Historical Development
The First World War brought about the industrialization. The political scenario of the European world was not so developed as to cope up and regulate the degree of industrialization. The industries were run with total authoritarianism when capitalist economy started to flourish. The absence of any kind of regulation or intervention by the state, the employers used their unfettered power and exploited the workers to a despicable degree.

There were no determined working hours, working and living conditions contributed in deteriorating the health of the workers and, consequently, their families, who migrated from villages to the cities in search of work and the most palpable of all; there was no such concept of fair wage at all. This resulted in the coming together of the masses, to not deliberate but, bring revolution in the society. Various groups were formed consisting of anguished workers who were against such treatment. And with this the entity called 'Trade unions' started to emerge as a perceptible concept.

With the consolidation of such unions, the power of collective bargaining with a new possibility of threat to withhold labour was accredited with the working class and consequently the 'Strike' started emerging as a way of reaching a compromise between the labours and the industrialists. With the advent of socialism and communism, the state started interventions and regulation of the industrial mechanisms including employer-employee relationships.

Similarly, in India until the enactment of the trade union act in 1926, the strike was not recognised as a tool of bargain, instead the non-continuance of work of seen as a breach of contract and in some cases even committing an offence. This was so because the notion of strike and even formation of any trade unions was deemed illegal and was completely restricted even in England, which at the time decided India's legal frameworks, under the contributions Act of 1799 and 1800.

After the promulgation of the trade union Act, the strike was legally distinguished from mere breach of contract and even a right to conduct the same was recognised to some miniscule level. Section 18 and 19 of the Act absolved some trade unions from the liabilities arising out of contracts and some tortious liabilities relevant enough to let them strike without breaking any laws[1]. The strike formally began a legally valid and justifiable tool in the hands of the workers with the enactment of the industrial dispute Act, 1947.

However, the same did not confer the absolute right to strike but distinguished the strike into two categories; of legal nature and that of illegal nature. The people could strike as the last resort to propel the employer to listen to them but a proper procedure should have been followed and in some cases, of public importance and urgency, the employees don't have any such right to strike.

The right to strike since then has been in debate. The Apex court has multiple times interpreted the provisions related to right to strike through various judgements, as early as since 1960's, according to the prevalent conditions of the country.

What is strike?

Strike can be defined as a conduit taken up by a group of persons, which involves discontinuance of some, or all, the work which was allotted to them under some employment, to compel other person(s) to concede to some terms and conditions benefiting the Strikers.

According to the Industrial dispute Act, 1947 strike is defined 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 accept employment.

This definition highlights some important key distinctions between the protest and strike. Firstly, the strike should be held by employees, or workers, employed under by some industry only and must raise demands against person(s) who is employing them i.e. the employer. The other major component that constitutes a strike is that there should be some 'action in combination' i.e. there should be some concerted efforts amongst the strikers in reference to a particular purpose of that strike; otherwise it wouldn't be called so.

The right to strike is based on a very crucial principle i.e. the 'collective bargaining' principle. This principle holds that the balance of power between various parties in the economic structure should be so distributed that the group of employee should enjoy the power to threaten as to withhold their labour. This threat forms the very basis because of which a strike becomes effective and has been termed as a fundamental tool within the worker's hand against exploitation done by the employer.

International standpoint
The western world's workers have fought strenuously and arduously to gain such right against exploitative policies of the industrialists.[2] The same is conspicuous in the international laws and covenants that followed the post-world war II developments in the sphere of global standards of laws.

Accordingly, the international covenant on economic, social and cultural rights adopted in 1966, article 8 (1)(d) expressly recognizes the right to strike and puts an obligation on the member states to ensure its enforceability with restrictions according to the laws of lands of the particular states. Article 2(1) further consolidates the obligation as it mandates the promulgation of relevant legislations by the state members in their respective territories with an objective to achieve such conferment of rights upon the people of their state.

The conventions of the International labour organisation, either expressly or impliedly, for multiple times, observed that right to strike is a fundamental right in the hand of the employees of the world. Specifically, in the convention No. 98[3] and convention No. 154[4] ILO focuses on the importance of collective bargaining for the employees and workers against any kind of exploitation at the workplace, directly or indirectly caused by the policies taken up by the employer.

The intrinsic significance of the right to strike to secure such balance of power as to consolidate the power of collective bargaining has also been recognised.Article 9 even recognises the right of the public employees to strike, subjected to some restrictions.

Even the United Nation's 'Declaration of Human rights' recognises the 'Right to trade unions for the protection of interests' in accordance with article 23 and 24[5].

Legal nuances of the right; Indian perspective

The legal position of the right to strike in India can be explained and understood by analysing the statutes that contain provisions related to strikes and also at the same time by going through the judgements of the various courts. The international covenants also put certain obligations on Indian state as their member to abide by them. All of these are going to be categorically discussed below.

B) With the help of statutes
As mentioned earlier, in India the right to strike wasn't recognised up until in 1926 when the Trade Unions Act[6] came into force. According to provisions of this act some people were exempted from the civil liabilities arising out of contracts, who were members of any trade union and hence the act indirectly recognised their right to strike for the first time. Then the Trade Union Act of 1929 was enacted, which further consolidated these rights. Several legislations such as the Employer and workmen dispute Act 1869 and rule 81 A of defence of India rule were also promulgated but failed to address the issue of dispute resolution in employer- employee relationship.

The right to strike, finally, expressly observed in the Industrial Dispute Act of 1947 which was a resultant of post industrialization and world-war II and came into force on April 1, 1947. The Act defines Strike in section 2(q) and contains relevant provisions on chapter V of the Act. Section 22 and 23 differentiate between a legal strike and illegal strike under the aeigis of section 24. Further section 26 contains in itself, the punishments if any contravention of the laws and regulation is observed by any person. Section 10(3) and section 10A(4A) deal with the prohibition of a strike on the order of the government if the case for the resolution of the same has been transferred to some tribunal or for arbitration. Further, if the strike continues even after promulgation of such order(s), the strike would be termed as illegal.[7]

A perusal of the provisions contained in chapter V of the Act makes it clear that though the right to strike is available to some people, it surely is not available to all the citizens. The act specifically mentions that people working in public utility services[8] should give a prior notice to the employer and puts other procedural restrictions in the way of the exercise of the right. It is conspicuous that if the appropriate government decides that the strike should discontinue, it will pass an order and do so.

Continuation of the strike after such order has been passed will be illegal and accordingly the strikers will be liable for punishment under section 26 and their wages may also be denied to them. Hence this right in no way available to all the citizens as it contains so many unreasonable restrictions. In a case the strikers are not satisfied by the award given by the arbitrator and do not want to go to the court because of lack of proper legal help or any other reason, and they want to continue the strike, they simple cannot. This is because the right is not fundamental in nature and hence the government can interfere with ease in the enjoyment of the right.

C) With the help of judicial decisions
In Harish Uppal v. UOI[9], the court denied that advocates have any right to strike, because the role played by them is too precious in the administration of justice but at the same time declared that” 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.

In B.R. Singh v. UOI[10], the Apex Court noticed that:
The bargaining strength would be considerably reduced if it were not permitted to demonstrate by adopting agitation methods such as work to rule, go-slow, absenteeism, sit-down strike, and strike. This has been recognized by almost all democratic countries.

In All India Bank Employees' Association v. National Industrial Tribunal and others[11] the court opined that” even a very liberal interpretation of sub clause (c) of Clause (1) of Article 19 cannot lead to the conclusion that the trade unions have guaranteed right to an effective collective bargaining or to strike either as a part of collective bargaining”. In one of the above judgement it also observed that:
The right to association may be extended to the right to protest through demonstrations provided it does not disturb public order.” The Apex court in case of Indian General Navigation and Railways Co. Ltd., v. Their Workmen[12] found out a paradoxical issue that:
It is a little difficult to understand how a strike in respect of a public utility service, which is clearly illegal could at the same time be characterised as perfectly justified”. Further in the case of Gujurat Steel Tubes V. Gujurat Steel Tubes Mazdoor Sabha[13], the court ruled that:
Mere illegality of the strike does not per se spell unjustifiability” And “it is a little difficult to understand how a strike in respect of a public utility service, which is clearly illegal could at the same time be characterised as perfectly justified”.[14]

It can be thus concluded that the right to strike, though not considered an intrinsic part of freedom to form associations, but still is a fundamental tool for employees against any kind of direct and indirect exploitation. The Supreme Court also agrees upon the notion that without this tool in the hands of workers, the power of collective bargaining and consequently power to form associations would not stay true to its essence and hence ruled that, the strike, after experimenting with other dispute resolving methods between employers and employees must be the last resort kept with the workers/employees.

The court rather than focussing on the legality or illegality of strikes have instead focussed on the question of its justification in every case. As discussed in the above parts, that public servants do not enjoy the complete right to strike as per international or national laws, but according to these judgements, in some cases, even such strikes can be valid and justifiable, if there exists; a probable and reasonable cause for the same.

D) Under the international obligations
The international covenant on Economic, Social and Cultural Rights has been subscribed and ratified by Indian state. And hence all the obligations mentioned earlier in the paper are on the Indian state to properly observe and fulfil. India has been a founding member of the International Labour Organisation. Other than that convention No. 86 of the ILO, puts an obligation on the member state, by the virtue of membership to observe and ratify the fundamental conventions of the ILO in their respective territories.

Further according to the Directive principle of state policy and Article 51, Indian state should promote international peace and security and hence should respect the international treaties of which India is signatory. Article 253[15] confers the Indian parliament with the adequate powers to ratify International treaties for the same purpose. Indian judiciary have also noticed in the case of Apparel Export Promotion Council v. A.K. Chopra[16] that international treaties are like an obligation on India.

Due to all of the abovementioned Obligations, the right to strike should have been made a fundamental right and have been conferred on the citizens of the country. But the position of law in that regards is still debatable. The right to strike is observed in India as a legal right and it is sparingly due to the presence of these obligations on the Indian State to abide by.

Right to strike; what kind of a right it is?
There has been an on-going debate, almost from 1960's, weather the right to strike in India has the same pedestal as a fundamental right and enjoyed by the 'citizens' or it's just a statutory right. Though the scope of this paper is a limiting factor on further delving into the question whether right to strike is a fundamental right or not but, it becomes imperative to find out whether currently it has that status to ascertain its conferment to 'citizens' of the country.

The 'right to strike' has its roots in the fundamental right to form associations mentioned in the constitution of India. The rudimentary issue is of the interpretation of the said provision; whether Article 19(1)(c) includes the right to strike as an intrinsic component or not. Currently, the right to strike is not a fundamental right and the same has been reiterated again and again by the Apex court in various judgements since 1960's till as late as 2003.

The right has been as being a statutory right as its exercise entails a plethora of restrictions that can be imposed by the state as and when necessary. There are legal restrictions such as definite time period of providing a notice to the employer[17], having to follow a regulated procedure of striking and also constitutional restrictions[18] such as maintenance of public order etc. as per the exceptions provided in the constitution of India.

Further the Supreme Court remarked that if the right to strike is given the stature of a fundamental right, this may impede the economic growth of the country and hence adversely affect the economic structure of the state. This means that the right to strike is still is not expressly available to every 'citizen' of the country; in the sense that one has to be a part of some trade union or an employee to come under an imperceptible ambit to enjoy the right to strike.

This will definitely leave out certain groups in the society whose labour is not recognized as that of a formalised sector. The people working in farms as individual labourers, people (especially women) engaged in domestic work and other workers whose labour do not directly contribute to the national income of the country will be left out and will not be able to exercise the right to strike.

Suggestions
It is now clear that till the date the right to strike is not recognised as a fundamental strike in India. There are some consequences due to that, those are listed below:

1. The deduction or denial of wages during the Strike.
   As the Supreme Court in the case of Crompton Greaves v. the workmen[19] observed that if a strike is found to be unreasonable, illegal and unjustified then the employer has the right to cut some part or completely deny the workers of the wages they would have gotten if they had been working instead of striking. This position of the workers undermine their right to form associations and freedom to express their thoughts as when they do so they have a fear that their wages might cut down. Thinking, with a viewpoint of a labourer who earns daily to sustain himself/herself and his/her family, this fear can lead him to not raise voice and work under harsh conditions and hence silently and forcefully accept exploitation by the employers.
    
2. Strikes can be pushed around by the order of the appropriate government.
   As already seen, according to the provisions of the Industrial disputes Act, 1947, the government acquires such power to dominate the strikers whenever it wants and that too with just an order passed by it. This needs to stop because of the arguments made earlier. Until the right to strike is transformed into a fundamental right such arbitrariness in the laws will work as an impediment on the freedoms of the workers and hence an impediment on basic fundamental rights of the citizens.
    
3. The right to strike is not available to public employees and people working in un-organized sector.
   Unless and until every citizen of the country gets the equal opportunity to exercise the right to strike, it can't be said to be a right conferred on the 'citizens' of the country. As discussed in the paper, the people who are most exploited by their employers i.e. the domestic workers, people working as farm labours may not come under the ambit of 'Industry' workers because they are not present in trade unions and are not in majority in number. Even the public employees have been denied of the unrestricted right to strike but they too constitute the citizenry of the country.

All these issues have significance as to considering the right to strike as a fundamental right. The fundamental rights are also restricted in one way or another but the advantage of being redressible under article 32 will consolidate the stature of the right to strike to overcome all above mentioned issues.

Conclusion
From the history to present we can see that the strike has played a major role in bringing balance to the unequally distributed power between an employee and her/his employer. The evolution of the right to strike as fundamental right of the worker, at least in western part of the world, signifies its importance as the discontinuance of any kind of work was considered illegal before any such right.

The right has been recognised globally because of its presence in the most important domain of any time period i.e. production and industrialization. The international laws very well recognize the right to strike and obligate upon various member countries to enforce them in one way or other into their territories. The global recognition of the right is a symbol of the hard fight that is fought behind the achievement of the same.

In India though, the right has not gained such high degree of respect as in case of other countries and even global level. The right is not recognised as a fundamental right in Indian state. However, it still remains as a legal right present in with the labourers and employees according to statutes, judicial pronouncements and international obligations arising out of various treaties and ratification of various covenants by the Union of India.

It cannot be concluded that the average Indian citizen has the right to strike because of the views expressed in the paper. A right to be called as an right that is enjoyed by the Citizens of a country, must be one of sacrosanct nature with least restrictions in the pursuit to enjoy the right. Unfortunately that is not the case when taking the right to strike in consideration.

Bibliography

• Das B and Rath B, 'Right to Strike: An Analysis' (2005) 41(2) IJIR accessed 25 December 2020
• Ranjan K, Strikes by Advocates in India (Legal Service India 2020) http://www.legalserviceindia.com/legal/article-582-strikes-by-advocates-in-india.html#:~:text=Ex%2DCapt.-,Harish%20Uppal%20v%20Union%20of%20India%20and%20Another,Association%20or%20the%20Bar%20Council.> accessed 04 December 2020.
• Saxena G, Right to strike and Constitutional Validity (Legal Bites 2020) < https://www.legalbites.in/right-to-strike/#_ftn4> accessed 02 December 2020
• Warrier V, 'Right to Strike and Article 19(1) of Indian Constitution' (Lex Warrier Foundation 2010) accessed 05 January 2021

End-Notes:

1. Vishnu S Warrier, 'Right to Strike and Article 19(1) of Indian Constitution' (Lex Warrier Foundation 2010) accessed 05 January 2021
2. B.P. Rath and B.B. Das, 'Right to Strike: An Analysis' (2005) 41(2) IJIR accessed 25 December 2020
3. The Right to Organise
4. The Convention for Collective Bargaining Rights
5. Some parts of Article 25 also contain the relevant provisions
6. Trade Unions Act 1926
7. Industrial Disputes Act 1947, s 27.
8. Industrial Disputes Act 1947, s 2(n)(vi).
9. [2003] 2 SCC 45 (SC)
10. [1990] 389 Lab IC (SC)
11. [1962] 3 SCR 269 (SC)
12. [1960]1 LLJ 22 (SC)
13. [1990] 389 LAB IC (SC)
14. Ibid
15. The Constitution of India, 1950.
16. (1999) AIR 625 (SC)
17. The Industrial Disputes Act, 1947, s 22
18. The Constitution of India, article 19(4)
19. (1978) AIR 1489 (SC)