"Workers of the world unite; you have nothing to lose but your chains."- Karl Marx

Although India is the world's largest democratic country and has the world's longest constitution, it lacks basic democratic rights of the citizen such as the right to effective collective bargaining and the right to strike since they're not explicitly covered under the Indian Constitution. It is crucial to understand the definition of strike in order to ascertain whether or not the right to strike is a fundamental right under Article 19(1)[1] of the Indian Constitution.

The term "strike" is derived from the Greek phrase "strican to go," which means "to quit, hit, or impress in the event of a trade dispute." It is the most impactful and last recourse for workers to obtain economic justice. Strike has taken on multiple definitions around the world, and most countries have granted employees the right to strike.

A strike is a stoppage of work by employees to compel their employer to acknowledge their demands. Strikes are the worker's last recourse when no other productive alternative remains to ensure that their demands are fulfilled. It is done by workers with a view of improving their wages or conditions, or giving vent to a grievance or making a protest about something or the other, or supporting or sympathizing with other workers in such endeavour.[2] It places the employer under pressure to perform according to the desires of the employees. Strikes are essentially a tool used by workers to make sure that their demands are met.

The Industrial Disputes Act of 1947 specifies the components of a strike as follows:

1. The employees must be hired in an industry.
2. There must be a work stoppage or denial to perform tasks.
3. Coordinated Action, or the stoppage of work by employees, must be done in accordance with a shared understanding.
4. The stoppage should be the outcome of a labour dispute.
5. The existence of a contract of employment.

The definition of the term 'strike' has been undergoing constant transformation around its basic concept, i.e., putting off work by workmen in their economic struggle with capital.[3]

The Indian economy can't manage frequent disruptions in the form of strikes. The nation and its economic system necessitate an increase in output. Strikes will cause conflict and aggravate tensions between both the employer and the employees. Strikes have the ability to infringe the nation's law and order. India cannot afford to have regular shutdowns due to strikes because it will stifle the country's economic growth and development.

Right To Strike Under Industrial Dispute Act, 1947

In the Pre-independence era, there was no law governing industrial dispute, but after the enactment of Industrial Disputes Act, 1947, the right to strike began to gain recognition. However, the Industrial Disputes Act recognised the situations in which a strike can be considered as illegal[4]. The act recognizes the right to strike only in industries, with the word "industry" being widened to include hospitals, educational institutions, clubs, and government departments.

Strike is defined under section 2(q)[5] of the Industrial Disputes Act, 1947. According to this section, strike means "cessation of task by a body of people hired in any industry acting in pairing, or a coordinated refusal, or a refusal, under a shared understanding of any number of individuals who were formerly so employed to continue working or accept employment."

The right to strike is a statutory right in India guaranteed under Sections 22[6], 23[7], and 24[8] of the Industrial Disputes Act, 1947.

Section 24 distinguishes between "legal strikes" and "illegal strikes". Sections 22 and 23 of the Act don't prohibit strikes but put a certain limitation on them. As per section 22, in order for a strike to be legal the workers must follow certain conditions, i.e., a strike can't be resorted to:

• Failing to give the employer a strike notice six weeks before the strike
• Within a minimum of 14 days of giving such a notice, or
• Before the expiration of the strike date mentioned in any such notice as aforementioned
• During the pendency of any conciliation proceedings before the conciliation officer and for seven days after such proceedings have concluded.

If the workers give the employer a strike notice in accordance with the above conditions, the notice is considered validly served, and the workers' strike is lawful.

Furthermore, whether or not a strike is justified largely depends on the facts of each case. For instance, strikes resorted to in relation to wages, bonus, D.A., gratuity, provident fund, leave, and a holiday are justiciable.[9]

The court stated in Gujarat Steel Tubes v. Its Mazdoor Sabha[10] that a strike can be both legal and illegal, and that even an illegal strike can be legitimised. As a result, it is the Court's responsibility to decide whether a strike is lawful.

The right to strike and the right to collective bargaining are two sides of the same coin. The right to strike is a weapon in the hands of workers which enables them to bargain for a healthy workplace and higher wages, etc. Collective bargaining would be effective only if Trade Unions were granted the right to strike.

Right To Strike Under Indian Constitution

The Indian constitution does not recognise the right to strike as a fundamental right. When the Industrial Disputes Act of 1947 took effect, strikes were acknowledged as a statutory right. It recognised the right of workers to strike as well as the right to lockout.

Although a strike is an adapted form of protest, Article 19(1) does not include the fundamental right to strike but does include the fundamental right to protest, and the right to form associations and trade unions.

In a large democratic nation like India, with a large range of economic transactions and a well-developed industrial sector, policies for the welfare of its citizens involved are essential, as stated in Article 38[11] of the Constitution. The people working in the Corporate sector, including private and public companies, industries, and so on, should be prioritised, and their rational demands, such as subsistence wages, working time, personal hygiene, and so on, should be met. Article 19(1)(c) may grant them the right to form associations and trade unions, but it is insufficient. In some situations, the workers go on strike in order to compel the employer to meet their demands.

According to Article 19(1)(c)[12] of the Indian Constitution, Indian citizens have the right to freedom to form associations or unions[co-operative societies]. While as per Article 19(4)[13], reasonable restrictions can be imposed on Article 19(1)(c) on the following grounds:

1. In the interests of the sovereignty and integrity of India, or
2. In the interests of public order or morality.

The rights guaranteed under Article 19 are not absolute rights, and are subject to reasonable restrictions. The limitations can be procedural or substantive, but both must pass the reasonableness test. The Court will decide whether a restriction is reasonable or not.

It was decided in the case of All India Bank Employees Association v. National Industry Tribunal[14] that "even a very liberal interpretation of Article 19(1)(c) of the Indian Constitution cannot lead to the conclusion that trade unions have a constitutional right to collectively bargain in an effective way or to strike as part of the collective bargain or otherwise."

In the case of B.R. Sing v. Union of India,[15] it was observed that the "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[16].

The right to strike is recognised as a legal right with its own set of restrictions under the Industrial Disputes Act of 1947. The Trade Unions Act of 1926 emphasises that trade unions can also carry out their operations peacefully[17]. Moreover, the act recognises the right to strike and grants trade unions protection under Section 19. However, the Industrial Disputes Act of 1947 differentiates between legal and illegal strikes.

The International Labour Organization necessitates that employees have the right to organise and bargain collectively. However, there are no explicit laws regarding the right to strike. The ILO Committee of Experts has deemed this right to be an essential component of the right to organise. Excluding the right to strike, India has implemented and encouraged nearly all of the principles encapsulated in these two conventions.

The Universal Declaration of Human Rights, 1948 provides for the protection of workers' interests. They have the right to establish trade unions and associations. The International Covenant on Economic, Social, and Cultural Rights of 1966 also recognises the right to strike as long as it is in accordance with the laws of the member states.

Even in the United States, the National Labour Relations Act of 1935 guarantees the right to strike in order to bargain for improved working conditions and pay, health and hygiene, and so on. However, the aforementioned right has received no such recognition in India where it is simply a legal right.

Judicial Interpretation On The Right To Strike

Through a sequence of court rulings, the Indian judiciary emphasised the legality or illegality of strikes but did not enforce a ban on the right to strike.

In Kameswar Prasad v. State of Bihar[18], the Court stated, "The rule in so far as it forbids a strike cannot be quashed because there is no fundamental right to resort to a strike."

The Supreme Court ruled in Crompton Greaves Ltd. V. Its Workmen[19] that strike is a legal weapon available to workers. The facts and circumstances of the particular case will determine whether or not the strike is justified. The court has also stated that an illegal strike can be justified in some cases. The court ruled in Indian Express Newspapers Bombay Pvt. Ltd. v TM Nagarajan[20] that workers can undergo peaceful strikes to compel their employer to meet their demands.

It was held in the case of B.R. Singh v Union of India[21] that it is critical for a trade union to have an adequate membership, which can be obtained through agitation methods such as strike, go slow, and so on. It was also determined that striking is an absolute right that safeguards workers' liberty. In a recent Supreme Court decision on the subject, it was determined that the right to strike is a legal right rather than a fundamental right.

In T.K. Rangarajan v. Government of Tamilnadu and Ors.,[22] the court stated that government employees have no legally or morally right to strike. Our judiciary recognises that a strike is a weapon used by employees against their employers, forcing the employer to consider the employees' viewpoint and accept their demands.[23] The judiciary believes that a strike is legal if the scenario is just and reasonable, and if the strike does not contravene any statutory provision.[24]

Workers should not abuse this right and make a nuisance of themselves because it will lead to maladministration. When workers in the transportation industry go on strike, the entire nation comes to a halt. Students suffer when workers in educational institutions go on strike. Patients suffer when medical professionals go on strike. The right to strike is absolute, not relative.

The Supreme Court has ruled that workers have the right to strike peacefully. However, the demands they make should be legal. In a case, Justices Krishna Iyer and PN Bhagwati ruled that a strike can be illegal or legal and that even illegal strikes can be justified in some cases.

It is a social justice principle that has been well-recognised by industrial jurisprudence. Employees have the same legal right, and they can go on a peaceful strike to negotiate their demands with their employer. The Industrial Disputes Act differentiates between legal and illegal strikes. As a result, it can be stated that a strike is legal and justified if all of the requirements listed in 22 and 23 are met.

Constitutional Provisions Concerning The Right To Strike:

1. Even for the armed forces and police, where discipline is the most essential criterion, the fundamental right to form an association can be limited under Article 19(4) in the interest of public order and other factors.
2. Under Article 33 of the Constitution, Parliament has the authority to limit or revoke the rights of members of the armed forces or forces charged with maintaining public order in order to ensure the proper discharge of their duties and the maintenance of discipline among them.
3. The Industrial Disputes Act of 1947 established strike as a statutory right in India.
4. The right to strike is not expressly recognised in the Indian Constitution. The Supreme Court ruled in Kameshwar Prasad v. The State of Bihar, 1958 that striking is not a fundamental right. Employees of the government have no legal or moral right to strike.
5. In Delhi Police v. Union of India (1986), the Supreme Court upheld the restrictions to form association by the members of the non-gazetted police force after the Police Forces (Restriction of Rights) Act, 1966, and the Rules as amended by Amendment Rules, 1970, came into effect.
6. While the right to freedom of association is fundamental, recognition of such association is not a fundamental right.
7. Parliament can by law regulate the working of such associations by imposing conditions and restrictions on their functions, the court held.
8. In K. Rangarajan v. Government of Tamil Nadu (2003), the Supreme Court held that the employees have no fundamental right to resort to strike.
9. Further, there is a prohibition to go on strike under the Tamil Nadu Government Servants' Conduct Rules, 1973.
10. Also, there is no moral or equitable justification to go on strike. The court said that government employees cannot hold society to ransom by going on strike.

International Law On The Right To Strike

Employees must have the right to organise and bargain collectively, according to the International Labour Organization. However, there are no express provisions regarding the right to strike. However, the ILO Committee of Experts has deemed this right to be indispensable and an essential component of the right to organise. Except for the right to strike, India has implemented and promoted almost all of the principles embodied in these two conventions. The right to strike is emphasised in the ILO's preamble as an essential component of collective bargaining.

The Universal Declaration of Human Rights, 1948 protects the interests of workers. They are free to form trade unions and associations. And the right to strike is a logical extension of their constitutional right to form associations. The International Covenant on Economic, Social, and Cultural Rights of 1966 also recognises the right to strike as long as it is in accordance with the laws of the member states.

Even in the United States, the National Labour Relations Act of 1935 guarantees the right to strike in order to bargain for better wages and working conditions, health and hygiene, and so on. The 14th Amendment to the US Constitution has even been read by the US Supreme Court. The English judiciary has been very supportive of the right to strike. They have recognised the aforementioned right as justiciable.

Lord Denning believed that a strike was the last resort and that it had emerged as an inherent right of the worker, forming the essence of collective bargaining. Article 253 of the Constitution empowers the Parliament to ratify international conventions, treaties, and other agreements. Even though India has ratified an obligation to accept international labour law, it has yet to recognise the right to strike as a fundamental right in India.

Conclusion
The history of labour's struggle is a growing demand for a reasonable return on labour conveyed in various forms, such as (a) wage increases, (b) resistance to wage decreases, and (c) allowances and benefits, among others. If a worker tries to achieve these gains on his own, he will fail due to his lower bargaining power; however, management with a better economic background will be able to dictate its terms. Strikes are an important tool in the hands of labour for increasing bargaining power.

The right to strike has been recognised by the Indian judiciary as both a legal and statutory right. Strikes are an essential component of wage bargaining in the industrial economy. The Trade Union Act of 1926 granted some limited strike rights. It was eventually made a statutory right under Section 22 of the Industrial Disputes Act of 1947. Citizens have the right to form associations and trade unions under Article 19(1)(c) of the Constitution. However, the right to strike is an ancillary right. The right to form associations will be feeble and illusionary if it is not granted.

Article 51(c) of the Indian Constitution requires the state to respect international law and treaties, and Article 253 requires such international laws and treaties to be authorised by the Indian parliament. All international laws and conventions, such as the International Labour Organization and the Universal Declaration of Human Rights, 1948 include the right to strike in their fundamental structure.

Despite the fact that all international labour conventions state that the right to strike is at the heart of collective bargaining, India has paid no attention to such conventions. Even the courts have failed to recognise the dynamic transformation of the right to strike. 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.

End-Notes:

1. INDIA CONST. art. 19.
2. Lexis Nexis, Halsbury's Laws of England, 4th edition, Vol. 47 (469)
3. 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, ISSN: 2455-2194, IJL, 25-30, September 2018.
4. Industrial Disputes Act, 1947 Sec. 22.
5. Industrial Disputes Act, 1947, Sec. 2 (q).
6. Prohibition of strikes and lock-outs
7. General prohibition of strikes and lock-outs.
8. Illegal strikes and lock-outs
9. Swadesi Industries Limited v. Its workmen, 1960 II LLJ 78 (SC)
10. (1990) Lab IC 389 SC
11. INDIA CONST. art. 38.
12. INDIA CONST. art. 19(c).
13. INDIA CONST. art. (4).
14. AIR 1962 SC 171
15. 1990 AIR, 1 1989 SCR Supl. (1) 257
16. Radhey shyam sharma v. Post Master General central circle Nagpur, 1965 AIR 311; 1964 SCR (7) 403
17. Indian Express Newspapers (Bombay) Pvt.ltd. v. T.M. Nagarajan, 1987 (15) DRJ 212; 1988 LablC 1067; 1988 RLR 194
18. 1962 AIR 1166
19. AIR 1978 SC 1489
20. 1987 (15) DRJ 212; 1988 LablC 1067; 1988 RLR 194
21. 1990 AIR, 1 1989 SCR Supl. (1) 257
22. (1990) Lab IC 389 SC
23. AIR 1980 SC 1896
24. (2003) 6 SCC 581.

Written By: Gaurav Sharma