ANALYSIS TO AN CONSTITUTIONAL PROVISION RELATED TO RIGHT TO

STRIKE

INTRODUCTION
Indian constitution provide the rainbow of the fundamental rights that guarantee seven freedom
of right to every citizen one which the right to property one of which, the right to property, had
been by the 44th amendment1 , made a constitutional right and had ceased to be a fundamental
right. the unique feature of the fundamental rights are not the absolute terms and claused (2) and
(6) to provide for reasonable restrictions imposed on these freedoms the restrictions may be
procedural or substantive but they should satisfy with reasonable or not is to be determined by
the court demonstrations and processions involve three fundamental rights are freedom of
speech, freedom of assembly, and freedom of movement 2 due to above rights the court has raised
the issue of whether the fundamental right s include right to strike so before get into the issue
first we must know what is strike?
Strike means cessation or suspension of work by the worker. Strike is recognized as an ordinary
right of social importance to the working class to ventilate their grievances and thereby resolve
industrial conflict
It is the weapon that threatened or actual may help one party to force the other to accept its
demand or atleast to concede something to them but the risk of unnecessary stoppage of work
hurting both parties badly creating worse tensions, frictions and violations of law and order. from
the point of view of the public, they retard the nation’s economic development if this right is
misused, it will create a problem in the production and financial profit of the industry. this would
ultimately affect the economy of the country. In this research the researcher tried to analyse the
emergence of the concept of right to strike under the Indian Constitution, by analysing various
decided case laws in this matter.
OBJECTIVES

 To identify the provisions related to right to strike in Indian Constitution.

 To analyse the scope of provisions under Article 19(1) (a), (b) and (c) of the
Indian Constitution.
 To identify the meaning of strike and other statutory provisions that protects the
right to strike.
 To determine whether the provisions provided under Article 19(1) (a), (b) and (c)
of the Indian Constitution are wide enough to include the concept of right to
strike.
 To identify the defects in the judgments, and to provide some workable
suggestions.

1
The Constitution (Forty-fourth Amendment) Act, 1978, (w.e.f. 20-6-1979).
2
State of Madras v. V G row, AIR 1952 SC 196

1
REVIEW OF LITERATURE
The Honourable Supreme Court held that even very liberal interpretation of sub-clause (C) of
clause (1) of Article 19 cannot lead to the conclusion that trade unions have a guaranteed right
to an effective collective bargaining or to strike, either as part of collective bargaining or
otherwise3 . The Court further held that a perusal of Article 19(1) (a) shows that there is no
fundamental right to strike4 .
The relevant paragraph 17 of Kerala High Court judgment 5 reads as under: - "No political party
or organization can claim that it is entitled to paralyze 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."
The Bench held that no fundamental right exists with the Government employees to go on
strike6 . It is observed by Alladi Kuppuswami (2003) – that 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. The right to strike can be a crucial instrument for ensuring the basic socio-economic
rights of workers and all citizens.
C. P. Chandrasekhar and Jayati Ghosh (2004) consider the arguments for and against such a
right, and examine recent trends in India with respect to industrial disputes- (C P
Chandrasekhar and Jayati Ghosh)7 .
Manfred Davidmann discusses and defines the right to strike, the extent to which people can
strike and what this implies8 .
Though the Apex Court has not recognised the right to strike as a fundamental right however
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 it is observed by nishka prajapati

The right to strike must be recognised as a fundamental right as soon as possible. Because the
right to organise associations and trade unions is meaningless unless and until the right to strike
is recognised as a fundamental right. In today's economic transactions, the right to strike is
critical. It is the ultimate weapon in the workers' arsenal for getting their employer's demands
met by nidhijain

3
All India Bank Employees' Association v. National Industrial Tribunal and others, (1962) 3 SCR 269
4
Radhey Shyam Sharma v. The Post Master General Central Circle, Nagpur, (1964) 7 SCR 403
5
Communist Party of India (M) v. Bharat Kumar and others, (1998) 1 SCC 201
6
T K Rangarajan v. State of Tamilnadu, AIR 2003 SC 3032
7
Right to Strike and labour repression in India
8
The Right to Strike, at http://www.solhaam.org/articles/right.html

2
DEFINITION OF STRIKE

Strike is defined under section 2 (q) of the industrial dispute act, 1947
” strike" means a cessation of work by a body of persons employed in any industry acting in
combination or a concerted 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;”
Explanation:
 Cessation of work by a body of persons employed in any industry acting in combination
 A concentral refusal of any number of person who are employed in any industry or to
accept employement
 That refusal are too common understanding of any number of person who have been
employed in any industry to work or to accept employment

HISTORY OF STRIKE
The first known strike was in the 12th century B.C in Egypt workers under pharons. The use of
the English word ‘strike’ first appeared in 1768 when sailors in support of demonstrations in
London As the 19th century progressed, strikes became a fixture of industrial relations across
the industrialized world, as workers organized themselves to bargaining for better wages and
standards with their employees
The 1974 railway strike in India was the strike by workers of Indian Railways in 1974. The 20
days strike by 17 lakh workers is the largest known strike in India. The strike was held to
demand a raise in pay scale, which had remained stagnant over many years, in spite of the fact
that pay scales of other government owned entities had risen over the years.
Strikes became common during the Industrial Revolution, when mass labor became important
in factories and mines. In most countries, strike actions were quickly made illegal, as factory
owners had far more political power than workers. However, most western countries partially
legalized striking in the late 19th or early 20th centuries
The law in India has developed much along the lines of the common low in England. Prior to
the passing of the TUA a trade union that called for a strike which resulted in the breach of the
contracts of employment of in members with the employers, could be sued in tort for inducing
that breach The efforts of the trade unions against this liability in tort, resulted in the TUA
being passed. It granted immunity To the trade unions, office-bearers, and members for an act
done in furtherance of a trade dispute. The provisions protect the trade unions. office-bearers
and the members of a trade union who organise a strike action, picket or demonstration in
furtherance of a trade dispute
The test of motive and purpose is necessarily a subjective one and unless it could be shown that
the act done was a wilful conspiracy to harm the employer the immunities will apply 9.

9
Rebtas industries vs union of india

3
 The Indian Constitution does not recognise a fundamental right to strike. The approach of the
Indian courts has been that the right to form association does not automatically carry with it the
right to strike.10
TYPES OF STRIKE
 General strike
 Stay-in-strike
 Go slow strike

GENERAL STRIKE

The workmen join together for common cause and stay away from work, depriving the employer
of their labour needed to run his factory.

Token Strike is also a kind of General Strike. Token Strike is for a day or a few hours or for a
short duration because its main object is to draw the attention of the employer by demonstrating
the solidarity and co-operation of the workers and the token strike is heps to show how the
workers are going to proceed the strike.

General Strike is for a longer period. It is generally resorted to when employees fail to achieve
their object by other means including a token strike which generally proceeds a General Strike.
The common forms of such strikes are organized by central trade unions in railways, post and
telegraph, etc. Hartals and Bundhs also fall in this category.

Stay-in-Strike:

 The phrase "tools-down strike" or "pens-down strike" refers to the act of workers putting down
their tools or pens, signifying that they are no longer working.
 In a tool-down strike, workers do not abandon their posts or leave the premises. They remain on
the jobsite, but they refuse to do any work.
 This prevents the employer from hiring other workers to replace the striking workers. The
employer is thus forced to shut down the business or production line until the strike is resolved

Mysore machinery manufacturers vs state11

Held: Where dismissed workmen were staying on premises and refused to leave them, did not
amount to strike but an offence of criminal trespass.
10
In All India Bank Employees' Association v NI Tribunal (AIBEA case)
11
AIR 1969 Mys 51, 1969 CriLJ 221

4
Punjab National Bank Ltd. v/s Their workmen12
Held: Refusal under common understanding to continue to work is a strike and if in pursuance of
such common understanding the employees entered the premises of the bank and refused to take
their pens in their hands would no doubt be a strike under section 2(q).
Go-Slow:
In a go-slow strike, workers do not walk off the job. Instead, they show up to work and
deliberately work slowly in order to reduce productivity and cause financial losses to their
employe.

Sasa Musa Sugar Works Pvt. Ltd. v/s Shobrati Khan & Ors13
Held: Go-Slow strike is not a strike” within the meaning of the term in the Act, but is serious
misconduct which is insidious in its nature and cannot be countenanced.

Hunger Strike: A group of workers go on hunger strike at or near their workplace or the
employer's home in an attempt to force the employer to meet their demands
Certain employees who held key positions in the mill resorted to hunger strike at the residence of
the managing Director, with the result that even those workmen who reported to their duties
could not be given work. Held: That concerted action of the workmen who went on Hunger
Strike amounted to strike” within the meaning of this sub-section14.

Sympathetic Strike: A Sympathetic Strike is resorted to in sympathy of other striking workmen.

It is one which is called for the purpose of indirectly aiding others. Its aim is to encourage or to
extend moral support to or indirectly to aid the striking workmen. The sympathizers resorting to
such strike have no demand or grievance of their own.

RIGHT TO FREEDOMS:

Part III of the Indian Constitution, originally guaranteed seven

freedoms, one of the rights to property, ceased by the 44th amendment 15 and made a
constitutional right. The unique feature of the freedoms guaranteed by Article 19 is that they are
not absolute terms and clauses (2) to (6) provide for reasonable restrictions imposed on these
freedoms. The restrictions may be procedural or substantive, but both must satisfy the test of
reasonableness. Whether a restriction is reasonable or not is to be determined by the Court

Reasonable restriction article 19(2)

 Interests of the security and sovereignty of India,
 Friendly relations with foreign states,
 Public order,
 Decency or morality in the relation to contempt of court,
12
1960 AIR 160, 1960 SCR (1) 806
13
1959 AIR 923, 1959 SCR Supl. (2) 836
14
Piparaich Sugar Mills Ltd. v/s Their Workmen
15
Section 2(q), Industrial Dispute Act, 1947.

5
  Defamation or incitement to an offence

According to Bhagwati J. “the principle of reasonableness which legally as well as

philosophically, is an essential element of equality and non- arbitrariness pervades Article
14 like brooding omnipresence” Article 21 must answer the test of reasonableness in order to
be in conformity with Article 14. It must be right, just, fair, and not arbitrary, fanciful or
oppressive, otherwise it would be no procedure at all and the requirement of Article 21 would
not be satisfied" Article 19 guarantees the following freedoms16

a) Freedom of speech and expression.

b) Freedom to assemble peacefully and without arms.
c) Freedom to form association and unions.
d) Freedom to move freely throughout the territory of India.
e) Freedom to reside and settle in any part of the territory of India.
f) Freedom to practice any profession or to carry on any occupation, trade or business.

FREEDOM OF SPEECH AND EXPRESSION17

A suppression of speech, in its most painful consequence would be mental sterilization.

Freedoms of speech are comprehensive, and include freedom of expression concerning both
public and private affairs. In guaranteeing the freedom of speech and in subjecting it to
reasonable restrictions, our Constitution has to resolve the dilemma, since the choice is not
between order and liberty; it is between liberty and anarchy.

Restrictions on freedom of speech may be imposed in the interests of the "sovereignty and
integrity of India, the security of State, friendly relationship with foreign sates, public order,
decency and morality in relation to contempt court, defamation or incitement of an offence."

FREEDOM TO ASSEMBLE PEACEFULLY AND WITHOUT ARMS18

Democracy would have no meaning if freedom to assemble is not guaranteed. Thus, public
meetings in open spaces and public streets have formed part of our national life and people have
come to regard it as part of their privileges and immunities. Similarly, the right to take out a
procession on the highways and Public Street is part of the right to assemble which the people
have regarded as part of Indian law, even before the commencement of Constitution19

FREEDOM TO FORM ASSOCIATIONS AND UNIONS20

Social functioning of organised societies is based on multiplicity of associations and

organisations. No democracy can function without freedom to form associations and unions.

16
Mrs. Maneka Gandhi v. Union of India, AIR 1978 SC 59
17
Article 19(1)(a)
18
Article 19(1) (b)
19
Himatlal v. Police Commissioner, AIR 1985 SC 229.

20
Article 19(1) (c)

6
Political parties, trade unions, social and other organisations are part of democratic functioning
of the society and the government. Article 19(1)(c) guaranteed freedom to form associations and
unions, though reasonable restrictions on the freedom may be imposed in the interest of integrity
and sovereignty of India, public order and morality.

THE RIGHT TO STRIKE AND ARTICLE 19(1) OF THE CONSTITUTION

Right to Strike is not recognized as a Fundamental Right under our constitution. Strikes gained
recognition as a statutory right when the Industrial Disputes Act, 1947 came into force. It
recognized the right to strike as well as the right to lock-outs of the workmen.

A strike is a modified form of Protest but still. Article 19(1) does not include the fundamental
right to strike but includes the right to form associations and trade unions. Right to strike is
considered as a legal right and necessarily involves three fundamental rights mentioned under
Article 19 which are: Right to Speech and Expression, Right to assemble peacefully and Right to
Move Freely.
In the case of All India Bank Employees Association v. National Industry Tribunal 21, it was held
that "even a very liberal interpretation of Article 19 (1) (c) of the Indian Constitution cannot
lead to the conclusion that the trade unions have a guaranteed right to collectively bargain
in an effective manner or to strike as a part of the collective bargain or otherwise.

" Ahmadi J. in B.R. Singh cases observed that "Right to strike is a legal right and cannot be
considered as a fundamental right." Workers cannot go to strike assuming that it is their
fundamental right to do so,

Right to Strike is considered as a legal right with its own restrictions mentioned under the
Industrial Disputes Act, 1947. The Trade Unions Act, 1926 highlights that trade unions can also
pursue their activities peacefully. Furthermore, the act also recognizes Right to Strike and
confers immunity under Section 19 upon the trade unions. There is a right to form association or
unions, but the right to strike is not recognized by our Constitution. However. the Industrial
Disputes Act, 1947 as discussed above, does make a distinction between legal and illegal strikes.

Judicial decisions have always emphasized on the legality and illegality of strikes, which needs
to be decided with the help of evidence on record but never made any judgment banning
strikes.

The Court in Kameswar Prasad v. State of Bihar22, stated that "The rule in so far as it prohibits a
strike cannot be struck down since there is no fundamental right to resort to a strike.

"The court in T.K. Rangarajan v. Government of Tamilnadu and Ors 23 said that the government
employees have no legal or moral right to go on strike. Our judiciary recognizes that strike is a
weapon for the employees against the employer so that the employer is forced to look at the

21
1962 AIR 171, 1962 SCR (3) 269
22
1962 AIR 1166, 1962 SCR Supl. (3) 369
23
(2003) 6 SCC 581

7
employees' point of view and accept his demands." Judiciary believes that a strike is legal if the
situation is just and reasonable and if such a strike doesn't violate any provision of the statute

Like in a very recent case, the court held that doctors cannot deny medical treatment of patients
on the ground that they are on strike or protest. Workmen should not misuse this right and create
a nuisance out of it because it would lead to maladministration. In case of a strike by workmen of
transport services, the whole country comes to a standstill. In case of strike by workmen in
educational institutions, students suffer. In case of strike by medical professionals, the patients
suffer. Right to strike is absolute and not a relative right.

Where the courts has realised strike as a weapon of the workmen, it has also declared that
absence of strike may lead into lawlessness in the society. Fundamental rights determine to other
rights, but the act of strike does not give right to any other right, therefore cannot come under the
ambit of fundamental rights. A strike is an activity that can just be perceived by senses, but
Fundamental rights are intangible and incorporeal in nature.

RIGHT TO STRIKE AS A LEGAL RIGHT:

Workmen have attained a right to strike after a long battle with their industries. They took strike
as an industrial action so that their demands and rights are acknowledged by the industries. A
workman is forced to come to negotiate when the actions of the industry do not meet and his
demands are not heard. To raise a voice is the only option he has. And if his voice is not heard,
he has to act in a certain way, i.e. by striking, to seek some recognition.

Thus, the judiciary realises that workmen come together with a common objective to form a
Trade Union and the Trade Union with sufficient membership strength is able to bargain and put
forward their demand more efficiently and easily than an individual workman ever could 24 Also,
the workmen are entitled to wages during the period of a strike if the strike is legal and
justified25, which is to be decided by the industrial administration.

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.
Striking work is integral to the process of wage bargaining in an industrial economy.

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, she/he can be forced to come to a
negotiating table by striking workers. This she/he can do because the earnings of the capitalist
are contingent upon the worker continuing to work.
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.

24
B.R singh vs union of india 1990 lab IC 389 SC 396
25
Bank of india vs T.S. Kelwala 1990 4 SCC 744

8
In Gujarat Steel Tubes v. Its Mazdoor Sabha (1980)26, 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.

STRIKE AS A STATUTORY RIGHT:

The Industrial Disputes Act, 1947 gives recognition to strike as a statutory right. It interprets the
term "industry' and strike widely and the statutory provisions differentiate between a legal and an
illegal strike178, as mentioned above. 'Illegal strikes' as those which are in contravention to the
procedure of going to strike, as laid down under Sections 22 and 23. Other than Industrial
Disputes Act, 1947, Trade Unions Act, 1926 also recognizes the right to strike as a statutory
right under sections 18 and section 19 and confers immunity upon Trade Unions on strike in case
if civil liability arises.

The scheme of the Industrial Disputes Act, 1947 implies a right to strike in industries. A wide
interpretation of the term industry by the courts includes hospitals, educational institutions, clubs
and government departments. Section 2 (q) of the Act defines strike as "strike means a cessation
of work by a body of persons employed in any industry acting in combination or a concerted
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". 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. 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.

The workers right to strike is complemented by the employers right to lock-out, thus maintaining
a balance of powers between the two. Besides the Industrial Disputes Act, 1947, the Trade
Unions Act, 1926 also recognizes the right to strike. Sections 18 and 19 of the Act confer
immunity upon trade unions on strike from civil liability.

STRIKE AS A FUNDAMENTAL RIGHT

No fundamental right status has been given to the right to strike. It is still a legal and statutory
right. Article 51(c) of the Indian Constitution says that the state shall have to respect for
international law and treaties and Article 253 of the Constitution says that such international laws
and treaties should be ratified by the Indian parliament. All the international laws and
conventions such as the International Labour Organization and Universal Declaration of Human
Rights, 1948 has adopted in its very basic structure the right to strike. Although it is the essence
of collective bargaining which all the international conventions regarding workers talk about but
no need has been paid to these conventions by India. Even the judiciary has failed to consider the
dynamic transformation of right to strike. There is a dire need of right to strike to be given as a
26
1980 AIR 1896, 1980 SCR (2) 146

9
fundamental right. Because the right to form associations and trade unions will have no effect if
right to strike is not given as a fundamental right. Such rights will become hollow and illusory.
Right to strike is very important in the modern economic transactions. It is the ultimate weapon
in the hands of the workers to get their demands satisfied from the employer,

Giving fundamental States to the right to strike will not only improve the economic structure of
the country but will also improve the economic well-being of workers, proper wages, health and
hygiene etc. In the modern civilised world, right to strike should be inalienable and inherent right
to be given to the workers.

The argument that the strike can lead to economic laws by virtue of dis-functioning of the
industries can be negated by the fact that if the right to strike is not given as a fundamental
right, it will anyway disrupt the economic structure. The membership of the trade unions and
associations will decrease resulting in economic losses to industries and eventually to the
country.

INDIAN JUDICIARY ON RIGHT TO STRIKE

The right to strike in the Indian constitution set up is not absolute right but it flow from the
fundamental right to form union. As every other fundamental right is subject to reasonable
restrictions, the same is also the case to form trade unions to give a call to the workers to go on
strike and the state can impose reasonable restrictions.

In All India Bank Employees' Association v. National Industrial Tribunal and others", the Court
specifically held that even very liberal interpretation of sub-clause (C) of clause (1) of Article 19
cannot lead to the conclusion that trade unions have a guaranteed right to an effective collective
bargaining or to strike, either as part of collective bargaining or otherwise.

Thus, there is a guaranteed fundamental right to form association or Labour unions but there is
no fundamental right to go on strike. Under the Industrial Dispute Act, 1947 the ground and
condition are laid down for the legal strike and if those provisions and conditions are not fulfilled
then the strike will be illegal.

Indian judiciary has recognized the right to strike both as a legal and statutory right. Strike in an
integral part of wage bargaining in the industrial economy. Some limited right to strike was
given by the Trade Union Act, 1926. And it was finally made a statutory right under Section 22
of the Industrial Disputes Act, 1947. Article 19(10)(c) of the Constitution gives freedom to the
citizens to form associations and trade unions. But right to strike in an ancillary right. If not
given, the right to form associations will be hollow and illusory. While recognizing the
objectives of Industrial Disputes Act of 1947. Apex Court said that strike is a weapon available
to workers to force their employer to fulfill workers' demands.
It is a legitimate and indispensable weapon available to the employees and can be used in case of
urgency. It will be unreasonable to make the workers to wait for notice in that case.

10
In the case of Crompton Greaves Ltd. v Its Workmen 27, the Supreme Court held that strike is a
legal weapon available to workers. Whether the strike is justified or not will depend upon the
facts and circumstances of each case. Court has also said that sometimes even an illegal strike
can be justified.

In the case of Indian Express Newspapers Bombay Pvt. Ltd. v TM Nagarajan 28, the court held
that peaceful strikes can be conducted by the workers to force the employer to fulfill their
demands.

“Justice Ahmadi” in the case of B.R. Singh v Union of India 29, held that it is very essential for
the trade union to have sufficient membership which can be secured through agitation methods
such as strike, go slow etc. He further held that strike is an inherent right which protects the
liberty of workers. It a recent decision of Supreme Court on this matter, it was held that the right
to strike is a legal right and not fundamental right. It went further on to hold that if such right is
made fundamental in nature, it will undermine the economic structure of the country.

VIEW OF SC ON RIGHT TO STRIKE:

Even as early as 1961, the Supreme Court had held in Kameshwar Prasad v. State of Bihar
(1962)30 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 (1962) 31 also the SC
held that right to strike cannot said to be a part of Article 19(1)(c) of the Constitution. In the
decision in the highly contentious Rangarajan case. In T.K. Rangarajan v. Government of
Tamilnadu and Others (2003) the SC opined that not only there existed no fundamental right to
strike but also stated that the Government employees have no "legal, moral or equitable right"

Taking the facts into consideration of the Rangarajan case, the action of the Tamil Nadu
government terminating the services of all the employees who have resorted to strike for their
demands was challenged before the Honble High court of Madras, by writ petitions under
Articles 226/227 of the constitution. On behalf of the government employees, writ petitions were
filed challenging the validity of the Tamil Nadu Essential Services Maintainance Act (TESMA),
2002 and also the Tamil Nadu Ordinance 2 of 2003. The division bench of the court set aside the
interim order, and pronounced that the writ petitions were not maintainable as the Administrative
Tribunal was not approached. The division bench judgment was challenged before the Supreme
Court.

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,

27
AIR 1978 SC 1489, 1978 (36) FLR 329, 1978 LablC 1379, (1978) IILLJ 80 SC, (1978) 3 SCC 155, 1978 (10) UJ
366 SC
28
1987 (15) DRJ 212, 1988 LablC 1067, 1988 RLR 194
29
1990 AIR, 1 1989 SCR Supl. (1) 257
30
1962 AIR 1166, 1962 SCR Supl. (3) 369
31
1962 AIR 171, 1962 SCR (3) 269

11
Harish Uppal vs, UOI (2003) and Bharat Kr. Palicha vs. State of Kerela (1998) 32 - 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.

In Bharat Kr. Palicha vs. State of Kerela 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 on all kinds of strikes
irrespective of whether they are hartals or bundhs.

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.

In B.R. Singh v. Union of India (1990), SC 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 (1980)33 also the right to strike has been recognised
by the SC. 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.

A series of judicial decisions emphasized on the legality or the illegality of the strike, but did not
impose a ban on the right to strike. In Management of Kairbeta Estate, Kotagiri
v.Rajamanickan34 the full bench observed that, just as a strike is a weapon available to the

32
AIR 1997 Ker 291
33
1980 AIR 1896, 1980 SCR (2) 146
34
1960 AIR 893, 1960 SCR (3) 371

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employees for enforcing their individual demands, a lockout is a weapon available to the
employer to persuade by a coercive process the employees to see his point of view and to accept
his demands. In the struggle between the capital and the labour, the weapon of strike is available
with the labour. It was also held that, strike a weapon to force the employer to accede to
employees demand and to give them the legitimate dues is a strike which is recognised under the
Industrial Disputes Act as defined in Sec 2 (4).

In Bank of India v/s T.S. Kelwala 35 the constitutional bench held that, whether the strike is legal
or justified is question of fact to be decided with the help of the evidence on record.

In Crompton Greaves Ltd v. Workmen 36 the division bench held it that a strike is legal if it does
not violate any provision of the statute. Again a strike cannot be said to be unjustified unless the
reasons for it are entirely perverse and unreasonable, Whether a particular strike was tified or not
is a question of fact which has to be justified in the light of the facts and circumstances of each
case.

In the case concerning Management of Chandramalai Estate, Ernakulam v. Its workmen 37 a

division bench judgment, there was a dispute between the management and the workers and the
labour minister decided to arbitrate the matter. In this case it was held that the strike in protest of
the recalcitrant attitude of the management in boycotting the conference, held on 23rd
November, 1961 by the labour minister of the state was not unjustified. It was also held in this
case that strike is legitimate and sometimes an unavoidable weapon in the hands of the workers.
There may be cases where the demand is of such an urgent and serious nature that it would not
be reasonable to expect labour to wait till after the government takes notice. In such cases, strike
even before such a request has been made may well be justified.

CONCLUSION
Strike is a weapon that empowers the disempowered to fight in oppressive cases when no
constructive option is left. It is a last weapon used by the employee. It is this weapon, which
provides an opportunity for collective bargaining. The modern form of strikes had its origin in
35
1990 SCR (3) 214, 1990 SCC (4) 744
36
AIR 1978 SC 1489, 1978 (36) FLR 329, 1978 LablC 1379, (1978) IILLJ 80 SC, (1978) 3 SCC 155, 1978 (10) UJ
366 SC
37
AIR 1960 SC 902, 1960 (1) FLR 104, (1960) IILLJ 243 SC, 1960 3 SCR 451

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the era of industrial revolution and assumed its multifarious forms and dimensions during the
Indian national movement varying from bandh, hartal, and protestation to hunger strike,
Satyagraha, non co-operation and civil disobedience etc., it was considered inalienable right and
duty of a patriot to protest against the mighty colonial rule. People who took part in protests were
regarded as patriots. Paradoxically, after 50 years of Independence the act of participation in a
strike even for a good cause is considered illegal.
To avoid strikes is everyone's responsibility. But to assert that strikes under any circumstances
are illegal, immoral, inequitable and unjustified is contrary to our law and industrial
jurisprudence. 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, he/she can be forced to come to a negotiating table
by striking workers. This he/she can do because the earnings of the capitalist are contingent upon
the worker continuing to work. The argument is drawn from 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 that
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 right to strike is a fundamental right that allows workers to collectively bargain for better
wages, benefits, and working conditions. It is an important tool for workers to achieve economic
justice and to protect their rights.

In many countries, the right to strike is enshrined in law. However, there are often restrictions on
when and how workers can strike. For example, strikes may be prohibited in essential services,
such as healthcare or transportation.

The right to strike is not without its critics. Some argue that strikes can be disruptive to
businesses and can harm the economy. Others argue that strikes can be used to bully employers
and to achieve unfair demands.

Despite these criticisms, the right to strike remains an important tool for workers. It is a way for
workers to assert their power and to demand fair treatment. Strikes can also be a powerful force
for social change.

In conclusion, the right to strike is a complex issue with both pros and cons. However, it is an
important right that allows workers to protect their interests and to achieve economic justice.

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 Here are some additional thoughts on the right to strike:

 The right to strike is not absolute. There are often restrictions on when and how workers can
strike. These restrictions are usually designed to protect the public interest or to prevent unfair
labor practices.
 The right to strike is not always effective. Strikes can be defeated by employers who are willing
to take a hard line. However, strikes can also be very successful in achieving their goals.
 The right to strike is an important part of a healthy democracy. It allows workers to have a voice
in their workplace and to participate in the economic system.

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