An Analysis of Picketing and Strike under Labor Legislations under India and USA

Introduction

Every privilege bestowed to a person is said to be accompanied with a commensurate obligation. This
right-duty connection aids in putting one's position into context. The right to strike is a key privilege
vested in an employee in today's employment law environment. However, because it is very easy to
abuse a right that leads to additional anticipated or unforeseen effects, the stated right is likewise
accompanied by a corresponding obligation to not misuse it. Some of these effects include wreaking
havoc on a corporation's everyday operations, interruption of earnings, and the economy, to name a few.
Therefore, it is indeed very important to introduce and mandate a regulatory mechanism to keep the
rights in check.

As per the Indian constitution, Article 191 guarantees every person the Right to Protest, as long as it is
peaceful and non-provocative. This has been recognized as a fundamental right as per the Apex Court in
the case of Ramlila Maidan v. Home Secretary, Union of India & Ors 2 However, when it comes to labor
legislation framework, there is no consideration of Right to Strike as a fundamental right. Right to
(peacefully) Protest is slightly on a different degree when compared to Right to Strike. The latter is a
specific type of the former.

Even in the Communist Party of India3 case, the High Court of Kerala held the following: “No political
party or organization can claim that it is entitled to paralyze the industry and commerce in the entire
State or nation and is entitled to prevent the citizens not in sympathy with its viewpoints, from exercising
their fundamental rights or from performing their duties for their own benefit or for the benefit of the
State or the nation. Such a claim would be unreasonable and could not be accepted as a legitimate
exercise of a fundamental right by a political party or those comprising it."

Picketing and Strike

Picketing and strike have been, for a very long time, used interchangeably at several instances. Many a
times, strike has been considered as a weapon under the eyes of law, in several cases. There arises a
certain degree of perplexity when it comes to picketing and strike. Picketing is a form of strike where

1
INDIA CONST. art. 19
2
In re (2012) 5 SCC 1
3
Communist Party of India (M) v. Bharat Kumar and others, (1998) 1 SCC 201
the workers/laborers assemble outside the workplace, as a sign of protest, to satisfy their specific
demands. This is generally done to encourage non-trade union members/employees to not contribute to
the company until the demand is fulfilled. The main ideology behind picketing as a protest is to ensure
the demands are satisfied by not doing work and ceasing operations, which will further lead to losses for
the company.

Strike, on the other hand, is a refusal to work sorted out by an assortment of employees as a sign of
dissent, normally trying to increase allowance or allowances from their manager. Strikes are typically
attempted by worker's organizations such, as trade unions if all else fails during collective bargaining,
where both the parties attempt to enter into an understanding about the wages, advantages, and working
conditions. Strikes turned into a piece of the political scene with the start of the Industrial revolution.

What sets both of them apart is that picketing leans more towards the fact that a group of workers gather
outside the organization, instigating other employees to withdraw themselves from working and also
capture public attention to the issue, meanwhile, strike is just the refusal to work until the demands of
the union are met by the management.

Indian Scenario

The legal framework in India, with respect to strike and picketing is very limited, unlike compared to
other nations. Since pre-independence era, the legislations and regulations furnished strike as an illegal
act, making it a criminal offence under the Criminal Amendment Act, 1932. However, it is very
pertinent to draw attention to the fact that peaceful picketing is not considered as a criminal offence. In
1951, the Bombay High Court consciously asserted that picketing is merely “the marching to and fro
before the premises of an establishment involved in a dispute, generally accompanied by the carrying
and the displaying of a sign, placard or banner bearing statements in connection with the dispute”4.

When it comes to strike, there is no specific provision with respect to a right to strike. For the first time,
the Trade Union Act of 1926 established a limited right to strike by allowing certain actions of a
registered trade union in support of a trade dispute that would otherwise breach common economic law.
Certain provisions of the legislation, namely Sections 185 and 196 of the Trade Unions Act, 1926 granted
immunity from civil liability for strikes by trade unions. In the Indian constitution, the right to strike is

4
Damodar Ganesh v. State, AIR 1951 Bombay 459.
5
Trade Unions Act, 1926, §18, No. 16, Acts of Parliament, 1926 (India).
6
Trade Unions Act, 1926, §19 No. 16, Acts of Parliament, 1926 (India).
not an absolute right but it derives from the basic right to form union. Since every other fundamental
right is subject to reasonable restrictions, it is also the case that trade unions are organized to call on the
workers to strike, and the state will enforce fair constraints. The Apex Court, while deciding the case of
All India Bank Employees Association v. I.T7, held the following: “the right to strike or right to declare
lock out may be controlled or restricted by appropriate industrial legislation and the validity of such
legislation would have to be tested not with reference to the criteria laid down in clause (4) of article 19
but by totally different considerations.”

When comparing strike and picketing, the former has greater protections in place. Picketing has been
less regarded as a kind of strike and more so as an offence, making employees wary of participating in a
picket.

The Industrial Dispute Act, under Section 2(q) 8, defines the word “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”.

Whenever employees wish to strike, they must follow the procedure provided by the Act, otherwise
9
strike is considered an illegal strike. Section 22(1) of the 1947 Industrial Dispute Act placed certain
restrictions on the right to strike. It provides that no person employed in public utilities sector shall strike
in contravention of contract:

(a) Without giving notice of strike to the employer;

(b) within fourteen days of notification; or

(c) before the expiry of the date of strike referred to in any such notice; or

(d) before the conciliation officer and seven days after the end of the conciliation proceedings.

In the case of Mineral Miners’ Union v. Kudremukh Iron Ore Co. Ltd. 10, the High Court of Karnataka,
it was retained that the arrangements of section 22 are compulsory and that the date on which the
workers proposed to go to strike should be set out in the notice. If the date of strike stated in the strike

7
AIR (1962) SC 171
8
The Industrial Disputes Act, 1947, §2(q), No. 14, Acts of Parliament, 1946 (India).
9
The Industrial Disputes Act, 1947, §22(1), No. 14, Acts of Parliament, 1946 (India).
10
1988 (3) KarLJ 162
 notice expires in the meantime, the workmen must give a fresh notice. It may be noted that if a lock-out
is already in place and employees want to strike, notice must be given as required.

The American Scenario

Picketing may be construed as a public issue in the USA for many reasons 11. To cover the consequences
of picketing, the labor legislations in USA have been formulated to look into the socio-economic
interests of the working sector.12

In a labor law case, the Court first held that picketing was entitled to protection under First Amendment.
Holding a ban on picketing to influence someone to do something, the Court said: "In the circumstances
of our times, the dissemination of information on the facts of a labor dispute must be regarded as being
guaranteed within that area of free discussion by the Constitution”13

With respect to right to Strike in US, there are provisions granting the same to citizens. Under the
14
National Labor Relations Act, 1935, Section 7 specifically states the following: “Employees shall
have the right to engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection”

The main sub-provisions of the legislations aim to cover all aspects of strike and the people
participating in the strike. Some of the main aspects are with respect to the following:

a) The disparity between lawful and unlawful strikes

b) Definition for economic strikers
c) Definition for unfair labor practice strikers
d) Time bound unlawful strikes
e) Strikes upon the end of an employment contract

Conclusion

Strike is an instrument which empowers the disabled to fight when there is no constructive option left in
oppressive cases. It is a last-resort weapon taken out of exasperation. It is this weapon which offers
collective bargaining opportunities. The modern interpretation of strikes originated in the epoch of

11
RICHARD PAINTER, INDUSTRIAL CONFLICT II: PICKETING, 463, Pluto Press (2004).
12
RICHARD PAINTER, INDUSTRIAL CONFLICT II: PICKETING, 465, Pluto Press (2004).
13
Thornhill v. Alabama, 310 U.S. 88 (1940).
14
National Labor Relations Act, 1935, §7 (USA).
industrial revolution and assumed its multiple types and dimensions during the Indian national
movement, which varied from bandh, hartal, protest, and they were considered a patriot’s unalienable
right and duty to protest the colonial rule. What needs to be understood is that, here the actions facilitate
the labor conflict the parties may be employees or non-workers or both. The best solution would be to
exclude non-worker activities from straining the working relationships15.

The legislations in USA cover a wide-range of dimensions unlike India, enhancing more clarity for
judiciary to give out various judicial pronouncements with respect to industrial conflicts between the
employer and employees trade unions. In the case of Lyons v. Wilkins16, The Court of Appeal decided
that harmless picketing that included exhortation was a common law nuisance since it went beyond
passive participation for the aim of informing. On the other hand, the Court of Appeal with a different
set of judges stated overturned the Lyons case by stating that picketing a person's property is not illegal
unless it can be done in conjunction with activity that is considered a nuisance under common law, such
as obstruction, assault, intimidation, molestation, or threats.17

In light of this, what needs to cleared is that there should not be more room for confusion and hassle
when it comes to a worker’s right to strike against an issue or undertake any picketing activities.
Picketing is also a means to express dissatisfaction, much like a strike. It is important to take the stand
for the conservation of the authenticity of the expression of labor management relations by using them
only in labor related issues. The unwarranted use in cases involving non-labor relations needlessly
complicates the problem

15
RICHARD PAINTER, INDUSTRIAL CONFLICT II: PICKETING, 467, Pluto Press (2004).
16
[1896] 1 Ch. 811, 826, 831.
17
Ward Lock & Co v. Operative Printers’ Assistants’ Society [1906] 22 TLR 327.