The Hindu : Ban on strikes: A judicial excess?

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Thursday, Oct 02, 2003

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Ban on strikes: A judicial excess?

By V.R. Krishna Iyer

Within socially sensitive bounds and liberal legal limits, the right to strike has a permissible home in Indian jurisprudence.

A TWO-JUDGE Bench of the Supreme Court declared a ban on labour's right to strike without investigating the grievances of the Government employees. The Court disposed of the matter without discharging its adjudicatory function of examining the central issue under challenge — the vires of the Ordinance dismissing over one lakh staff sans enquiry under Article 311, sans chance to make representations. The Court, however, was eloquent about the disruptive, illegal, iniquitous, anti-social and unconstitutional dimensions of strikes generally, which, it felt, held the public to ransom.

The judges observed: "Strike as a weapon is mostly misused which results in chaos and total maladministration. Strike affects the society as a whole and particularly when two lakh employees go on strike en masse, the entire administration comes to a grinding halt. In the case of strike by a teacher, entire educational system suffers; many students are prevented from appearing in their exams which ultimately affect their whole career. In case of strike by Doctors, innocent patients suffer, in case of strike by employees of transport services, entire movement of the society comes to a stand still; business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or one city to another. On occasions, public properties are destroyed or damaged and finally this creates bitterness among public against those who are on strike."

Indeed, the irrational frequency and impertinent frivolity of intimidatory strikes are self-defeating operations, which sound trade unionism never sponsors. But are all strikes illegal, immoral, unjust or liable to be suppressed by state authoritarianism, employer reprisal or judicial allergy by angry negation of writ relief? My understanding persuades me to critique respectfully the Rangarajan ruling which seems to hold all strikes as productive of havoc in a democratic society and a menace to public interest. Trade unions are a legitimate, lawful instrument of the working class and strikes, under necessitous circumstances, are a strategic weapon, which has legal sanction under just conditions.

Unwittingly, class bias may creep into their overt impartiality. Professor J.A.G Griffith, in his book "The Politics of the Judiciary", gave reasons to hold that judges, being but human, may not be immune to class bias, never intentional but subconscious in their surrender to partiality. He quotes Winston Churchill: "The courts hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt, they deserve and command the respect and admiration of all classes of the community, but where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt, biased."

With due deference, I dissent from the macro-negative proposition based on broad assumptions. "Now coming to the question of right to strike, whether fundamental, statutory, equitable. Moral Right-in our view, no such right exists with the Government employees." The court's dicta have gone beyond Government servants and condemned strikes as unjustified "on any equitable ground".

The court counsels labour on its patriotic duty: "In the prevailing situation, apart from being conscious of rights, we have to be fully aware of our duties, responsibilities and effective methods for discharging the same. For redressing their grievances, instead of going on strike, if employees do some more work honestly, diligently and efficiently, such gesture would not only be appreciated by the authority but also by people at large. The reason being, in a democracy even though they are Government employees, they are part and parcel of governing body and owe duty to the Society."

No doubt, our country will be transformed if Ministers travel less and work more, if secretaries visit Delhi less and dispose of files more without paper-logging, if public offices slumber less and devote to duty more, if judges hear with more business-like thoroughness, bring down the appalling backlog of dockets and pronounce judgments to the point without prolonged procrastination.

Freedom of speech and freedom of association are not mere abstractions or purposeless inanities. Collective action is implicit in these basic freedoms. In express terms, there is no freedom to strike writ into the Constitution. But collective bargaining for legitimate causes is best served by a creative combination of speech and association, of course, without breach of law and order or transgression of other people's human rights. Once this perspective, sanctioned by constitutional initiative, is correctly and curatively interpreted, industrial jurisprudence becomes a process where both managements and workers have rights. When claims are justly made based on the contribution of labour to the progressive profit-making capacity of industry, an arbitrary refusal even to discuss may lead to tension which may mount to the point of peaceful, though militant expression by a collective withdrawal from work, otherwise called strike.

A profusion of citations may be avoided by a reference to B.R. Singh's case (1989 SCC 710) where Justice Ahmadi, speaking for the Bench, observed: "The right to form associations or unions is a fundamental right under Article 19 (1) © of the Constitution. Section 8 of the Trade Unions Act provides for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions and provide for their registration was recognised obviously for conferring certain rights on trade unions. The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unionists act as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively reduced if it is not permitted to demonstrate.

"Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, e.g., go-slow, sit-in, work-to-rule, absenteeism, etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers. But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on it." (1989 4 Supreme Court Cases 710 para 15)

A Bench of seven judges, in the Bangalore Water Supply and Sewerage Board Case, considered in great detail the meaning of the word industry. A passage from the leading judgment therein is relevant: "The International Labour Organisation has had occasion to consider freedom of association for labour as a primary right and collective bargaining followed by strikes, if necessary, as a derivative right."

It is not without significance that in the Gujarat Steel Tube case (1980 2 SCC 593), the majority on the Bench held that it was a fundamental flaw to equate illegal with unjust strikes. A strike may be illegal by a technical violation, but need not be necessarily unjustified. It is surprising that the dubious legality of the Ordinance, extraordinary in its character and timing, had not awakened the court's jurisdiction into considering the constitutionality of the executive legislation affecting a colossal number of public servants. Some day, some Bench of the apex court may be conscientised into scanning the constitutional jurisprudence of the Ordinance Raj.

Criticisms apart, the judges in the Rangarajan case need a meed of praise for restoring instantly most of the employees who were sacked by an ireful Government, although it baffles me that Government employees for helping themselves back into office have had to apologise and undertake not to strike ever thereafter. This condition is an ad hoc humiliation, which I presume the court never meant.

In the provocative context of the contra-strike pronouncement, the learned Attorney General, with alacrity and authority, repudiated the theory that the right to strike is anathematic. This historic right cannot run riot nor turn berserk but, within socially sensitive bounds and liberal legal limits, has a permissible home in Indian jurisprudence.

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