IS THE RIGHT TO STRIKE RECOGNIZED AS A FUNDAMENTAL RIGHT?

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This article is written by Bhavya Verma of JEMTEC, School of law, and curated by Anjeeta Rani of Chanakya National Law University.

Every right comes with its duties. Most powerful rights have more duties attached to them. Today, whether it is democratic, capitalist, socialist, give the workers the right to strike in every nation of the globe. But this right needs to be the last resort tool because if this right is misused it will create a problem in the industry’s production and financial income. That would ultimately have an impact on the country’s economy. In India, the right to protest is a fundamental right under Article 19 of the Indian Constitution. But the right to strike is not a fundamental right but a legal right, which was added in the 1947 Industrial Dispute Act with this right to constitutional limitation.

The law here in India doesn’t expressly recognize the right to strike. For the first time, the Trade Union Act, 1926, provided for a restricted right to strike by legalizing certain activities of a registered trade union in support of a trade dispute that would otherwise violate common economic law. Nowadays a right to strike is recognized as a legitimate weapon of Trade Unions only to a limited extent permissible within the limits laid down by the law itself.

The right to strike defined in the Indian constitution is not absolute but it derives from the fundamental right to form a union. Since every other fundamental right is subject to reasonable restrictions, it is also the case that trade unions are formed to call on the workers to strike, and the state can impose reasonable restrictions. In the All India Bank Employees Association v. I. T., the Supreme Court held, “the right to strike or right to declare lockout may be controlled or restricted by appropriate industrial legislation and the validity of such legislation would have to be tested not regarding the criteria laid down in clause (4) of Article 19 but by totally different considerations.”

Section 22(1)(a) of the Industrial Dispute Act, 1947 states that in the event of a breach of contract, workers may go on strike provided the employer provides an advance notice within 6 weeks of such strike. It also includes government employees. In the statute, the said right is not granted freely. There are certain conditions, which only if satisfied can the workers go on strike. The right is a major tool in workers’ possession to pursue redress and protect their freedoms. So, the need was a tool for collective bargaining. As the Supreme Court has said, the basic goals of the Industrial Disputes Act, 1947 are good relations between employer and employee and collective bargaining.

Article 19(1)(c) gives the right to form associations and trade unions. If there is no right to strike, then it would be meaningless to form associations. Then why is such a right given in the first place? Through the sequence of judicial decisions, the Indian judiciary stressed the legality or illegality of strike but did not place a prohibition on the right to strike. The Apex Court held that the membership of the trade union if sufficient can bargain. But then this bargaining power is significantly weakened when the workers are granted the right to strike.

The International Labour Organization demands that the workers be granted the right to organize and collective bargaining. Although, there are no express provisions on the right to strike. Yet this right was highly regarded by the ILO Committee of Experts as crucial and an integral part of the right to organize. Nearly all of the concepts contained in these two conventions were adopted and supported by India excluding the right to strike. Universal Declaration of Human Rights, 1948 provides for the protection of workers’ interests. They have the right to join the alliances and trade unions. And the right to strike is a continuation of their constitutional privilege in forming an association. International Covenant of Economic, Social, and Cultural Rights, 1966 also provides for the recognition of the right to strike with the condition that it conforms with the law of the member states.

Notice of strike

Notice of strike within six weeks before striking where lockout already exists is not necessary. In Mineral Miner Union vs. Kudremukh Iron Ore Co Ltd., it was held that Section 22 provisions are mandatory, and the date on which the workers proposed to strike should be specified in the notice. If the date of the strike stated in the strike notice expires in the meantime, the workmen must send a fresh notice. It may be noted that if a lock-out is already in existence and employees want to resort to strike, notice as otherwise required is not required. In Sadual textile Mills v. Their Workmen, certain workmen struck work as a protest against the lay-off and the transfer of some workmen from one shift to another without giving four days’ notice as required by standing order. A question arose as to whether the strike was justified on those grounds or not. The industrial tribunal replied affirmatively. Against this, a writ petition was preferred in the High Court of Rajasthan.

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