Right to Strike as a Fundamental Right and Industrial Relations

Part III of the Constitution of India assures fundamental rights to the people of India. One such right is the right to form associations enshrined under Art. 19 (1) (c) of the Indian Constitution.^[1] It provides all Indian citizens with the right to form unions and covers the right to protest under its ambit and scope; however, whether the right to strike is protected under it is a pertinent question that remains unaddressed.

Meaning of strike:

A strike means the refusal to work by a body of employees to meet their demands against the employer or the organization. Sec. 2 (q) of the Industrial Disputes Act, 1947,^[2] defines it and provides certain ingredients that constitute a strike. These include: that there must be a cessation of work due to a dispute; in an industry; where there is the presence of a contract of employment; and the cessation must be a concerted action by the employees.

Analysis of the right to strike of the labour force in various sectors by Courts:

Relating the right to strike to Art. 19(1) (c) is an unaddressed demand of the labour force. The right to strike is not considered a fundamental right under the provision. Rather, it remains merely a statutory and legal right, subject to restrictions under the Industrial Disputes Act, 1947.

The right to strike is often seen as a modified aspect of the right to protest. It involves the right to assemble peacefully, the right to form associations and the freedom of speech and expression as an intrinsic part of it. However, it has been observed in various instances by the Judiciary of India that this proposition cannot lead us to conclude that the right to strike is a fundamental right.

In the precedent of All India Bank Employees Association v. National Industry Tribunal, AIR 1962 SC 171,^[3] the Apex Court held that even if Art. 19 (1) (c) is given a liberal interpretation, one cannot conclude that a right to collective bargaining through strikes is guaranteed under the provision. Moreover, in the case of BR Singh v. Union of India, AIR 1990 SC 1,^[4] it was further upheld that the right to strike at its best is a statutory right and cannot be equated to a fundamental right.

Strike as a right is often seen as a means that must be employed as a last resort by the employees.^[5] Further, the labourers cannot assume to have a fundamental right to strike.^[6] Even the Trade Unions Act, 1926,^[7] emphasizes that unions may pursue their rights through peaceful means. And use strikes to attain the attention of the employees only as a last measure to meet their demands.

It is also pertinent to note that now and then, the judiciary has taken a stand on the distinction between legal and illegal strikes and has accordingly restricted the right to strike, however, no recognition of fundamental rights has yet been accorded to strikes.

Judgments related to right to strike of labour force & Impact on different stakeholders and Industrial Relations:

Such judicial interpretations of this right have a huge impact on the rights of the labour force which majorly affects the marginalized and unorganized workforce in India. Several restrictions are imposed and rules are framed by the employers to curtail the right to strike given to employees. This affects the industrial relations between the key stakeholders such as employers, employees, government and their associations and has a great impact on them.

Favouring the employers in cases like Kameshwar Prasad v. State of Bihar, 1962 SCR Supl. (3) 369,^[8] striking down such rules is denied because the right to strike is not yet recognised as a fundamental right in India.

Additionally, the strike is considered legal only when it doesn’t violate any statutory provision and is based on just and reasonable grounds. Using this interpretation, the labourers are often denied their right to strike by the employers through attaching arbitrary meanings to what can be considered as ‘reasonable.’ In T.K. Rangarajan v. Government of Tamil Nadu, Appeal (civil) 5556 of 2003,^[9] the Hon’ble Court held that government employees have no moral or legal right to strike, and the strike was curtailed. Several strikes by the marginalized sectors are forbidden in the guise of labelling it as a cause of ‘maladministration.’

To some extent, where larger rights of the public are affected, this reasoning can adhere, but denial of the right to strike as a fundamental right is prone to more arbitrary action. The curtailment of strikes by medical professionals, transport services, etc. on the ground that it affects the larger public cannot be put on the same footing as the arbitrary restrictions imposed on the genuine demands and strikes done by the marginalised and unorganised sector of the Indian workforce.

Since 1960, the usual response of the government to strikes is invoking the Essential Services Maintenance Act and declaring any economic activity as ‘essential.^[10]‘ This is considered to be an arbitrary tool in the hands of the government, however, it is to be noted that strikes leave no other alternative before the government but to attempt negotiations and discussions with the concerned employees and put restrictions wherever possible in the purview of larger public interest.

For the employees, strikes act as a tool to enhance their working conditions.^[11] However, strikes specifically in the public industries hamper the economic activities of the government sector and affect the routine working of the field.^[12]

Also, several unions or associations use strikes to increase their collective bargaining power vis-a-vis the employers.^[13] Through this, the unorganized and marginalized sectors of the Indian workforce such as weavers, workers in the handloom industry, plantation workers etc get a pathway to capture the attention of the employers towards their unfulfilled demands and this leads to speedy redressal of their grievances.

Countereffects of strikes in the labour industry and A Need to reform

Considering the major impact of strikes on several stakeholders, it becomes pertinent to take into consideration the counter effects of strikes and understand why a need to reform the response towards strikes is quintessential. Strike actions lead to lesser productivity and lock-outs that in turn contribute to lesser profits. Moreover, lengthy and violent strikes result in decreased business confidence and push the concerned industry at a higher risk of economic stagflation. The employees too are bound to lose their pay as is evident from the no work, no pay principle and face economic disadvantages.^[14]

However, that does not reduce the significance that strikes hold in the current regime. Rather, it leads to a need for reform in the way strikes are approached and addressed by several stakeholders.

Right to strike of labour force – Conclusion and suggestive measures

ILO recognizes strikes as a means to promote and secure the economic and social interests of the workers.^[15] Whenever this right is curtailed, it becomes necessary to devise an alternative forum to fulfil its purpose. The employers, organization or the government, as the case may be, must ensure that access to alternative dispute resolution forums is put in place for the redressal of labour grievances. Further, if the government is labelling a certain economic activity as ‘essential’, it must create forums for social dialogue between all the stakeholders specifically, the employers and employees wherein amicable and long-term solutions could be devised for the negotiable demands.

Additionally, measures have to be taken,^[16] to bridge the gap between the worker and management divide. More participation of the workers in the managerial decisions or at least considering the opinions of the workers has to be the first step in this regard.

Workers are not machines and they must not be treated like one. The organizations must have an empathetic approach and create a safe space where the workers can open up about their grievances without taking the recourse of strikes. Also, timely and effective interactions between the employee unions and employers’ associations can help to identify the issues at hand at an early stage and prevent the onset of violent strikes. Giving employees access to information and promoting worker autonomy in the sector is another way of promoting healthy industrial relations in the field.^[17]

The idea is not to eliminate strikes, but rather to recognise them as an efficient tool for the workers, simultaneously paving an approach that can lead to amicable solutions before resorting to the measure of strikes.

[1] India Const. Art. 19, Cl.1 (c).

[2] The Industrial Disputes Act, 1947, § 2q, Act No. 14, Acts of Parliament, 1947 (India).

[3] All India Bank Employees Association v. National Industry Tribunal, AIR 1962 SC 171.

[4] BR Singh v. Union of India, 1990 AIR, 1 1989 SCR Supl. (1) 257.

[5] Arinto Nugroho, Strike as The Last Resort In Dispute Settlement Between Workers And Employers, Researchgate, apr.14,2023, 20:15 PM), https://www.researchgate.net/publication/323175543_STRIKE_AS_THE_LAST_RESORT_IN_DISPUTE_SE TTLEMENT_BETWEEN_WORKERS_AND_EMPLOYERS#:~:text=Before%20conducting%20Strike%20the %20parties,disputes%20between%20workers%20and%20employers.

[6] Radhey Shyam Sharma v. Post Master General Central Circle, 1964 SCR (7) 403.

[7] The Trade Unions Act, 1926, Act No. 16, Acts of Parliament, 1926 (India).

[8] Kameshwar Prasad v. State of Bihar, 1962 AIR 1166.

[9] T.K. Rangarajan v. Government Of Tamil Nadu & Others on 6 August, 2003 SLP (C) No.12224 of 2003.

[10] “A hardhanded response that strikes at the root of rights” published in “The Hindu” on 30th March 2023.

[11] Zaid Imam, The Right To Strike In India, academia.edu (apr.14,2023, 20:15 PM), https://www.academia.edu/36118068/THE_RIGHT_TO_STRIKE_IN_INDIA.

[12] idea.int, https://www.idea.int/blog/right-to-strike-bill-uk-governments, (last visited April.6, 2023).

[13] Brett W. Myers, Alessio Saretto, Union Strikes and the Impact of Non-Financial Stakeholders on Capital Structure, Researchgate, apr.14,2023, 20:15 PM), https://www.researchgate.net/publication/228582275_Union_Strikes_and_the_Impact_of_NonFinancial_Stakeholders_on_Capital_Structure.

[14] Strikes And Their Economic Consequences, https://cisp.cachefly.net/assets/articles/attachments/76184_strikes_.pdf,(last visited April.14, 2023).

[15] ilo.org, https://www.ilo.org/legacy/english/dialogue/ifpdial/llg/noframes/ch5.htm#2, (last visited April.14, 2023).

[16] epw, https://www.epw.in/system/files/pdf/1964_16/41/strikes_in_indiaan_analysis.pdf, (last visited April.14, 2023).

[17] consultantsreview, https://www.consultantsreview.com/news/how-to-prevent-potential-strikes-in-themanufacturing-industry-nwid-1642.html. (last visited April.14, 2023).