TOPIC:

RIGHT TO STRIKE BY WORKMEN IN THE LIGHT OF

FUNDAMENTAL RIGHTS

DIV: A

ROLL NO : 09

SUBJECT : LABOUR LAWS

INTRODUCTION
The history of labour struggle is nothing but a continuous demand for a fair return to
labour expressed in varied forms i.e. (a) Increase in wages, (b) Resistance to decrease in wages,
and (c) grant of allowances and benefits etc. If a labourer wants to achieve these gains
individually, he fails because of his weaker bargaining power, the management with the better
economic background stands in a better position to dictate its terms. Strike is an important
weapon in the hands of the labour used to strengthen his bargaining power.
Industrial Disputes Act, 1947 defines strike as “a cessation of work by a body of persons
employed in any industry acting in combination or a concerned 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”[1]
Today, in each country of the globe whether it is democratic, capitalist, socialist, give the
right to strike to the workers. In this paper we will try to understand the rights whether legal or
fundamental rights that have been given to workmen under India’s legal system.

RIGHT TO STRIKE IN OTHER COUNTRIES

It is a right which is recognised in international treaties, including the European Union's
Social Charter. The United Nations Covenant on Economic, Social and Cultural Rights also
enshrines the right to strike. In most European countries the right to strike is enshrined in, and
protected by, a written constitution. The contract of employment of those who strike is
considered suspended for the duration of the strike. It is not considered to have been broken.
Exceptions are the UK and Ireland.
Any striker in the UK is considered to have broken his contract of employment as all
those on strike may be sacked together without compensation. They may be sacked selectively
when the strike is 'unofficial'. The lack of protection applies regardless of the cause of the strike.
So where an employer deliberately engineers a dispute it is the workforce which may be in
breach of contract. The workforce is then exposed to dismissal without compensation, may lose
redundancy payments, may be disqualified from unemployment benefit, and all without remedy
for unfair dismissal.

1
Section 2(q) of Industrial Disputes Act, 1947

2
 The constitutions of France, Germany, Italy and Spain, to mention a few, protect the right
to strike of the working population. The contract of employment is only suspended, not broken,
during a strike.
With the United States it is more difficult to determine to what extent authority is
centered at the top and to what extent it is balanced by the authority of the working population
exercising their power through the withdrawal of their labour. The Taft-Hartley Act limits the
right to strike, seemingly shifting responsibility for declaring a strike from the factory floor to the
union head office. But an employer may not dismiss a striking employee during a lawful strike
and, if he does so, must reinstate him.

RIGHT TO STRIKE IN INDIA

● LEGAL RIGHT
The working class has indisputably earned the right to strike as an industrial action after a
long struggle, so much so that the relevant industrial legislation recognizes it as their implied
right. The right to strike is organically linked with the right to collective bargaining and will
continue to remain an inalienable part of various modes of response/expression by the working
people, wherever the employer-employee relationship exists, whether recognized or not.
In B.R. Singh v. Union of India[2] , Justice Ahmadi opined that "The Trade Unions with
sufficient membership strength are able to bargain more effectively with the management than
individual workmen. The bargaining strength would be considerably reduced if it is not
permitted to demonstrate by adopting agitational methods such as 'work to rule', 'go-slow',
'absenteeism', 'sit-down strike', and 'strike'. This has been recognized by almost all democratic
countries".
In Gujarat Steel Tubes v. Its Mazdoor Sabha[3], Justice Bhagwati opined that right to
strike is integral to collective bargaining. He further stated that this right is a process recognized
by industrial jurisprudence and supported by social justice. Gujarat Steel Tubes is a three-judge
bench decision.

2
[1990] Lab I.C. 389 (396) (S.C.)
3
AIR 1980 SC 1896

3
 ● STATUTORY RIGHT
The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A
wide interpretation of the term 'industry' by the courts includes hospitals, educational institutions,
clubs and government departments. Section 2 (q) of the Act defines 'strike'. Sections 22, 23, and
24 all recognize the right to strike. Section 24 differentiates between a 'legal strike' and an 'illegal
strike'. It defines 'illegal strikes' as those which are in contravention to the procedure of going to
strike, as laid down under Sections 22 and 23. The provision thereby implies that all strikes are
not illegal and strikes in conformity with the procedure laid down are legally recognized.
Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an illegal
strike could be a justified one".
It is thus beyond doubt that the Industrial Disputes Act, 1947 contemplates a right to
strike. The statutory provisions thus make a distinction between the legality and illegality of
strike. It is for the judiciary to examine whether it is legal or illegal.
Section 22 expressly specifies certain conditions to be followed by the workers in order
for their strike to be legal, i.e., a strike cannot be resorted:
● Without giving employer a notice of strike within six weeks before striking
● Within minimum of 14 days of giving such a notice, or
● Before the expiry of the date of strike specified in any such notice as aforesaid
● During the pendency of any conciliation proceedings before the conciliation officer and 7
days after the conclusion of such proceedings.
If the notice of strike is given by the workmen to the employer according to these
above-mentioned conditions such notice is deemed to be validly served, and thus, the strike by
them is legal. Also, whether a strike is justiciable or not depends upon the circumstances of each
case, for example, strikes resorted with reference to wages, bonus, D.A., gratuity, provident fund,
leave and a holiday would make a strike justiciable
In Gujarat Steel Tubes v. Its Mazdoor Sabha[4], the court said that a strike can be both
legal and illegal and even an illegal strike can be a justified one. Thus, it is the duty of the
Judiciary to determine whether a strike is legal or illegal. The right to strike and the right to
collective bargaining are two sides of the same coin. Justice Bhagvati in the above mentioned
case was of the opinion that the right to strike is a process which is recognized by industrial

4
(1990) Lab IC 389 SC

4
jurisprudence and supported by social justice. Collective bargaining would be a success only if
the right to strike is provided to the Trade Unions. A strike is important for workers so that the
terms of employment imposed upon them can be rectified.
Besides the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 also recognizes
the right to strike. Sections 18[5] and 19[6] of the Act confer immunity upon trade unions on strike
from civil liability.

● FUNDAMENTAL RIGHT
Right to Strike is not recognized as a Fundamental Right under our constitution. Strikes
gained recognition as a statutory right when the Industrial Disputes Act, 1947 came into force. It
recognized the right to strike as well as the right to lock-outs of the workmen.
A strike is a modified form of Protest but still, Article 19(1) does not include the
fundamental right to strike but includes the fundamental right to protest, right to form
associations and trade unions. Right to strike is considered as a legal right and necessarily
involves three fundamental rights mentioned under Article 19 which are: Right to Speech and
Expression, Right to assemble peacefully and Right to Move Freely. Moreover, in the case of All
India Bank Employees Association v. National Industry Tribunal[7], it was held that “even a very
liberal interpretation of Article 19 (1) (c) of the Indian Constitution cannot lead to the conclusion
that the trade unions have a guaranteed right to collectively bargain in an effective manner or to
strike as a part of the collective bargain or otherwise.” Ahmadi J. in B.R. Singh case[8] observed
that “Right to strike is a legal right and cannot be considered as a fundamental right.” Workers
cannot go to strike assuming that it is their fundamental right to do so.
Workmen should not misuse this right and create a nuisance out of it because it would
lead to maladministration. In case of a strike by workmen of transport services, the whole
country comes to a standstill. In case of strike by workmen in educational institutions, students
suffer. In case of strike by medical professionals, the patients suffer. Right to strike is absolute
and not a relative right.
5
S. 18 provides for immunity from legal proceedings in respect of any act done in contemplation or furtherance of
any trade dispute on the sole ground of inducing person to break a contract of employment
6
Enforceability of agreements. - Notwithstanding anything contained in any other law for the time being in force, an
agreement between the members of a registered trade Union shall not be void or voidable merely by reason of the
fact that any of the objects of the agreement are in restraint of trade
7
AIR 1962 SC 171
8
B.R. Sing v. Union of India, 1990 AIR, 1 1989 SCR Supl. (1) 257

5
 Where the courts have realised strike as a weapon of the workmen, it has also declared
that absence of strike may lead into lawlessness in the society. Fundamental rights determine
other rights, but the act of strike does not give right to any other right, therefore cannot come
under the ambit of fundamental rights. A strike is an activity that can just be perceived by senses,
but Fundamental rights are intangible and incorporeal in nature.

● International Conventions
In People's Union for Democratic Rights v. Union of India[9], the Court followed the
International Covenant of Civil and Political Rights (ICCPR), the International Covenant on
Economic, Social and Cultural Rights (ICESCR), the Universal Declaration of Human Rights
(UDHR) and International Labour Organization's conventions, to interpret and expand the ambit
of Article 21 of the Constitution. In Life Insurance Corporation of India v. Consumer
Education and Research Centre[10] it was held that fundamental rights are subject to the
directives enshrined in Part IV of the Constitution, the UDHR, the European Convention of
Social, Economic and Cultural Rights, and other international treaties such as the Convention on
Rights to Development for Socio-Economic Justice.
Of the Directive Principles of State Policy enshrined in Part IV of the Constitution,
Article 51(c) provides that the State shall endeavour to foster respect for international law and
treaty obligations in the dealings of organized people with one another. Article 37 of Part IV
reads as under, “Application of the principles contained in this Part: The provisions contained in
this Part shall not be enforceable by any court, but the principles therein laid down are
nevertheless fundamental in the governance of the country and it shall be the duty of the State to
apply these principles in making laws".
A reading of Articles 51(c) and 37 implies that principles laid down in international
conventions and treaties must be respected and applied in governance of the country.
In Vishaka v. State of Rajasthan[11] Justice Verma opined that any international
convention not inconsistent with the fundamental rights and in harmony with its spirit must be
read into these provisions to enlarge the meaning and content thereof, to promote the object of
the constitutional guarantee.

9
AIR 1982 SC 1473
10
AIR 1982 SC 1473
11
(1997) 6 SCC 241 at 249

6
 It is thus settled that the raison d'etre of Article 51(c) is to introduce and implement
various international instruments particularly the UDHR, ICCPR and the ICESCR in the
interpretation of fundamental and legal rights[12]. Therefore, the right to strike as contemplated by
these Covenants and by the ILO conventions is well within the ambit of the constitution (Articles
19 & 21) as well as legal provisions (Trade Unions Act, 1926, & Industrial Disputes Act, 1947).

SOME CASE LAWS

● T.K. Rangarajan v. Govt. of Tamilnadu
In T.K. Rangarajan v. Government of Tamilnadu and Others[13], Justice M. B. Shah,
speaking for a Bench of the Supreme Court consisting of himself and Justice A. R. Lakshmanan,
said, "Now coming to the question of right to strike - in our view no such right exists with the
government employee."
Even as early as 1961, the Supreme Court had held in Kameshwar Prasad v. State of
Bihar[14] that even a very liberal interpretation of article 19(1)(c) could not lead to the conclusion
that the trade unions have a guaranteed fundamental right to strike. In All India Bank Employees'
Association v. National Industrial Tribunal[15] also it was contended that the right to form an
association guaranteed by Article 19(1)(c) of the Constitution, also carried with it the
concomitant right to strike for otherwise the right to form association would be rendered illusory.
The Supreme Court rejected this construction of the Constitution: "to read each guaranteed right
as involving the concomitant right necessary to achieve the object which might be supposed to
underlie the grant of each of such rights, for such a construction would, by ever expanding
circles in the shape of rights concomitant to concomitant right and so on, lead to an almost
grotesque result."
It was a culmination of the ratios of the Kameshwar Prasad and the All India Bank
Employees cases that resulted in the decision in the highly contentious Rangarajan case. In
reliance of these judgments, the Apex court was correct in opining that there exists no
fundamental right to strike. But in stating that Government employees have no "legal, moral or

12
indiatogether.org/combatlaw/vol2/issue6/strike.htm
13
2003 SOL Case No. 429
14
(1962) Supp 3 SCR 369
15
AIR 1962 SC 171

7
equitable right", the Court has evolved a new industrial jurisprudence unthought of earlier. It is
true that the judgments mentioned above have rejected the right to strike as a fundamental right,
but not as a legal, moral or equitable right. The question of 'strike' not being a statutory or a legal
right has never even been considered in the court. Further the expression 'no moral or equitable
right' was uncalled for. A court of law is concerned with legal and constitutional issues and not
with issues of morality and equity.
The Rangarajan case simply ignores statutory provisions in the Industrial Disputes Act,
1947 and the Trade Unions Act, 1926, and an equal number of case laws laid down by larger
benches that have recognized the right to strike. It also fails to consider International Covenants
that pave the way for this right as a basic tenet of international labour standards.
The Supreme Court verdict in T.K. Rangarajan v. Govt. of Tamilnadu flies in the face of
higher judicial precedent, as well as India's obligations under international covenants. It also
threatens the stability of conciliatory and consultative arbitration procedures currently used to
settle disputes.

CONCLUSION
The right to strike is not a fundamental or absolute right in India in any special and
common law, whether any undertaking is industry or not. This is a conditional or qualified right
only available after certain pre-condition are fulfilled. On the basis of the assumption that the
right to go on strike has not expressly been conferred under the Article 19(1)(c) of the
Constitution. It was held in the case that the strike as a weapon has to be used sparingly for
redressal of urgent and pressing grievances when no means are available or when available
means have failed to resolve it. It has to be resorted to, to compel the other party to the dispute to
see the justness of the demand. It is not to be utilized to work hardship to the society at large so
as to strengthen the bargaining power. Every dispute between an employer and employee has to
take into consideration the third dimension, viz. the interest of the society as whole. Recently
Supreme Court held that if the strike is illegal then the employer have right to take action against
the workers or employees who had taken part in the strike.
Inevitably, every right comes with its own duties. Right to Strike must be the weapon of
last resort because if this right is misused, it will affect the whole economy by creating problems
in the production and financial profit of the industry.

8
BIBLIOGRAPHY
● https://blog.ipleaders.in/right-to-strike-proposed-amendment-in-the-indian-constitution/

● https://www.mondaq.com/india/workforce-management

● http://www.legalserviceindia.com/legal

● https://lexforti.com/legal-news/is-right-to-strike-a-fundamental-right/

● https://www.legalbites.in/right-to-strike/

● https://blog.ipleaders.in/

● http://www.indiatogether.org/combatlaw/vol2/issue6/strike.htm

● https://indiankanoon.org/doc/88909580/