The National Common Minimum Program (CMP) released by India’s ruling United Progressive Alliance (UPA) in 2004, stated that: “[r]ights and benefits earned by workers, including the right to strike according to law, will not be taken away or curtailed”. 

After more than a year in power, however, the UPA has yet to categorically reaffirm the right to strike. The reluctance of the UPA is particularly deplorable in view of the Congress Party’s historic assertion of freedom of association and expression during the struggle for India’s independence. It is further astounding that the Communist Party of India (CPI) and the Communist Party (Marxist) – allies of the Congress and constituents of the UPA – have yet to voice substantive concern over this issue. 

The ambiguity surrounding the existence of the right to strike in India is unacceptable and poses a serious threat to fundamental freedoms. The UPA Government should therefore clearly reaffirm this right and take immediate steps to ensure that it is guaranteed to Indian workers. 

What is the ‘right to strike’? 

The ‘right to strike’ refers to the cluster of rights, immunities and protections that allow a group of workers to cease work without terminating their employment relationship with their employer without exposing themselves to civil liability for their actions. Most countries distinguish between legal and illegal strikes. The right to strike thus refers to taking protected industrial action within the legal framework of a particular country. 

The right to strike is internationally accepted as a legitimate means for the redressal of grievances of workers. While it is not clearly articulated as a fundamental right, it is recognised as an implied right that can be inferred from other rights such as the right to collective bargaining, to form trade unions and to fair and decent working conditions. 

The right to strike has been recognised as crucial in the process of collective bargaining, as it is the only means by which workers can withdraw labour services for obtaining some form of benefit. Additionally, the right to strike is intrinsically linked to the freedoms of association and of expression and the right to peaceful assembly, thereby making it an unassailable and fundamental part of any democratic machinery. It is essential, therefore, that strike action must not be prohibited, nor so heavily regulated that its role is illusory. 

Does the right to strike exist in India? 

While the right to strike is not explicitly included in the list of fundamental rights specified in the Constitution of India, Article 19 enumerates the right to freedom of speech and expression, to assemble peaceably without arms, and to form associations or unions (Art 19(1)(a)-(c)). The right to strike is thus a corollary of these expressly stated rights. 

The Industrial Disputes Act 1947 (IDA) and the Trade Unions Act 1926 (TUA) are the primary pieces of Central legislation regulating this right in India. The IDA establishes the conditions regarding notice and arbitration that must be complied with before industrial action is undertaken (Sections 22, 23), and the circumstances in which such actions may be deemed illegal (Section 24). The IDA by virtue of its regulation of the legality of a strike, thus explicitly recognises that strikes exist as a legitimate means of negotiation, including for government employees (Section 22). 

The TUA protects the activities of registered trade unions by providing that a trade union, office bearer or member of a registered trade union, shall not be subject to a suit or claim in a civil court alleging conspiracy or interference in trade or business (Section 18). 

While these provisions effectively grant workers and unions the right to legal strike, the recognition of this right in India, has been inconsistent. For example, in TK Rangarajan v Government of Tamil Nadu and Others (2003), Justices M.B. Shah and A.R. Lakshmanan stated that government employees had no moral or legal right to strike, unequivocally disregarding established industrial jurisprudence. Instead of referring to the Central legislation described above, the bench relied solely on the provisions of the Tamil Nadu Essential Services Maintenance Act 2002 (TESMA) and the Tamil Nadu Ordinance No 3 of 2003. Both these Acts reiterate Rule 7 of the Central Civil Services (Conduct) Rules, 1964, which prohibits the right of government employees to strike. 

Significantly, in B.R. Singh v. Union of India (v), ex-Chief Justice of India, A. M. Ahmadi, heading a three-member bench, had stated that “the bargaining strength [of trade unions] would be considerably reduced if it is not permitted to demonstrate by adopting agitational methods such as… ‘strike’…The right to strike is an important weapon in the armoury of workers, recognized by almost all democratic countries as a mode of redress.” This judgment justified a strike by certain employees on the grounds that the Trade Authority of India had dismissed them without referring them to a tribunal. This judgment, which should at least have been referred to in TK Rangarajan, was completely ignored, resulting in a decision per incuriam. 

TK Rangarajan not only denied the right to strike on statutory grounds, but also rejected the ‘moral’ and ‘equitable’ right of government employees to strike. It further stated that government employees did not have a right to strike even if their cause was just (emphasis added). The legal argument advanced in the judgment appeared to be a mere cover for the actual concern – that “business is adversely affected” by a strike. 

The fact that 169,000 employees of the government of Tamil Nadu had a legitimate grievance – that their pension and other benefits were being withdrawn without negotiation – was not found to have a mitigating effect on the ‘illegality’ of the strike under TESMA, which allows for employees to be dismissed for participating in agitations and penalises the instigation of strikes with sentences of up to three years imprisonment, possibly with fine. Further, the court had no words of censure for the preventive arrests of 2,200 employees the previous night as a pre-emptive measure. 

The right of workers to strike in India is thus far from secure. It has yet to be recognised by authorities and has inexplicably been left undisputed by workers’ unions. 

Future of the Right to Strike 

In Communist Party of India (Marxist) v Bharat Kumar and others, the court commented that, with respect to the Constitution, “nothing stands in the way” of a call for a general strike or hartal “unaccompanied by [an] express or implied threat of violence”. This is one of several Supreme Court judgments that has recognised not merely the rights of workers, but also the right of workers to strike. 

The point, however, is not that the right to strike needs to be established in India – a fact that is clearly internationally accepted, protected and well-documented – but what particular steps need to be taken to ensure that it is categorically respected in every sphere. This is crucial at a time when the Central Government is proposing to undertake economic reforms and policies that could have serious ramifications on workers’ welfare. 

For a start, the UPA must link its economic policies to the international standards established by the International Labour Organisation (ILO) and the international community, by ratifying the relevant ILO conventions (87, the Freedom of Association and the Right to Organize Convention; and 98, the Right to Organize and the Collective Bargaining Convention). 

As a founding member of the ILO, India is bound to respect the 1998 Declaration on Fundamental Principles and Rights at Work, as an “expression of commitment” that governments and employers alike are dedicated to equitable working conditions. The Declaration states that member-states are obligated to “to respect, to promote and to realize, in good faith and in accordance with the Constitution”, the freedom of association and the effective recognition of the right to collective bargaining, among others, specifically adding that even if member states – such as India – have not ratified the relevant conventions, they are obligated to respect and abide by the norms by virtue of their voluntary membership in the organization. Similarly, the UPA should reconsider the Government of India’s reservation under Article 8(d) of the ICESCR, which recognizes the right to strike. 

The government should clearly pronounce the right to strike in India by amending the IDA and other existing legislation to explicitly uphold the exercise of lawful strikes. In addition, it is necessary to repeal the Essential Services Maintenance Act and the corresponding state acts, where they exist. Finally, unlike the unilateral approach adopted by the Second National Commission on Labour, a broader survey of worker’s opinions would ensure that labour reforms are supported by democratic participation.

 Human Rights Features