Introduction
The right to strike is recognized as a fundamental human right by international labor standards, including the International Labor Organization (ILO) conventions. However, the extent to which this right is protected and regulated varies between countries and is subject to judicial interpretation.
In many countries, the right to strike is protected by law and is seen as an essential tool for workers to defend their interests and negotiate with employers. However, exercising this right can also have significant economic and social consequences, and there are often limits on when and how strike can be carried out.
Strike under IR and ID Act
According to Section 2(q) of the law, the strike is recognized, and Sections 22, 23, and 24 confirm the right to strike. However, under the Industrial Disputes Act of 1947, strikes were not permitted for public utility services as they would cause significant issues for the entire country.
As per the law, notice must be given at least 14 days before the strike, and strikes are not allowed during the seven days of the conciliation process or within 60 days after proceedings before a tribunal has concluded. These provisions limit the ability of workers and employees to go on strike, which is a crucial aspect of industrial law.
The Industrial Relations Code imposes a ban on strikes and lockouts across all industries and establishments, without offering adequate reasoning for this stance. However, during the bill’s evaluation by the Standing Committee in 2019, it was proposed that restrictions on strikes should only be applicable to public utility services, such as railways, airlines, and telephone services, rather than all industries, as specified in the legislation.
Judicial Standing on Right to Strike
Although the Supreme Court has clearly stated that the right to strike is not an absolute right, it has acknowledged the rights of workers and employees to express their grievances to their employers for seeking justice on several occasions. In the case of BR Singh v Union of India, the court highlighted the importance of the strike. It recognized that trade unions are more effective in bargaining with management than individuals. The strength of the associations would be diminished if they were unable to use agitational methods such as ‘sit-down strike’ or ‘strike’.
Moreover, in the case of Indian Petrochemicals Corporation Ltd. vs. Shramik Sena , the court held that the right to strike is not absolute. The workers must give prior notice to their employer, and employers have the right to take disciplinary action against workers who participate in illegal or violent strikes. Additionally, through previous cases, it is evident that the judiciary approves a strike if it is deemed just and reasonable given the circumstances and does not contravene the law.
However, in the case of TK Rangarajan v Government of Tamil Nadu, it was held that the right to strike is a constitutional right. Still, it must be exercised in a responsible and reasonable manner. Nonetheless, this ruling did not override the decision made in Gujarat Steel Tubes v Its Mazdoor Sabha, which was made by a three-judge bench while the former was decided by a two-judge bench. In the latter case, the court stated that the right to strike is an integral aspect of collective bargaining and is recognized by industrial jurisprudence.
International Covenants on Right to Strike
Being a member of the International Labour Organization (ILO), India has a responsibility to uphold the fundamental principles of the organization, which include the right to strike and collective bargaining. Additionally, as a signatory to the International Covenant of Economic, Social, and Cultural Rights, India must acknowledge the right to strike as stated in Article 8(1) of the covenant. According to Article 51(C) and Article 253 of the Constitution, which address the obligation to respect international law and create legislation following international agreements, India must adopt and implement national laws that align with the international treaties it has signed. Therefore, it is crucial to recognize the right to strike and not curtail it.
Problem at Hand
It is widely acknowledged that the right to strike is a crucial aspect of industrial law and serves as a last resort for workers when negotiations or other forms of dispute resolution fail. In India, the judiciary has recognized the importance of the right to strike, however, there is a lack of clear and consistent legal precedent on the issue. This has resulted in a situation where workers are not aware of their rights and employers have been able to take advantage of this ambiguity to curtail the right to strike.
The Industrial Disputes (ID) Act of 1947 provided some relief by recognizing the right to strike and establishing a more straightforward process for implementing it. However, the new legislation that has subsumed the ID Act makes it almost impossible for workers to go on strike. Under the new law, a conciliation officer must be informed of an impending strike five days in advance, after which negotiations must occur. During these negotiations, workers are not allowed to go on strike. If the talks fail, the aggrieved party must apply to a tribunal, and this application process can be extended beyond the 60-day statutory period. During this period, workers are not permitted to strike, effectively curtailing the right to collective bargaining.
Suggestion
The right of workers to strike is impeded by the stringent laws in place. Therefore, it is imperative for the judiciary to play a more active role in safeguarding workers’ rights and ensuring that they can go on strike without any fear of reprisals. The courts should establish clear and consistent legal precedents on the issue and should work to ensure that the relevant legislation is enforced in a fair and just manner. This is recommended based on the observation made in Syndicate Bank v Umesh Nayak, where it was held that a strike is a last resort and should be used when other means of resolving a dispute have failed. The labor laws have been enacted to safeguard the interests of workers, and denying them the right to strike is unjust and benefits companies by enabling them to evade responsibility. Failure to take actions would leave workers without any recourse to justice, either through legislative or judicial means.
Conclusion
As stated in the article, the right to strike is a last resort tool when communication fails between workers and management. However, the new legislation makes it exceedingly challenging for workers to utilize this right. This restrictive legislation violates India’s obligations to international treaties and principles recognizing the right to strike and collective bargaining. In light of the previous legal precedents, the most appropriate course of action would be for the judiciary to identify the right to strike as a fundamental right. This would be beneficial for the workers who were the intended beneficiaries of the changed law.
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