MODULE II

WHETHER STRIKE IS A FUNDAMENTAL RIGHT OF LEGAL RIGHT?

• Though, the right to strike is not a fundamental right as such, it is open to a citizen to go on

strike or withhold his labour.The right to strike has been recognised under the Industrial
Disputes Act, 1947 by defining the circumstances under which a strike is to be regarded as
illegal.

• Thus the Labour Appellate Tribunal in Ram Krishna Iron Foundry v. Their Workers(1952)2 LU

372 (LAT).
• The right to strike has been recognised by necessary implication in the industrial legislation in

India and express statutory provisions have been made for the purpose of regulating it. It is
thus a recognised weapon of the workmen to be resorted to by them for asserting their
bargaining power and backing up their collective demands on an unwilling employer
• Again in G.R.S.M. (W) Co. Ltd. v. District Collector

• the Kerala High Court summarised the legal position of the workers' right to strike in the
following words. Though under, the Constitution of India, the right to strike is not a
fundamental right as such, it is open to a citizen to go on strike or withhold his labour. Every
strike is not illegal and the workers in any democratic State have the right to resort to strike
whenever they are so pleased in order to express their grievances or to make certain
demands. A strike in the circumstances is a necessary safety valve in industrial relations when
properly resorted to. It is a legitimate weapon in the-matter of industrial' relations.
• The Supreme Court in B.R. Singh v. Union of India591990Lab.IC (SC) 389

• has observed that the right to strike "though not raised to the high pedestal of a fundamental

right it is recognised as a mode of redressal for resolving the grievances of workers. But. the
right to strike is not absolute under our industrial jurisprudence and restrictions have been
placed on it. These are to be found in Sections 10 (3), 10A (4A), 22 and 23of the Industrial
Disputes Act, 1947.”
• The Court added: “The right to form association or unions is a fundamental right under Article

19(l)(c) of the Constitution. Section 8 of the Trade .Unions Act provides for registration of a
trade union if all the requirements of the said enactment are fulfilled. The right to form
associations and unions and provide for their registration was recognised obviously for
conferring rights on trade unions the necessity to form Unions is obviously for voicing the
demands and grievances of labour.
• The Trade Unions act as mouthpieces of labour. The strength of a trade union depends on its

membership. Therefore, trade unions with sufficient membership strength are able to bargain
more effectively with the managements. This bargaining power would be considerably
reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of
demonstration. There are different modes of demonstrations e.g., go slow, sit-in, work-to-rule,
absentism, etc., and strike is one such mode of demonstration by workers for their rights. The
right to demonstrate and, therefore, the right to strike is an important weapon in the armoury
of the workers. This right has been recognised by almost all democratic countries.
• Though not raised to the highest pedestal of a fundamental right it is recognised as a mode of

redress for resolving the grievances of workers”.

• The aforesaid right is available only to industrial and not to government servant.

• In India, right to protest is a fundamental right under Article 19 of the Constitution of India.

But right to strike is not a fundamental right but a legal right and with this right statutory

restriction is attached in the Industrial Dispute Act, 1947.

• T.K. Rangarajan v. Government of Tamilnadu and Others2003(6) SCALE 84 , 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

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

• 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.”
• The Working class has indisputable 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
• Bank of India v T.S.Kelwala 1990(4) SCC 744 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 worker1 has no
other means of defending his real wage other than seeking an increased money wage. If a
• capitalist does not grant such an increase, he can be forced to come to a negotiating table by

striking workers. This he can do because the earnings of the capitalist are contingent upon the
worker continuing to work.
• In Gujarat Steel Tubes v. Its Mazdoor Sabha,6AIR 1980 SC 1896 Justic 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.