Right to strike in Indian Constitution: Schrödinger’s cat?

Introduction

In contemporary culture, there seems to be a stark contrast between employers and workers. The latter is inextricably linked to the former. The inequality exists not just in terms of resource abundance, but also in terms of dominance and the enjoyment of authority above the other. Employers have such positional power and authority that they may easily influence their workers, making it difficult to guarantee that their rights are fully protected. There are relatively few ways to cross the fundamental chasm. For example, workers are entitled to establish unions and strike. These rights are important because they foster a feeling of self-determination among workers and also contribute to a balance of power between workers and employers.

These rights are important, since they may be utilised by employees to get improved pay, labor conditions, and other benefits. However, it is critical that these rights are not abused by employees, and therefore certain limitations are placed to guarantee that the balance of power does not entirely shift in favour of workers.

Employees have many such rights. One such right is the right to strike. Although it is primarily a legislative right, it is also considered a fundamental right under Article 19 of the Constitution. We will argue in this project that it should only be regarded as a statutory right rather than a fundamental right since the right of the populace can’t be subordinated to the rights of some.

Understanding the Term

The Industrial Disputes Act describes the Right to Strike 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.”

This stems from the Indian Constitution’s right to establish trade unions.

In the light of Article 19(4), The Industrial Disputes Act restricts the ability to strike in various ways via Sections 22, 23, and 24. Thus, if a trade union wishes to strike, the certain process must be followed, otherwise the protest might be declared unlawful. For example, there is a notification obligation towards the employer, failing which the strike would be deemed unlawful and unjustifiable. The Act categorises strikes as either lawful or illegal and establishes whether a strike is legitimate or invalid as a consequence.

However, courts have broadened their definition of “industry” to include hospitals, educational institutions, clubs, and government agencies.

The Indian Constitution and the Right to Strike

Article 19 of India’s Constitution ensures the preservation of various rights, including the right to freedom of expression. Among them, one is Right to form associations or unions. Although the right to strike is not explicitly stated in the Constitution of India, it is nevertheless enjoyed by Indian people. This is not a fundamental right, but it flows from one. Additionally, the courts consistently acknowledged that, although the right to strike is not a basic right, it has been recognised by the courts as a valid weapon in the arsenal of labour.

The freedoms granted by Article 19 are distinctive in that they are not absolute and that clauses (2) to (6) allow for justifiable limitations on these privileges. Limitations may be procedural or substantive in nature, but both must pass the reasonableness test. The Court will decide whether a restrictions is reasonable or not.

The Court determined the constitutionality of many sections of the Industrial Disputes Act in the case of Raja Kulkarni v. State of Bombay. The Apex Court ruled that significant limitations on the right to strike might be imposed because Article 19(4) of the Constitution allows for them. Such a right does not exist in its entirety and is subject to a number of limitations. In this regard, they argue that a regulation prohibiting strikes in order to achieve industrial peace for a limited time cannot be deemed an unjustified limitation on a striker’s right whereas if Constitution guarantees such a protection.

Trade Associations and the Right to Strike

Collective bargaining is indeed the worker rights’ primary objective and role. The right to establish an association is protected by both the Trade Unions Act and the Constitution. However, the entitlement would not include the right to assemble in order to achieve the union’s objectives. Additionally, even an ideological reading of Article 19 does not ensures trade unions the right to strike or collective bargaining.

Article 8 (1) (d) provides that The States Parties to the Covenant agree to guarantee the following:

The right to strike, provided that it is exercised in accordance with local legislation.”

The Supreme Court clarifies the connection between the Trade Union and the Right to Strike in BR Singh v. Union of India. The court continues by stating that since the Right to Assemble is a basic constitutional right, this association must be registered in order to express its opinions. It goes on to say that the Trade Union Act is a mouthpiece for labour, and that a strike is a way for members to express their opinions.

Right to Strike as a Fundamental Right

The right to organize is not a fundamental right, but a legislative right. However, Article 19 equates it with the freedom of speech and expression. Strikes have been viewed as a form of protest by the courts in a number of cases. If a peaceful demonstration is held to express, it should not be limited to the emotions or sentiments of a set of individuals. Article 19 of the Indian Constitution should safeguard such a protest, which may lead to the formation of assembly, because it is intended to transmit their feelings to another person or authority. Similarly, if a group of individuals attempts to express their feelings or ideas by strikes, the Court believes that the exercising of Article 19 rights will come to a standstill if the activity threatens to infringe on another’s fundamental rights.

However, courts continue to be hesitant to recognise the right to strike as a fundamental right, primarily because the fundamental rights of the whole population cannot be subordinated to the demand of an individual or a group of individuals. Courts have ruled that strikes are not permitted in the public interest but rather for public peace. The courts also believed that if the right to strike is granted, it will jeopardise a number of other people’s fundamental rights.

Recently, the Apex Court ruled that if a strike is deemed unlawful, the employer has the authority to discipline the workers or employees who participated in the strike. Supreme Court held that

“The right to strike was not a fundamental right. It held, “though right to strike is not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievance or workers”

Concluding Remarks and way forward

The right to strike is a legal right. The right to strike, on the other hand, has been equated with the right to freedom of expression by the courts, who have also found that it stems from a fundamental right. It can be traced back to the right to freedom of speech and expression as an addendum. Nonetheless, no right is unrestricted; appropriate limitations must be placed on each and every right, or the community will descend into chaos. For example, granting advocates the basic right to strike will have a direct impact on litigants’ right to a speedy disposal. As a result, restrictions on the exercise of rights are required.

Under Article 19(1)(a) of the Constitution, there is no fundamental right to strike. Strikes are unjustifiable on any equitable basis. Strike as a weapon is often abused, resulting in pandemonium. Similarly, if workers are allowed an unrestricted freedom to strike, the interests of society as a whole will be harmed. As a result, such a right must be regulated. The right to strike has two faces: one that is a statutory right and the other that is a fundamental right. Several constraints are already in place as part of the statutory right to ensure that the interests of both workers and businesses are met. However, as a fundamental right, the right to strike is unrestricted. It is up to the Court to assess whether a strike will breach the Constitutional balance of interests on a case-by-case basis. As a result, it is in society’s best interests to consider the right to strike as a legislative right subject to the limits set by the legislation. Otherwise, the whole society’s right may be jeopardised.

Individual rights cannot be sacrificed to the rights of a few people, which is why society must find a balance. If the right to strike is recognised as a basic Constitutional right (FR), the balance will be thrown off. As a consequence, courts should make a distinction between freedom of expression and the right to strike, and as such it should not be deemed a fundamental.


ABOUT THE AUTHOR

Kamlesh Vishnoi

Kamlesh is a final year honours student of criminal law at National Law University, Jodhpur. He can be reached at kamlesh@nlujodhpur.ac.in.

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