A legitimate right

The recent judgment of the Supreme Court in the "right to strike" case is against the spirit of the times and modern trends in the law, including India's international obligations.

While unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check of our own exercise of power is our sense of self-restraint.

- Chief Justice Harlan Fisk Stone of the United States Supreme Court in U.S. vs Butler (297 U.S. l on page 78).

SUCH awareness of the need for self-restraint is not conspicuous in the judgment pronounced by Justice M.B. Shah for himself and Justice A.R. Lakshmanan of the Supreme Court, on August 6, in the now famous "right to strike" case. Every rule in the book was broken. Justice Shah made observations which it was not necessary for him to make in order to decide the case; they were sweeping and inappropriate; they were made not only against the spirit of the times but in apparent unawareness of modern trends in the law, including India's international obligations; they were made, it would seem from the judgment, without argument from the Bar on the right to strike since the case for the right is not stated in the judgment as it would have been in fairness to the employees; and it is, with respect, not for a Division Bench of two Judges to pronounce as it did "on an issue of such importance".

T.K. Rangarajan vs Government of Tamil Nadu & Others was a straightforward case to decide within a narrow compass. The Tamil Nadu government had unprecedentedly, as the court noted, terminated the services of all its employees who had gone on a strike. They challenged the action by a writ petition in the Madras High Court. A single Judge made an interim order directing the government that the "suspension and dismissal of employees without conducting any inquiry be kept in abeyance until further orders and such employees be directed to resume duty". The State appealed. The employees also challenged the validity of the Tamil Nadu Essential Services Maintenance Act, 2002 and the Tamil Nadu Ordinance 3 of 2003.

On appeal, a Division Bench of the High Court set aside the interim order and held that the petitions were not maintainable since the alternative remedy of moving the Administrative Tribunal had not been exhausted. The Bench ordered release of employees who were arrested and put in prison.

Appeals and writ petitions were filed in the Supreme Court challenging this order. The Division Bench of the Supreme Court held, with respect correctly, that the discretionary rule of alternative remedies cannot apply in a case like this. "In a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. Hence, as stated earlier because of very very exceptional circumstance that arose in the present case, there was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute."

With this ruling, the case could have been remanded back to the High Court for trial on the merits or decided by the Supreme Court itself. The Bench adopted the latter course.

The very next paragraph after the above quote reads thus: "Now, coming to the question of right to strike - whether Fundamental, Statutory or Equitable Moral Right - in our view, no such right exists with the government employees. Law on this subject is well settled and it has been repeatedly held by this court that the employees have no fundamental right to resort to strike."

Since no one claims a "statutory" right to strike, the observation was uncalled for. Nor was it for the court to embark on the "moral" right to strike since it had not considered the mass of literature on the subject; literature which, sadly, is a closed book to very many. On the narrow issue of the "fundamental" right to strike, Justice Shah was content to cite three precedents since 1962 which held that no such fundamental right existed.

He cited two other cases that were inapposite. An employees' strike stands fundamentally on a different footing from that by lawyers, surely. The court's ruling in the bandhs case is not relevant, either. In that case, too, the Court made obiter that were uncalled for. The ruling should have turned on coercion of others. "No political party or organisation can claim that it is entitled to paralyse the industry and commerce in the entire State or nation and is entitled to prevent the citizens 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" (emphasis added, throughout). If some obiter in this case were uncalled for, this case is of no relevance at all as a precedent on the right to strike.

Having cited these precedents, Justice Shah said: "There is no statutory provision empowering the employees to go on strike." But which employee ever claimed that there was a statute that empowered him to go on strike? The Judge, next, cited the State Government's Service Conduct Rules, 1973, which forbid strikes. That is relevant to the issue. Of course, all such rules are subject to the fundamental rights.

But Justice Shah did not stop there. He said: "Apart from statutory rights, government employees cannot claim that they can take the society to ransom by going on strike. Even if there is injustice to some extent, as presumed by such employees, in a democratic welfare state, they have to resort to the machinery provided under different statutory provisions for redressal of their grievances. Strike as a weapon is mostly misused which results in chaos and total maladministration. Strike affects the society as a whole and particularly when two lakh employees go on strike en masse, the entire administration comes to a grinding halt. In the case of strike by a teacher, entire educational system suffers; many students are prevented from appearing in their exams, which ultimately affect their whole career. In case of strike by doctors, innocent patients suffer; in case of strike by employees of transport services, entire movement of society comes to a stand still; business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or one city to another. On occasions, public properties are destroyed or damaged and finally this creates bitterness among public against those who are on strike."

The Judge is wrong in thinking that "apart from statutory rights", the right to strike cannot be claimed by employees who are Indian citizens. His further remarks that government employees "cannot claim that they can take the society to ransom by going on strike" are inappropriate, if not improper, in a judicial pronouncement. But they are of a piece with the rest of the sweeping remarks in this paragraph - replete with far-fetched analogies and ill-considered emotive, denunciatory language which judges should be careful not to use. The denunciation is followed by a homily that will sound cruel to labour in certain cases. "For redressing their grievances, instead of going on strike, if employees do some more work honestly, diligently and efficiently, such gesture would not only be appreciated by the authority but also by people at large. The reason being, in a democracy even though they are government employees, they are part and parcel of governing body and owe duty to the society." Is he, indeed, sure of this? Ask the poor employees.

Justice Felix Frankfurter of the U.S. Supreme Court gave sound advice to judges. "As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court shall prevail, that of a state to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person. It can never be emphasised too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench" (West Virginia State Board of Education vs Barnette; 319 U.S. 624; 1943).

Would Justice Shah have questioned Jawaharlal Nehru's political morality for advocating the right to strike nearly three quarters of a century ago? In a letter to the Editor, The Bombay Chronicle, published on July 13, 1929, he wrote in bitter irony of those who denied the precious right. The last paragraph read: "Workers were striking outside asking for higher wages and better living conditions, a modest share in the wealth they were producing. What did it matter if they were miserable and starving?" (For the text of the letter, vide The Essential Writings of Jawaharlal Nehru: Volume I, edited by S. Gopal and Uma Iyengar; Oxford University Press, 2003; pages 642-644).

Great as he was a Judge, Lord Denning had a conservative's approach to labour. He, however, ruled in Morgan vs Fry (2 Q.B. 710; 1968) that a right to strike did exist. He had none of the problems of the kind that so troubled Justice M.B. Shah (an "empowering" statute, "holding society to ransom", etc). Lord Denning ruled: "It has been held for over 60 years that workmen have a right to strike (including therein a right to say that they will not work with non-unionists) provided that they give sufficient notice beforehand and a notice is sufficient if it is at least as long as the notice required to terminate the contract. There have been many cases where trade union officials have given `strike notices' of proper length, and no one has suggested there was anything illegal about them. And not a few of them have found their way into the Law Reports."

This was said in 1968 apropos the law "for over 60 years" before that. It is sad to find Indian judges hold the opposite in 2003 and hold it in utter unawareness of modern law.

INDIA is a party to the International Covenant on Economic, Social and Cultural Rights adopted by the United Nations General Assembly on December 16, 1966. Article 8 (1) (d) of the Covenant reads thus: "The States Parties to the present Covenant undertake to ensure... (d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

"This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.

"Nothing in this article shall authorise State Parties to the International Labour Organisation [ILO] Convention of 1948 concerning Freedom of Association and Protection of the Right to Organise to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention." Thus only "lawful restrictions" are permissible; not total denial.

It is true that India's Instrument of Ratification, dated April 10, 1979, made a reservation. Article 8 "shall be so applied as to be in conformity with the provisions of Article 19 of the Constitution of India". Article 19 (1) (g) guarantees to all citizens the fundamental right "to practise any profession, or to carry on any occupation, trade or business". Is this to be confined to independent entrepreneurs and are employees to be excluded? The right becomes meaningless if the right of collective bargaining is denied and with it the ultimate sanction - the right to strike.

In Crofters Handwoven Harris Tweed & Co. vs Veitch (AC 435; 1942) the House of Lords upheld the right to strike. Lord Wright said: "The right of workmen to strike is an essential element in the principle of collective bargaining" (page 463). He recalled a judgment by Lord Bramwell in the House of Lords in 1892 which said: "A combination of workmen, an agreement among them to cease work except for higher wages, and a strike in consequence, was lawful at common law; perhaps not enforceable inter se, but not indictable" (1892; A.C. 25 on page 47).

In this case of 1941 cited above in the 1942 Law Reports, Lord Simon, the Lord Chancellor, said: "The result they aimed at achieving was to create a better basis for collective bargaining, and thus directly to improve wage prospects. A combination with such an object is not unlawful, because the object is the legitimate promotion of the interests of the combiners, and because the damage necessarily inflicted on the appellants is not inflicted by criminal or tortuous means and is not `the real purpose' of the combination. I agree with Lord Fleming when he says in his judgment that it is not for a court of law to consider in this connection the expediency or otherwise of a policy adopted by a trade union." No homilies on holding society to ransom by strikes.

The Supreme Court has struck down curbs on business that have the indirect effect of rendering the business commercially impossible. Article 19(6) permits imposition only of "reasonable restrictions" on the right, by law and "in the interests of the general public".

The right to strike is as much a fundamental right as any other. The Court spelt out the right to privacy and a few other rights from explicitly declared fundamental rights. It can and ought to do so in regard to the right to strike as well.

Justice Brennan said: "It is true that the First Amendment contains no specific guarantee of access to publications. However, the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful... I think the right to receive publications is such a fundamental right" (Lamont vs Postmaster General of United States; 381 U.S. 301; 1965).

The assertion that the citizen can have no rights except those granted in explicit terms by the Constitution or by a statute belies the Supreme Court's own fine record in creativity in the last quarter century, especially in public interest litigation, when it inferred one right after another from the text of the Constitution which few foresaw earlier - the right to know; the right to privacy; the right to a speedy trial; the right not to be handcuffed and so on.

ONLY last year, on May 2, Justice Shah himself delivered the unanimous judgment of a three-member bench of the court comprising himself, and Justices Bisheshwar Prasad Singh and H.K. Sema (Union of India vs Association for Democratic Reforms (2002) 5 Supreme Court Cases 294) in which the right to know was extended to compel candidates to elections to Parliament and State Assemblies to disclose their assets and liabilities, educational qualifications and criminal convictions and proceedings, if any. The 50-year-old statute, the Representation of the People Act, 1951, imposes no such obligation. Nor does the law in any other democracy. The court recognised that "it is not possible for the court to give any directions for amending the Act or the statutory rules". It made much of the fact that they "are silent on a particular subject"; held that the Election Commission (E.C.) had the power to give directions; and proceeded to direct the E.C. to give the directions the court desired. This is judicial activism of debatable validity.

Justice Shah, incidentally, cited in this case the International Covenant on Civil and Political Rights. He ignored the Companion Covenant on the right to strike. In doing so, he ignored the salutary ruling by the Supreme Court on January 20, 1999, in Apparel Export Promotion Council vs A.K. Chopra (1 SCC 759 on page 776; 1999). The court cited the very covenant, which Justice Shah ignored as it proceeded to give this ruling. "The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work, which may vitiate the working environment. These international instruments cast an obligation on the Indian state to gender-sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This court has, in numerous cases, emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law." It cited a plethora of cases - Prem Shankar Shukla vs Delhi Administration; Mackinnon Mackenzie and Co. Ltd. vs Audrey D'Costa; Sheela Barse vs Secy. Children's Aid Society; Vishaka vs State of Rajasthan; People's Union for Civil Liberties vs Union of India; and D.K. Basu vs State of West Bengal.

The court added: "In cases involving violation of human rights, the courts must forever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field. In the instant case, the High Court appears to have totally ignored the intent and content of the international conventions and norms while dealing with the case." So did Justice Shah in the right to strike case.

In the year 2003, it is too late in the day for any one to deny the legitimacy, still less the existence of the right to strike. A larger Bench of the Supreme Court should reconsider the issue and declare that such a right does exist; albeit, like all rights, subject to "reasonable restrictions".

On its part, labour would do well to work hard and conduct a thorough research into the law on the subject in other democracies. It should draw on the resources of the ILO's library and consultants. A considered well-researched legal challenge should be mounted to have the judgment overruled.