the case of Crompton Greaves v. the Workmen[8] held that

“It is well settled that in order to entitle the workmen to wages for the period of strike, the strike should be legal as well as justified. A strike is legal if it does not violate any provision of the statutes. Again, a strike cannot be said to be unjustified unless the reasons for it are entirely perverse or unreasonable. Whether a particular strike was justified or not is a question of fact which has to be judged in the light of the facts and circumstances of each case.”

It was also held in the same that use of “force or violence or acts of sabotage resorted to by the workmen” would disentitle them to wages for the period of the strike.

A different view was put forward by the Supreme Court in the case of Bank of India v. TS Kelawala[9] regarding the wages during the strike. It was held that “whether the strike is legal or illegal, the workers are liable to lose wages for the period of the strike. The liability to lose wages does not either make the strike illegal as a weapon or deprive the workers of it. When workers resort to it, they do so knowing full well its consequences.”

In the case of Management Of Churakulam Tea v. Workmen[10], the Supreme Court held that the factory wagers would be entitled to wages for the day the strike started, despite the legality of the strike. Further, in the case of Syndicate Bank v. K. Umesh Nayak[11], the Supreme Court examined the views expressed in different cases regarding whether the workmen who proceeded on strike, whether legal or illegal, were entitled to wages for the period of strike, and it was held by the Constitution Bench that workmen may claim wages for the strike which is both legal and justified.

It can be concluded by a combined reading of these judgements that if a strike is not in contravention of the statutory provisions, i.e., it is legal, and justified, the workmen cannot be denied wages during the period of their strike. But the workers are not entitled to wages for the period of an illegal and unjustified strike. Whether a particular strike was justified or not is a question of fact which has to be judged in the light of the facts and circumstances of each case.[12]

The position of the Supreme Court with regard to the dismissal of employees for participation in illegal strikes has been made been clear in a number of cases. In the case of M/S Burn & Co. Ltd. v. Their Workmen[13], it was held that dismissal or suspension on the basis of mere participation in an illegal strike would not be justified.

The only question of practical importance which may arise in the case of an illegal strike would be the kind of quantum of punishment, and that, of course, has to be modulated in accordance with the facts and circumstances of each case.[14]

With regard to the right of an employer to compensation for loss caused by illegal strike, the Supreme Court of India in the case of Roth Industries v. Its Union[15], the Supreme Court held that the remedy for an illegal strike has to be sought exclusively in section 26 of the Industrial Disputes Act, 1947. The claim for compensation cannot be a lawful subject for arbitration because it is not covered within the definition of Industrial Disputes in Section 2(k).[16]

The penalty for instigating a strike is laid down under Section 27. If a person

“instigates or incites others to take part in, or otherwise acts in furtherance” of an illegal strike, he would be punishable with imprisonment which may extend to a term of six months, fine which may extend to one thousand rupees or both.

Section 28 deals with penalty for giving financial aid to illegal strikes.

Section 35 provides protection to the people who refuse to participate in illegal strikes. To protect him from being in a disadvantageous position, the Section protects him from

“expulsion from any trade union or society, or to any fine or penalty, or to deprivation of any right or benefit to which he or his legal representatives would otherwise be entitled, or be liable to be placed in any respect, either directly or indirectly, under any disability or at any disadvantage as compared with other members of the union or society.”

Article 19(1)(c) and the Right to Strike

The scope of Article 19 of the Indian Constitution has always been rather disputable. The Supreme Court of India time and again has interpreted the Article widely and has also expanded its applicability. Over the years, various rights such right to freedom of the press[17], right to access internet[18], right to information, right to non-violent protests[19] etc. have been included under Article 19.

But the bone of contention has often been the interpretation of Article 19(1)(c) which confers the right to freedom of association. Article 19(1) (c) of the Indian Constitution guarantees all its citizens the right “to form associations and unions.” This right is not absolute and is subject to certain reasonable restrictions which are provided under Article 19(4).

These exceptions include the sovereignty and integrity of India, public order and morality. These restrictions may be procedural or substantive. The question of whether the right to strike is a fundamental right under Article 19(1)(c) has been presented before the Supreme Court in various cases. It has been held by the Supreme Court very specifically 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 effective collective bargaining or to strike, either as part of collective bargaining or otherwise.”[20]

It was contended that “collective bargaining in order to be effective must be enforceable, labour withdrawing its co-operation from the employer and consequently there is a fundamental right to strike, a right which is thus a natural deduction from the right to form unions guaranteed by sub-cl. (c) of cl. (1) of Art. 19.”

In the case of Bharat Kumar v. State of Kerala[21], a Full Bench of the Kerala High Court held that “no political party or organization has the right to call for a bandh. They cannot prevent citizens, not in sympathy with their viewpoint, from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State.” Thus, even the freedom to form associations and unions is guaranteed to the citizens of India, the right to strike is not a fundamental right under Article 19(1)(c).

Conclusion

Thus, under Article 19(1)(c), the citizens are guaranteed the right to form associations or unions, but there is no right to go on strike.

In India, no special or common law recognizes the right to strike as a fundamental and absolute right. Strikes have been used by workers as a means of securing their demands, but the cessation or stoppage of work 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.[22] There have been instances where the right to strike has been misused, but it has also been proved to be instrumental in securing the socio-economic rights of the workers. The right to strike is a part of the right to collective bargaining, and it will continue to be used as a means, amongst other means, to express or react, by employees, workers and workmen.


[1] Gujarat Steel Tubes Ltd v. Gujarat Steel Tubes Mazdoor Sabha, 1980 AIR 1896

[2] Convention 87

[3] Convention 98

[4] Convention 154

[5] Convention 151

[6] Id.

[7] Mineral Miners’ Union v. Kudremukh Iron Ore Co. Ltd, ILR 1988 KAR 2878

[8] (1978) 3 SCC 155

[9] 1990 SCR (3) 214

[10]AIR 1969 SC 998

[11] AIR 1995 SC 319

[12] Id.

[13] AIR 1959 SC 529

[14] Indian General Navigation and Railway Co. Ltd. v. Their Workmen, AIR 1960 SC 219.

[15] AIR 1976 SC 425.

[16] Id.

[17] Romesh Thapar v. State of Madras, (1950) SCR 594

[18] Anuradha Bhasin v. UOI, [WP(C) 1031/2019]

[19]Ramlila Maidan Incident, In Re v., (2012) 5 SCC 1

[20] All India Bank Employees’ Association v. National Industrial Tribunal, (1962) 3 SCR 269

[21] AIR 1997 Kerala 291

[22] Supra, at 11.


  1. Development of Labour Laws in India
  2. Labour Law

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