 TITLE: RIGHT TO STRIKE IN THE LIGHT OF FUNDAMENTAL RIGHTS UNDER

THE CONSTITUTION OF INDIA

 SUBJECT: LABOUR LAW AND INDUSTRIAL RELATIONS-I

 STUDENT NAME: MR. Hari

 ROLL NUMBER & DIVISION:

 COLLEGE NAME: JITENDRA CHAUHAN COLLEGE OF LAW

 NAME OF THE FACULTY: PROF.

 Right to Strike in the light of fundamental rights under the Constitution of India

ACKNOWLEDGEMENT

The pleasure that follows the successful completion of a project would remain
incomplete without a word of gratitude for the people and without whose
cooperation the achievement would remain a distant dream. It is not mere formality
to place a record the tireless efforts, ceaseless corporation, constant guidance, and
encouragement of the people closely associated with the project but a distinct
necessity for the authenticity and reliability of the project.

I would like to express my special thanks of gratitude to our principal ma’am Dr.
Priya J. Shah and Prof. Sushma Mhaske & Prof. Dr. Sharmila Gughe who gave
me the golden opportunity to do this wonderful project on the topic of “Right to
Strike in the light of fundamental rights under the Constitution of India” ,
which also helped me in doing a lot of Research through which I come to know
about so many new things.

Secondly, I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited time frame.

2
 Right to Strike in the light of fundamental rights under the Constitution of India

TABLE OF CONTENTS

Sr. Page
Particulars
No. No.
1 Historical Background of ‘Strike’ 4

2 Introduction - Indian Perspective 5–6

3 Right to Strike and Article 19(1) of Indian Constitution 7–9

4 Right to Strike as a legal right 10 – 11

5 Right to Strike as a Statutory Right 11 – 16

6 International Conventions 16 – 17
Recognition of ‘Right to Strike’ by Constitution of Other
7 18 – 19
Countries
8 Suggestions and Conclusion 19 – 21

9 Bibliography 22 – 23

 HISTORICAL BACKGROUND OF ‘STRIKE’

3
 Right to Strike in the light of fundamental rights under the Constitution of India

A modern, progressive world perceives a just and equitable social order that
safeguards the humanitarian rights of one and all, irrespective of nationality, race
or social and economic standing. Any discriminatory, prejudiced or partisan action
has seen resistance from time to time and resulted in bringing about regulations to
curb such atrocities.

The term ‘strike’ has been into use from a long time as an efficacious tool by
workmen and employees to get their grievances resolved by creating collective
pressure on the employer. The onset of the industrial revolution brought about the
need for mass labour in mines and factories, which obviously gave rise to incidents
of strikes to deal with disputes. Therefore, historical shreds of evidence of strikes
becoming routine can be traced from the 19th century onwards world over. Most of
the western nations partially legalized strike in the late 19th or early 20 th century.

Some of the Greatest Strikes in the History of the World:

 Strike #1 . America’s Railroad shop Workers Strike, 1922. Number of strikers 400,000

 Strike #2. American Steel Strike, 1959. Number of strikers- 350,000

 Strike #3. Indian Railways Strike, 1974. Number of strikers- 1,700,000

 Strike #4. South Africa Miners’ Strike, 2007. Number of strikers- 240,000

 Strike #5. UK Postal strike, 2009. Number of strikers- 43,000

 Recent strike by Airport workers in Germany – February 2023 1 : Thousands

of flights to and from German airports were cancelled on 17th February 2023,
as German airport workers went on strike and walked out to press their demands
for inflation-busting pay increases. The strikes at seven German airports,
including Frankfurt, Munich and Hamburg, affected almost 300,000 passengers
and forced airlines to cancel more than 2,300 flights. The union is seeking a
10.5% increase for its members, or at least 500 euros, to make up for high

1
https://www.bbc.com/news/world-europe-64675515

4
 Right to Strike in the light of fundamental rights under the Constitution of India

inflation seen in Germany and elsewhere last year due to the knock-on effects
Russia's attack on Ukraine has had on global food and energy prices.

 INTRODUCTION

India is a democratic country and so attention has always been drawn towards
various rights that are provided to its citizens. However, we know that where
there is right, there is also some duty attached. The right to strike is a concept
that, in simple words, can be defined as a collective industrial action in which
the workers tend to go for some bargaining power. Thus, the right to strike can
be considered as a part and parcel of the concept of collective bargaining under
the Industrial Law.

There are some basic needs that the workmen sector always demands from their
employers. These may include- increase in their wages, payment of bonus and
grant of allowances and other kinds of benefits to them. But a worker alone
cannot succeed in demanding such things as they lack strong bargaining power
and there are chances that his demands may easily be crushed by the persons in
power. Thus, they tend to go into strikes and other kinds of processions so that
a strong impact is made over the employers.

In India, the right to strike is not expressly recognized by law. The Trade Union
Act, 1926, was the first provision that gave limited rights to strike by legalizing
certain activities. The Indian Courts have, through various decisions, thrown
light over the controversy in the form of two main issues - Whether the right to
strike is a fundamental right or not and whether a statutory right has been
conferred with respect to strike under any Labour Law legislations in India.

It may be noted that the scenario today has shown that there is reckless use of
strikes by the workmen, and this creates unnecessary stoppages 2 . These
stoppages create worse tensions and frictions and many times there is violation
of law and order. India cannot tolerate frequent stoppages of work for frivolous

2
Keith D. Ewing, ‘Myth and Reality of the Right to Strike as a Fundamental Labour Right’ (2013), International
Journal of Comparative Labour Law and Industrial Relations, Issue 2

5
 Right to Strike in the light of fundamental rights under the Constitution of India

reasons. When the strikes are for frivolous reasons, in those cases it is bad from
the public point of view because all the work is at a halt. At the national level,
this causes the economic retardation of the country.

Every right comes with its own duties. Most powerful rights have more duties
attached to them. Today, each country whether it is democratic, capitalist,
socialist, give right to strike to the workers. But this right must be the weapon
of last resort because if this right is misused, it will create a problem in the
production and financial profit of the industry. This would ultimately affect the
economy of the country.

Today, most of the countries, especially India, are dependent upon foreign
investment and under these circumstances it is necessary that countries who
seeks foreign investment must keep some safeguard in their respective
industrial laws so that there will be no misuse of right of strike. In India,
although the Right to Protest is not an explicit right under the Fundamental
rights, it can be derived from the ‘Right to Freedom of Speech and Expression’
under Article 19(1)(a) of the Constitution of India. Thus, right to protest is a
fundamental right under Article 19 of the Constitution of India but right to
strike is not a fundamental right rather it is a legal right and with this right
statutory restriction is attached in the Industrial Dispute Act, 1947.

In this research paper, there is an attempt to analyse the emergence of the

concept of right to strike as a fundamental right under the Article 19(1) of the
Indian Constitution and the concept of right to strike as a statutory right under
Industrial Disputes Act, 1946 as well as the Trade Unions Act, 1926. This has
been done by analyzing various decided case laws and various articles.

6
 Right to Strike in the light of fundamental rights under the Constitution of India

 RIGHT TO STRIKE AND ARTICLE 19(1) OF THE INDIAN

CONSTITUTION:

Generally, ‘Strike’ means stoppage or cessation of work by a group of

workers to bring forth their demands and/or grievances seeking resolution by
the employer or management.

In other words, a strike can be described as having three elements- concerted

action, stoppage of work and there should be a nexus between the purpose of
the cessation of work and the physical condition of the work. Thus, strike
takes place when there is no option for collective bargaining left and thus
the workers tend to resort to strike as a means to fulfil their demands.

‘The right to strike’ has also been recognized in all democratic societies.
Reasonable restrain use of this right is also recognized. Similarly, the
employers also have the freedom to use the weapon of lock-out in case
workers fail to follow the rules of contract of employment. The degree of
freedom granted for its exercise varies according to the social, economic and
political variants in the system for safeguarding the public interest, the
resort to strike or lock-out and in some cases the duration of either subject to
rules and regulations or voluntarily agreed to by the parties or statutorily
imposed this has been criterion underline the earlier legislation for
regulating industrial relations in the country. The strikes and lock – outs are
useful and powerful weapons in the armoury of workmen and employers and
are available when a dispute arises between them.

Part III of Constitution of India guarantees the fundamental rights to the

citizens of India. Among these rights, Article 19 3 talks about the freedom of
speech and expression. It envisages six rights under it. However, these rights

3
19. Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression.
(b) to assemble peaceably and without arms;
(c) to form associations or unions.
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or to carry on any occupation, trade or business

7
 Right to Strike in the light of fundamental rights under the Constitution of India

are not absolute in nature as they are subject to reasonable restriction under
Article 19(2) of the Constitution. The concept of what is ‘reasonable’ and
what is not has to be looked into by the Courts based on the facts and
circumstances of each case. In general sense and the precedents laid down
on the matter, reasonable will be those which is not arbitrary and against the
public interest. This is because if the said restriction will be unreasonable, it
will tend to violate Article 14 of the Constitution of India.

It is well known that strike is a kind of demonstration in which the masses

collectively resort to a mass action to refuse to work. Thus, the strike would
attract three fundamental rights under Article 19(1). These are - the right to
speech, the right to assembly and the right to movement. The question,
therefore, is that whether right to strike can be included under these three or
not. Even if this right is within the ambit of Article 19(1), these will have to
be subject to restrictions that are reasonable as otherwise it would become a
tool of oppression in the hands of the employee and the number of strikes
will go on to increase and create unnecessary stoppages of work.

Various precedents have been laid down on the matter as to whether right to
strike is a fundamental right or not.

The first case on this matter was the All-India Banks Employees
Association v National Industrial Tribunal & Ors 4 . in which upheld that
even if we go by the literal interpretation of Article 19(1)(c), it cannot be
inferred that right to strike can be included under its ambit. The Honourable
Court held that “there is a guaranteed right to form association under
Article 19(1)(c) but no such absolute right to go on a strike is included
under it.”

This case was considered to be an authority by the cases following it on the

similar subject matter and thus it was laid down that right to strike is not a
fundamental right guaranteed under Part III of the Constitution of India 5 .
However, it is important to note that the above case did not pertain to strikes
at all. The issue of strike was merely an illusion relied by the Courts. The
4
1962(3) SCR 269
5
Communist Party of India (M) v. Bharat Kumar and others, 1998(1) SCC 201; Ex-Capt. Harish Uppal v. Union
of India and Another, 2003(2) SCC 45

8
 Right to Strike in the light of fundamental rights under the Constitution of India

Court only analysed whether strike falls under the ambit of rights under
Article 19(1)(c) and it did not mention the said right in context to Article
19(1)(a) and Article 19(1)(b). The issue of right to strike was not even
brought up before the Court. Thus, what the Court observed with regards to
the issue of right to strike was the obiter dicta and thus, not binding upon
the future matters. The Court in later cases erroneously considered the
observation in the Bank Employees case as the ratio of the said case and
thus considered it to be binding upon the later on decisions.

In the year 2003, Justice M.B. Shah in the case of T.K. Rangarajan v
Government of Tamil Nadu 6 , had laid down the law of right to strike with
respect to the government employees. In this case, there was mass strike
organised by the Tamil Nadu government employees who were agitating
against there being no certain benefits accorded to them. The Government,
through a statute, had suspended and dismissed the employees and ordered
arrest of some of them. This was challenged under Article 226 of the
Constitution. The Court held that, “Government employees have no
fundamental, statutory, moral or equitable right to strike.” This judgement
faced a lot of criticism on many grounds. Even if it is considered that they
considered right to strike to not be a fundamental right, criticism flowed on
the point that government employees had no legal, moral or equitable right
of strike. This is because the law on strike as a fundamental right had been
established by the Courts earlier, but the right to strike as a legal and
statutory right had never been considered in any Court of law. The Court in
this case only focussed on Article 19, thereby neglecting the provisions of
the Industrial Disputes Act, 1946, Trade Unions Act, 1926 and many other
International Covenants. Thus, the decision in the Rangarajan case was a
flawed one 7 but it still is an authority in India because no other subsequent
case law has overruled it yet.

6
AIR 2003 SC 3032
7
Tyagi, R., ‘Supreme Court pronouncement and the Right to Strike’ available at
http://www.revolutionarydemocracy.org/rdv9n2/strike.htm

9
 Right to Strike in the light of fundamental rights under the Constitution of India

 RIGHT TO STRIKE AS A LEGAL RIGHT:

The right to strike is an implied right under the collective bargaining

process 8 . The right to collective bargaining is covered by the “Right to
Organise and Collective Bargaining Convention, 1949.” Further, Collective
bargaining process has been defined as the voluntary process through which
the employers and workers discuss and negotiate their relations in particular
terms. It is aimed to achieve mutual goals. This process is initiated to solve
issues of workers and arrive at a negotiation. When both the parties fail to
arrive at a collective agreement then strike is resorted to. Thus, strike is
embedded in one of the stages of the process of collective bargaining. This
right of the workers to bargain freely with the employers is essential in
terms of freedom of association under Article 19. Thus, it is concluded that
right to strike is a legal right implied under the right of collective
bargaining.

The Ricardian and Marxian principles have laid down that the amount of
money that the employer earns is dependent upon the workers continuing to
work. If the workers stop working due to some reason, then their employers
will also stop earning. This will affect the whole economy in an adverse
way 9 . For instance, when the government servants refuse to work and go on
a strike then it is the general public who suffers the most. This forces the
authorities to come to a negotiation table.

Thus, we can conclude that this is the basic concept of evolution of the right
to strike. The Apex Court in Rangarajan Case had ignored this concept. The
strike should be a destructive weapon in the hands of both the workers as
well as the employers.

It is observed by the Courts that it is true that in some cases the right to
strike is being misused but that is no reason why all strikes should be

8
Indian Trade Union & Collective bargaining, Nishith Desai Associates,
http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/India-Trade-Unions-and-
Collective-Bargaining.pdf
9
The Hindu, ‘The right to Strike’ Sep 10, 2003, available at
http://www.thehindu.com/2003/09/10/stories/2003091000671000.htm

10
 Right to Strike in the light of fundamental rights under the Constitution of India

condemned as immoral. The right to strike can be a crucial instrument for

ensuring the basic socio-economic rights of workers and all citizens.

In Kairbitta Estate v. Rajmanickam 10 , Justice Gajendragadkar opined that

“In the struggle between the capital and Labour, the weapon of strike is
available to Labour and is often used, as is the weapon of lock-out available
to the employer and can be used by him.”

In Gujarat Steel Tubes v. Its Mazdoor Sabha 11 , Justice Bhagwati opined

that right to strike is integral of 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 and cannot be overruled by the division bench decision of
Rangarajan. In the Rangarajan case the court had no authority to wash out
completely the legal right evolved by judicial legislation.

 RIGHT TO STRIKE AS A STATUTORY RIGHT:

The concept of right to strike as a right emanating from the statutes can be
understood in the light of Industrial Disputes Act, 1946 and Trade Unions
Act, 1926.

A. Industrial Disputes Act, 1946

The right to strike has been contemplated under the scheme of the
Industrial Disputes Act, 1946.

Section 2(q) of the Industrial Disputes Act defines the term ‘Strike’.
Strike means a cassation 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 accept employment.

There is an implied right of strike in the industries as per this statute and
the term industries has been given a very wide connotation. Sections

10
1960 AIR (3) 371
11
980 AIR 1896

11
 Right to Strike in the light of fundamental rights under the Constitution of India

22 12 , 23 13 and 24 14 of the Industrial Disputes Act all recognize the right

of strike vested in the workers and the right to lockout vested in the
employers. Section 22 lays down some conditions to be fulfilled before a
worker can go for a strike. Section 23 lays down the general prohibitions
as to strikes. Section 24 elucidates the concept of illegal strike and it is
known that until the case is not attracted by the conditions laid down
under Section 22 and 23 of the Act, the strike cannot be termed as illegal.
Section 24 implies that the Act contemplated a difference between a legal
and illegal strike. Unless the strike attracts the ban under Sec 22 (1) of
the Industrial Disputes Act, it cannot be termed as illegal under Sec 24 of
the Act.

Further, Justice Krishna Iyer had opined that "a strike could be legal or
illegal and even an illegal strike could be a justified one" in Gujarat
Steel Tubes v. It’s Mazdoor Sabha 15 , is thus beyond doubt that the
Industrial Disputes Act, 1947 contemplates a right to strike.

A worker who is involved in an illegal strike may be penalized with

imprisonment of up to a month and/ or fine. As per the Industrial
Disputes Act, no person shall provide any sort of financial aid to any
illegal strike. Any person who knowingly provides such a help in support
of any illegal strike is punishable with imprisonment up to six months
and/or fine.

Another consequence of an illegal strike is the denial of wages to the

workers involved. Furthermore, the Supreme Court has held that workers
shall only be entitled to wages during a strike which is not only legal, but
also “justified”. A strike shall be deemed unjustified where “the reasons
for it are entirely perverse and unreasonable which is a question of fact,
which has to be judged in the light of the fact and circumstances of each
case… the use of force, coercion, violence or acts of sabotage resorted to
by the workmen during the strike period which was legal and justified
would also disentitle them to wages during the strike period.” The
12
Prohibition of strikes and lockouts
13
General prohibition of strikes and lockouts
14
Illegal strikes and lockouts
15
980 AIR 1896.

12
 Right to Strike in the light of fundamental rights under the Constitution of India

Supreme Court has also held that whether or not a strike is “unjustified
depends on such factors as “the service conditions of the workmen, the
nature of demands of the workmen, the cause which led to the strike, the
urgency of the cause or the demands of the workmen, the reason for not
resorting to the dispute resolving machinery provided by the Industrial
Disputes Act or the contract of employment or the service rules and
regulations etc.”

Accordingly, it can be concluded that there is a distinction between legal

and illegal strike, and it is for the judiciary to examine the difference
between the two. It is correct for the judiciary to straightway declare that
there is no such thing as the right to strike 16 .

Thus, going by the scheme of the statute, we can conclude that the
legislature did not intend that there shall be no right to strike for a
worker. Rather, they recognised it as a morally justifiable right. This can
be inferred from the fact that where on one hand Section 24 lays down as
to what are illegal strikes, this means that those which do not attract the
provisions of Section 24 are considered to be legal strikes. Moreover,
Section 22 of the Act does not say that there is no right to strike; rather it
lays down conditions to be fulfilled before a person can go for a strike,
for example giving prior notice of the strike. Thus, if the conditions are
duly fulfilled then the strike is to be considered valid and lawful.

The Supreme Court has also held that whether or not a strike is
“unjustified depends on such factors as “the service conditions of the
workmen, the nature of demands of the workmen, the cause which led to
the strike, the urgency of the cause or the demands of the workmen, the
reason for not resorting to the dispute resolving machinery provided by
the Industrial Disputes Act or the contract of employment or the service
rules and regulations etc. 17 ” It should be noted that a strike that was in
existence at the time of reference to a board, arbitrator, court or tribunal
may be continued, provided it was legal at the time of its commencement.
16
Singh Paul, V.V., ‘Right to Strike under Industrial Disputes Act, 1947’, March 9, 2004 available at
http://www.mondaq.com/india/x/24797/Workforce+Management/Right+to+Strike+Under+Industrial+Dispute+
Act+1947
17
Syndicate Bank v. K. Umesh Nayak (1995 AIR 319) at para 27

13
 Right to Strike in the light of fundamental rights under the Constitution of India

Furthermore, a strike staged in response to an illegal lockout shall be

legal.

In Mineral Miner Union v. Kudremukh Iron Ore Co. Ltd . 18 , it was held
that the provisions of section 22 are mandatory and the date on which the
workmen proposed to go on strike should be specified in the notice. If
meanwhile the date of strike specified in the notice of strike expires,
workmen have to give fresh notice. It may be noted that if a lock out is
already in existence and employees want to resort to strike, it is not
necessary to give notice as is otherwise required.

The workers’ right to strike is complemented by the employers’ right to

lock-out, thus maintaining a balance of powers between the two 19 .
However, the Rangarajan judgement, by prohibiting strikes in all forms
but leaving the right to lock-out untouched, tilts the balance of power in
favour of the employer class. The workers’ right to strike is
complemented by the employer’s right to lock-out, thus maintaining a
balance of powers between the two. However, the Rangarajan judgement,
by prohibiting strikes in all forms but leaving the right to lock-out un-
touched, tilts the balance of power in favour of the employer class.

The Industrial Disputes Act, 1947 refrains generally the trade unions
from going on strike. Its focal thrust is on more efficient alternative
mechanisms for dispute settlement, such as reference to Industrial
Tribunals, compulsory adjudication, conciliation, etc. In fact, the very
intention behind its enactment as illustrated in the statement of objects
and reasons, was to overcome the defect in the Trade Unions Act, 1926,
which was, that it imposed restraints on the right to strike but did not
provide for alternative settlement of the disputes 20 .

The Statement further reads as under “The power to refer disputes to

Industrial Tribunals and enforce their awards is an essential corollary to
the obligation that lies on the Government to secure conclusive
18
ILR 1988 Kar 2878
19
Professor Dr. Bernd Waas, ‘Strike as a Fundamental Right of the Workers and its Risks of Conflicting with
other Fundamental Rights of the Citizens’, General Report III, September, 2012 available at http://islssl.org/wp-
content/uploads/2013/01/Strike-Waas.pdf
20
Raju, D, ‘Right to Strike under Industrial disputes Act, 1946: A Statutory Analysis’, Legal Service India

14
 Right to Strike in the light of fundamental rights under the Constitution of India

determination of the disputes with a view to redressing the legitimate

grievances of the parties thereto, such obligation arising from the
imposition of restraints on the rights of strike and lock-out, which must
remain inviolate, except where considerations of public interest override
such right”.

Thus, the concept of alternative settlement mechanisms in industrial

disputes was statutorily ushered in the Act with a view to providing a
forum and compelling parties to resort to the forum for arbitration so as
to avoid confrontation and dislocation in industry, that a developing
country like India can ill-afford. Peace and harmony in industry and
uninterrupted production being the demand of the time, it was considered
wise to arm the

Government with the power to compel the parties to resort to arbitration

and a necessary corollary to avoid confrontation and trial of strength
which are considered wasteful from national and public interest point of
view.

The principal objects of the Industrial Disputes Act 1947, as analysed by

the Supreme Court in the case of Workmen of Dimakuchi Tea estate v.
Management of Dimakuchi Tea Estate 21 , promotion of measures for
securing amity and good relations between the employer and workmen;
relief to workmen in the matter of lay off, retrenchment and closure of an
undertaking and collective bargaining.

Thus, the point of issue is with regards to the legality of a strike and not
as to whether there is a right to strike. The Apex Court’s decision in the
Rangarajan case stating there is no statutory provision empowering the
employees to go on a strike is to be held bad in law as it is beyond doubt
that the Industrial Disputes Act, 1946 contemplates a right to strike.

B. Trade Unions Act, 1926

This particular statute had legalised certain activities that the trade
unions took in furtherance of a trade dispute. Thus, in a way they had

21
1958 AIR 1156

15
 Right to Strike in the light of fundamental rights under the Constitution of India

intended to provide the right to strike for the first time. Section 18 and
19 provide for the right to strike. Section 18 gives the immunity from
civil suits to any registered trade union or any of its members who does
any act in contemplation of a trade dispute. Also, Section 19 lays down
that no agreement between the members of a registered trade union shall
be void merely by reason of the fact that any of the objects of the
agreement are in restraint of trade.

In B.R. Singh v. Union of India 22 , 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". This shows the
legislative intent that in some cases the strike would be held legal and
valid if it is not in violation of any of the provisions of this Act.

 INTERNATIONAL CONVENTIONS:

Many of the democratic nations have recognized this right to strike. Even
though it is not considered to be on such a high platform like the fundamental
rights, yet it should still be recognized as a redressed mode in the hands of the
employee. This is because there is a need to give a tool like the strike to the
workers so that they can raise their voice against oppression of their
employers 23 .

India is a signatory to the International Covenant of Economic, Social and

Cultural Rights (ICESCR). Article 8(1)(d) of the said covenant provides that
“the right to strike provided that it is exercised in conformity with the laws of
the particular country.”

Article 2 (1) of the Covenant provides that "Each State Party to the present

22
(1990) Lab IC 389 SC 396
23
Keith D. Ewing, ‘Myth and Reality of the Right to Strike as a Fundamental Labour Right’ (2013),
International Journal of Comparative Labour Law and Industrial Relations, Issue 2

16
 Right to Strike in the light of fundamental rights under the Constitution of India

Covenant undertakes to take steps with a view to achieving progressively the

full realization of the rights recognized in the present Covenant by all
appropriate means, including particularly the adoption of legislative
measures". This implies that this particular treaty recognizes the right to strike
and India being a party to it; is bound by it.

India is not a member of any of the International Labour Organisation

Convention. However, India being the member of the International Labour
Organisation (‘ILO’) is bound to abide by its conventions in general as the ILO
declares so in their preamble. Convention 87 relates to Freedom of Association
and Protection of the Right to Organize. Convention 98 refers to the Right to
Organize and Collective Bargaining.

Therefore, by virtue of being a member of the ILO, India is under obligation to

satisfy at least the fundamental rights promoted by the Conventions,
irrespective of it having ratified them or not because it is one of the founding
members of the ILO. As per the Indian Constitution Article 51(c) the State shall
endeavor to foster respect for international law and treaty obligations in the
dealings of organized people with one another. The right to strike has acquired
an implied authorization from the Universal Declaration of Human Rights
(1948). Articles 23,24 and 25 of the declarations assert every one’s right to
work, right to just and favorable remuneration and right to form and join trade
unions and also the right to rest, leisure, leave etc. and the right for fair living
conditions with necessary social benefits.

The blanket ban on the right to strike also transgresses the limits of the
following Conventions of the International Labour Organization (ILO):

 Freedom of Association and Protection of the Right to Organize 24 .

 The Right to Organize and Collective Bargaining 25 .
 Collective Bargaining Convention, 1981 26 .
 Labour Relations (Public Service) Convention, 1978 27 .

24
Article 87
25
Article 98
26
Article 154
27
Article 151

17
 Right to Strike in the light of fundamental rights under the Constitution of India

Article 9 of the Convention provides that “Public employees shall have, as other
workers, the civil and political rights which are essential for the normal
exercise of freedom of association, subject only to the obligations arising from
their status and the nature of their functions”.

 Recognition of ‘Right to Strike’ by Constitution of Other

Countries:

The right to strike has acquired an implied authorization from the “Universal
Declaration of Human Rights (1948)”. Articles 23,24 and 25 of the
declarations assert every one’s right to work, right to just and favorable
remuneration and right to form and join trade unions and the right to rest,
leisure, leave etc. and the right for fair living conditions with necessary social
benefits.

 Article 42 of the constitution of Ethiopia provides the right to strike to

the workers and also enjoins the state to provide such right, subject to
any restrictions, even to the government employees.
 Article 34 of the constitution of Angola guarantees right to strike and
prohibit lockouts.
 Brazil, the developing Latin American country also guarantees the right
to strike under Article 9 of the Constitution.
 Capitalist countries like Japan under Article 28
 South Africa under Article 23 of the Constitution
 Greece under Article 23 of the Constitution
 Hungary Article 70C of the Constitution
 Poland under Article 59 of the Constitution and
 South Korea under Article 33 of their respective constitutions provide
the right to strike.

Recent strike by Airport workers in Germany – February 2023 28 :

In Germany, the right to strike is guaranteed by the Constitution. It forms

28
https://www.thehindu.com/news/international/thousands-of-flights-cancelled-as-german-airport-staff-strike/
article66521048.ece

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 Right to Strike in the light of fundamental rights under the Constitution of India

part of the principle of collective bargaining autonomy.

Thousands of flights to and from German airports were cancelled on 17 th

February 2023, as German airport workers went on strike and walked out
to press their demands for inflation-busting pay increases. The strikes at
seven German airports, including Frankfurt, Munich and Hamburg,
affected almost 300,000 passengers and forced airlines to cancel more
than 2,300 flights. Christine Behle of the Verdi labour union told public
broadcaster RBB-Inforadio that failure to reach a meaningful deal with
employers on pay could result in a “summer of chaos” at German
airports.

The union is seeking a 10.5% increase for its members, or at least 500
euros, to make up for high inflation seen in Germany and elsewhere last
year due to the knock-on effects Russia's attack on Ukraine has had on
global food and energy prices.

This shows that the International Conventions must be applied within the
domestic laws of India as per the doctrine of harmonious construction to
give effect to both the laws.

 SUGGESTIONS & CONCLUSION:

It can be concluded that the right to strike is not fundamental and absolute right
in India in any special and common law. This is a conditional right only
available after certain pre-conditions are fulfilled under the provisions of the
Industrial Disputes Act, 1946. Thus, even though we cannot raise the right to
strike to such a high position as fundamental rights under Part III, still it cannot
be denied that it a well-defined and recognized statutory right under the
Industrial Disputes Act, 1946 and Trades Disputes Act, 1926.

Where on one hand, strike is a weapon in the hands of the workers; on the other
hand lock-out is a weapon on the hands of the employers. Thus, there should be
a balance between the two weapons vested in them. Both these powers are
complimentary to each other. The Court in the Rangarajan case, prohibited all

19
 Right to Strike in the light of fundamental rights under the Constitution of India

forms of strikes, and by not prohibiting lock-outs it tried to tilt the balance in
favour of the employers. This would lead to cases of oppression of the workers
in a labor-intensive country like India. According to research published in the
Annual Report of the Union Labour Ministry (2002-2003), in the year 2001 the
losses due to lock outs were three times more than those due to strikes. So, it
would be wrong to conclude that the workers are holding the production process
to a standstill by resorting to strikes.

To avoid strikes is everyone's responsibility 29 . But to assert that strikes under

any circumstances are illegal, immoral, inequitable and unjustified is contrary
to our law and industrial jurisprudence. Striking work is integral to the process
of wage bargaining in an industrial economy, as classical political economy and
post-Keynesian economics demonstrated long ago in the analysis of real wage
determination 30 . A worker has no other means of defending her/his real wage
other than seeking an increased money wage.

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. The Apex court failed to
comprehend these dynamics of the evolution of the right to strike.

In B.R. Singh v. Union of India 31 , Justice Ahmadi opined “The Trade Unions
with sufficient membership strength can bargain more effectively with the
management than individual workman. The bargaining strength would be
considerably reduced if it were not permitted to demonstrate by adopting
agitation methods such as 'work to rule', 'go-slow', 'absenteeism', 'sit-down
strike', and 'strike'. This has been recognized by almost all democratic
countries”.

29
Pradeep Kumar, ‘Strikes in India: An Analysis’, Oct 10, 1964 available at
http://www.epw.in/system/files/pdf/1964_16/41/strikes_in_indiaan_analysis.pdf
30
Right to Strike: A Comparative Analysis available at https://www.academia.edu/5667906
31
(1990) Lab IC 389 SC 396

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 Right to Strike in the light of fundamental rights under the Constitution of India

In Gujarat Steel Tubes v. Its Mazdoor Sabha 32 , Justice Bhagwati opined that
right to strike is integral of collective bargaining. He further stated that this
right is a process recognized by industrial jurisprudence and supported by social
justice.

Thus, there is a need for proper welfare legislations for the workers so that they
can take part in various undertakings and management tasks. In some cases,
where they need a standing against oppression or unfair labour practices, in the
case strike must be available to them to get their employers agree on a
negotiation point. As Article 43A of our Constitution also mentions that the
State shall take steps by suitable legislation to secure the participation of
workers in industry works. Thus, the Government should work towards forming
legislations that would abrogate the said problems. Moreover, there is a need
for the Courts to lay down a clear ratio as to the right of strike available to the
workers by overruling the decision of T.N. Rangarajan case.

Justice Shah's judgment in Rangarajan case does not seem to be right when
saying: "There is no statutory provision empowering the employees to go on
strike." Going further, the judge then declared that there was "no moral or
equitable justification to go on strike”. This observation does ignore the legal
provisions under the Indian Law and International conventions.

Nonetheless, as we progress towards a better future, we need to realize that

laws are made and implemented for the better functioning of the system, but it
would be a lot much better if we could regulate things willingly and not
forcefully. If the employers and managements showed empathy towards the
genuine needs of their workmen and in return the workmen too gave full
cooperation, then the situation to resort to strikes would not be created. The
unions and associations should take an amicable route to get their demands
fulfilled by having dialogues with the management. It is rightly said that
agreements give better results than arguments!

32
1980 AIR 1896

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 Right to Strike in the light of fundamental rights under the Constitution of India

Bibliography
Article

1. Raju, D, 'Right to Strike under Industrial disputes Act, 1946: A Statutory

Analysis', Legal Service India

2. Keith D. Ewing, 'Myth and Reality of the Right to Strike as a Fundamental

Labour Right' (2013), International Journal of Comparative Labour Law and
Industrial Relations, Issue 2

3. Right to Strike: A Comparative Analysis available at

https://www.academia.edu/5667906

4. Tyagi, R., 'Supreme Court pronouncement and the Right to Strike' available
at http://www.revolutionarydemocracy.org/rdv9n2/strike.htm

5. The Hindu, 'The right to Strike' Sep 10, 2003, available at

http://www.thehindu.com/2003/09/10/stories/2003091000671000.htm

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http://lex-warrier.in/2012/05/right-to-strike-and-indian-constitution

8. Singh Paul, V.V., 'Right to Strike under Industrial Disputes Act, 1947',
March 9, 2004 available at

22
 Right to Strike in the light of fundamental rights under the Constitution of India

http://www.mondaq.com/india/x/24797/Workforce+Management/Right+to+S
trike+Under+Industrial+Dispute+Act+1947

9. Pradeep Kumar, 'Strikes in India: An Analysis', Oct 10, 1964 available at

http://www.epw.in/system/files/pdf/1964_16/41/strikes_in_indiaan_analysis.
pdf

Books
1. Seervai H M, Constitutional Law of India, 4th Edition, Silver Jubilee
Edition, Volume 2, Universal Law Publishing Co. Pvt. Ltd.

2. Singh M P, V N Shukla's Constitution of India, Eleventh Edition, Eastern

Book Company.

Web Resources
1. T K Rangarajan v. State of Tamil Nadu, AIR 2003 SC 3032 available at
https://indiankanoon.org/doc/88909580/
2. All India Bank Employees' Association v. National Industrial Tribunal and
others, 1962(3) SCR 269 at https://indiankanoon.org/doc/1781810/
3. Communist Party of India (M) v. Bharat Kumar and others, 1998(1) SCC
201 at https://indiankanoon.org/doc/1663947/
4. Gujarat Steel Tubes v. It's Mazdoor Sabha, 1980 AIR 1896 at
https://indiankanoon.org/doc/609478/
5. B.R. Singh v. Union of India, (1990) Lab IC 389 SC 396 at
https://indiankanoon.org/doc/716916/
6. Kairbitta Estate v. Rajmanickam, 1960 AIR (3) 371 at
https://indiankanoon.org/doc/801977/
7. Workmen of Dimakuchi Tea estate v. Management of Dimakuchi Tea
Estate, 1958 AIR 1156 at https://indiankanoon.org/doc/1198151/
8. Mineral Miner Union v. Kudremukh Iron Ore Co. Ltd, ILR 1988 Kar 2878
https://indiankanoon.org/doc/541760/
9. Syndicate Bank v. K. Umesh Nayak, 1995 AIR 319 at

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 Right to Strike in the light of fundamental rights under the Constitution of India

https://indiankanoon.org/doc/495088/

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