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Is there a right to strike?

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. In Kameshwar Prasad the Apex court had settled that the right to strike is not a fundamental right. But time and again the Court has also settled that the right to strike is a legal right, one that is recognized by most democratic countries of the world. In ignoring this, Rangarajan is a mere passionate rendering of a judge's personal views. It is said that law is 'reason without passion'. And Rangarajan fails to scintillate our reason. 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.

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 nomoral justification to go on strike in every case (xxxii).

NLC unions restrained from going on strike

July 3, 2013 , Labour unions at the Neyveli Lignite Corporation were scheduled to go on strike from Wednesday night to protest the governments proposed disinvestment plan. The Madras High Court on Wednesday passed an interim stay, restraining labour unions in public sector Neyveli Lignite Corporation (NLC) from going on strike from Wednesday night or from any date thereafter. When the case was mentioned before the First Bench, comprising Acting Chief Justice Rajesh Kumar Agrawal and Justice T. Raja, it ordered an interim stay for the strike and ordered issue of notice to the labour unions. The bench further posted the matter after two weeks. Earlier, the NLC had moved the High Court, seeking a direction to stop employees from gathering outside its gates and staging an agitation there. Labour unions at the NLC are scheduled to go on strike from Wednesday night in protest against the governments proposed disinvestment plan. When the petition came up for hearing, Justice D. Hariparanthaman adjourned the matter to Monday. NLCs General Manager (HR) M. Maheswaran, in his petition said the organisation was a public utility service and that its disruption in mining and power generation activities would seriously affect other services. Citing a total of 18 registered labour unions as respondents, the management requested the court to restrain them from preventing by threats, intimidation or otherwise, the free ingress and egress of willing workers or officers or executives for attending their work/shift/duty. Though the right to strike is recognised, it is not a fundamental right, such right can be exercised only as per the provisions of the industrial laws, the petitioner said. It cannot exceed to the extent of preventing ingress and egress of willing/loyal employees, machineries and other activities, attracting penal provisions of the statute, the petition added. Unions or other workers cannot deprive those persons who are willing to work, their right and interests, by doing acts not permissible in law, Mr. Maheswaran said in his writ petition. Agitational approach of certain unions or workers affecting the rights and interests of other workers, officers and management or adversely affecting the larger interest of the public and the nation cannot be countenanced, the petitioner further stated.

The right to strike

It is true that in some cases the right to strike is being misused but that is no reason why all strikes should be condemned as immoral. Sep 10, 2003 IN T.K. Rangarajan vs. Government of Tamil Nadu and Others (the Tamil Nadu Government Employees Case), 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 whether fundamental, statutory or equitable moral right to strike in our view no such right exists with the government employee." Even as early as 1961, the Supreme Court held that even a very liberal interpretation of Article 19 (1)(c) cannot lead to the conclusion that the trade unions have a guaranteed right to strike as part of collective bargaining or otherwise [1962 (3) SCR 269)]. In support of the theory of "concomitant right" to collective bargaining, reliance was placed on Romesh Thappar's case (1950 SCR 404) where it was observed, "There can be no doubt that freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation." It was argued if freedom of speech and expression "in Article 19 (1) (a) was given the liberal construction so as to effectuate the object for which the freedom was conferred, a

similar construction should be adopted regarding the freedom of association guaranteed under Article 19 (1) (c)." The Supreme Court observed, "There was no analogy between the two cases", that it was "one thing to interpret each of the freedoms guaranteed liberally" but it was another "to read each guaranteed right as involving the concomitant right necessary to achieve the object which might be supposed to underlie the grant each of such rights, for such a construction would, by ever expanding concentric circles in the shape of rights concomitant to concomitant right and so on, lead to an almost grotesque result." The Supreme Court in the instant case also referred to Kameswar Prasad vs. State of Bihar (1962) Supplement 3 SCR 369 in holding there is no fundamental right to strike. The Supreme Court was perhaps therefore right in following its earlier judgments that there is no fundamental right to strike. The Supreme Court referred to Tamil Nadu Government Servants Conduct Rules 1973 where Rule 22 provides that no Government employee shall engage himself in strike or in incitements thereto or in similar activities. In view of this rule the Supreme Court was right in holding that the strike was illegal. It is not known whether other Government Servants Conduct Rules contain a similar provision. Earlier, before referring to the Tamil Nadu Rules, the Supreme Court gave the reason for holding the strike as illegal that there is no legal/statutory right to go on strike. The Supreme Court was evidently referring to the case of the Tamil Nadu Government employees with which it was concerned, for there are statutory provisions like the Industrial Disputes Act, which gives the right to strike to certain categories of employees. Even if the judgment refers to the absence of statutory provision in the case of Tamil Nadu Government employees, it is respectfully submitted that no statutory provision is needed to enable employees to go on strike. If the right of an employee is denied by the employer or is interfered with, he has the right not to do work, i.e., to go on strike. If it is denied to a group of employees or all the employees, all of them can refuse to work for the employer (or go on strike) and a union representing the employees may ask them to go on strike. As Soli Sorabjee, the Attorney-General, pointed out, the right to strike is a valuable right. In B. Singh's case, Justice Ahmadi observed that the right to strike is an important weapon in the armour of workers as a mode of redress. Therefore, no statutory provision is needed to confer on the employees the right to strike. It is quite another matter if any statute or rule makes it illegal for the employees to go on strike unless and until the statue or rule is struck down. Unfortunately, the Supreme Court goes further and says that there is no moral or equitable justification to go on strike. Though broadly worded as if to apply to every employee, it is clear from the sentence that follows, viz., "Government employees cannot claim that they can take the society at ransom by going on strike," that the Supreme Court refers to the moral right of Government employees. Even so, it is respectfully submitted that the Supreme Court is not right in saying that Government employees have no moral right to strike. There may be many instances when the employees may be harassed and all avenues of their rights being recognised are closed, in which case the employees may have no other course than to go on strike.

Evidently, the Supreme Court was carried away by the fact that nearly 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 Tamil Nadu is spent on salaries of Government servants. 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 strike in every case. Not stopping with the case of Government employees, the Supreme Court refers to several categories of employees in the following words, "In case of strike by a teacher entire educational system suffers... In case of strike by doctors innocent patients suffer; in case of employees of transport services entire movement of the society comes to a standstill; business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or from one city to another. On occasion public properties are destroyed... " It is respectfully submitted that there was no necessity for this extreme reaction against all cases of employees when the Supreme Court was dealing with the strike by Tamil Nadu Government employees. The Supreme Court must be certainly aware that in certain States teachers are not paid salaries for several years. Doctors, especially junior doctors, have on many occasions genuine grievance against the Government or other employers. Destruction or damage of public property is not always the result of strikes. It is true that in some cases the right to strike is being misused but that is no reason why all strikes should be condemned as immoral. There seems to be some move to have the judgment of the Supreme Court reviewed. As far as the Tamil Nadu Government is concerned, the Supreme Court, perhaps having in mind the judgment of Justice V.R. Krishna Iyer that even illegal strikes need not attract dismissal (vide Gujarat State Steel Tube Case), directed that all employees who were suspended except those who resorted to violence should be reinstated if they apologise and that direction has been complied with. So there is no need for review in their case. In case of other employees, the strong opinions expressed against strikes by other categories of employees is not even obiter dictum and is the mere expression of personal views of the two judges concerned and there is no need to ask for any review except as regards the obiter dictathat there can be no strike if there is no legal/statutory right to do so. (The writer is a former Chief Justice of the Andhra Pradesh High Court.)

Starving to live, not die

March 30, 2013 When the Supreme Court has recognised the right to go on hunger strike, why is Irom Sharmilas protest against impunity of the armed forces a criminal act? Over the past 12 years, Irom Sharmila Chanu has carried on an inconceivable hunger strike, which has seen her body wither and her skin turn pale. During this period, she has emerged as the face of the civilian resistance to the immunity, and impunity, granted by the Armed Forces (Special Powers) Act to the army in Manipur. The Indian state has done its part to disfigure that face, by exhibiting either an inability or

unwillingness to meet Sharmilas demands. Today, it is impossible to think of Sharmila without recalling images of the feeding tube that has been forcibly thrust down her nose to keep her alive. However, the repeal of AFSPA and justice for the 10 civilians who were shot dead in November 2002 by the Assam Rifles in supposed retaliation to an attack by insurgents in Malom, Manipur which triggered Sharmilas protest still remain elusive. Instead, Sharmilas dissent expressed via her fast unto death has repeatedly been viewed as criminal. Sharmila has put the Indian state in a peculiar position, by reconfiguring the dynamics of power through a public sacrifice of her body. Should the state, as it has done so far, view her indefinite fast through the lens of criminality and consider it an attempt to commit suicide, when Sharmila has unequivocally asserted her love of living? Or is it incongruous to do so, especially when the Supreme Court, in its recent and muchhailed intervention in the Ram Lila Maidan protests against corruption, has recognised that hunger strike is a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence? In fact, Sharmilas hunger strike is an area of stark legal vacuum. When there is a conflict between her freedom of expression and the Indian states interest, and perhaps duty, in keeping her alive, can a balance between these conflicting ends be struck without criminalising Sharmilas actions? The history Examples of hunger strikes used as an expression of dissent are copious; the suffragettes used them in their campaign seeking the vote for women in England during the early 20th century. Hunger strikes around the world have typically, though not exclusively, been waged by prisoners. Such was the case when some imprisoned Irish Republicans famously went on a hunger strike in 1981 to protest British rule of Ireland, leading to the death of Bobby Sands and nine others. Prisoners tend to use hunger strikes as a mode of protest, either to advocate a cause disagreeable to the state or to express their dissent against what they believe to be a wrongful conviction. In the former category fall cases like that of Marion Wallace Dunlop, a pioneering suffragette who was sent to prison for printing an extract from the Bill of Rights on the wall of St. Stephens Hall in the House of Commons. In prison, Dunlop commenced a hunger strike to continue her protest seeking the right of women to vote. In the latter category fall prisoners like William Coleman, who has been on a hunger strike lasting almost five years in a jail in Connecticut, U.S., to protest what he believes to be his wrongful conviction. Since the global trend has been for persons already imprisoned to resort to a hunger strike, this mode of protest has usually been viewed abroad as a prisoners rights issue. The states response of force-feeding prisoners has been considered by some as being tantamount to torture and an unacceptable intrusion in the autonomy of the prisoner, akin to rape. However, Indias own experience with hunger strikes, which has been very well documented, has shown that viewing the issue through a prisoners rights framework is ill-advised. Our freedom fighters, Mahatma Gandhi in particular, developed and perfected this non-violent form of protest as a facet of satyagraha, and although several hunger strikes were carried out by freedom fighters during periods of incarceration, the resort to this mode of protest has never been an exclusive domain of the imprisoned. For instance, Potti Sreeramulu, a freedom fighter and Gandhian, fasted to his death, in seeking the creation of a separate State of Andhra Pradesh in independent India. The Narmada Bachao Andolan movement witnessed hunger strikes in 2002 to protest the construction of dams over the Maan River in Dhar, Madhya Pradesh. More recently, Anna Hazare and his associates carried on hunger strikes against corruption. All of these protests were, and continue to be, carried on for the large part,

outside the walls of prison. For this reason, a prisoners rights framework may, by itself, be insufficient to view the legality of hunger strikes in India. Attempted suicide? An alternative way to analyse hunger strikes, especially fasts unto death, is through the framework of a constitutional right to die. In India, not a little morbidly, this argument seems to have reached a dead end. Although the Supreme Court in P. Rathinam v. Union of India (1994) initially asserted that the Indian constitutional guarantee of a fundamental right to life carries with it a fundamental right to die, subsequent decisions in Gian Kaur v. State of Punjab (1996) and Aruna Shanbaug v. Union of India(2011) overruled that view, and it is now conclusively established that Indian citizens do not have a fundamental right to die. In Gian Kaur, the Supreme Court upheld the validity of Section 309 of the Indian Penal Code, which criminalises the attempt to commit suicide (i.e. the provision under which Sharmila has been charged, and previously convicted). In Shanbaug, the Supreme Court allowed only for a highly circumscribed right to approach courts to seek withdrawal of life support systems for patients in a permanent vegetative state. Thus, it appears futile to argue that Indian citizens have a right to fast unto death when, according to the apex court, they have no right to die. However, this does not automatically mean that the undertaking of fasts unto death is criminal or that one does not have a fundamental right to hunger strike of a definite period where there is no danger of death being caused. One may not have the right to do something, but to do it nonetheless neednt be criminal. In independent India, the resort to hunger strikes has usually, though with some exceptions (such as the hunger strike by prisoners within a jail), not been viewed through the lens of criminality. For instance, Potti Sreeramulu was never considered criminal or suicidal by the Indian state for his fatal hunger strike. Anna Hazare likewise has undertaken several indefinite hunger strikes for various causes, but has never been perceived as a criminal on this account. The most prominent example of the Indian state criminalising a fast unto death per se is that of Sharmilas. If we really believe rape is as vile as we have recently claimed it to be, then would it be just to treat Sharmilas strike against AFSPA, a law that shields rapists from prosecution, differently from Hazares strike against corruption? More importantly, would it be just for a societys laws to selectively criminalise hunger strikes depending upon the objectives such strikes seek to achieve? This brings us to the question of whether Sharmilas case, and more generally fasts unto death, are appropriately viewed as attempts to commit suicide under Section 309 of the Indian Penal Code. Any criminal offence, barring certain exceptions, requires the proof of a mens rea, or the existence of a guilty mind. Sharmila has been fasting not with an intention to die, but with an intention to achieve a desired result from the state. Her refusal to consume food or water can be criminalised only if she has acted in furtherance of a conscious endeavour to commit suicide. In the absence of such conscious endeavour, to accuse and prosecute her for an offence under Section 309 is misconceived. Freedom to express The questions of whether to treat Sharmila as criminal and whether the state should be allowed to force-feed her are distinct. As misguided as Sharmilas prosecution may be, the question regarding the legality of nasally force-feeding her to keep her alive still remains open. The Supreme Court has, on the one hand, held that the threat of going on a hunger strike extended by Baba Ramdev at Ram Lila Maidan, cannot be termed

illegal. Presumably, this right that the court spoke of flows from a citizens right to freedom of expression. That right is subject to reasonable restrictions in the interest of the sovereignty and integrity of India, public order, decency, morality, or in relation to contempt of court, defamation or incitement to an offence. If Sharmilas fast unto death is essentially an exercise of her fundamental right to freedom of expression, the state, in force-feeding her, may presumably be acting in furtherance of its right to impose reasonable restrictions as permitted by our Constitution. However, forcefeeding, even if conducted in a humane and largely non-intrusive manner, has been widely considered to be tantamount to torture. Even though the state might merely be imposing restrictions that are reasonable within the meaning of Article 19 of the Constitution, the measure might nonetheless be a violation of Sharmilas right to life and personal liberty under Article 21. In our opinion, fasts unto death occupy an area of legal vacuum that offer no easy solutions. Should the state allow Sharmila to die and, in the process, abdicate its duty to protect life? Or must it resort to force-feeding her, even though such actions hit at the core of her bodily integrity? While neither offers a perfectly tailored legal solution, what is certain is that a balance ought to be struck between these starkly conflicting ends without criminalising Sharmilas actions. For, to do so would be tantamount to stigmatising an exercise by a citizen of her right to freedom of expression in advocating a particular cause when other citizens have used the freedom in exactly the same manner without suffering prosecution, simply because they advocated causes of a different, and less complex, nature. (The authors are advocates practising in the Madras High Court)

Should We Have Right to Work As A Part Of Fundamental Rights?

It is the states responsibility to secure an equitable income for those who are employed, to care for those incapable of doing any work, and to relieve those who are able to work but prevented from doing so by economic forces. Among the basic rights is the right to work. This has been recognized since the eighteenth century, when the German thinker, Fichte argued that the right to live and the right to work must be protected by the state. Socialist systems recognize the right to work as an obligation. The state may extract the work that is socially and economically useful. For example, the Chinese Constitution of 1982 declares that the right to work is a glorious duty of every able-bodied citizen. However, because the socialist systems lack strong judiciary, they have not made this right justifiable. The right to work cannot be guaranteed only in socialistic systems. It is as effectively ensured in several democratic nations, along with programmes of insurance for the unemployed. Countries Who Provide Right To Work? France (1905), Norway (1906), Denmark (1907), Great Britain (1911), Italy (1919), and Canada (1955) have programmes providing employment. In the United States, the problems of unemployment are met by the Social Security Act of 1935. The Japanese Constitution makes it obligatory for the state to provide employment. In the Scandinavian countries the unemployment alleviating programmes are funds administered by the trade unions and subsidized by tax revenues. The Universal Declaration of Human Rights states that; Everyone has right to work, to free choice of employment, just and favorable conditions of work, and protection against unemployment. The International Covenant on Economic Social and Cultural Rights adds, Full realization of this right shall include technical and vocational guidance and training programmes. The International Labour Organization sought to ensure that there is work for all who are available for and seeking work and that there is freedom

of choice of employment and the fullest possible opportunity for each worker to qualify for his employment. These rights prescribe the goals to which nations aspire. In India, the joint family system, the caste system, and the agricultural background of the ancient Indian society left no room tor unemployment. Manu, the law-giver of the ancient India ordained that the king should support his subjects as earth does for all the living beings, without discrimination. The epic, Mahabharata mentions that the king should look after the welfare of the disabled, helpless, orphans, widows, victims of calamities by meeting their minimum needs. Kautilya, the greatest economist of the medieval period of Indian History, said, In the happiness of Iris subjects lies the kings happiness, in their welfare, Iris welfare. Mahatma Gandhi viewed work more as duty than as right. This is in consonance with Hindu thought in treating duty as an aspect of dharma. India is a signatory to all the employment-related human rights which it is obliged to satisfy. The Universal Declaration of Human Rights had a vital impact in framing the Indian Constitution. However the Constituent Assembly that framed it did not throw much light on the right to work as an enforceable right. Work Is Essential Make It A Fundamental Right The right to work cannot be made absolute or unrestricted, but can be reasonably qualified. Assurance of right to work may be limited by income and age and should not be extended to the unemployed who were dismissed for faults or whose unemployment is only a disguise for indolence. Any constitutional guarantee of the right to work may cover the following. All citizens over the age of 18 shall have the right to work, provided that their annual income from all sources shall not exceed the average minimum wage per annum. If the state fails to provide the work, it must provide an unemployment allowance instead. All these things are on paper only. The government has almost failed to provide right to work. About 9% unemployment rate just shows the plight of people. Although the government has taken many steps, but in vain. In each five year plans the government makes special efforts, provided a sufficient fund to provide employment, work to the maximum number of people. Food for Work, Prime Minister Employment Scheme, Jawahar Rozgar Yogna, Indira Vikas Yogna, are some of the government programmes to provide work to the poor and unemployed, currently, the government is providing minimum 90 days of employment to the rural poor. So, it appears the government, from time to time, has shown interest to provide real right to work. It failed due to widespread corruption in the governments department, unchecked growth of population, faulty plannings, lack of sufficient funds, etc. To provide right to work to its citizens, is a dream for a country like India. It has remained the most challenging task for India since its Independence. Later or sooner, India will achieve this goal. But, the gestation, period should not extend to the unreasonable limit. Work must be our right.

Right to work should be made a fundamental right

A three-day conference on labour economics began at Punjabi University on Friday with a call from eminent economists to expand the government's National Rural Employment Guarantee Act (NREGA) for making it commensurate with the citizens' right to employment. A need to ensure that 'Right to Work' be included as a fundamental right was also stressed.

The 51st annual conference of Indian Society of Labour Economics (ISLE) is being hosted by the Punjabi University's Department of Economics in collaboration with the Centre for South Asia Study and the Centre for Research in Economic Change. Inaugurating the conference, Planning Commission member Abhijit Sen said in India where society had historically been caste-ridden tended to further accentuate the prevailing discrimination in the labour market. "Citizens should be conferred with the Right to Work as their fundamental right," he said. Parliamentarian Arjun Sengupta and former chairman of the National Commission for Enterprises in Unorganised Sector, said: "The movement for Right to Work has to be systematically organised as the scope of NREGA is still limited as having not entailed legal support for getting jobs as a matter of right. The government should play the role of 'Employer of Last Resort' to ensure that everyone who wants to work should get jobs." Punjabi University Vice-Chancellor Jaspal Singh said the deliberations of eminent economists would provide a clear-cut direction for the policy makers. G K Chadha, a former member of the Prime Minister's Economic Advisory Council and CEO of South Asian University, said that jobs should be offered on the basis of fixed but reviewable minimum basic wages. The proceedings of the conference were followed by the release of a book entitled, 'Globalisation and Change', an edited volume of essays written in honour of Sucha Singh Gill.