[2021] 

129 taxmann.com 97 (Article)
Date of Publishing: August 9, 2021

Statutory Position of Right to Strike in India: Whether the Industrial

Relations Code has Changed the Narrative
image
ANSHUMAN KUMAR UPADHYAY
1. Introduction

All of us, at least once would have had come across this phrase that "sticks in a bundle cannot be broken
but sticks taken singly can be broken easily", whenever there has been a fight or tussle for any cause, the
number of people who stand and advocate for the same matters. It is because of the reason, that
numbers, beside manifesting strength also to some extent indicate the veracity of the demand that is
put forward. So be it independence movements, protest against anti-social practices, against unjust
laws etc. the leaders have sought to make people understand about the importance of becoming united
and thereby putting forward their grievance in a collective fashion.

The same approach has also been seen in the realm of Labour and Industrial Disputes. The new
workers, who had been mostly agriculturists since immemorial history, had the right to decide their
own terms and conditions for work. However, in an industrial space, with about 100 other fellow
workmen, such authority, just got lost and they were majorly left at the disposal of the Factory owners,
whose fortune hugely depended upon their turmoil. Thus, after prolonged exploitation in this fashion,
the concept of collective bargaining was brought in. In the words of the Supreme Court of India in the
case of Karol Leather Karamchari Sangathan v. Liberty Footwear Co."the technique by which dispute
as to conditions of employment is resolved amicably by agreement rather than coercion". 1 Thus, instead
of making demands individually, it is a mechanism whereby the workers collectively through their
representatives negotiate their demands with their employers.

Though, there are no formally recognised stages of Collective Bargaining but as per the prevalent
practice, it has been seen that it begins with a presentation of Charter of Demands (by either side,
workers or employers) which is followed by a negotiation on the same by the two sides. If the
negotiation ends successfully between the two then accordingly a Bipartite Agreement, or
Memorandum of Settlement is drafted and entered upon by them. Now, the question arises as to what
happens when the negotiations fail and the demands of workers are not acceded to by the employers, it
is generally now, when Strikes come into picture. Strike can be understood as a concerted cessation or
withdrawal or refusal to work by the workers, to put pressure upon their employers and to fulfil their
demands.

The present paper seeks to shed some light upon this weapon of the workers, and ascertain as to
whether the Industrial Relations Code (IR Code) has brought any change in its existing legal position.

2. What is a Strike

Strike is a phenomenon of cessation of work by a group of persons with an intention of exerting

pressure upon other person(s) for securing some demand. 2 Strike is also considered to be an effective
instrument of economic coercion by withholding of labour until the terms and conditions of
employment raised are conceded.3 It is notable from the aforesaid, that inter alia, the element of
combination or common understanding between the workers for discontinuing their work or refusing
employment is an essential aspect of any strike.

In light of the various judicial precedents it has been established that right to strike is not a
fundamental right and can be subjected to restrictions under the respective Industrial legislations.4

3. Understanding the Statutory Provisions

For convenience, the Statutory provisions for Strike can be categorised into "Provisions under the IR
Code and "Provisions Prior to the IR Code." In order to understand the statutory right to strike and
about the gradual change in its perception by the legislature, it is essential to know about the provisions
which existed and which are about to be the norm in the times to come.

3.1. Provisions Existing Prior to the Industrial Relations Code

Before the enforcement of the IR Code, the law with respect to strikes has been provided primarily
under the Industrial Disputes Act, 1946 (ID Act). The Act, provides a definition for strike and also lays
down under Chapter V, various restrictions and conditions, which have to be conformed to, for going to
a strike. The term strike has been defined in the ID Act 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."5

Thereafter, under Chapter V, Section 22 of the Act, which deals specifically with people engaged in
public utility service, provides for certain grounds on which strikes could be prohibited. It lays down
that no person who is employed in a public utility service shall go on a strike without giving a notice of
the same to the employer, within six weeks before or within fourteen days of giving such notice or
before the expiry of the date of strike as specified in the notice given as aforesaid or during the
pendency of any conciliation proceedings and seven days post conclusion of such proceedings.
However, the requirement of giving a notice has been dispensed with in a situation where a strike was
already in existence in the public utility service. This section categorically mandates the requirement of
giving an advance notice of the strike to the employers, primarily, to give them an opportunity to
prepare themselves for the upcoming agitation by the workers.

Section 23, further lays down certain general prohibitions and thereby prohibits any workman who is
employed in any industrial establishment from going on a strike in breach of contract, during the
pendency of conciliation proceedings before a Board or any other proceeding before a Labour Court,
Tribunal or National Tribunal or before an arbitrator or during any period in which a settlement or
award is in operation in respect of any matter that is covered by the same and also the period of time
post conclusion of such proceedings, until which strike cannot take place.

Most importantly the ID Act, also lays down such conditions or situations when a strike would be
considered illegal. Section 24, states that a strike shall be illegal if it had commenced or declared in
contravention of Section 22 or Section 23 or has continued in contravention of the order prohibiting the
strike issued by the Appropriate Government under section 4-A of Section 10-A of the ID Act. Though,
the Section clarified that where a strike in pursuance of an industrial dispute had already commenced
and was in existence at the time when a reference of such dispute was made to the respective
adjudicating bodies, then the continuance of such strike shall not be deemed to be illegal, provided the
same was not, during its commencement in contravention of the provisions of the Act. The Section also
specified, that a strike declared in consequence of an illegal lockout (suspension of work or temporary
closing of the place of employment by the employer himself) would not be deemed to be illegal. Thus,
aforesaid are the various restrictions that are applicable to the right to strike of the workers, under the
ID Act.

3.2. Provisions Under the Industrial Relations Code

The IR Code is one of the four Labour Law Codes brought in by the Government of India in its
endeavour to bring labour law reforms in the Country and amalgamate the plethora of legislations
dealing with a variety of labour and industrial issues and subjects. The IR Code integrates within itself
the ID Act, 1947, Trade Unions Act, 1926 and Industrial Employment (Standing Orders) Act, 1946.
Though, the Code has not been enforced presently, however it is expedient to know about the law laid
thereunder, in order to envisage the present perception of the legislature for Strikes. The Code, like the
ID Act, defines strike and other provisions with respect to it are contained in Chapter VIII of the Code.

The definition of Strike is provided under section 2(zk) 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 and includes the concerted casual leave on a given day by fifty per cent. or more
workers employed in an industry."

Thereafter, under Chapter VIII, Section 62 lays down certain grounds for prohibition of strikes and
provides that no person employed in an industrial establishment shall go on strike, in breach of
contract, without giving to the employer, notice of going for strike, within sixty days before strike or
within fourteen days of giving such notice or before expiry of the date of strike as specified in such
notice or during the pendency of conciliation proceedings, arbitration proceedings, proceedings before
Tribunal or during any period in which a settlement or award is in operation, However, the requirement
of notice would not be applicable if any strike has already been in existence.

Further, Section 63 of the Code deals with illegal strikes and provides that a strike would be illegal, if it
was started or declared in contravention of Section 62 or continued in contravention of the prohibitory
order issued under sub-section (7) of Section 42, by the Appropriate Government, while such industrial
dispute was referred for arbitration. The section also provides that, where a strike in pursuance of an
industrial dispute has already started and is in existence at the time of filing of the application relating
to such industrial dispute in the Tribunal or of its reference to an arbitrator or a National Industrial
Tribunal, the continuance of such strike or lock-out shall not be considered to be illegal, if the same was
not at its commencement in contravention of the provisions of the Code or its continuance was not
prohibited under sub-section (7) of Section 42. Lastly, it provided that a strike in consequence of an
illegal lock-out shall not be deemed to be illegal.

3.3. Comparison Between Industrial Disputes Act and Industrial Relations Code

On a comparison between the two statutes, it can be observed that there has not been any substantial
change in the provisions of Strike and the new sections have to a great extent been enacted mutatis
mutandis in the new Code. The only notable changes that can be observed are firstly, in the definition of
strike, as hereafter even a concerted casual leave of fifty percent or more workers on a single day has
been brought under the ambit of strike and secondly, in the time period of advance notice that must be
given by the workers to the employers, has been increased from six weeks to 60 days. These two
changes, do not in any manner appear to be conducive to the right to strike of workers, as it makes the
definition of strike, clearer, categorical and restrictive in its words and also prevents them from making
a prompter demonstration of their demands, respectively. Thus, the tone of these changes manifest that
the legislature has, like the judiciary taken a more holistic view of the situation and the possible socio-
economic ramifications of a strike. In the case of T.K. Rangarajan v. Govt. of T.N.6 the Court
acknowledged that even if there was injustice to some extent, as it must have been presumed by such
persons going on strike, in any democratic welfare state it was necessary that the aggrieved resorted to
the machinery provided under the respective statute for the redressal of their grievances. Use of strike
as a means, resulted in chaos and total misadministration, it affected the society as a whole and when it
involved a great mass of people, it brought the entire system to a complete halt.

Thus, agreeing, that the negatives of strike were on a heavier side than its positives, the Code has sought
to increase the role of peaceful dispute resolution mechanisms like arbitration, mediation and
conciliation and has thus shown more keenness towards the achievement of industrial and social peace
and has sought to provide the parties with some more time so as to give them as well as their
employees, a better chance to come on the same page.

4. Conclusion

The new IR Code has not made any significant change in the provisions for strike, which can attract a
lot of eyes towards it, however there are a few changes which could be kept in mind, to understand the
approach of the legislature towards it. The Code has included within the definition of strike, even the
concerted casual leaves of more than fifty percent of the workers on any given particular day and has
also increased the period of giving advance notice from six weeks to 60 days, thereby clearly
manifesting the intention of the legislature, of precluding the instances of strike. The IR Code appears
to have critically taken into consideration the negative impact of strikes on the overall social and
economic fabric of the country and in view of the current state of economy of the Country, where there
are high levels of unemployment and there is a great want of Investment by foreign and domestic
players, the legislature could not bring any favourable change in law, for the workers and has, though
not excessively, but evidently diluted the provisions relating to right to strike in the Code in comparison
to the provisions contained in the ID Act.

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1. [1989] 4 SCC 448

2. B. P. Rath and B. B. Das, Right to Strike: An Analysis, 41 IJIR 248, 249 (2005).
3. Id.
4. Dharam Dutt v. Union of India, [2004] 1 SCC 712
5. Industrial Disputes Act, 1947 Section 2(q)
6. [2003] 6 SCC 581