Progression of ‘Right to Strike’ Within the Framework of Labour Law

INTRODUCTION AND MEANING OF THE TERM “STRIKE”

Marx believes the class struggle to be the very center of every functioning society. Industries being a major driving force in it is function of the society, do experience class struggle between the employer and labour class. Their class struggle fundamentally focuses on controlling the means of production where the employer believes that the contribution of labour class is limited to the extent of the wages payable to them. On the other hand, labour class aims to get a fair share of profit in their court. It is an essential element in ensuring collective bargaining power to the workers.

In India, workers have right to form association and labour union but there is no as such explicit right to strike given to them by our constitution. However, this freedom to form association has been acts as the grundnorm for ensuring right to strike being granted to workers. Therefore, by promoting collective bargaining power of the people together with institutionalization of strike as a way to protest allows for the workers to voice in a peaceful yet effective manner. [1]

When it comes to defining strike, section 2(q) of the Industrial Disputes Act defines it as “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 to accept employment. [2] On the other hand, Anderson’s Law dictionary defines strike as “The combination among labourers or those employed by others, so as to compel an increase of wages, a change in the hours of labour, a change in the manner of conducting the business of principal or to enforce some particular policy in the character or number of the men employed or the like.” In simple terms, strike can be understood as a tool used by workers as a means of enforcing compliance with their demands which they aim to raise before the employer.

EVOLUTION OF THE “RIGHT TO STRIKE” IN INDIAN CONTEXT

In India, the origin of right to strike can be trace back to the initial days of the labour movement in late 19^th and early 20^th century. During this time, India was going through its initial industrialization phase under British rule and the labour force was significantly affected by the increasing reliance on the use of machinery in industries. As a result, workers began to organize themselves into trade union, majority of which worked informally without being established with a proper name. They worked to protect the interests of the workers in the times when laws were largely inadequate to in safeguarding the needs of the labour force. In the absence of proper laws, these trade unions were met with strong resistance from the employer, who would use numerous tactics to suppress the workers’ movements. One such tactics was to dismiss workers who participated in these strikes. As the result, workers started resorting to strike for expressing their grievance irrespective of the pressure given by the employers in supressing the development of these unions. These strikes were seen as an act done illegally and were often met with police repression. [3]

The first noteworthy development in regards to labor law came in the form of enactment of Trade Disputes Act, 1929 which recognized the worker’s right to strike and also provided for the protection of the workers engaging in strike. This law, however, had its limitations in protecting their interest and placed some significant restriction on their ability to exercise this right, limiting it to specific scenarios. Owing to its limitations, Trade disputes Act was replaced by the Industrial Disputes Act, 1947. This Act till today remains the primary legislation in governing the industrial relation. While the new Act shared some similarities with the Trade Disputes Act, it was more comprehensive version of its predecessor Act.

Over the years, the pros and cons of granting right to strike as a fundamental right has been vastly debated ad discussed in India. People who are more concerned about the interests of employers and production tend to argue that granted such a rights result in disruption of production and is a major threat to economic production. Apart form this, they also put forth some valid points related to the cons associated with trade unions and how they tend to digress from their main objective of ensuring interests of workers due to politization or low worker support. [4] Courts on the other hand, have shown a positive attitude towards right to strikes as something which is fundamental to protect the worker class. At the same time, they have left no stone unturned in denouncing strikes if they are being held for unjust and unreasonable purposes. [1]

In the landmark judgement of All India Bank Employees Association v. National Industrial Tribunal, 1960, Supreme Court held that the right to strike was an integral part of the right to collective bargaining and was protected under the Constitution of India. The court also held that the right to strike could be subject to reasonable restrictions in the interest of public order, but these restrictions must be narrowly tailored and cannot be arbitrary or excessive. [5] In case of Indian Iron and Steel Co. Ltd. v. Their Workmen, court held that the employers cannot dismiss workers who are part of a legal strike a or where a strike has been conducted in a peaceful manner.

However, when it comes to proving the reasonability for conducting a strike, the same court has given judgements in form of B.R. Singh vs. Union Of India and the case of Communist Party of India vs Bharat Kumar and Ors. In the former case, court held that Right to Strike cannot be equated to that of a fundamental one. “Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, e.g. Go-slow, sit in, work to rule, absenteeism, etc. and work. Strike is one such mode of demonstration by the workers for their rights. The right to demonstrate and therefore the Right to Strike is an important weapon in the armory of the workers.”. In the latter case, court while determining the legality of strikes held that “Fundamental rights of the people as a whole cannot be subservient to claim of an individual or only a section of the people”. [6]

In recent times, the right to strike has faced challenges due to the growing trend of contract labor and outsourcing. Contract workers, who are not covered by the Industrial Disputes Act, are often not able to exercise their right to strike due to the fear of losing their jobs. This has led to calls for the expansion of the right to strike to include contract workers and other non-traditional workers. To overcome this, the problem needs to approached in a two-pronged manner. Firstly, we need to recast the law for meeting the demands of the 21^st century rather than its 19^th century form. Secondly, the new law formulation needs to be done by taking into account the changing nature of employment and industrial relations.