Right To Strike In Light Of Fundamental Rights

Abstract

This study aims to highlight Right to strike and its legal journey through an analysis of previous judgements and statutes in perspective of fundamental right. This study has adopted a mixed methodology comprising of Exploratory and analytical research methodology which aids to explain and compare the recognition of right to strike as a fundamental right from a international perspective. Further the paper includes a analysis of limitations to the right to strike and lastly concludes by trying to assess the position of right to strike as a fundamental right by taking into consideration the challenges and problems which arises from limitation and adaptiveness by statutes.

INTRODUCTION

In many aspects and scenarios there are constant debates on fundamental right of people. One of the prominent debates in most of the nations is of processions and demonstrations which mainly includes three fundamental rights enshrined in Article 19 ¹of the constitution of India thar are right to freedom, to assembly and moment. Many times, a question arises before the courts that whether Right to strike comes in the ambit of fundamental Rights in India.

Strike means stoppage of work by any person with a motive to increase their wages ², sufficing their wants and to redress their grievances. It is a weapon to defend the liberty and dignity of the labours. The irrational use of strike does not suit the India's Economy which demands more and continuous production. Despite being a member state to International Labour Organisation, India has not ratified convention No. 98 of 1949³ which is about right to organise and collective bargaining.

PROBLEM STATEMENT

Which include right to strike but not expressly mentioned. The paper focuses into the question of whether the scope of article 19 is large enough to include Right to freedom in respect to freedom of speech and expression, freedom of assembly and freedom od association.

OBJECTIVES

The main objectives of this study is to Identify the scope of article 19 (a) (b) (c) in respect of right to strike and to compare the same with stance of other nations.

METHOD

In this study, secondary source of data has been used. The Data is collected from Newspapers, books, articles and internet. In addition to this a qualitative method for content analysis and summative analysis content method is adopted.

HISTORY OF STRIKE AND REGULATIONS -

Strike Action was first observed at the end of 20^th Dynasty under Pharaoh named Rameses 3 in Ancient Egypt then later in 17^th century strikes were observed in Landon. Strike became prominent during the advent of Industrial revolution e.g. during the economic panic of 1893, where the Pulmman car company had cut wag es up to 28% as demand for train cars crashed and the company's revenue dropped⁴ The first ever strike by the Indian industrial works took place in 1862 in which around 1200 Railway works of Howrah Station went on strike ⁵.

For the first time the trade union act 1926 provided right to strike, section 18 and 19 ⁶of the act confer immunity to trade union on strike. Section 18 protects the registered trade unions from any civil proceeding in respect of cessation of work and section 19 states that any agreement which is about stoppage of work between the members of a registered trade union cannot be void or voidable. Strike got recognition as a statutory right when the act defined it in section 2(q) of the act, strike was defined as "a cessation of work by a body of a person employed in any industry acting in any contribution, or a concentrated 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 ⁷ . whereas section 22, 23, 24 of the Industrial Dispute Act recognise right to strike, section 24 states the difference between legal and illegal strikes.

Article 8(1)(d) ⁸ ICESCR states that the parties of the covenant should undertake and recognise right to strike taking into consideration the laws of a particular state. Article 2(1) of the covenant abide the state parties to implement and promote the right in particular states. As India, being a party to this covenant is bound by Article 2 (1) to provide right to strike given in Article 8(1)(d) by appropriate legislative measures. Looking into the other provisions of other countries the right to strike has been enshrined under the constitutions of around 90 counties across the world⁹. The right to strike has been seen in international laws in way of instruments such as Article 22 ¹⁰ of international covenant of civil and political rights, Article 11¹¹ of European convention on human rights and Article 16 ¹²of Multilateral Treaties. Compared to India, small places with limited democracy such as Rwanda has recognised the right to strike and Ethiopia's constitution has included right to strike likewise Angola also guarantees this right, The South African constitution in Article 23 guarantees the right in absolute terms to the workers. Brazil has guaranteed this right Under Article 9 of its constitution similarly in Europe, Greec, Article 73, Macedonia, Article 78 Hungary, Article 70(C), Slovakia, Article 37, Poland, Article 59, Portugal, Article 57, all have constitutionally protected the right to strike, Even capitalised countries like Japan, Article 28 and South Korea, Article 39 has also recognised right Bargain collectively in their constitution. In contrast India having the largest constitution, these rights still are absent in it.

JUDICIAL INTERPRETATION

In 90's the Hon'ble Supreme court had clarified that even in liberal interpretation of clause(C) of article 19¹³ , it cannot be said that the trade union has granted right to strike and collective bargaining¹⁴ , further it was held that this right is not a fundamental right ¹⁵. Later in Paragraph number 17 of a judgement from Kerala High court¹⁶ , it was stated that "No political Party or a Organization can claim that it is entitled to paralyze the industry and commerce in entire state or nation and is entitle to prevent the citizens not in sympathy with its viewpoints from exercising their fundamental rights or duties for their own benefit or the benefit of State or Nation. Such claim would be unreasonable and could not be accepted as a exercise of fundamental right by the political party."

Viewing Strike as a right of government servant the Hon'ble court mentioned that no Fundamental right is granted to the government employs to go on a strike¹⁷ . Further Alladi Kuppuswami ¹⁸in 2003 that, yes there exist misuse of strike but causes Indian economy to suffer but that does not mean all strikes are immoral as strike in genuine times may act lawfully in favour and protection of the workers.

In Indian Express Bombay v. TM Nagarajan, the had held that the workers can exercise strike peacefully. In India there exists a fundamental right to form associations of labour union but there is no right to go on a strike which is fundamental in nature.

Justice Bhagwati stated that right to strike is a integral part of collective bargaining and this right is a process recognised by industrial Jurisprudence and is supported by social justice ¹⁹ Most of the times the employer and employee don't get to a conclusion and instead the strike affects the overall economy.

CONCLUSIONS AND SUGGESTIONS

Right to strike links with collective Bargaining and will remain inclusive the right in collective bargaining by form of various ways such as expression, response by people inferior to the authoritative decision who are bargaining to suffice their want. The courts have failed to recognise and comprehend the evolution of right to strike. As the statutory provision have clearly distinguished the legal and illegal rights, the judiciary can take a softer approach by deciding whether a strike is legal or illegal rather than a stringent declaration sating no right to strike at all.

The circumstantial idea of complete ban on Right to strike contravenes the covenants to which India is a party such as the Freedom and protection of the right to organize, Collective Bargaining convention 1981²⁰ , Labour Relation Public Service Commission ²¹ and Right to organise and collective bargaining ²² Even as India is a signatory to International Labour Organisation , India is bound to obligate at least the fundamental promoted by the organisation irrespective of this the Indian court has refused to adhere the fundamentals of the organisation. In reference to Apparel Export Council v. A.K Chopra, hon'ble supreme court had held that what the stand of international covenants is mandate to follow and it is a obligation on India it follow and fulfil it.

It is seen that in many decisions of the courts pertaining to an unjustifiable case, the court tends to neglects the truth that not all workman who participate in a strike can be placed on same footing and this sort of a situation cannot be assumed as mass dismissal. often, the right to strike not being a fundamental right proves to helpless as the superiors tend to supress the situation by neglecting the real, genuine demand of the workman.

Practically, Strike certainly has merits as well as equal number of demerits. Even if in future if the Right to strike would come in the ambit of Article 19 of the constitution of India the right would have numerous limitations as when it comes to strike it not affects the Individual but also affects other people, it is not less than 'Right in Rem'. Right to strike would struggle and would eventually fail to sustain its legality majorly in the environment of developing economy in India.

REFERENCES

1. Constitution of India
2. Halsbury Dictionary
3. International Labour Organisation
4. Trade Union Act 1926
5. Research paper on contemporary dynamics in world-historical perspective published by Cambridge Law Press.
6. Article – The Working Class in hundred years.
7. Case Laws –
8. All India Bank Employees Association v. National Industry Tribunal and others (1962)
9. Radhye Shyam Sharma v. The post master general central circle. (1964)
10. Communist Party of India v. Bharat Kumar and others (1998)
11. K. Rangarajan v. State of Tamil Nadu(2003)
12. Gujarat Steel Tubes ltd. V. ITS Mazdoor Sabha (1980)

Footnotes

1 Constitution of India, Part III, Article 19[1950]

2 Halsbury dictionary

3 International Labour Organization. (1949). Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

4 Silver, B. (2003). CONTEMPORARY DYNAMICS IN WORLD-HISTORICAL PERSPECTIVE. In Forces of Labor: Workers' Movements and Globalization Since 1870 (Cambridge Studies in Comparative Politics, pp. 168-180). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511615702.006

5 Communist Party of India (Marxist-Leninist) Liberation. (2008, April). The Working Class in a Hundred Years. Liberation. https://archive.cpiml.org/liberation/year_2008/april/working_class_hundred_years.htm

6 Trade Union Act 1926, Chapter III , Section 18 , 19 [1926]

7 Industrial Dispute Act, Chapter I, Section2(q), [1947]

Industrial Dispute Act, Chapter V, Section 22, 23, 24[1947]

8 The International Covenant of Economic Social and Cultural rights. (ICESCR)

9 United Nations Human Rights Council. (2017, March). UN rights expert: Fundamental right to strike must be preserved. Office of the United Nations High Commissioner for Human Rights. https://www.ohchr.org/en/press-releases/2017/03/un-rights-expert-fundamental-right-strike-must-be-preserved

10 Office of the United Nations High Commissioner for Human Rights. (n.d.). International Covenant on Civil and Political Rights. OHCHR. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

11 European Court of Human Rights. (n.d.). European Convention on Human Rights. Council of Europe. https://www.echr.coe.int/european-convention-on-human-rights#:~:text=The%20Convention%20for%20the%20Protection,force%20on%203%20September%201953

12 United Nations. Volume 1144-I: Multilateral Treaties deposited with the Secretary-General. https://treaties.un.org/doc/publication/unts/volume%201144/volume-1144-i-17955-english.pdf

13 Constitution of India, Part III, Article 19, [1950]

14 All India bank employees Association v. National Industrial Tribunal and others (1962) 3 SCR 269

15 Radhye Shamya Sharma v. The post master general central circle , Nagpur (1964) 7 SCR 403

16 Communist Party of India (M) v. Bharat kumar and others (1998) SCC 201

17 TK Rangarajan v. state of Tamil Nadu , AIR 2003 SC 3032

18 Former chief Justice of Andra Pradesh High Court

19 Gujarat Steel Tubes ltd . V. its Mazdoor Sabha AIR 1980 SC 1896

20 International Labour Organization. (1981). Collective Bargaining Convention, 1981 (No. 87)

21 International Labour Organization. (1978). Labour Relations (Public Service) Convention, 1978 (No. 154).

22 International Labour Organization. (1949). Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

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