Monday, Dec 01, 2003
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By Our Staff Reporter
Referring to the recent Supreme Court verdict, which said government employees had "no moral or equitable right to go on strike," speakers at a seminar here today said the right to strike was derived from the freedoms of expression, assembly and association provided in the Constitution.
The seminar was a prelude to the all-India 11th conference of the Centre of Indian Trade Unions, to be held here from December 9 to 13.
Madras High Court advocate, R. Vaigai, said the right to speech and the right to form associations, provided in the Constitution, were sufficient to protect the right to strike.
Strikes were regarded as criminal conspiracies before Independence, but the perception had changed after 1950, she said. In the Rothas Industry case of Bihar, the Supreme Court had said such an opinion was against the Indian Constitution.
"If we apply this to the Tamil Nadu Essential Services Maintenance Act (TESMA), we can see that this law is unconstitutional. There was no criminal motive in government employees going on strike to demand their rights." As the right to strike was not provided in the Constitution, going on strike might be illegal but could still be just.
"In an oppressive situation as in Tamil Nadu, the ability to strike is an important right along with the right to speech, assembly and association, though with reasonable restrictions."
Ms. Vaigai questioned the validity of TESMA when many essential services from education to sanitary work were being privatised by the State Government. "Now that the Government is taking over the liquor trade, will IMFL employees also be charged under TESMA if they go on strike?"
N. Ram, Editor-in-Chief, The Hindu, said the summary dismissal of over 1.7 lakh government employees in Tamil Nadu was one of the worst episodes in the history of industry relations. The Supreme Court seemed to have given a verdict against the right to strike but had not given a clear answer to the Constitutionality of summary dismissals. However, in a welcome move, it had accepted to review its judgment, he said.
Another positive development was the criticism of the verdict by the Attorney-General, Soli J. Sorabjee, when he said the "judgment was uncalled for and beyond comprehension."
Mr. Ram said there had been a series of judicial pronouncements that infringed on basic democratic rights, such as the Kerala High Court judgment banning bandhs and the recommendation of the single judge commission in the Tirunelveli police action case, which suggested a law to prohibit political processions.
"The courts have to be reminded that the democratic right to protest in public spaces was won against the British Raj. With all respect to the higher judiciary, we have to remind them that the right to protest and demonstrate in public spaces, subject to reasonable restrictions, is justified."
Mr. Ram also criticised the Union Government for not ratifying two of the eight core conventions of the International Labour Organisation on the freedom of association and the right to collective bargain.
Referring to the recent arrest orders on five senior representatives of The Hindu by the State Assembly, he said the Legislative Assembly was demanding "sky-high powers." He said the Constitution was supreme in India and called for codification of the privileges of the Assembly.
The West Bengal Labour Minister, Mohammed Amin, said the Tamil Nadu Government had declared war against its own employees.
"If the people are united and determined to fight for their rights, no court or government can prevent them."
The West Bengal Government had amended its laws to provide State employees the right to strike, but there were no strikes in the past 26 years as the problems were sorted through negotiations, he said.
N. Sankariah, chairman, reception committee of the conference, said the meeting was being held at a time when Indian democracy and freedom were under threat.
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