'Strike for your rights; even if you lose, your conscience will be at peace.'-- Mahatma Gandhi

The synergy between capital and labor is the basis of complex industrial structures, and their cooperation is essential for prosperity. Nevertheless, disputes are inevitable and industry law promotes harmonization and calls for resolving disputes through negotiation and arbitration.

At the heart of this situation are trade unions, who play a central role in advocating for better conditions through the powerful tools of collective bargaining, legislation, mutual insurance and strikes. the International Labor Organization (ILO) recognizes the right to strike as a fundamental human right internationally.

However, in India, it is enshrined not as a fundamental right but as a legal provision given to the people. Strikes, a way for workers to demand better working conditions and fair wages, play an important role in addressing grievances. However, there is a veil of ambiguity surrounding this right, and the uncertainty about the limits to its exercise discourages workers.

Before independence, India had no specific laws regarding the right to strike. The Industrial Disputes Act of 1947 was a turning point, providing the legal framework that defined and enabled the right to strike. Article 19(1)(c) of the Constitution of India recognizes the right to form associations and trade unions. The same also recognizes the right to strike peacefully, subjected to reasonable restrictions.

However, this legal privilege is not generally available, but is limited to certain classes of workers. This study examines the evolution of the right to strike in India, analyzes the objectives behind the reasonable restrictions set out in Article 19(1)(c), and identifies the challenges and challenges associated with these restrictions.

This paper navigates the labor rights landscape and explores the historical background and current hurdles associated with exercising this fundamental aspect of employee representation in India's legal framework.

Introduction
The world is ruled by free-market capitalism, and every country's economy is dependent on the output and financial profit of industry." Even though labour and capital are the backbones of industry, and their cooperation is critical to the economy's health, the capital class has the upper hand. Thus, some democratic weapons are used by them to ventilate grievances and protect the interests of the labour class, such as the right to form associations or unions and collective bargaining by trade unions. Industrial disputes are disputes that arise as a result of a disagreement over industrial relations.

Industrial relations are the bonds that form between an employer and an employee because of various interactions. When there is a disagreement or a conflict of interest in an industrial relationship, it causes dissatisfaction among the parties and leads to industrial disputes. Strikes, protests, lockouts, and other forms of conflict arise because of these disagreements. The Industrial Disputes Act of 1947 allows for a peaceful resolution of these disputes and promotes employee-employer harmony.

'Strike' means stoppage or cessation of work by a group of workers to bring forth their demands and/or grievances seeking resolution by the employer or management. It may also be defined as a forceful weapon in the hands of workmen, effectively useful in oppressive and exploitative situations. When all modes of appeal fail, strike is used as the last resort to attract the attention of the people who matter[i]. Skilful use of this tool leads to conclusive resolution of the grievances and demands of the workforce. On the other hand, the misuse of this tool results in disaster for all.

Strikes manifest in many forms, each serving as a voice for employee grievances. A general strike, a common form, unites workers around collective demands focused on economic factors such as wages and benefits, prevalent in sectors such as transportation and government services. The situation is similar in India's general strike "bandh" practice.

Mass casual leaves are planned absences that violate established protocols. One example is the protests by teachers in Gujarat against pension changes[ii]. In 2021, Indian farmers protesting against the farm laws are drawing attention to individual demands in a variety of ways[iii], including hunger strikes. On the other hand, a go-slow strike subtly affects productivity and poses a risk to the machine without completely stopping work.

During stay-ins and strikes, when workers do not work, workers occupy space but refuse to work. Refusal to vacate a building upon the management's request is considered illegal. Sympathy strikes express solidarity with other striking forces and obscure their legality under the Industrial Disputes Act. The Wildcat strike takes place without the union's permission and destroys the agreement.

Gherao, which involves restrictions on freedom of movement, can be legal or illegal depending on how it is carried out. Strikes typically arise from issues such as inadequate pay, poor working conditions, job insecurity, or disagreements over policies or benefits and reflect general dissatisfaction among workers.

In India, the right to strike is not expressly recognized in the constitution of India [iv]. This is not an absolute right as it branches from the Article 19 of the constitution which grants the fundamental rights. Article 19 states that. All citizens shall have the right to:

1. freedom of speech and expression;
2. assemble peacefully and without arms;
3. form associations or[v] unions;

Hence, like all other fundamental rights, these also come with riders and restrictions provided in clauses 2 to 6 of the Article. These imposed restrictions may either be substantive or procedural; in either case, they must pass the test of reasonableness. The power of determination of reasonableness lies with the court based on its interpretation of the facts and hence, varies from case to case.

The Trade Union Act, 1926, was the first provision that gave limited rights to strike by legalizing certain activities[vi]. The Industrial Disputes Act, 1947, recognizes this right legally and is available to all covered under this Act. Section 2 of the Act defines 'workman' as any person (including an apprentice) employed in any industry to do any clerical, mechanical, technical, skilled, unskilled[vii], supervisory or manual work, for hire or reward.

The wide interpretation of the term 'industry' by the courts includes educational institutions, clubs, hospitals and various govt.[viii] departments, apart from mines, factories and businesses. Sections 22 and 23 of the Act lays down the procedures of going to strike and any deviation from the provisions stated here makes the strike 'illegal' in the eyes[ix] of law. Section 24 of the Act defines and differentiates between a legal strike and an illegal strike. It states that an illegal strike is one which breaches the procedure of strike as mentioned in Sections 22 and 23[x].

Thus, it's quite evident that The Industrial Disputes Act, 1947, implies the legal recognition of those strikes which conform to the laid down procedures. The statutory provisions are in place to differentiate between the legality or illegality of the strike; with the final call regarding it to be taken by the judiciary[xi].

Strike under the Industrial Disputes Act, 1947
According to Webster's dictionary, the term strike is defined as 'the act of quitting work done by mutual understanding by a body of workmen as a means of enforcing compliance with demands made on their employers; a stopping of work by workmen in order to obtain or resist a change in condition of employment. [xii]' Justice Bhagwati was of the opinion that the right to strike is an integral aspect of collective bargaining and right is a process recognized by industrial jurisprudence[xiii] and supported by social justice[xiv].

Section 2(q) of the Industrial Disputes Act, 1947 states that a cessation of work by a body of persons employed in any industry acting in combination or a concerted[xv] 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[xvi] [xvii]. If the procedure to go on a strike which is mentioned in the act is not followed then the strike is supposed as an illegal strike. Section 22(1) of the Industrial Disputes Act talks about the certain prohibition on the right to strike[xviii].

In the case of Uden v Schaeffer[xix], the court gave the definition of the word strike in a comprehensive manner: 'Strike is act of quitting by a body of workmen, for[xx] the purpose of coercing their employer to accede to some demands they have made upon him and which he has refused; but it is not a strike for workmen to quit work[xxi], either singly or in a body, when they quitted without intention to return to work, whatever may be the reason that moves them to do so'.

The right to Strike is an advantage for the employees who are given to them to help them to negotiate and to get their demands fulfilled. The right to strike also works in favour for the trade unions and workers union and help them get justice for the workers if there is any violation of their rights. If workers stop the work individually, it won't amount to strike whereas if bodies of person who are employed in any industry do cessation of work, then it will be considered as a strike.

The Industrial Disputes Act which talks about right to strike has an essential element for strike and i.e. Cessation of work or refusal to do any work. If there is no refusal to do the work then it won't amount to Strike. Thus, it is important to prove that there was a refusal to do the work or stoppage of work from the worker's end, that too with a common understanding, then only it would be considered as strike.

If a worker is mere absent from work it won't constitute a strike, it must have a refusal to do the act. In the case of Standard vacuum oil co. Madras v. Gunaseelam M.G[xxii], the workers of the company wanted a holiday on the occasion as they wanted to celebrate "May Day"[xxiii]. The workers of the company even requested the employers to declare it as a holiday and assured that they will compensate the loss of the work by working on one Sunday. The company did not give them a holiday on occasion of May Day and hence, they all applied for leave.

The court in this case held that there was no cessation of work or a concerted refusal to work, hence, the actions done by the workers won't be considered as a strike[xxiv].

Section 22(1) of the act states 'that no person employed in a public utility service shall go on strike, in breach of contract:

1. Without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking; or
2. Within fourteen days of giving such notice; or
3. Before the expiry of the date of strike specified in any such notice as aforesaid; or
4. During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings' [xxv].

The prohibitions mentioned under section 22(1) of the act does not state that the workmen cannot go on strike but it states that these prohibitions should be followed while going on a strike and these conditions should be fulfilled. The provisions of section 22 are mandatory and it should be specified the date in the notice on which the workmen proposed to go on strike[xxvi] [xxvii].

In case, the date of strike is expiring, fresh notice has to be given. Further held that deduction of wages for the days of illegal strike would be justified[xxviii] [xxix]. The Bombay High Court held that once the strike is held to be illegal the question of justifiability does not arise and the workmen in Public Utility service are[xxx] not entitled to seek wages for the strike period unless they prove the strike legal and justifiable[xxxi].

Right to Strike: A Legal Right or a Constitutional Right?
Globally, the right to strike is considered as a fundamental right but the constitution of India does not recognize the right to strike as a fundamental right but it only gives fundamental right to form a Union [xxxii]. In the Indian Constitution, none of the schedule among the seventh schedule talk about the right to strike. In the case of Kameshwar Prasad v. the state of Bihar[xxxiii], the court held that the strike is not a fundamental right that is given to the people. The court also stated that government employees do not have a legal or moral right to go on a strike[xxxiv].

Similarly, the Court view that right to strike is an important weapon in the armoury of employees as a mode of redress[xxxv] [xxxvi] . Right to strike is a right that is earned by the employees as form of direct action and it is given as a weapon to the people to safeguard and preserve the liberty. Right to strike is a legal right though not elevated to the status of a fundamental right[xxxvii] and there is no fundamental right for workers to go on strike[xxxviii] [xxxix].

Article 19 of the Indian Constitution enshrines that the right to protest is a fundamental right but if we talk about right to strike, it is only recognized as a legal right and not a constitutional right. According to the Industrial disputes Act of 1947, the right to strike has some restrictions and that need to be followed.

The Indian courts have observed in the case that the significance of right to strike is core of significance to the principle of collective bargaining of each worker[xl]. According to the Justice Krishna Iyer view that the strike could be legal or illegal and even an illegal strike could be justified one[xli] [xlii].

In one of the cases where right to strike was raised as major issue, All Indian Bank Employees association v National Industrial Tribunal & Others.[xliii], the Apex court of India observed and stated that: 'Even by broad interpretation of Article 19(1)(c), it cannot be held that trade unions have a guaranteed right to an effective collective bargaining or fundamental right to strike.

The right to strike or right to declare lock out may be controlled or restricted by appropriate industrial legislation and the validity of such legislation need to be tested not with reference to Clause (4) of Article 19 rather with totally different considerations.'

Are Workers Entitled to Wages During Strike Period?
In a prior Supreme Court judgement concerning wages during a strike, the court held that workers are entitled to receive their wages for the day of the strike. If the strike is legal and justifiable. In the case Management of Chitrakulam Tea Estates (P) Ltd. vs. Its Workman[xliv] and Crompton Greaves Ltd v. Workmen[xlv] It was held that the strike in these cases are neither illegal nor unjustified and further held that the factory workers are entitled to wages for that day of strike.

The Apex Court held in Bank of India v T.S. Kelawala[xlvi] that workers are entitled to wages during strike periods, but that the strike must be both legal and justified[xlvii]. Whether a strike is legal and justified is a question of fact that the industrial adjudicator must decide in each case[xlviii]. It must be both legal and justified, according to Justice Krishna Iyer, for them to be entitled to wages during the strike period. A strike is a legal strike that has been recognized as a legal right, and it is legal if the procedures outlined in the Act are followed.

If the reasons are not irrational, the strike can be justified. The courts have stated that the use of force, coercion, violence, or other forms of coercion by workers during a legal strike will deprive them of their right to wages during the strike period. As a result, it is held that resorted to by workers during a legal and justified strike would disentitle them to wages during the strike period[xlix].

The supreme court in Syndicate Bank v. K. Umesh Nayak [l], clarifies the conflict view in the Management of Chitrakulam Tea Estate Case and T.S Kelawala Case. The court emphasised that for entitlement of wages during a strike, it must be both legal and justified. The legality is determined by examining any breach of the Industrial Disputes Act, while justification involves considering factors such as service conditions, nature of demands, the cause leading to the strike, urgency, and the reason for not resorting to dispute resolution machinery.

Right to Strike by Government Servants and Employees
Whether the government servants and employees are having the right to go on strike was debated since long period. The dispute came before the Supreme Court of India in the case of T.K. Rangarajan vs. State of Tamil Nadu[li]. This case deals with the action of Tamil Nadu Government, whereby it had terminated the services of all employees who had resorted to strike for the fulfilment of their demands.

The said decision was challenged before the High Court of Madras by filing writ. Learned single judge by interim order, inter alia, directed the State Government that suspension and dismissal of employees without conducting enquiry be kept in abeyance until further orders and such employees be directed to resume duty. That interim order was challenged by the State Government of Tamil Nadu by filing writ appeals.

On behalf of the Government Employees, writ petitions were filed challenging the validity of the Tamil Nadu Essential Services Maintenance Act, 2002 and also the Tamil Nadu Ordinance No.3 of 2003. The Division Bench of the High Court set aside the interim order and arrived at the conclusion without exhausting alternative remedy of approaching Administrative Tribunal, writ petitions were not maintainable.

The petitioners came up on appeal against the said order and for the same reliefs; writ petitions under Article 32 of the Indian Constitution[lii] the petitioner approached the Supreme Court[liii].

Conclusion
The right to strike is one of the most effective tools available to workers to achieve their goals. All employees have the right to peacefully strike and make just and reasonable demands. Although it is not a fundamental right, it is protected by the Industrial Disputes Act of 1947. The Labor Court and the National Court shall deal with workers' demands for higher wages and better living conditions and cases of negligence on the part of employers under Article 11(A) of the Act.

In this case, the court acts as a balancing force between the employee and the employer, taking into account the employer's desire to increase profits and comply with both international and domestic regulations. The right to strike is discussed in this article only as a statutory right, not as a fundamental right. The reason this right is a statutory right rather than a fundamental right is the need to protect a company's interests and prevent employees from disrupting the workforce with unreasonable needs from time to time.

Consequently, the legal provisions under Article 19(1)(c) of the Indian Constitution recognize the right to form associations as the framers of the Constitution recognized the importance of maintaining peace and stability in society. However, the right to strike is not recognized. With the advent of trade unions, which protect workers from being exploited by employers because of their capital status, the right to strike has become important to protect workers from abuse by employers because of their vulnerability. It has come to be recognized as a framework.

End-Notes:

1. Right to Strike- A Legitimate Illegitimacy, STUDYDOC (accessed on Dec. 20th 2023) https://www.studocu.com/in/document/university-of-calcutta/ba-llb/1-description-is-nothing/34068316
2. Thousands of Gujarat govt employees join 'mass casual leave' stir in state over old pension scheme; The Economic Times; cited on Sep 17, 2022; https://economictimes.indiatimes.com/news/india/thousands-of-gujarat-govt-employees-join-mass-casual-leave-stir-in-state-over-old-pension-scheme/articleshow/94266555.cms (accessed on Dec. 20th 2023)
3. P.Chandrakumar vs State Crl.OP.No.2791 of 2021
4. Insights into Editorial: No fundamental right to strike, INSIGHTS ON INDIA (accessed on Dec. 20th 2023) https://www.insightsonindia.com/2021/08/07/insights-into-editorial-no-fundamental-right-to-strike/
5. Protection of certain rights regarding freedom of speech, etc, CONSTITUTION OF INDIA (Accessed on Dec. 20th 2023) https://www.constitutionofindia.net/articles/article-19-protection-of-certain-rights-regarding-freedom-of-speech-etc/
6. Adv Hemant More, Right to Strike, THE LEGAL QUOTIENT (accessed on 20th Dec. 2023) https://thelegalquotient.com/constitutional-law/right-to-strike/1627/
7. Definition Of Workman, B&B Associates LLP (accessed on Dec. 20th 2023) https://bnblegal.com/article/definition-of-workman/
8. Pritish Kishore and Maryada Sharma, Right to Strike- A Legitimate Illegitimacy, LAWYERS CLUB INDIA, (accessed on Dec. 20th 2023) https://www.lawyersclubindia.com/articles/-RIGHT-TO-STRIKE-A-LEGITIMATE-ILLEGALITY--1491.asp
9. Right to Strike- A Legitimate Illegitimacy, SCHOOL OF LEGAL EDUCATION (accessed on Dec. 20th 2023) https://www.schooloflegaleducation.com/wp-content/uploads/2019/08/1.-Right-to-Strike-5000.docxHH.pdf
10. Supra note 6.
11. Supra note 9.
12. 2, Dr. V.G. Goswami, Law of Industrial Relations in India, 212(Central Law Agency, 2011).
13. Is Right to strike a Fundamental Right?, LEXFORTI (accessed on Dec. 20th 2023) https://lexforti.com/legal-news/is-right-to-strike-a-fundamental-right/
14. Gujarat Steel Tubes v Mazdoor Sabha, 2 SCR 146 (1980).
15. Hemant More, Strikes, The Fact Factor (accessed on Dec. 20th 2023) https://thefactfactor.com/facts/law/civil_law/labour_laws/industrial_disputes_act/strikes/457/
16. Sonakshi Verma, Strikes and Lockouts, LEGAL SERVICE INDIA (accessed on Dec. 20th 2023) https://www.legalserviceindia.com/article/l455-Strikes-and-Lockouts.html
17. Section 2 (q), Industrial Disputes Act, 1947.
18. Section 22 (1), Industrial Disputes Act, 1947.
19. Uden v Schaeffer, (1920) 110 Wash. 391.
20. Parth Bindal, Right to strike, ACADEMIA (accessed on Dec. 20th 2023) https://www.academia.edu/72452790/Right_to_strike
21. Justice Pana Chand Jain (Retd.), Lawyers and the Boycott of Courts, EBCINDIA.COM (accessed on Dec. 20th 2023) https://www.ebc-india.com/lawyer/articles/95v5a3.htm
22. Standard vacuum oil co. Madras V Gunaseelam M.G, (1960) AIR Mad 288
23. Supra note 20.
24. Shikta Jain, An Analysis of Strikes in India, Volume III Issue I Indian Journal of Integrated Research in Law (IJLR) https://ijirl.com/wp-content/uploads/2023/03/AN-ANALYSIS-OF-STRIKES-IN-INDIA.pdf
25. Section 22(1), Industrial Disputes Act, 1947
26. Procedure Of Strikes in India, LEGAL RAJ (accessed on Dec. 20th 2023) https://www.legalraj.com/articles-details/procedure-of-strikes-in-india
27. Mineral Minors Union v Kudremukh Iron Ore Co Ltd, (1988) 1 lab LJ 277 (karn).
28. Vijay M Gawas, Analysis the provision for right to strike of workers under the industrial dispute act 1947 and other provisions of laws, Volume 4 Issue 5 International Journal of Law (accessed on Dec. 20th 2023) http://irgu.unigoa.ac.in/drs/bitstream/handle/unigoa/5485/Int_J_Law_4%285%29_2018_25-30.pdf?sequence=1
29. Supra note 27.
30. Supra note 28.
31. ANZ Grindlays Bank v SN Khatri and Others, (1995) 11 LLJ 877 (BOM).
32. Right to Strike, DRISHTI IAS (accessed on Dec. 20th 2023) https://www.drishtiias.com/daily-updates/daily-news-analysis/right-to-strike
33. Kameshwar Prasad v. The state of Bihar, (1962) AIR SC 1166.
34. Aryan Rakesh, An Analysis of Government Employees' Right to Strike, LAW BHOOMI (accessed on Dec. 20th 2023) https://lawbhoomi.com/an-analysis-of-government-employees-right-to-strike/
35. Supra note 8.
36. Supra note 33.
37. T.K. Rangarajan v Government of Tamil Nadu, 2003(6) SCALE 84
38. Labour Law and Right to Strike, LAW TEACHER (accessed on Dec. 20th 2023) https://www.lawteacher.net/free-law-essays/employment-law/labour-law-and-right-to-strike-employment-law-essay.php
39. [xxxix] Radhey shyam sharma v Post Master General central circle Nagpur, 1965 AIR 311
40. [xl] Andhra State Road Transport corporation employees' union v the Andhra State Road Transport, 2008 (3) ALT 173.
41. [xli] https://edurev.in/question/4429639/A-strike-could-be-legal-or-illegal-and-an-illegal-strike-could-be-a-justified-one-was-opined-by-Just (accessed on Dec. 10th 2023)
42. Gujarat Steel Tubes v Mazdoor Sabha, 2 SCR 146 (1980).
43. 162 AIR 171, 1962 SCR (3) 269.
44. AIR 1969 SC 998
45. AIR 1979 SC 1489
46. 1990 SCR (3) 214
47. Supra note 20.
48. Crompton greaves ltd v its workmen, 1978 AIR, SC 1489.
49. Dipankar Banerjee, 'An Analysis of Right to Strike under the Industrial Dispute Act, 1947', Volume III Issue II, Indian Journal of Law and Legal Research. Available at: https://www.ijllr.com/post/an-analysis-of-right-to-strike-under-the-industrial-dispute-act-1947 (accessed on 22nd Dec 2023).
50. AIR 1995 SC 319
51. (2003) 6 SCC 581
52. https://main.sci.gov.in/judgment/judis/19215.pdf (accessed on 22nd Dec 2023).
53. Dr. Etamena Venugopal, 'Trade Unions and the Law of Strikes in India'. Available on: https://www.worldwidejournals.com/global-journal-for-research-analysis-GJRA/article/trade-unions-and-the-law-of-strikes-in-india/MTE4Njk=/ (accessed on 22nd Dec 2023).

Written By: Geetika Rathore, a student of B.A. LL.B. at S.S. Jain Subodh Law College, Jaipur.