RIGHT TO STRIKE: A FUNDAMENTAL RIGHT OR ANCILLARY RIGHT?

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This article is written by Samta Sharma from JIMS, School Of Law, Greater Noida, IPU and curated by Sahana Arya.


Recently, the terminologies like ‘Right to strike’ and ‘fundamental rights’ have become a buzzword for citizens and politicians both. Originally the Indian Constitution is the most remarkable document which provides the citizens with necessary rights and privileges. It indeed preserves to contribute the value of human dignity and esteem both, however it must not be ignored that more powerful rights also holds more strict duties attached to it and if not followed properly or misused then it might result in an unpredicted situation.
In India, right to protest is a fundamental right under article 19 of the Indian Constitution but here a divergence of question arises that do Indian Constitution also include ‘right to strike’ under it ?

This article further explores the core value of ‘right to strike’ in the light of fundamental rights.

Notably, the right to strike is part of a much broader picture as these not only include common people but it also encompasses the political & judiciary system and imposes pressure on them to influence their policies through social, economic and political pressure on them. According to the Cambridge Dictionary, “The principle of Strike is to refuse to continue working because of an argument with an employer about working conditions, pay levels, or job losses”.

Right to strike is recognised globally but followed everywhere in a different way. In India, right to strike is only perceived to a limited extent sanctioned under the limits imputed by the law itself. It is not an absolute right under the constitution set up of India but it glide from fundamental right to form union (article 19 of the Constitution of India). Strike is an intrinsic part of wage bargaining in the economic market of India and therefore, the trade union act of 1926 for the first time implemented limited right to strike by legitimising some activities of a registered union of trade in furthering of a trade dispute which otherwise breach of common economic law and it was ultimately made a statutory right under §22 of the Industrial Disputes Act, 1947. Consequently in India, right to strike is not a fundamental right and is a common relative right which can be worked out with due regard to the rights of others. Article 19 (10) (c) of the Constitution accord freedom to the citizens to form trade unions. But the right to strike is an auxiliary right and if not provided then the right to form union and trade will be futile and hollow. While identifying the object of IDA 1974, the Apex court said that, strike is a legal weapon provided to the workers and must be only used in case of any urgency.

Since we all know that the judiciary plays a vital role in bringing a positive change to the damaged part of the society, similarly the right to strike has been explained finely by the different bench in their respective judgements. In the case law of ‘Crompton Greaves Ltd. v Its Workmen’, the Supreme Court held that the strike is a legal weapon provided to workers. Whether the strike is justified or not, it will be judged in the light of fact and circumstances of case.

Insomuch as we all know that every other fundamental right is subject to rational restrictions, likewise it is also applied in the case of trade union formation, to give a call to the employees to move on strike and the state is having the right to impose reasonable restrictions on them. In the case of ‘All India Bank Employees Association v. I. T.’, the Supreme Court held that, the right to strike or declare blockade may be restricted or managed by authentic industrial legislations & the validity of such legislation would have to be tested first by different deliberations. 

Thus, the fundamental right only secures the right of labour unions to form associations but there is no as such fundamental right for strike is provided for that. Also, a strike is only valid if it does not ignore any of the provisions. The strike is unjustified and illegal if the purpose behind it is unreasonable and the provisions and conditions under Industrial Dispute Act, 1947 is not fulfilled.

Provisions of valid strike under Industrial Dispute Act, 1947-

In order to undertake a valid strike, there are certain important procedures provided by the Dispute Act. Section 22(1) of IDA lays down some prohibitions on the right to strike. It provides that no person who is an employee in public utility services shall move on strike in breach of contract:

  1. Without submitting any notice of strike within 6 weeks before it.
  2. Within 14 days of submitting such notice,
  3. Before the expiration date of strike mentioned in any such notice.
  4. During the pendency of any conciliation proceedings, it must be submitted before a conciliation officer and seven days after the conclusion of such proceedings.

It is to be noticed that these provisions are not restricting any one from undertaking their right to strike but it only requires them to fulfil these conditions before going on a strike. Also, since the act doesn’t specifically mentions about who is allowed to move on a strike, therefore the provisions, according to the act are only applicable to public utility service only. However the definition of ‘strike’ under the act itself indicates that the striker must be the person employed in any of the industry.

Thus, the right to strike might not be a straight or direct fundamental right but it has astonishingly handled & saved the strikers right by adding the right to form association & union under article 19 of the Indian Constitution. Furthermore the Industrial Dispute Act also holds the roots of the right by providing appropriate provisions & procedure to fulfil the objective of the strike.

CONCLUSION:

In a large democratic society like India with a huge number of industrial sectors, it was very much required to bring the right of strikers into light for the welfare of people engaged in such working areas.

It is observed that right to strike is not a fundamental right in India and is a conditional right only considered when the pre-conditions are fulfilled by the employees. On the other hand, the Industrial Disputes Act has also very finely handled these strikes by limiting the strikers according to the act. In today’s world, every country of the globe, whether it is capitalist, socialist or democratic, it gives the right to strike to workers but in India the rights are only provided by concentrating on the peace of the country. If this right is misused as a weapon, it will create a threat to the production & economy in many ways. Today countries like India are dependent upon the foreign investment and such countries must safeguard their respective industrial laws to avoid misuse of right of strike.

Therefore, the country has only provided the laws with certain limits and provisions under the act of Industrial Dispute, 1947.

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