Once again, a justifiable campaign has hardened against the 2003 judgment of Supreme Court, which had held that there is no fundamental or statutory provision, empowering employees to go on strike. Some Members of Parliament are in desperation suggesting an amendment to the Constitution for this purpose. Some facts need to be clarified to put the debate on the right track.

The judgment was given in the context of the strike by employees of Tamil Nadu government. The observations therein are relevant to the rights of the government employees only – it has no relevance to the rights of other employees like workers of the private sector to go on strike. The real villain is the central government, which by Rule 7 of Central Civil Services (Conduct) Rules, 1964 mandates that no government servant shall resort to or in any way abet any form of strike.


Civil and Political Rights

Various state governments have copied the above central rule. On the literal interpretation of the rule, the view of the Supreme Court cannot be faulted. This interpretation has been continuing since 1962. Many trade unionists were dismissed from service under this rule, but it remained on the book, notwithstanding the fact that in the meanwhile many governments apparently sympathetic to the labour and even supported by the Left forces have been in power. This rule is not consistent with Article 22 of the International Covenant on Civil and Political Rights (ICCPR), which India has ratified. The Article 22 recognises the right of workers to join a trade union for the protection of their interest and prohibits any restriction being placed other than those that are necessary in the interest of national security and public order. In a properly- balanced collective bargaining situation, a trade union’s right to strike is a vital and necessary ingredient. Strikes will continue to occur – this prohibitive measure against strikes by public sector employees is not the answer.


Strikes and Courts

Courts in the United States accept that the labour possesses the right to participate in a primary strike, where the workers’ complaints have reference to wages, hours or other conditions of employment. The International Labour Organisation (ILO), in its conventions No. 87, 98, 154 and 151, has accepted these rights. Convention No. 151, which is exclusively meant for the public service, has specifically mandated 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 obligation arising from their status and the nature of function.

The instrument of collective bargaining by the trade union members extends to the union members’ concerted refusal to work overtime during negotiations for renewal of expired collective bargaining agreement. Thus a transportation strike was held legal in the United States by the court, which observed, “there was no absolute right to strike at common law, but there was a common law at right to strike in the sense that a peaceful strike was recognised by the common law as lawful concerted activity and therefore legal if employed for a lawful object. Employees who peacefully struck work for a lawful object were not liable to their employer even though the strike shut him down, bankrupted him, or put him out of business, and even though it also caused enormous and irreparable damage to hundreds of thousands of innocent persons not involved in the strike”.

Some U.S courts have even given the right to strike a Constitutional status when neither the Thirteenth nor the Fourteenth Amendment confers an absolute right to strike, but it has nevertheless held that the right to strike is a property within the Fourteenth Amendment and therefore cannot be taken without due process of law. It has also been held that a state may not constitutionally forbid lawful strikes for lawful purposes although what is a lawful strike and what is a lawful purpose are presumably subject to reasonable legislative definition.

The legality of a strike for a proper objective has been recognised in the U.S for almost a century. A state cannot forbid a peaceful strike against an employer. In the U.S, even the much- criticised National Labour Act recognises the right of a labour organisation to go for collective bargaining and thus recognises the right of such employees’ refusal to work. If an employer interferes or constraints the exercise of that right by the employee, it is considered an unfair labour practice.


A Collective Bargaining Weapon

In India, though there may not be a fundamental right to strike (so long as earlier decisions of Supreme Court stand,) it is not correct to say that workers have no statutory right to strike. As a matter of fact, the whole scheme and spirit of the Industrial Disputes Act, 1947 would show that it recognises strikes as a weapon in the armoury of the labour in the process of collective bargaining. The Act does not purport to take away the right to strike. On the contrary, this right has been impliedly recognised by the Act, though by legislation it may be circumscribed on considerations of national security or public order.

It may be noted that the 2003 judgment purports to rely on an earlier judgment of the Supreme Court in 1998 upholding a Kerala High Court judgement that ‘bandh’ is unconstitutional (this proposition with respect being juridically fallacious and subject to consideration by a larger bench). However, it was accepted that a case for bandh is obviously distinct and different from the case for a general strike or the call for hartal. Thus, neither of these judgments prohibit the right of workers to go on strike subject to the procedure laid down in the Industrial Disputes Act. There is, therefore, much misunderstanding when it is said that the right to strike has been negatived by the Supreme Court.

The true position is that the Supreme Court has only reiterated what is contained in Rule 7 of Central Rules that government employees have no right to strike – an interpretation obviously flowing from the wording of Service Rule itself.

Though feeling indignant at the interpretation by the Supreme Court judgment, if the trade unions expressed their ire at the real guilty party, i.e. the central government, which even in the face of mass resentment by the workers, has not chosen to delete Rule 7 (which is the real mischief-maker), they may find their task easy and possibly get a quicker result.

Of course, this is dependent on the political commitment and labour-friendly attitude of the United Progressive Alliance government. A sympathetic administration can straightaway repeal Rule 7 and thus remove a bitter fight with labour as well as give it a feeling of participation in the reconstruction of the nation. The answer, therefore, for protection of the right to strike has to be given by the central government – it is not necessary to engage in any tortuous long drawn fight of a Constitutional amendment. Of course, judgment regarding ‘bandh’ may hopefully be reconsidered by the Supreme Court itself or the political parties may call ‘bandh’ as general ‘hartal’ and thus negate in practice the effect of the judgment.