The Supreme Court Pronouncement and the Right to Strike

Rajesh Tyagi

A people which fought for its political freedom may have the legitimate expectation that the sweep and scope of liberties and rights which were available to it under the colonial regime, would, in any case, expand under a regime run by its own bourgeoisie, in the name of an independent republic. But, it would be hard to digest the undoing and abrogation of those rights and liberties, at the hands of the Republic, which were clearly recognised even under the colonial legislation. We are talking here about the ‘right to strike’ which recently has been hit repeatedly not by the state legislations, but has been totally wiped out by the Supreme Court in its recent pronouncement in the Rangarajan case. What may surprise many of us is that this ‘right to strike’, which was recently turned down by the Supreme Court with so much impunity in Rangarajan’s case with special reference to government employees is a well recognised right under the central legislation which was enacted during colonial times. The Industrial Disputes Act, which came into force on 1st April 1947, clearly recognises such a right and makes it available to all those covered under the Act, including those in the employ of the government.

What has to be underlined further is that this ‘right to strike’ is more or less recognised as natural, inalienable, inherent and almost absolute, under the scheme of this colonial legislation, imposing tabs upon such right only in certain well-defined and very extraordinary situations, like (i) pendency of the same dispute, which comprises the subject matter of the strike, before some conciliation or in adjudication, or (ii) the existence of agreement between the employer and employees contrary to the strike. Though the Industrial Disputes Act empowers the appropriate governments to declare certain services of public importance and necessity as the ‘public utility services’ but it does not bar the exercise of the right to strike in relation to these services and merely provides for a restriction of 14 days advance notice in such cases. This right, so well recognised even by colonial legislation, now stands negated by the recent judicial proclamation in independent India, which looking down upon the right with disgust, and says there exists no such right at all.

Pioneering the assault upon the ‘right to strike’, the government of Tamil Nadu, in 2002 brought on to the statute book a legislative enactment – the Tamil Nadu Essential Services Maintenance Act (TESMA), with the usual scheme under it, arming the executive with arbitrary and illegal powers to suppress, not only the strikes, but even the slightest protest action on the part of its employees, that to in the name of law, declaring any service to be an ‘essential service’ at its whim by merely issuing an executive notification . Further, an ordinance introducing an amendment to the scheme of TESMA was promulgated by the Tamil Nadu government. This incorporated provisions empowering the government to effect en masse disciplinary action against employees for violations. Apart from this there already existed a Rule No.22 in the Tamil Nadu Government Servants’ Conduct Rules, 1973, providing a blanket ban not only on strikes of employees, but any form of demonstration also. Thus an entire regime of laws in the form of enactments, ordinances, notifications was erected in advance to counter any possible action of protest on part of its defiant employees.

Since long the legal machinery providing for the redressal of grievances of the employees had been virtually non-functional in Tamil Nadu, with only one bench of the administrative tribunal working in the entire state. It is noteworthy in this context, that the route to approach the High Court for the redressal of grievances, earlier resorted to by the employees, already stood blocked by none else than the Supreme Court itself, by settling in the L. Chandrakumar case that High Courts cannot be approached directly. Constrained, the employees took to protest against the prevailing situation. Lately, the strike of employees started, and the government instead of taking steps to redress their grievances, took to its armoury and dismissed more than 2 lakh of its employees at one stroke, sent many to jails, implicated hundreds including women employees in false cases, purportedly in the garb of administrative action, which even the Supreme Court had to term as ‘unprecedented’, before justifying this unprecedented action.

In expectation of justice, the employees approached the High Court of Tamil Nadu at Chennai, but the petitions were thrown out on the ground that the employees should approach the administrative tribunal first; then only could they come to the High Court. It was against this judgement of the High Court that the employees had approached the Supreme Court, invoking its appellate jurisdiction. Several writ petitions were directly filed before the Supreme Court pleading the fundamental rights of the employees against the arbitrary action of the government.

The Supreme Court chose to throw out the petitions filed by the employees observing that there was no fundamental, equitable or moral right available to the employees to go on strike, and as such, the action taken by the government dismissing and jailing the employees en masse was valid and justified.

While making reference to various judicial precedents in its decision, including that of the Kameshwar Prasad of 1962, and simultaneously referring to Rule 22 of the Tamil Nadu Government Servants’ Conduct Rules, the Supreme Court forgot that similar provisions which imposed a ban on various forms of protest were struck down by itself in the O.K. Ghosh case and the Kameshwar Prasad case placing reliance upon the ratio of decision in the Ram Manohar Lohia case of 1960. It was held that the blanket ban on all forms of protest without differentiating the legal from the illegal and without showing how such protests were against public order or morality, was illegal, invalid and beyond the legislative capacity of the Government. In the O. K. Ghosh case it was Rule 4-A and 4-B of the Central Civil Services Conduct Rules and in the Kameshwar Prasad case it was Rule 4-A of the Bihar Government Servants Conduct Rules, 1956, which was declared violative of the fundamental rights guaranteed under Article 19 (a), (b), and (c) of the Constitution, and were thus struck down.

But this time the Supreme Court has refused even to test the validity of the laws on the ground that there was no fundamental right to strike. Instead of striking down Rule 22 of the Conduct Rules following the ratio of judgements in the Lohia, O.K. Ghosh and Kameshwar Prasad cases, it rather placed exclusive reliance on Rule 22 to reach the conclusion that instead of a statutory right there was a statutory bar against such strikes.

The Supreme Court has fallen in error of law in holding that government employees form a category apart and thus have no right to strike and that the state government was within its right to take coercive measures against its striking employees. This extrication of government employees, most of whom were engaged in ‘clerical, manual or unskilled’ activity and were thus clearly covered by the definition of workman under section 2(s) of the Industrial Disputes Act, from other categories of workmen, is not at all permissible under the scheme of the Act, as the same does not make any differentiation between those employed by the government or private employers. According to section 2(s) of the Act, all those employed to do any manual, technical, clerical, supervisory, skilled or unskilled work, do fall within the ambit of the term ‘workman’. Those employed by the government in its offices are no exception to it. Similarly, the term industry is defined in section 2(j) of the Act to encompass all concerns and offices run and controlled by the government as well. Section 2(j) of the Act, which defines the term ‘industry’ is of sufficiently wide amplitude so as to cover and include all private as well as government concerns within its fold. Though an amendment of 1982 is pending, awaiting the notification which would have detrimental effect, excluding the employees of Government concerns from the purview of the Industrial Disputes Act, yet, as on date, section 2(j) does not discriminate between the concerns owned by government or privately. Thus, all concerns irrespective of their status, whether they are owned and run by the state or by private entrepreneurs, are covered under the Industrial Disputes Act.

Thus, a combined reading of two provisions of the Industrial Disputes Act i.e. section 2(j) and section 2(s), makes it amply clear that those employed in the government departments and concerns are well covered by the Act and are thus entitled to rights emanating from the statute or recognised expressly or by implication under the same. Strike is one of such crucial rights available to those who are covered by the Act. Thus the right of government employees to resort to strike, even in the services declared to be of public utility either under the Industrial Disputes Act or by way of executive notification, is an unqualified statutory right.

While holding that there is no statutory right to strike available to the employees, what was ignored was that these government employees serving under various departments and organisations of the Tamil Nadu government are covered by the provisions of the Industrial Disputes Act, whereunder, the right to strike is a definite statutory right – a bare reading of section 23-24 thereof would make it clear. As such, the rights, benefits and protection accruing under the Industrial Disputes Act including the right to strike is doubtlessly available to the government employees, and their status of being under the employment of the government neither has any relevance nor makes a difference for the purpose of availability of such right. This aspect of the case is totally ignored in the judgement. The Supreme Court has committed an error of law in observing that no statutory right to strike was available to the employees of the Tamil Nadu government.

Unfortunately enough, in their enthusiasm to reach the conclusion that government employees have no right to strike, either constitutional, legal or statutory, and further making an obiter even upon the morality of such right, but only to negate the same again, the worthy judges have lost the sight of the definite existence of this right on the statute book. Amazingly, no reference at all has been made to the Industrial Disputes Act itself while declaring the absence of any right to strike. The judgement, thus, leaving outside its scope the most relevant material for adjudication is clearly per incuriam and as such is no law at all.

Further, the right to strike being well recognised under the scheme of central legislation i.e. the Industrial Disputes Act, and forming an inalienable part and parcel of the same, could not be taken away by way of enacting legislation by the state assembly or by merely issuing a notification or any other executive action which necessarily involves but only a subordinate, delegated or residue jurisdiction and capacity, inferior to that of the central legislature in any case, and as such is incapable of overreaching the rights created or recognised by the central legislature. The provisions of the enactment passed by the state legislature – TESMA, the service rules, specifically Rule 22 of the Conduct Rules and the Ordinance of 2003, imposing a ban on the right to strike, all belong to such category of inferior legislation and thus as far as they subvert or even restrict the sweep of the ‘right to strike’ available to the employees under the central legislative Industrial Disputes Act, are all illegal, ultra vires to the legislature and should have been struck down on this ground alone. In a state of conflict between ‘recognition’ of such rights by central legislation and their ‘abrogation’ by the state legislation through TESMA or rules framed under the residue power of the executive like the conduct rules, the provisions of the central legislation would doubtlessly hold the ground. As such, the rights, benefits, protection accruing under the Industrial Disputes Act including the right to strike are doubtlessly available to the government employees, and their status of being under the employment of the government neither has any relevance nor makes a difference for the purpose of availability of such right. This aspect of the case, is totally ignored in the judgement. The Supreme Court has committed an error of law in observing that no statutory right to strike was available to the employees.

The ordinance of 2003, issued under the TESMA, bringing in amending clauses is further invalid on another count also, i.e., hitting at the principles of natural justice, which say that nobody can be condemned without hearing. While making provision for unguided executive power arming the government with power to dismiss the employees en masse, no mechanism is provided to give an opportunity of hearing to the individual delinquent employee. The piece of legislation – TESMA and Ordinance of 2003 – both should have been struck down on this ground as well. These instruments, which conferred absolute and unbridled power upon the executive, which the legislative/conferring body, the legislative assembly itself does not have under the Constitution, were totally illegal and beyond the legislative competence of the assembly and fell totally outside the scope of the executive/residue power available to the state government. The Supreme Court, took note of the fatal discrepancy in the impugned laws, but instead of striking down the same on the ground of being violative of Article 14, which was the only way before it, brushed the same under the carpet by covering up the defect by appointing a panel of three High Court Judges, as a substitutive mechanism and referred to them about 6,000 cases in which they would complete the process of hearing within a month, which means if a judge continuously works 8 hours a day and 7 days a week, hardly 5 minutes time would be given to each case, in which time after going through rival contentions, the Judge has to record his decisions also. The right to hearing would thus remain illusory and nothing more than a formality in law. Instead of adding such a cosmetic mechanism and legalising an otherwise illegal piece of legislation, the Supreme Court should have decided the legality of such an illegal legislation, testing the same on the ground of breach of principles of natural justice and without fail should have struck down the same. Devising a mechanism to legitimise the otherwise illegal piece of legislation, was completely beyond the power and competence of the Supreme Court, which has been assigned the role of the protector of rights under the Constitution and not of an agency of the Executive supplementing its actions by its own to make them valid under the law.

Observing that as there is no fundamental right to strike available to the government employees under the Constitution the Supreme Court derives the conclusion that consequently the validity of the TESMA and other laws cannot be tested on the ground of their being ultra vires to the Constitution. Without going in to controversy as to the availability of the fundamental right to strike under Article 19 of the Constitution, one can easily see that the impugned legislative enactment and the ordinance was bad even on the ground of arbitrariness as discussed above, hitting at Article 14 of the Constitution, which is also a fundamental right. The employees were entitled to claim the protection of Article 14 of the Constitution, if not as workmen then at least as citizens of this country. This aspect is also overlooked by the Court.

Lastly, commenting adversely against the strikes in general, the Hon’ble Judges suggest two steps to the employees – firstly that in case of a grievance, they should work more honestly, diligently and efficiently so that their gesture is appreciated not only by the general public but by the employers also and secondly, if any grievance remains, they should resort to the mechanism provided under the law. Needless to say the government, by promulgating laws like ESMA, even beforehand, has shown how it welcomes the gesture of those that dare to raise their heads. But there is no doubt that that the gesture of those would be surely appreciated not only by the Tamil Nadu government or the Hon’ble Courts but by all employers on this planet, who would never raise their heads, rather would work ‘honestly, diligently and efficiently to express their grievances’. This is the first way of redressal of grievances suggested by the Hon’ble Court. And, the second one is to approach the forum provided by law. For instance, regarding labour courts, which are comparatively more accessible to employees of lower ranges, the Industrial Disputes Act stipulated that the dispute referred to the Industrial Tribunal/Labour Court by the appropriate government would be decided within a period of 3 months. But as everyone who approaches such legal fora knows that it takes no less than three years even in petty cases to be decided by the Tribunal and Labour Courts. Even the first date of notice is of more than three months. This is after preliminary exercise of conciliation process and then of reference by the appropriate Government. Several years would be spent in the labour courts, then the High Court takes its own time where already 4-5 years of backlog of cases is pending and then they come before the Supreme Court. This is the legal process, which the Supreme Court advises the employees to resort to.

The Judges comment with notable concern that the strike as a weapon is mostly misused which results in chaos and total maladministration. Then comes the descriptory part – to quote – ‘in the case of a strike by a teacher, the entire educational system suffers. In case of strike by a doctor, innocent patients suffer. In case of strike by employees of the transport services, the entire movement of society comes to a standstill, business is adversely affected (anyway, this is the real concern!) and a number of persons find it difficult to attend to their work, to move from one place to another or from one city to another‘. Business is adversely affected – this is the main concern – the real issue behind the smokescreen. As far as the movement of public from one place to another is concerned, the same is affected many times more by the illegal hampering and disruption of traffic and blocking of roads for the free and privileged movement of VIPs including the Hon’ble Judges, but our concerned judges have never come out in defence of the right of free movement of the public on the roads, which is seriously and repeatedly, several times a day, adversely affected by the VIP movements, in utter disregard to all democratic norms and principle, but the strikes by workmen, which unfortunately are a rare phenomenon in this country, have caught the kind attention of Hon’ble Judges to look down upon them. Secondly the instances of strike by teachers, doctors, transport workers etc. are only illustrative in character. Their Lordships would find, to their dismay that the ‘public’ to which they are referring in abstract terms, is composed in major part of working sections, who have to work to earn their living engaged in some or the other sort of ‘manual, technical, clerical, supervisory, skilled or unskilled’ activity, thus fall within the category of workmen and are keenly interested in the rights available to working people, prime among them the right to strike. And it is only the privileged few – the ministers, the bureaucrats, the Hon’ble Judges and the capitalists above all, who are virtually left out and are accustomed to look down not only upon the strikes in particular, but even the slightest attempt to any protest.

Lastly, we must make a passing reference to the fact that today the right to strike is being recognised as an inalienable natural right – an inherent right – in the entire civilised world. Even in countries where the constitutions do not grant the right to association, the right to strike is recognised as almost a ‘fundamental’ right in the sense of an inalienable right. The US Supreme Court, in two cases – Jones and Laughlin Steel Corporation case and The Amalgamated Utility Worker’s case, has specifically read such right in due process clause in the 14th Amendment of the US Constitution. But the Courts in India are taking a retrograde step while looking down upon the right to strike as an outlawed activity, rather a conspiracy of workers, an approach, which was prevalent way back in early nineteenth century Europe.

Anyway, the ‘strikes’ in themselves are not the creation or the result of any legislation or judicial pronouncements. Rather the right to strike as reflected in bourgeois legislations is merely a meek recognition of what could not be prevented over the century either by police methods or judicial pronouncements. Strikes have come in existence much before the bourgeois parliaments and constitutions. Those who derive their authority from the constitution must never forget that it is the strikes by the workmen, substituted with more daring actions in case the same were suppressed, which are responsible and credited for the emergence of constitutional democracies, the world over. This epoch-making role and the place of strikes in the history of the modern world is certainly contrary to the belief and view entertained by our learned Judges, who failed to see that minus strikes neither modern America nor Europe could be imagined. It is needless to elaborate on the crucial role of these strikes in the anti-imperialist movement in the pre-1947 period, which put the Supreme Court itself in place.

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