The history of labour struggle is nothing but a continuous demand for a fair return to labour expressed in varied forms i.e. (a ) Increase in wages, (b) Resistance to decrease in wages, and (c) grant of allowances and benefits etc. If a labourer wants to achieve these gains individually, he fails because of his weaker bargaining power, the management with the better economic background stands in a better position to dictate its terms. Strike is an important weapon in the hands of the labour used to strengthen his bargaining power.

Though right to strike is a statutory and a legal right however it cannot be said to be a fundamental right and this view has been reiterated by the Supreme Court in various decisions.

Right to strike as a legal right:

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, s/he can be forced to come to a negotiating table by striking workers. This s/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.

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

Right to strike under international conventions:

Article 8 (1) (d) of the International Covenant of Economic, Social and Cultural Rights (ICESCR) provides that the States Parties to the Covenant shall undertake to ensure: "the right to strike, provided that it is exercised in conformity with the laws of the particular country. Article 2 (1) of the Covenant provides: "Each State Party to the present Covenant undertakes to take steps, ... with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures".

India is a signatory to the Covenant and is therefore bound under Article 2 (1) to provide for the right to strike as enshrined in Article 8 (1) (d), through legislative measures or by other appropriate means. Thus, the aforesaid domestic laws are the by-products of the international obligations and cannot be read casually.

Right to strike has also been recognised by the conventions of the International Labour Organization (ILO). By virtue of being a member of the ILO, India is under obligation to satisfy at least the fundamental rights promoted by the Conventions, irrespective of it having ratified them or not. Further, India is not an ordinary member of the ILO, but one of the founding members of the Organization.

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) 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) also the SC held that right to strike cannot said to be a part of Article 19(1)(c) of the Constitution.

It was a culmination of the ratios of the Kameshwar Prasad and the A.I.B.E. cases that resulted 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, Harish Uppal vs, UOI (2003) and Bharat Kr. Palicha vs. State of Kerela (1998) - 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 ban 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) 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.

Strike: A weapon of last resort

While on the one hand it has to be remembered that a strike is a legitimate and sometime unavoidable weapon in the hands of labour, it is equally important that indiscriminate and hasty use of this weapon should not be encouraged. It will not be right for labour to think that any kind of demand for a strike can be commenced with impunity without exhausting the reasonable avenues for peaceful achievement of the objects.

There may be cases where the demand is of such an urgent and serious nature that it would not be reasonable to expect the labour to wait after asking the government to make a reference. In such cases the strike, even before such a request has been made, may very well be justified.

Thus, initially, employees must resort to dispute settlement by alternative mechanisms. Only under extreme situations when the alternative mechanisms have totally failed to provide any amicable settlement, can they resort to a strike as a last resort.

Conclusion:
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.