The judicial response

The Supreme Court's observations on government employees' right to strike are in sync with a series of recent verdicts on democratic rights and labour issues in the era of liberalisation.

in New Delhi

I do not deny, of course, that both a general strike, and others of far less amplitude, inflict grave injury and hardship upon the community. But when trade unions seek for what they regard as justice, one of their most powerful sources of strength is the awakening of the slow and inert public to a sense of the position. Effectively to do this, in a real world, it must inconvenience the public; that awkward giant has no sense of its obligations until it is made uncomfortable. Quite frankly, I would have liked to see a general strike proclaimed against the outbreak of war in 1914. You cannot compartmentalise life; and where grave emergencies arise, the weapons to be utilised must be fitted to meet them. A government, which knew that its declaration of war was likely to involve a general strike, would be far less likely to think in belligerent terms. I do not see why such a weapon should be struck from the community's hand. I do not forget that the German Republic was saved from the Kapp Putsch by a general strike.

- Harold Laski, leading British political theorist, in his book Liberty in the Modern State (1930).

WHEN Justice M.B. Shah, who along with Justice A.R. Lakshmanan constituted the two-member Supreme Court Bench that delivered the anti-strike judgment in the T.K. Rangarajan vs. Government of Tamil Nadu and Others case on August 6, Laski's far-sighted counsel was unlikely to have cautioned him about the grave implications of his decision. The Bench, which declared that government employees have no fundamental, legal or statutory right - let alone any moral or equitable justification - to go on strike, said that under the "prevailing situation", the remedy for redressing their grievances lay not in strikes but in discharging one's duties and responsibilities.

Although the Shah-Lakshmanan Bench did not elaborate what the "prevailing situation" was, it was apparent that the reference was to the era of economic liberalisation. It was not necessary for the Bench to question the need for strikes to justify its direction to the Tamil Nadu government to reinstate the employees who had been dismissed for striking work subject to their giving an unconditional apology for resorting to strike and an undertaking that in future they would not engage in or incite strikes or similar activities. The Bench did not consider it necessary to deal with the validity of the State government's move to dismiss en masse the striking employees, or the constitutional validity of the Tamil Nadu Essential Services Maintenance Act, 2002, and the State government's ordinance amending it this year, which were under challenge. Yet the Bench dealt with the issue of the right to strike, almost in a perfunctory manner, without counsel getting an opportunity to question the merits of the Bench's basic premise.

Does the right to strike flow from the fundamental rights? Despite the Shah-Lakshmanan Bench's attempt to draw sustenance for its claim - that there is no fundamental right to strike - from the Supreme Court's earlier judgments, dating back to the 1960s, the question whether the right to strike can be construed as part of the freedom of expression has not been legally settled. In Kameshwar Prasad and Others vs. State of Bihar and Another (1962), the Supreme Court's Constitution Bench held that the Bihar State Conduct Rules, insofar as it prohibited strikes, was valid, since there was no specific fundamental right to resort to strike. In this case, however, counsel did not press the question of right to strike, and the Bench made just one statement on the right to strike. Ironically, in the same case, the Bench struck down the rule in the Conduct Rules, which sought to impose a blanket ban on all demonstrations. The Bench held that banning a peaceful demonstration would be violative of fundamental rights. Apparently, the Bench did not consider the issue whether the right to peaceful demonstration and non-violent strike can be separated at all, as a strike was a means of demonstration and one to register a protest. In fact, the entire judgment in this case was on the question of the right to demonstrate rather than strike work.

In Radhey Shyam Sharma vs. The Post Master-General Circle, Nagpur (1964), another Constitution Bench considered the challenge to the Essential Services Maintenance Ordinance (1960) and concluded that the ordinance was only with respect to any "illegal" strike, meaning thereby that a strike can also be legal, if proper notice was given by the employees. In both these cases, the Supreme Court concluded that there was no fundamental right to strike, by its superficial reading of Article 19(1)(a) guaranteeing the freedom of speech and expression. Apparently, this ruling requires re-examination, as subsequent rulings of the court have considerably expanded this Article. Freedom of the press, for instance, is implied in this Article, as per the court's ruling.

In All India Bank Employees' Association vs. National Industrial Tribunal & Others (1962), the Constitution Bench specifically held that even a very liberal interpretation of Article 19 (1)(c), guaranteeing the right to form associations or unions, could not lead to the conclusion that trade unions had a guaranteed right to an effective collective bargaining or to strike either as part of collective bargaining or otherwise. But this did not consider the question why the right to strike cannot be construed as a fundamental right with reasonable restrictions on its proper exercise. The Bench concluded that the right to strike was not a concomitant right of the right to form associations, that is, strike was not a means to achieve all the objectives of the union. The question whether the right to strike as the last resort could be recognised as a fundamental right was not examined in the case.

THE Shah-Lakshmanan Bench seems to have failed to take note of two key cases that highlight the importance of the right to strike. In the Gujarat Steel Tubes Case (1980), concerning the mass dismissal of employees, Justice V.R. Krishna Iyer in the Supreme Court held that a strike might constitute an infraction of law, but it might still not be a justification for the extreme punishment of mass dismissal. In his view, a large number of people participating in a strike would be passive strikers, as against the actual conspirators, and therefore, they ought not to be punished with dismissal, which would be disproportionate to the nature of illegality committed by them. The facts of the case are similar to the recent Tamil Nadu government employees' case, which resulted in the present judgment. In the B.R. Singh case (1989), which dealt with the Trade Authority of India's dismissal of certain employees without referring the dispute to the Tribunal for resolution under the Industrial Tribunal Act, former Chief Justice of India Justice A.M. Ahmadi, who wrote the judgment, found that the strike was justified because the workers were denied reinstatement without the dispute having been referred to the Tribunal as required under the law.

Justice Ahmadi wrote in that judgment: "The right to strike is an important weapon in the armoury of workers, recognised by almost all democratic countries as a mode of redress." Ahmadi's was a three-member Bench, and its ruling was binding on the Shah-Lakshmanan Bench.

The Shah-Lakshmanan Bench also overlooked the International Labour Organisation's (ILO) conventions on "Freedom of Association and the Protection of the Right to Organise" (1948) and "The Application of the Principles of the Right to Organise and to Bargain Collectively" (1949), neither of which India has ratified. The conventions were instrumental in Australia passing legislation in 1993 to protect the right to strike. The ILO committees, charged with monitoring compliance with its conventions, found that Australia breached its obligations under these conventions by failing to protect the right to strike. The right to strike has been considered to be an intrinsic corollary of the rights contained in the two conventions. The Australian Industrial Relations Reform Act, 1993, amended the Industrial Relations Act, 1988, by inserting a new part VI B Division 4, which provided for immunity from civil liability for striking employees in limited circumstances. The Act has been approved by the Australian High Court.

The Governing Body of the ILO has identified eight of its conventions as being fundamental to protecting the rights of people at work, irrespective of the levels of development of individual member-states. These rights are a precondition for all the others in that they provide for the necessary implements to strive freely for the improvement of individual and collective conditions of work. India, which has been a member of the ILO since 1919, has ratified four of these conventions - "Elimination of Forced and Compulsory Labour" (Conventions 29 and 105) and "Elimination of Discrimination in Respect of Employment and Occupation" (Conventions 100 and 111). While the country has proposed for ratification "Conventions on Freedom of Association and Collective Bargaining" (87 and 98), it has not ratified the "Conventions on Abolition of Child Labour" (138 and 182).

Under Article 11 of the Convention on Freedom of Association, each member of the ILO for which this convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise. Under Article 1 of the Convention on Collective Bargaining, 1949, workers enjoy adequate protection against acts of anti-union discrimination in respect of their employment. The right to strike is thus implied in the provisions of these two conventions.

THERE is evidence to believe that the Shah-Lakshmanan Bench failed to consider certain facts by stating that there was no legal, or statutory right to go on strike. The Industrial Disputes Act (IDA), 1947, recognises the right to strike, by declaring strikes during negotiation and adjudication illegal. Section 22 of IDA permits legal strikes even in public utility services, provided prior notice is given. But the Bench relied only on the Tamil Nadu Government Servants Conduct Rules, 1973 for its verdict.

The August 6 judgment is in line with similar verdicts of the Supreme Court delivered in the recent past - all indicating a growing impatience with the exercise of the rights to protest, to express dissent, and to demand the legitimate dues of workers. In Communist Party of India (Marxist) vs Bharat Kumar and Others (1998), a three-Judge Bench of the Supreme Court approved the decision of a Full Bench of the Kerala High Court that there cannot be any right to call or enforce a bandh that interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways. The High Court held that no political party or organisation can claim that it is entitled to paralyse industry and commerce in the entire State or nation and is entitled to prevent citizens who are not in sympathy with its viewpoints from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the nation.

"Such a claim would be unreasonable and could not be accepted as a legitimate exercise of a fundamental right by a political party or those comprising it," the High Court said in its judgment. Subsequently, the High Court also directed the Election Commission to deregister political parties that issued calls for bandhs. However, on an appeal from political parties, the Supreme Court reversed this aspect of the High Court's order. In Ex-Capt Harish Uppal vs Union of India and Another (2002), the Constitution Bench held that lawyers have no right to go on strike or give a call for a boycott and even they cannot go on a token strike (Frontline, January 17). The Bench ruled that only in the rarest of rare cases, where the dignity, integrity and independence of the Bar and, or the Bench are at stake, which will be determined only by the court, the courts may ignore a protest abstention from work for not more than one day. However, Justice Shah, who wrote a concurrent judgment in this case, was not prepared to consider any such token exemption from work. Ironically, Justice Shah admitted in that judgment that strike was a weapon used for getting justice by the downtrodden, poor persons or industrial employees who did not have any other method to get redress of their grievances. However, he believed that lawyers did not have any justification for remaining absent from duty.

In the contempt case against the Narmada Bachao Andolan (NBA) leader Medha Patkar and Booker Prize-winning author Arundhati Roy in 2001, the Supreme Court's two-Judge Bench sentenced Roy for a day's imprisonment, for questioning the contempt notice issued to her in connection with the agitation of displaced people organised by the NBA in front of the Supreme Court to protest against the court's judgment in the Sardar Sarovar case permitting further construction on the dam. In August 2001, the Constitution Bench of the Supreme Court held that contract labour employed by public sector undertakings would not be eligible for automatic absorption by their employers. In the Balco (Bharat Aluminium Company) case, the Supreme Court sided with the Central government, and cautioned the Chhattisgarh government against supporting the workers' strike against the Centre's decision to disinvest its 51 per cent stake in the public sector company.