THE LEGAL MILIEU OF STRIKES IN INDIA

-Devapreeti Sharma |

Strikes have become, due to its continued usage, an age-old weapon used by the workers of the world to make lives better for themselves. This weapon is believed to have invigorated the dignity of labour not just in the globe but also in India – and rightly so, considering that most of the labour welfare laws of India have largely been triggered into existence because of the protests and strikes of various classes of labourers. The United Nations, as well as the International Labour Organization have, at many instances, mooted for strikes in the status of an inherent right of all workers. It is now well-accepted that strikes are essential for a functional democracy and as such, the international community of states do acknowledge that all democratic states of the globe recognise, or ought to recognise, a ‘strike’ as a right. Many countries belonging to the “the Third World” and having a colonial past similar to that of India, have incorporated the Right to Strike in their constitutions – the constitutions of Angola, Brazil, Ethiopia and South Africa can be cited in this regard. Curiously for India, who boasts of having the world’s longest constitution and being the largest democracy, this Right is nowhere to be found in her constitutional grundnorm.  In India, the Right to Strike is regulated largely by the Industrial Disputes Act, 1947 (hereinafter referred to as “Act”). Unfortunately though, the Act provides for this Right only minimally, leaving room for a number of ambiguities and grey areas. Consequently, the Indian Judiciary has persistently struggled to fill in the legislative gaps and interpret the obscurities and uncertainties of the law. Question is – have they done enough?

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In a catena of cases, the judiciary was confronted with the question of whether the Right to Strike can be drawn to the Fundamental Freedom of Speech and Expression [Article 19(1)(a)], to Assemble Peaceably and Without Arms [Article 19(1)(b)] and to Form Associations and Unions [Article 19(1)(c)]. In 1961, when an appeal was made by All India Bank Employees Association against the National Industrial Tribunal, the Supreme Court ruled that the Right to Strike is a natural deduction of the Right to Form Associations and Unions but, noting that strikes can cause economic dislocation, the court also cautioned that this Right cannot be made an absolute right. But a year later, the court went back and ruled out all possibilities. In the Kameshwar Prasad case (1962), the apex court made a distinction between a ‘demonstration’ and ‘strike’ and ruled that while the former is a Fundamental Freedom, the latter is not. Four decades later, the same court went even further back – In T.K. Rangarajan v. Government of Tamil Nadu and Ors. (2003), Justice M.B. Shah went to the extent of saying that government servants do not have a “fundamental, statutory, equitable or moral right” to resort to a strike. Now, to say that the Right to Strike is not a Fundamental Right is one thing; but to say that it is not even a statutory right or  a moral right is quite another. That is why, this judgement was met with fervent reactions and remonstrations. The Indian citizenry urged that the judgment be reviewed by a larger bench. Alas! Nothing happened and today, fifteen years later, we find that the ratio decidendi still constitutes a binding precedent – as recently as last year, the High Court of Allahabad reiterated the Rangarajan rule. [Yed Ram v. U.P. State Public Service Tribunal (2017)].  Given this scenario, the idea that the Right to Strike is validated in our grundnorm is quite doubtful.

Judicial pronouncements have been significant not only in the context of our constitution, but also in the case of statutory regulation of the Right to Strike. Section 2(q) of the Act, which establishes the legal meaning of a ‘strike’ requires that there be a “cessation of work” caused as a result of a concerted refusal by employees to continue to work or accept employment. As early as in 1953, the Supreme Court clarified in the Buckingham and Carnatic Company case that even if the cessation of work is temporary and short-lived, a concerted refusal of the employees would amount to a ‘strike’ and would, therefore, attract relevant statutory provisions. Now, Section 22 requires inter alia that a notice be issued before striking in a public-utility service and that all such strikes be suspended during the pendency of any conciliation proceedings on the matter. Qualified by the Supreme Court’s dicta in the Essorpe Mills case (2008), workers are consequently required to give a six-month advance notice specifying the proposed date of strike and then wait for another fourteen days from the proposed strike-date to actually to start striking. But conciliation proceedings begin immediately when a notice of strike is given – therefore, if these proceedings last for more than fourteen days after the proposed strike-date (which they normally do), the workers would need to suspend the strike for as long as the proceedings are pending. By the time the proceedings end, the strike-notice expires and the workers would need to issue a fresh notice if they wish again to strike on the same matter. Thus, in effect, executing a strike is subjected to a long-drawn, tedious and tiresome procedure.

Failure to meet these procedural requirements would render a strike illegal [Section 24] and attract penalties of fines and imprisonment [Section 26]. In addition to that, employment contracts frequently provide for dismissing employees who participate in illegal strikes and cutting out on their wages during the strike period. In this context too, after the Syndicate Bank case (1995), the judiciary has constantly ruled that a workers’ service will be prevented from being terminated or wages for the strike-period will be paid to them, only if the strike is both legal and justified. Now, what a ‘justified strike’ is depends on the unique facts and circumstances of each case and is thus, a situation dependent on the judges’ subjective analysis of the matter. On the other hand, readers must note that criminal proceedings can straight-away be started against the workers participating in an illegal strike, notwithstanding the justifiability of such a strike. Thus, workers are likely to face harsh consequences if a strike goes wrong. The legal environment of a strike hence, points towards a sad reality – it is difficult for consequence-fearing workers and impossible for consequence-fearing government servants to resort to a strike. In this light, it would not be wrong to state the judicial and legislative trend operates in favour of the employers today. If the Right to Strike is to be secured for invigorating the labourers of India, the judiciary as well as the legislatures would need to play a very pro-labour role and act soon. Only then, some meaning will be made of the May Day.