The Supreme Court verdict in T.K. Rangarajan v. Govt. of Tamilnadu flies in the face of higher judicial precedent, as well as India's obligations under international covenants. It also threatens the stability of conciliatory and consultative arbitration procedures currently used to settle disputes.
Combat Law, Vol. 2, Issue 6 - In T.K. Rangarajan v. Government of Tamilnadu and Others (i), Justice M. B. Shah, speaking for a Bench of the Supreme Court consisting of himself and Justice A. R. Lakshmanan, said, "Now coming to the question of right to strike - in our view no such right exists with the government employee."
Even as early as 1961, the Supreme Court had held in Kameshwar Prasad v. State of Bihar (ii) that even a very liberal interpretation of article 19 (1) (c) could not lead to the conclusion that the trade unions have a guaranteed fundamental right to strike. In All India Bank Employees' Association v. National Industrial Tribunal (iii - the AIBE case) also it was contended that the right to form an association guaranteed by Article 19 (1) (c) of the Constitution, also carried with it the concomitant right to strike for otherwise the right to form association would be rendered illusory. The Supreme Court rejected this construction of the Constitution: "to read each guaranteed right as involving the concomitant right necessary to achieve the object which might be supposed to underlie the grant of each of such rights, for such a construction would, by ever expanding circles in the shape of rights concomitant to concomitant right and so on, lead to an almost grotesque result."
It was a culmination of the ratios of the Kameshwar Prasad and the A.I.B.E. cases that resulted in the decision in the highly contentious Rangarajan case. In reliance of these judgments, the Apex court was correct in opining that there exists no fundamental right to strike. But in stating that Government employees have no "legal, moral or equitable right", the Court has evolved a new industrial jurisprudence unthought of earlier. It is true that the judgments mentioned above have rejected the right to strike as a fundamental right, but not as a legal, moral or equitable right. The question of 'strike' not being a statutory or a legal right has never even been considered in the court. Further the expression 'no moral or equitable right' was uncalled for. A court of law is concerned with legal and constitutional issues and not with issues of morality and equity.
The Rangarajan case simply ignores statutory provisions in the Industrial Disputes Act, 1947 and the Trade Unions Act, 1926, and an equal number of case laws laid down by larger benches that have recognized the right to strike. It also fails to consider International Covenants that pave the way for this right as a basic tenet of international labour standards.
Strike as a legal right
The working class has indisputably earned the right to strike as an industrial action after a long struggle, so much so that the relevant industrial legislation recognizes it as their implied right (iv). Striking work is integral to the process of wage bargaining in an industrial economy, as classical political economy and post-Keynesian economics demonstrated long ago in the analysis of real wage determination.
A worker has no other means of defending her/his real wage other than seeking an increased money wage. If a capitalist does not grant such an increase, s/he can be forced to come to a negotiating table by striking workers. This s/he can do because the earnings of the capitalist are contingent upon the worker continuing to work. The argument is drawn from Ricardian and Marxian classical political economy that shows how the employer's income is nothing other than what is alienated from the worker in the process of production. When workers stop working, capitalists stop earning. The same applies to government servants as well. When they strike work, it is not the authorities who suffer a loss of income or disruption of their income generating process but the general public. Here, authorities come to a negotiating table mainly under political pressure or in deference to public opinion.
The right to strike is organically linked with the right to collective bargaining and will continue to remain an inalienable part of various modes of response/expression by the working people, wherever the employer-employee relationship exists, whether recognized or not. The Apex court failed to comprehend this dynamic of the evolution of the right to strike.
In B.R. Singh v. Union of India (v), Justice Ahmadi opined that "The Trade Unions with sufficient membership strength are able to bargain more effectively with the management than individual workmen. The bargaining strength would be considerably reduced if it is not permitted to demonstrate by adopting agitational methods such as 'work to rule', 'go-slow', 'absenteeism', 'sit-down strike', and 'strike'. This has been recognized by almost all democratic countries".
In Gujarat Steel Tubes v. Its Mazdoor Sabha (vi), Justice Bhagwati opined that right to strike is integral of collective bargaining. He further stated that this right is a process recognized by industrial jurisprudence and supported by social justice. Gujarat Steel Tubes is a three-judge bench decision and cannot be overruled by the division bench decision of Rangarajan. In the Rangarajan case the court had no authority to wash out completely the legal right evolved by judicial legislation.
Strike as a statutory right
The scheme of the Industrial Disputes Act, 1947 implies a right to strike (vii) in industries. A wide interpretation of the term 'industry' (viii) by the courts includes hospitals, educational institutions, clubs and government departments. Section 2 (q) of the Act defines 'strike'. Sections 22, 23, and 24 all recognize the right to strike. Section 24 differentiates between a 'legal strike' and an 'illegal strike'. It defines 'illegal strikes' as those which are in contravention to the procedure of going to strike, as laid down under Sections 22 and 23. The provision thereby implies that all strikes are not illegal and strikes in conformity with the procedure laid down, are legally recognized. Further, Justice Krishna Iyer had opined that "a strike could be legal or illegal and even an illegal strike could be a justified one" (ix). It is thus beyond doubt that the Industrial Disputes Act, 1947 contemplates a right to strike.
The statutory provisions thus make a distinction between the legality and illegality of strike. It is for the judiciary to examine whether it is legal or illegal. Is the total ban on strikes post-Rangarajan not barring judicial review which itself is a basic structure of the Constitution?
The Court, in opining that strikes 'hold the society at ransom', should have taken into account that the number of man days lost due to strikes has gone down substantially during the last five years. Whereas there has been a steep rise in the man days lost due to lock-outs, due to closures and lay-offs (Annual Report of the Union Labour Ministry (2002-03). In 2001, man days lost due to lock-outs were three times more than those due to strikes. In 2002 (January-September) lockouts wasted four times more man days than strikes. Who is holding the production process to ransom? Definitely, not the workers. The Apex court preferred to overlook the recent strike by the business class against the value added tax and also the transport companies' strike against the judicial directive on usage of non-polluting fuel, both of which created much more chaos and inconvenience to the common people. It is submitted that the court came to a conclusion without looking at the industrial scenario in the present times. Should the apex court not consider banning closures, lock-outs, muscle-flexing by the business class etc., which not only put people to inconvenience but also throw the workers at risk of starvation? (xii)
Besides the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 also recognizes the right to strike. Sections 18 (xiii) and 19 (xiv) of the Act confer immunity upon trade unions on strike from civil liability.
Article 8 (1) (d) of the International Covenant of Economic, Social and Cultural Rights (ICESCR) provides that the States Parties to the Covenant shall undertake to ensure: "the right to strike, provided that it is exercised in conformity with the laws of the particular country. Article 2 (1) of the Covenant provides: "Each State Party to the present Covenant undertakes to take steps, ... with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures".
India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other appropriate means. Thus, the aforesaid domestic laws are the by-products of the international obligations and cannot be read casually as has been done in the Rangarajan case.
The blanket ban on the right to strike also transgresses the limits of the Conventions of the International Labour Organization (ILO). Convention 87 relates to Freedom of Association and Protection of the Right to Organize. Convention 98 refers to the Right to Organize and Collective Bargaining. Both Conventions have been ratified by 142 and 153 nations respectively including Australia, France, Germany, Italy, Japan, Pakistan, Sri Lanka, Pakistan and the United Kingdom. Both the conventions, along with eight other conventions, have also been identified by the ILO's Governing Council to be its core conventions.
Convention 154 is the Collective Bargaining Convention, 1981. The Preamble to this Convention reaffirms the provision of the Declaration of Philadelphia recognising "the solemn obligation of the International Labour Organisation to further among the nations of the world programmes which will achieve ... the effective recognition of the right of collective bargaining". Further the Convention is not restricted to labour trade unions. Article 1 of the Convention states "Convention shall apply to all branches of economic activity". Public employees are also not exempted from the above. Convention 151 is the Labour Relations (Public Service) Convention, 1978. Article 9 of the Convention provides: "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 obligations arising from their status and the nature of their functions".
Therefore, by virtue of being a member of the ILO, India is under obligation to satisfy at least the fundamental rights promoted by the Conventions, irrespective of it having ratified them or not. Further, India is not an ordinary member of the ILO, but one of the founding members of the Organization. After 85 years of this relationship that India has had with the Organization, our Apex court has refused to adhere to the fundamental tenets of the ILO.
Legal Interpretation to be in consonance with international covenants
Of the Directive Principles of State Policy enshrined in Part IV of the Constitution, Article 51(c) provides that the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organized people with one another. Article 37 of Part IV reads as under: :Application of the principles contained in this Part.- The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws".
A conjoint reading of Articles 51(c) and 37 implies that principles laid down in international conventions and treaties must be respected and applied in governance of the country.
In Vishaka v. State of Rajasthan (xv) Justice Verma opined that any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution.
In People's Union for Democratic Rights v. Union of India (xvi), the Court followed the International Covenant of Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Universal Declaration of Human Rights (UDHR) and International Labour Organization's conventions, to interpret and expand the ambit of Article 21 of the Constitution. In Life Insurance Corporation of India v. Consumer Education and Research Centre (xvii) it was held that fundamental rights are subject to the directives enshrined in Part IV of the Constitution, the UDHR, the European Convention of Social, Economic and Cultural Rights, and other international treaties such as the Convention on Rights to Development for Socio-Economic Justice.
It is thus settled that the raison d' etre of Article 51(c) is to introduce and implement various international instruments particularly the UDHR, ICCPR and the ICESCR in the interpretation of fundamental and legal rights (xviii). Therefore, the right to strike as contemplated by these Covenants and by the ILO conventions is well within the ambit of constitutional (Articles 19 & 21) as well as legal provisions (Trade Unions Act, 1926, & Industrial Disputes Act, 1947). Thus, the decision in Rangarajan stands in disrespect to the provisions of international law.
Misapplication of Harish Uppal case and Bharat Kr. Palicha case
The Rangarajan case relies on a number of case laws dating back to the 1960s (Kameshwar Prasad & AIBE Association). The only recent judgments that the Court relied upon - namely, Harish Uppal (xix) and Bharat Kr. Palicha (xx) - to demonstrate that there is no right to strike seem to have been misapplied, contrary to their letter and spirit.
In Harish Uppal the court held that advocates have no right to strike. However the court also opined "in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day". The court, therefore, acknowledges that the right to strike exists and which can be exercised if a rare situation demands so. The apex court has only tried to restrict the right to strike of advocates with regards to the significant role they play in the administration of justice. For all others' this sacred right holds good force.
The judgment especially recognizes the right with regard to industrial workers where it states that advocates do not have a right to strike as "strike was a weapon used for getting justice by downtrodden, poor persons or industrial employees who were not having any other method of redressing their grievances".
In Communist Party of India (M) v. Bharat Kumar and others (xxi), the apex court has held 'bundhs' to be unconstitutional. The same is relied upon in the Rangarajan case. However the court failed to notice that the judgment does not keep a 'bundh' and a general strike on the same pedestal. Where, on the one hand, a 'bundh' is unconstitutional, a 'hartal' or a general strike is very much legal. The Rangarajan case suffers from an illegality insofar as it attempts to place a blanket ban on all kinds of strikes irrespective of whether they are 'hartals' or 'bundhs'.
The same difference was lucidly explained in Bharat Kr. Palicha, where Justice Balasubramanyan opined: "Bundh" is a Hindi word meaning "closed" or "locked". The expression therefore conveys an idea that everything is to be blocked or closed. Therefore, when the organisers of a bundh call for a bundh, they clearly express their intention that they expect all activities to come to a standstill on the day of the bundh.
A call for a bundh is obviously distinct and different from the call for a general strike or the call for a hartal. The intention of the callers of the bundh is to ensure that no activity either public or private is carried on on that day. Thus, it is sought to suggest that a right to strike is a recognized legal right and the Rangarajan case is per incuriam on the above mentioned grounds.
It is indisputable that there exists a right to strike. In support of this , we put forth two hypothesis: 1) That the main object of the Industrial Disputes Act, 1947 is to promote alternative mechanisms for dispute settlement as against strikes. 2) Strike is a 'weapon of last resort' and must be sparingly used.
Industrial Disputes Act, 1947
The Industrial Disputes Act, 1947 refrains generally the Trade Unions from going on strike. Its focal thrust is on more efficient alternative mechanisms for dispute settlement, such as, reference to Industrial Tribunals, compulsory adjudication, conciliation, etc. In fact the very intention behind its enactment as illustrated in the Statement of Objects and Reasons, was to overcome the defect in the Trade Unions Act, 1926, which was, that it imposed restraints on the right to strike but did not provide for alternative settlement of the disputes.
The Statement further reads as under: "The power to refer disputes to Industrial Tribunals and enforce their awards is an essential corollary to the obligation that lies on the Government to secure conclusive determination of the disputes with a view to redressing the legitimate grievances of the parties thereto, such obligation arising from the imposition of restraints on the rights of strike and lock-out, which must remain inviolate, except where considerations of public interest override such right".
Thus, the concept of alternative settlement mechanisms in industrial disputes was statutorily ushered in the Act with a view to providing a forum and compelling parties to resort to the forum for arbitration so as to avoid confrontation and dislocation in industry, that a developing country like India can ill-afford. Peace and harmony in industry and uninterrupted production being the demand of the time, it was considered wise to arm the Government with the power to compel the parties to resort to arbitration and a necessary corollary to avoid confrontation and trial of strength which are considered wasteful from national and public interest point of view (xxii).
Sections 4, 5, 6, 7, 7A, 7B, 9, 10 and 10A of the Industrial Disputes Act, 1947 provide alternative measures for settlement of industrial disputes elaborately. Section 4 (xxiii) of the Act provides for a diplomatic procedure which endeavours to settle a controversy by assisting parties to reach a voluntary agreement and the ultimate decision is made by the parties themselves (xxiv). The conciliation machinery provided for in the Act, can take note of the existing as well as apprehended disputes either on its own or on being approached by either of the parties. Since the final decision is with the parties themselves, they cannot complain that their practical freedom has been impaired or that they have been forced into a settlement which is unacceptable to them (xxv).
Section 6 provides for the constitution of a Court of Inquiry, that enquires into the merits of the issues and prepares a report on them that is "intended to serve as the focus of public opinion and of pressure from Government authorities" (xxvi). Section 10 A provides for voluntary arbitration. Voluntary arbitration seems to be the best method for settlement of all types of industrial disputes. The disputes can be resolved speedily and is less formal than trials. The greatest advantage of arbitration is that there is no right of appeal, review or writ petition. Besides, it may well reduce a company's litigation costs and its potential exposure to ruinous liability apart from redeeming the workmen from frustration (xxvii). Apart from these, Sections 7, 7A and 7B deal with the constitution of adjudicatory authorities, viz., Labour Courts, Tribunals or National Tribunals, respectively.
It is submitted that these alternative machinery for settlement of industrial disputes are proving to be highly effective. Report of the National Commission on Labour (xxviii), according to which "during the years 1959-66, out of the total disputes handled by each year, the percentage of settlements had varied between 57 and 83. The remaining disputes, it is reported, were settled mutually referred to voluntary arbitration or arbitration under the Act or to adjudication or were not pursued by the parties. During the period 1965-67, the percentage of settlements reached in Bihar ranged from 51 to 86, in Assam from 65.5 to 92.3. In U.P., Punjab and Delhi, in the year 1966, the percentage of disputes settled was 60, whereas in Kerala it ranged around 80 per cent. The statistics for settlement of disputes by alternative mechanism are greater those for that by strike where the disputes are mainly left unresolved.
The provision of such an elaborate and effective mechanism for settlement of industrial disputes, along with a reading of the Statement of Objects and Reasons, is a definitive indication of the fact that the statute enshrines a preference to these alternative mechanisms over strikes.
Weapon of last resort
While on the one hand it has to be remembered that a strike is a legitimate and sometime unavoidable weapon in the hands of labour, it is equally important that indiscriminate and hasty use of this weapon should not be encouraged. It will not be right for labour to think that any kind of demand for a 'strike' can be commenced with impunity without exhausting the reasonable avenues for peaceful achievement of the objects. There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect the labour to wait after asking the government to make a reference. In such cases the strike, even before such a request has been made, may very well be justified (xxix).
In Syndicate Bank v. K. Umesh Nayak (xxx), Justice Sawant opined: "The strike, as a weapon, was evolved by the workers as a form of direct action during their long struggle with the employer, it is essentially a weapon of last resort being an abnormal aspect of employer-employee relationship and involves withdrawal of labor disrupting production, services and the running of enterprise. It is a use by the labour of their economic power to bring the employer to meet their viewpoint over the dispute between them. The cessation or stoppage of works whether by the employees or by the employer is detrimental to the production and economy and to the well being of the society as a whole. It is for this reason that the industrial legislation, while not denying for the rights of workmen to strike, has tried to regulate it along with the rights of the employers to lockout and has also provided a machinery for peaceful investigation, settlement arbitration and adjudication of dispute between them. The strike or lockout is not be resorted to because the concerned party has a superior bargaining power or the requisite economic muscle to compel the other party to accept its demands. Such indiscriminate case of power is nothing but assertion of the rule of 'might is right'".
Thus, initially, employees must resort to dispute settlement by alternative mechanisms. Only under extreme situations when the alternative mechanisms have totally failed to provide any amicable settlement, can they resort to a strike as a last resort.
Evidently, the Supreme Court was carried away by the fact that merely two lakh Government employees went on strike in the instant case and the Government machinery came to a standstill. It seems to have also been influenced by the fact stated by senior counsel for the State Government, K. K. Venugopal, that 90 per cent of the State's revenue in Tamilnadu is spent on salaries of Government servants (xxxi). The court was, thus, swayed by liberal economics. It is true that Government employees everywhere are paid better salaries and enjoy more privileges and amenities than other employees. The public sympathy is generally against Government employees who go on strike. But that is no justification for the Supreme Court to say that Government employees have no moral justification to go on strike in every case (xxxii).
In any event, when an action can be justified in law, there is no need to invoke morality and equity. At the same time it is also avowed that an unrestricted right to strike is unsought for. Therefore, it is important to pursue strengthening of alternate mechanisms for dispute settlement on the lines of the Industrial Disputes Act, 1947. For government servants (xxxiii) also efforts were made to establish a Joint Management Council to act as an alternative mechanism for settlement of disputes. It was a good attempt in this direction and needs to be revived. Only under extreme circumstances and when these alternate mechanisms have failed to render an amicable solution, must the right to strike be used as a weapon of last resort.
Anirudh Rastogi & Siddharth Srivastava
Anirudh Rastogi & Siddharth Srivastava are III Yr. Students of B.A.LL.B. (Hons) at the National Law Institute University, in Bhopal.
Joint Editor, Combat Law
The article concerning right to strike is a well researched piece. However, the issue for us is so sensitive and crucial that it is necessary to add a few words concerning our perspective on this issue.
Contrary to what the authors have said, and contrary what the Supreme Court has said we strongly believe that right to strike should be treated not just as a statutory right but a fundamental right of workers. The recent decisions of the Supreme Court have come in the context of widespread attack on labour rights which is a result amongst other things of the neo liberal demands of the IMF and World Bank at the instance of Transnational corporations. In an earlier issue we have already dealt with the recent pernicious suggestions of the 2nd Labour Commission. The scales of power are structurally loaded overwhelmingly in favour of employers. Employees are by and large at the mercy of the employers and at times strike is the only effective tool they have to pursue their demands and seek dignity.
What should be recognized is that workers do not go on strike at the drop of a hat. Strike is only a measure of last resort. The general impression that strikes are overwhelmingly responsible for loss of man days is a myth. All reports including official studies show that many more days are lost because of lockouts and closures. One wishes that the Supreme Court would instead of condemning strikes come out strongly against closures and lockouts. Why is it that though many big companies resort to lock outs and even closures this has never led to the penury of the employers? Why even after closing down mills and factories the life style of the managing directors remain the same? On the other hand, every day of strike for an employee means losing out the wages for the family for that day. Nobody goes on strike for a kick. They do it only because all other options have ceased to exist.
Ultimately a strike is nothing else but a cry of exasperation at the working conditions. It is nothing else but an exercise of freedom of speech and expression. The Constitution guarantees this as a fundamental right. Of course fundamental rights are also not absolute as per the Constitutional scheme. Thus, even the right of speech and expression and consequently the right to strike can be limited and curtailed in public interest. But that cannot take away from the fact that right to strike is a fundamental right. One can have a debate about weather forcible picketing of a general nature can be permitted, violence can be resorted to, etc. But these at the highest would be what are termed as 'reasonable restrictions' on the fundamental right to strike and cannot be used to negate the fundamental right altogether. One is not trying to condone the corruption or the lethargy in some institutions but these cannot be the grounds to negate the right to strike.
Vol #2, Issue #6, Combat Law
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