The 18th and 19th centuries witnessed the dominance of a laissez-faire economy, where government oversight in commercial activities and relations between employers and employees was minimal or even absent. This allowed employers to dictate the terms of the employer-employee relationship, often resulting in exploitative conditions. The advent of socialism marked a shift as the government began actively intervening to protect workers' rights. Simultaneously, workers began to unite, leading to the formation of trade unions. These unions engaged in collective resistance against unfair employment practices, leading to the development of the bipartite method of collective bargaining to jointly establish rules and norms for employer-employee interactions.

However, the success of collective bargaining depended on the balance of power between the involved parties. Over time, these parties started withholding information, breeding mistrust and giving rise to industrial conflicts often accompanied by pressure tactics. Consequently, industrial conflicts became a significant issue in the post-industrialization period, with strikes being the most visible symptom. It's essential to recognize that strikes have been a part of labour disputes since the early days of work itself, and they were not exclusive to the post-industrialization era.

Strikes have often brought about challenges and inconveniences for the larger public. In the context of India, these disruptions have not only tested the patience of the public but have also raised concerns within the legal system. In a notable case the Supreme Court upheld a Kerala High Court ruling that condemned the practice of declaring and enforcing a bandh by any association, organization, or political party as illegal and unconstitutional.

This particular legal decision drew a sharp distinction between a bandh and a general strike, underscoring the unique implications of each. According to the Kerala High Court's interpretation, a bandh signified a comprehensive shutdown, implying that all activities should come to a complete standstill on the specified day. This decision, however, didn't have a direct impact on traditional strikes. Instead, it placed a ban on political parties declaring a bandh, effectively curbing this form of protest. While the ban on bandh and strikes are not identical, they both involve restrictions on the right to engage in protest activities.

In a separate development, when government employees in Tamil Nadu resorted to a strike, the Supreme Court made a sweeping assertion by stating that "government servants have no right, whether it be a fundamental, statutory, or moral right, to go on strike." This unequivocal statement generated significant pushback and protest from various trade union federations. In light of this judgment and other contemporary developments, it becomes imperative to delve deeper into the legal provisions surrounding strikes and their implications for the rights and interests of industrial workers.

Understanding these legal aspects is crucial not only for labor unions but for society at large, as strikes have historically been a powerful tool for workers to voice their grievances and advocate for better working conditions. The delicate balance between the right to strike and its impact on public welfare remains a critical issue that needs careful consideration and discussion in the context of labor rights and legal regulations.

Strike: Meaning and Definition

A strike is the act of a group of individuals ceasing work with the intent to apply pressure on other individuals or entities to fulfil certain demands. While this may seem straightforward, a strike is a highly intricate phenomenon due to its various causes, repercussions, and the actions it involves. Strikes are recognized as a potent means of economic coercion, as they involve the withholding of labor until improved employment terms and conditions are granted. It serves as a versatile tool employed to break away from monotonous work, express dissatisfaction with the treatment of colleagues, or advocate for worker benefits. Consequently, when workers go on strike, their objective is to halt production and compel producers to concede to improved terms and increased rights.

From a legal point of view the Industrial Disputes Act, 1947 defines strike as:
"A cessation of work by a body of persons employed in any industry acting in combination, or an understanding of any number of persons who are or have been so employed to continue to work or to accept employment."

The definition emphasizes that individuals involved in a strike should be employees working in any industry, and the target of the strike must be an employer. The essential characteristic of a strike, as clarified by this definition, is the collective effort of the strikers to either refuse work or decline job offers based on a shared understanding. This collective action can be either premeditated or spontaneous, occurring in the moment. Additionally, this definition stipulates that such concerted action should lead to an actual halt in physical work. The duration of this action, however, is not a relevant factor.

Right to Strike: Global Perspective

The strike has been a longstanding tool wielded by laborers in their conflicts with employers. Workers faced a challenging and protracted process to gain recognition and legitimacy for the strike, especially in the face of common law doctrines present in the Combinations Act of 1799 and 1800 in the United Kingdom, which imposed restrictions on both trade unions and strikes. Similar prohibitive regulations were also in effect in the United States. Over time, the working class diligently campaigned at national and international levels to establish the strike as a lawful and accepted instrument in their struggles.

The United Nations-approved Universal Declaration of Human Rights affirms fundamental human rights, including the freedom to work, reasonable compensation, leisure time, decent housing, and social benefits. It also emphasizes how important it is to be able to join unions in order to further one's own goals. The International Covenant on Economic, Social, and Cultural Rights, which was ratified by the UN General Assembly in 1966, also significantly incorporates the right to strike. Specifically, India has ratified and endorsed this Covenant.

Furthermore, India, a founding member of the International Labour Organization (ILO), has endorsed various ILO conventions. However, it has chosen not to ratify Convention Nos. 87 and 89, which pertain to "freedom of association and the protection of the right to organize and engage in collective bargaining", respectively. These conventions not only guarantee the rights of organization and collective negotiation but also indirectly permit workers the right to strike. Moreover, these conventions extend these rights to government public servants and members of the armed forces, subject to the legal restrictions established by member countries.

This complex legal landscape raises questions about the status of the right to strike in India and its alignment with international norms. It also prompts an examination of the implications of India's stance regarding these international agreements and conventions on the right to strike and alternative mechanisms for dispute resolution. Despite our self-proclamation as the world's largest democracy and our possession of a distinctive and highly regarded Constitution renowned for its value, flexibility, and eminence, we have not succeeded in enshrining vital human and democratic rights such as the right to engage in collective bargaining and the right to strike within our constitutional framework. Surprisingly, even smaller and politically less significant third-world nations have included these rights in their constitutions. Notably, our neighboring countries like Pakistan and Bangladesh, often characterized as nations grappling with military rule or flawed democracy, ratified Conventions 87 and 89 quite some time ago.

However, the ILO "Declaration on Fundamental Principles and Rights at Work" made at the 86th Session in June 1998 states that:
"All Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those conventions."

Consequently, India, as a signatory that has ratified those Conventions and covenants, is obligated to acknowledge and ensure the rights to collective bargaining and striking, even for individuals within the government administration, armed forces, and police, albeit with certain lawful limitations it may impose. However, these restrictions should not be so severe as to completely deprive these individuals of the rights that are guaranteed and well-deserved.

Right to Strike: Indian Perspective

The concept of recognizing the right to strike as a fundamental right is rooted in Article 19(1)(c), which grants citizens the fundamental right to establish associations or unions. However, Clause 4 "empowers the state to curtail the right granted in the interest of the country's sovereignty and integrity." This means that citizens can exercise the rights guaranteed under Article 19 as long as it doesn't have an adverse impact on others or public interest. Consequently, Article 19 encompasses the principle of limiting the state's authority concerning its citizens' rights.

The constitutional assurance of freedom of speech, expression, and association gives rise to a pertinent query: Does the Constitution acknowledge the right to strike? In simpler terms, is the right to establish an association inclusive of the right to strike? This discourse can be approached through both theoretical and legal lenses. The theoretical examination is rooted in the literature, shedding light on the historical development of trade unions and the goals they are intended to achieve. Conversely, the legal interpretation is drawn from the rulings delivered by the High Courts and the Supreme Court within the country.

Trade unions have emerged in response to the exploitative practices of employers, as individual employees often find themselves in a disadvantaged position when negotiating with their employers. Therefore, the primary goal of trade unions is to replace individual bargaining with collective bargaining. Collective bargaining relies on a delicate balance of power between the involved parties. Employers and employees exercise their power through the threat of withdrawal from negotiations if they fail to reach an agreement.

This withdrawal threat is a means to compel the other party to make concessions. For trade unions, the threat of a strike serves as a valuable tool to compel employers to engage in bargaining. Without this leverage, collective bargaining cannot be considered a fair balance of power and instead becomes akin to collective pleading.

The concepts of collective bargaining, freedom of association, and the right to strike have been acknowledged through a lengthy history of struggles worldwide. In the context of modern welfare states, collective bargaining has been widely accepted as the most effective method for establishing employment conditions. Consequently, numerous European countries have enshrined the right to strike as a fundamental right within their respective constitutional frameworks.

The judicial position prior to the T.K. Rangarajan v. Government Of Tamil Nadu case, as articulated by the Supreme Court in several of its previous judgments, maintained that the right to strike was not to be regarded as a fundamental right. The Supreme Court conducted a thorough examination to determine "whether the right to establish a union inherently encompassed the related rights of collective bargaining and the right to strike". In another case, the Court rejected this perspective and pronounced that "upon reviewing Article 19(1)(c), we have concluded that even an exceptionally broad interpretation of sub-clause (c) of Clause (1) of Article 19 does not guarantee trade unions the right to effective collective bargaining or the right to strike, whether as a component of collective bargaining or otherwise."

Furthermore, in the case of Radheshyam Sharma v. Post Master General, Nagpur, the Supreme Court, while referring to British Law, noted that "according to Hapsburg's law of England, the right to strike, or the right of a citizen to refrain from work, as long as they do not breach any contractual, tortious, or criminal obligations, is considered a significant liberty of a British citizen, akin to a fundamental attribute." In the framework of our Constitution, the right to engage in a strike is not categorized as a fundamental right, however, it may be acknowledged as a legal or statutory right.

The Court declared that "even though the right to strike is not elevated to the status of a fundamental right, it is acknowledged as a method for addressing workers' grievances." Therefore, it is evident that the right to strike is not deemed a fundamental right. The right to association can be extended to encompass the right to engage in protests and demonstrations, as long as it does not disrupt public order.

Right to Strike: Whether A Legal Right

An examination of the mentioned issue reveals that, up until the 1920s, there were no statutory laws in the country specifically addressing strikes, as such occurrences were relatively rare. The prevailing conditions considered the withholding of labor to be both a breach of contract and a criminal offense. However, after the conclusion of the First World War, there was an upsurge in industrial strikes, and there was a growing public sentiment in favor of legitimizing the establishment of labor unions.

As a result, in 1926, the Indian Trade Union Act was passed, which represented the initial indirect recognition of the right to strike by legalizing specific actions carried out by registered trade unions as part of the process of resolving trade-related conflicts. Consequently, the Indian Trade Unions Act conferred the right to strike, which would otherwise have been considered a breach of common law and subject to legal consequences.

While the right to strike was granted, there was also an awareness of the need to curb frequent strikes and prevent the misuse of these provisions. The Industrial Disputes Act of 1947 was designed with this objective in mind. It established specific conditions under which workers could engage in strikes, thus distinguishing between lawful and unlawful strikes. Section 22 established a set of regulations that workers in public utility services must adhere to when declaring a strike. Moreover, Section 23 instituted a comprehensive ban on strikes (as well as lockouts) in all workplaces while conciliation, arbitration, and adjudication processes were underway, along with the duration when agreements and judgments were in effect.

As previously mentioned, in several cases, the judiciary has affirmed that workers do not possess a fundamental right to initiate a strike; however, they do possess a legal entitlement to engage in striking. A few of these decisions also recognize that they have the option to strike when the circumstances call for it. Furthermore, under some conditions and even when evaluated by conventional measures, strikes have been recognized as a legitimate way for employees to express their complaints. Furthermore, the Supreme Court has recognized that a strike is a legitimate and occasionally necessary instrument in the hands of labor unions.

The courts have not only evaluated whether strikes are lawful but have also taken the rationale behind them into account. In one instance, the Supreme Court asserted, "It is somewhat challenging to comprehend how a strike in the context of a public utility service, which is clearly illegal, can simultaneously be deemed entirely justified. These two conclusions cannot coexist under the law."

However, in a later case, the Court adopted a distinct perspective, distinguishing between the legality and justifiability of a strike in the following manner:
"This Court did acknowledge that if a strike is illegal, it cannot be considered entirely justified... (but) between a strike that is completely justified and one that is unjustified, there is a considerable gap... The mere illegality of the strike does not automatically render it unjustifiable." Nonetheless, the Supreme Court cautioned against hasty and impulsive actions by both workers and employers that could lead to industrial disorder and turmoil. The parties were advised to use their legitimate means of striking or locking out sparingly.

Impact and Implications on the Indian Labour Market

One of the most important aspects of labor rights is the ability for workers to go on strike in order to collectively voice their complaints and demand better pay, benefits, and working conditions. In India, this right is enshrined in the Industrial Disputes Act of 1947, but its exercise has significant impacts and implications on the labor market.

Strikes can disrupt economic activities, particularly in industries heavily dependent on labor, such as manufacturing and services. While they can lead to short-term losses in productivity and revenue, they also serve as a critical tool for workers to negotiate fairer terms with employers, thereby contributing to long-term improvements in labor conditions. However, the frequent use of strikes can lead to a volatile labor market, deterring investment and leading to job insecurity.

On the legal front, the right to strike in India is subject to various restrictions, including the need for prior notice in public utility services and adherence to certain procedural requirements. These limitations often spark debates about the balance between maintaining industrial peace and protecting workers' rights. Furthermore, the increasing trend towards informal employment, where workers lack union representation, has weakened the effectiveness of strikes, highlighting the need for stronger labor protections.

Labor strikes in India have far-reaching impacts across multiple dimensions of the economy and business operations. One of the most significant consequences is economic disruption. When a strike occurs, it can severely disrupt the economy by slowing down business activities, reducing production, and causing financial losses for companies. This economic disturbance can lead to a slowdown in the growth of the company, and in extreme cases, push the company into financial losses or even liquidation.

Strikes also result in income loss, not just for the company but for employees as well. Prolonged strikes can cause severe financial strain, leading to reduced salaries, layoffs, or even permanent shutdowns. The reduction in production due to a lack of labor activity is another critical issue, as companies may be forced to scale back operations, further aggravating the financial losses and affecting the overall performance of the business.

Moreover, strikes can strain the relationship between management and workers, leading to conflicts that harm the company's internal dynamics and external reputation. Poor labor-management relations can tarnish the company's image, reduce productivity, and damage its market standing. The impact of strikes also extends to public relations. Negative publicity can arise when consumers become aware of ongoing labor disputes, potentially leading to a decline in consumer loyalty and sales. The negative perception created by strikes can erode customer trust and decrease the company's market share.

Political pressure is another dimension affected by strikes. Strikes often draw the attention of the government and can lead to political intervention, as authorities may feel compelled to address the grievances of workers and resolve disputes. This pressure can complicate the situation further, adding another layer of complexity to the issue. Finally, strikes can fracture the unity among workers, particularly when there is disagreement within the labor force about the strike itself. Disunity can weaken the collective bargaining power of workers, making it more challenging to achieve their demands and maintain solidarity in future negotiations.

Overall, strikes have a multifaceted impact on the economy, business operations, labor relations, and public perception, making them a powerful yet potentially destructive tool in labor disputes.

Public Employees and Right to Strike

Employees of the public sector can be classified into three main groups: (a) those working in central, locally based government administration, which includes municipalities; (b) those employed by publicly owned utilities, services, or organizations; and (c) those working for commercial, agricultural, and industrial enterprises where the government owns all or a large portion of the assets, which includes nationalized enterprises. Nevertheless, objections have been raised against granting public employees the rights to unionize and strike, primarily based on the argument that they wield sovereign authority, are accountable to the electorate, rely on public funds, and provide some services of an essential nature.

Recognizing the challenges associated with interpreting and applying the provisions of Convention No. 97 to public servants and noting that certain governments had interpreted these provisions in a way that excluded a significant number of public employees, the ILO introduced Convention No. 151 which is primarily focused on safeguarding the right to establish labor organizations and establishing mechanisms for defining employment conditions within the public sector. However, it does not expressly acknowledge the right to strike for public employees

The ILO's two governing organizations, the committee on Freedom of Association and the committee of Experts, have developed a core belief that employees who operate as "agents of public authority," or who maintain authority on behalf of the State, do not have the right to strike. Therefore, despite the fact that typically employees who do not represent the public can strike, if they work in vital sectors of the economy, they must be protected from this rule. However, both the committees have held that those for whom the right to strike has been frozen, some form of compensatory guarantee would have to be extended by the government ensuring adequate, impartial and speedy dispute resolution procedure in which the parties can participate freely.

The position of the public employees in India is precarious. Though convention No. 87 and 89 have been not ratified, the collective effort of government personnel is referred to as an association because the Trade Unions Act, 1926, at least grants the legal right for workers employed in trade or industry to organize unions. In order to maintain control over the associations, the government even goes so far as to require that the associations' constitutions be approved in advance. The associations seldom have any room or function for collective bargaining as the salary Commission and political process set the salary and service conditions.

Further, the Civil Service Rules, which govern the employment conditions, prohibit the government employees from striking. In spite of the restrictions under the Rules, different sections of government employees have resorted to strike and the government (both state and the Union) on occasions have made use of the Essential Services Maintenance Act, 1947 to deal with the situation.

There are justifications both supporting and opposing public employees' ability to strike. Article 19- which permits the formation of associations—is cited in defences of the right. The most efficient way for associations to protect the liberties and advantages of its members is through collective bargaining. To ensure the effectiveness of collective bargaining, the right to strike is necessary.

Thus, the freedom of association encompasses the right to strike through intermediaries. The argument used against the right is that the public employee strike is interfering with the state's sovereignty. The strike by public employees is also seen as a civil uprising, a political protest, and a challenge to the status quo. The government workers who make up the backbone of the government apparatus facilitate the efficient operation of the same. Therefore, in order to maintain order through democratic government processes, strikes are prohibited for public employees.

Despite the restrictions the government employees do go on strike, on occasions when they have only this course of option if the government fails to function as an ideal employer by denying or delaying the benefits and services due to them. In addition, the government can implement many things through administrative orders. Additionally, if other nonviolent means fail to address the issue and the employees believe it negatively impacts their interests, they are left with little choice but to protest.

Furthermore, given the common tendency for more attention to be paid to outspoken individuals, the government tends to react more swiftly to actions rather than reasoned and rational discourse. Hence, denying the right to strike to the public employees has served no purpose. It is high time that the government should reserve the restrictions imposed under the Civil Service Rules with the exclusion of some services.

Conclusion and Suggestions
A narrow interpretation of the Supreme Court's ruling in the case of T.K. Rangarajan vs. Government Of Tamil Nadu could be construed as a restriction on the right to strike for government employees. However, such a decision by the country's highest court can have far-reaching consequences, prompting trade unions across political lines to react to the decision. From a legal perspective, employees working in industrial establishments possess the right to initiate a lawful strike, provided they adhere to the stipulations outlined in the Industrial Disputes Act, 1947. This right is also acknowledged as an integral component of the collective bargaining process.

The current ruling forbids strikes, but it makes no mention of lockouts, which are actions taken by employers as part of collective bargaining against their employees. Since there are currently more man-days lost from lockouts than from strikes, this is especially pertinent in the present context.

Further, the government or the management as employers to do something need not have to protest but to do it through administrative diktat. But the workers in order to change or achieve something have to protest. Under these circumstances if the right to strike is withdrawn, it will be a serious blow to the right to protest of the workers. The judgement of the Supreme Court in the Tamil Nadu case may be considered as a part of a sequence of similar judgements. First it was in 1998 that the Supreme Court upheld a decision of the Kerala High Court which banned bandhs. Next is the Tamil Nadu case, which banned the strikes. In recent past the Calcutta High Court banned rallies and processions on the ground of causing nuisance and inconvenience to the public. The division bench has stayed the ban on processions and rallies on weekdays.

In all the above cases the points raised were public inconvenience and 'the right of a minority cannot sacrifice the right of a majority.' However, the nation already has a sufficient number of laws to handle events involving strikes or bandhs and prevent disorder. Hence, it is the failure of the administration to control the situation and for the same can it be considered a ground to say that one cannot exercise one's right to protest? It can also be seen that the Supreme Court has taken different views for different sections of the same issue.

In the T.K. Rangarajan vs. Government Of Tamil Nadu case, the court ruled that employees do not possess a legal, fundamental, or ethical entitlement to engage in strikes. Previously, the court had also determined that lawyers lacked the right to strike. However, in a parallel case where judges from the Punjab and Haryana High Court collectively took a day of casual leave and a Public Interest Litigation (PIL) was filed, the court decided that the prohibition on strikes did not apply to Constitutional Legal Functionaries.

In conclusion, the right to strike remains a significant tool for ensuring workers' rights and negotiate for fair and equitable treatment in the workplace and the same should be recognized well. However, its exercise should be approached judiciously, respecting the legal framework in place and seeking alternative dispute resolution methods whenever possible. Balancing the meeting the demands of companies, staff, and the community in general is essential to maintain the delicate equilibrium between labor rights and economic stability.

References:

1. Avtar Singh and Harpreet Kaur, INTRODUCTION TO LABOUR AND INDUSTRIAL LAWS I, 1st ed. 2022, Lexis Nexis
2. Anish Goel, "The Curious Case of Right to Strike Under the Indian Constitution - A Comparative Perspective", SOCIAL SCIENCE RESEARCH NETWORK.
3. B. P. Rath and B. B. Das, "Right to Strike", Indian Journal of Industrial Relations, Vol. 41 No. 2 2012, p. 248 - 260.
4. ILO Declaration on Fundamental Principles and Rights at Work, 1998.
5. Communist Party of India V. Bharat Kumar 1998(1) SCC 202.
6. T.K. Rangarajan vs Government Of Tamil Nadu & Others, 2003 SCC (L&S) 970.
7. D. N. Banerji vs P. R. Mukherjee, AIR 1953 SC 58.
8. India Bank Employees' Association V. National Industrial Tribunal 1962 AIR 171.
9. Radheshyam Sharma V. Postmaster General Manager AIR 1965 SC 311.
10. BR Singh and others V. Union of India (1989) 4 SCC 710.
11. Kameshwar Prasad V. State of Bihar 1962 SC 1166.
12. Mallikarjuna Sharma, "Right to Strike", Journal Of The Indian Law Institute, Vol. 46 No. 4 2004, p. 522-533.
13. Jorge Andrés Leyton García, "The Right to Strike as A Fundamental Human Right: Recognition and Limitations In International Law", Revista Chilena De Derecho, Vol. 44 No. 3 2017, p. 781 - 804.
14. Douglas A., "Some Methodological Aspects of Strike Statistics", THE AMERICAN POLITICAL SCIENCE REVIEW, Vol. 70 No. 4 1976, p. 1033 - 1058.
15. B. S. Rao, "Current Trends in CSR Across the Globe with Special Reference to India", Indian Journal of Industrial Relations, Vol. 20 No. 4 1985, p. 481 - 490.
16. Mohini Singh, "An Analysis of Workmen's Right to Strike Under Industrial Disputes Act, 1947", Journal Of Applicable Law & Jurisprudence, Vol. 1 No. 1, 2022.

Written By: Devanshi Bang, 4th year BA.LLB (hons) - Maharashtra National Law University Nagpur
Ph no.: 9462296411