Right to Strike: A Fundamental Right or a Legal Right

By Aditi Utkarsha

Definition of Strike: Legal Perspectives

According to the Merriam-Webster dictionary, a strike is defined as a work stoppage by a body of workers to enforce compliance with demands made on an employer or, a temporary stoppage of activities in protest against an act or condition.[1]

In Section 1(q) of the Industrial Disputes Act of 1947, a strike means a cessation of work by a body of persons employed in any industry acting in combination or a concerned refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment.[2]

Purpose of a Strike

A strike is generally used as a last resort by workers to show their discontent or dissatisfaction with the existing working conditions or their employers. It is a cessation of work by mutual agreement amongst the workers to get their demands fulfilled.

Fundamental Rights vs Legal Rights in India

The right to strike is not considered a fundamental right in India but can be called a legal right. Fundamental rights are bestowed by the Indian Constitution to all the citizens of the country and they are enforceable in the court of law. These fundamental rights are present in Part 3 of the Indian Constitution from Article 12 to Article 35. Fundamental rights are non-negotiable and justiciable. The violation of these fundamental rights can lead to legal sanctions and a writ petition can be filed to restore these inviolable fundamental rights.

The right to strike can be recognized as a legal right and statutory legal right because of its enactment after the Industrial Disputes Act of 1947. Sections 22, 23, and 24 of the said Act contain various provisions on strikes and their lawfulness.

Provisions for Strike in the Industrial Disputes Act, 1947

Section 22 of the Industrial Disputes Act of 1947[3] deals with the prohibition of strikes and lockouts. This section broadly prohibits strikes and lockouts in industrial establishments without fulfilling certain conditions. It requires proper notice and attempts at conciliation before any such action can be taken. This section however allows exemptions for specific situations, such as strikes in public utility services with adequate notice to the government and legal lockouts in response to illegal strikes.

Section 23[4] of the Act deals with the general prohibition of strikes and lockouts. This section further restricts strikes and lockouts in specific circumstances. It imposes a general prohibition on strikes and lock-outs in industrial establishments. Workmen cannot initiate the right to strike during conciliation proceedings before a Board and for seven days after their conclusion. Strikes are prohibited during proceedings before a Labor Court, Tribunal, or National Tribunal, and for two months thereafter. If arbitration proceedings are initiated under specific conditions, strikes are prohibited during these proceedings and for two months after their conclusion. Furthermore, strikes are prohibited while a settlement or award addressing relevant matters is in effect. Both employers and workmen are bound by this prohibition during the specified periods.

Section 24[5] of the Act talks about illegal strikes and lockouts. This section defines specific situations where a strike or lockout becomes illegal. This implies that certain conditions must be fulfilled in order for the workers to go on strike. It lays out the rules for the right to strike, making it clear that certain conditions must be met for the strike to be lawful. A strike becomes unlawful when commenced or declared in contravention of Section 22 or 23 or if it is continued despite an order from the competent authority to call it off. The Act also prescribes penalties for employers or employees engaging in illegal strikes or lockouts, such as imprisonment and financial fines.

Supreme Court Rulings on the Right to Strike

The Supreme Court, in the case of M/S Burn & Co. Ltd. vs. Their Workmen,[6] ruled that simply joining a strike doesn’t automatically warrant an employee’s suspension or dismissal. However, if the strike itself was illegal, the only relevant question becomes the severity of the punishment. This severity must differ depending on whether the strike was conducted peacefully or violently. It emphasizes that mere participation in a strike isn’t enough. Joining a strike, even an illegal one, shouldn’t automatically lead to job loss. Employees deserve due process and a chance to defend their actions. If the strike itself was deemed illegal, it becomes relevant whether it was conducted peacefully or violently. Peaceful strikes, while still wrong, should warrant less harsh penalties compared to violent ones. Violent strikes, involving harm or damage, deserve stricter punishments than peaceful protests. The court emphasizes separating these two categories to ensure fair and proportionate consequences.

Section 22(1)(a) outlines when employees can go on strike due to a breach of contract, but it comes with conditions. The employees must give notice to the employer six weeks before the strike, and this rule applies to government employees as well. The right to strike, granted by this section, is not unrestricted. Workers can only use it under specific circumstances. This provision acknowledges the significance of the right to strike as a powerful tool for workers to address issues and protect their rights. Including government employees in this provision recognizes that labor disputes can occur in any sector.

Conditions and Restrictions on the Right to Strike

There’s a basic assumption that employers often have more power and might impose unfair conditions on employees. To counter this, the law gives workers the ability to engage in collective bargaining. This means they can negotiate better and more fair terms and conditions of employment.

The right to strike gives workers a strategic tool to stand up for their interests and actively shape the conditions of their work. The law, as seen in Section 22(1)(a), aligns with the broader goals of the Industrial Disputes Act, of 1947, as explained by the Supreme Court. The court highlights the importance of fostering good relations between employers and employees and enabling collective bargaining as key goals of the law.

Justice Krishna Iyer and PN Bhagwati asserted that strikes can fall into two categories: legal and illegal. Surprisingly, they argued that even an illegal strike could sometimes be justified, emphasizing a commitment to principles of social justice recognized by industrial jurisprudence. Importantly, this right to strike is not merely a privilege; it is a legal right for employees, providing them with the option to engage in peaceful strikes as a means to negotiate their demands with employers. This concept is closely linked to collective bargaining, where employees join together to assert their interests and, if necessary, use the right to strike as a tool in this negotiation process.[7]

The Industrial Disputes Act establishes a distinction between legal and illegal strikes. By meeting the conditions outlined in Sections 22 and 23, a strike can be deemed legal and justified. These legal provisions lay down the framework that employees must adhere to, ensuring that their actions are within the bounds of the law and justified.

Role of Collective Bargaining

The term “collective bargaining” is key to understanding the right to strike. It signifies the joint effort of employees to negotiate with their employers for better terms and conditions of work. The right to strike serves as an important tool within this process, providing employees with leverage to assert their demands and interests effectively.

Collective bargaining, a cornerstone of labor relations, facilitates the resolution of employment disputes through negotiation rather than coercion. In India, it’s legally mandated under the Industrial Disputes Act, 1947 (IDA), and refusal to bargain in good faith constitutes an unfair labor practice. The process unfolds through several stages:

1. Charter of Demands: Initiated by either the trade union or the employer, negotiations begin with the drafting of a “charter of demands,” encompassing various employment terms and conditions.
2. Negotiation: Subsequent negotiations involve debates and discussions regarding the demands, with preparations made by both parties beforehand. If demands are rejected, unions may resort to strikes, prolonging the bargaining process, especially in establishments with multiple unions.
3. Collective Bargaining Agreement (CBA): Upon reaching an agreement, a CBA is formalized, typically as a bipartite agreement, memorandum of settlement, or consent award, binding both employer and workers represented by trade unions.
4. Strikes: If negotiations fail, unions may strike after providing requisite notice. However, specific provisions in the IDA regulate strikes, mandating a cooling-off period and prohibiting strikes during conciliation proceedings.
5. Conciliation: Conciliation proceedings, triggered by notice of strike or lockout, aim to resolve disputes with the assistance of a conciliation officer or a Board of Conciliation. Strikes are prohibited during these proceedings, which conclude with recommendations for settlement or referral to a labor court or tribunal.
6. Arbitration or Adjudication: When conciliation fails, parties may resort to voluntary or compulsory arbitration, with provisions for the constitution of labor courts, industrial tribunals, and national tribunals to adjudicate disputes. A final ruling must be issued within six months.

At different levels—national, industry-cum-regional, and enterprise/plant—collective bargaining practices vary, reflecting diverse industrial landscapes. These agreements, whether bipartite, settlements, or consent awards, delineate terms governing employer-workmen relationships, including wages, benefits, working conditions, dispute resolution mechanisms, and obligations of both parties. As per the IDA, these agreements are legally binding and enforceable.

Article 19 and the Right to Strike

The right to freedom is enshrined in Article 19[8] of the Indian Constitution and is also a fundamental right. Under this specific right, the fundamental right to free speech and expression is present. The right to protest also comes under this head, but the provision of the right to strike is not present in it. It has been held time and time again by the court that although the right to strike can be held as a legislative right, it being a fundamental right will lead to violation of others’ fundamental rights.

If a certain group tries to exercise their legal right to strike, then it can cause a lot of activities to come to a standstill, ultimately harming the society at large. Such reasons can be attributed to the lack of the right to strike status as a fundamental right. The courts have already established that for a strike to be legal, certain conditions need to be fulfilled. If a strike incites violence, it can be held unlawful as only a strike that promotes peace can be held lawful.

In the case of All India Bank Employees Association v. I.T.,[9] the Supreme Court rendered a significant judgment affirming that the rights to strike and declare a lockout can be subject to regulation or restriction through appropriate industrial legislation. The case pertained to conflicts between bank employees and banks nationwide concerning issues such as wages, working conditions, and other related matters.

Here, the court highlighted that the scrutiny of the validity of such legislation should not be guided by the criteria specified in clause (4) of Article 19 but rather necessitates an assessment based on entirely different considerations.

Article 19(4) allows the State to impose reasonable restrictions on the freedom of association and union for the sake of “public order,” “morality,” or the “sovereignty or integrity” of India. This provision safeguards existing laws as long as they do not contradict the fundamental right of association.[10]

This ruling implies that, although individuals possess an assured fundamental right to establish associations or labor unions, the court explicitly clarified that there is no inherent fundamental right specifically ensuring the ability to engage in a strike. In other words, the court acknowledged the significance of industrial legislation in governing and tempering the exercise of the legal right to strike and lockout, thereby reinforcing that these rights are not absolute and are not fundamental rights, and may be subject to legal constraints.

This case holds that the rights to strike and declare a lockout are not immune to regulation through industrial legislation. The court’s insistence on evaluating the validity of such legislation through different considerations, distinct from those in Article 19(4), reinforces the idea that the right to strike is not a fundamental right, and is subject to constraints.

In Kameshwar Prasad v. State of Bihar,[11] the Supreme Court ruled that, despite a broad interpretation of Article 19(1)(c), it cannot be inferred that trade unions possess an absolute fundamental right to go on strike. The court’s decision clarified that while Article 19(1)(c) provides the right to form associations or unions, it does not explicitly grant an unrestricted right to strike. It rules that the constitutional guarantee of forming associations does not automatically extend to an unequivocal right to strikes.

The Patna High Court in this case made a crucial distinction that the right to strike is not a fundamental right applicable to all citizens and that the ban on demonstrations occurring at that time was unconstitutional as it indiscriminately curtailed fundamental rights without justifying the restriction.

Conclusion

Lastly, we can establish that although the right to strike is not a fundamental right, it serves as a powerful tool for collective bargaining and safeguarding workers’ interests. It is not an absolute and unrestricted right, but continues to be a compelling instrument to get the demands of the workers fulfilled. Law is a highly dynamic field and is subject to change according to the ongoing circumstances. It is highly probable that future cases may lead to the evolution of this right to strike. But, as of now, looking at the judicial precedents, we can safely assume its status as a legal right and statutory right, and not a fundamental right.

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[1] MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/strike (last visited Dec. 12, 2023).

[2] Industrial Disputes Act, 1947, Section 1 (q), Acts of Parliament, 1947 (India).

[3] Industrial Disputes Act, 1947, Section 22, Acts of Parliament, 1947 (India).

[4] Industrial Disputes Act, 1947, Section 23, Acts of Parliament, 1947 (India).

[5] Industrial Disputes Act, 1947, Section 24, Acts of Parliament, 1947 (India).

[6] M/S Burn & Co. Ltd. vs. Their Workmen, AIR 1959 SC 529. 

[7] Shah, A. (2020) iPleaders, 2 January. Available at: https://blog.ipleaders.in/right-to-strike-proposed-amendment-in-the-indian-constitution/  (Accessed: 21 December 2023).

[8] INDIA CONST. Art. 19.

[9] All India Bank Employees Association v. I.T., 1962 AIR 171.

[10] DR. MCRHRD INSTITUTE OF TELANGANA, https://www.mcrhrdi.gov.in/91fc/coursematerial/pcci/Part3.pdf (last visited Dec. 12, 2023).

[11] Kameshwar Prasad v. State of Bihar, 1962 AIR 1166.