REVISITING RIGHT TO STRIKE UNDER LABOR LAW

Introduction

Under Section 62, 63 and 64 of the Industrial Relations (“IR”) Code[i] the procedure for strikes has been enumerated. The statute requires intimation via notice- 14 days before the strike and also prohibits strikes during the seven days of the conciliation proceeding or sixty days after proceedings have been conducted before a tribunal. The same hinders the rights of workers and employees to go on strikes which has been recognized as an important facet in industrial jurisprudence. The article argues for these sections to be amended and made similar to the provisions existing in the Industrial Disputes (“ID”) Act, 1947.

Strike under IR and ID Act

The statute recognizes strike under Section 2(q)[ii] and furthermore assents to the right to strike under Section 22,23 and 24[iii]. Strike was not allowed for public utility services under the ID Act, 1947 as the same would lead to magnitude of problems affecting the nation as a whole.

While in the IR Code, the prohibition on strike and lockouts has been extended to all establishments and industries without cogent reasons being given for the same. In fact, while the bill was being examined by the Standing Committee in 2019, they had proposed that restrictions on strikes must only be permitted for public utility services such as railways, airlines, telephone services etc. while the legislation covers all industries.

Judicial decisions on Right to Strike

While the Apex Court has patently stated that right to strike is not a fundamental right, the court on a number of occasions has recognized the rights of workers and employees to put forward their voices in front of their employer for seeking justice. Explaining the importance of strike in BR Singh v Union of India[iv], the court held that Trade Unions can bargain more effectively with management as compared to individuals. The strength would be reduced if the union is unable to demonstrate agitational methods such as ‘sit-down strike’ or ‘strike’.

Furthermore, in Kotagiri v Rajmanickan[v] the court recognized strike as a weapon which would ensure and force the employer to look at the problems of the employees and rule in a just manner having understood the repercussions of an unfair judgment. Additionally, through precedents it is clear that judiciary legalizes a strike if the same is just and reasonable according to the situation at hand and does not go against the statute.[vi]

However, in the case of TK Rangarajan v Government of Tamil Nadu[vii] it was held that there exists no right to strike but the same judgment did not overrule the judgment passed in Gujarat Steel Tubes v Its Mazdoor Sabha[viii] which was passed by a three-judge bench while the former was passed a two-judge bench. In the latter case, the court held that right to strike is integral to collective bargaining and the same is recognized by industrial jurisprudence.

International Covenants on Right to Strike

Being a member of the International Labour Organization (“ILO”), India must fulfill its obligations to the fundamental principles of the institution which call for right to strike and collective bargaining. Furthermore, being a signatory to the International Covenant of Economic, Social and Cultural Rights[ix], India must recognize the right to strike as enshrined in Article 8(1) of the covenant.  Statutorily under Article 51(C) which addresses the need for India to respect international law and treaty obligations and Article 253 of the Constitution which iterates for legislations to be made on international agreements, India must adopt and introduce national legislations in line with international treaties signed. Hence, it is necessary to recognize the right to strike and not curb the same.

Problem at Hand

It is patently clear that the right to strike is an important facet of industrial jurisprudence both in India as well as around the world. The judiciary in its own way has supported the right to strike but the same has not been effectively dealt with by judicial precedents. The respite needed was granted legislatively whereby the ID Act, 1947 recognized strike and followed an easier procedure for implementation of the same.

In the new legislation which subsumes the ID Act, 1947 the right to strike has almost become impossible. 5 days before a strike the conciliation officer needs to be informed furthering which the proceedings will start. While the same are carried out the workers cannot go on strike. If the rounds of negotiation between the parties are unsuccessful, there will be an application made to the tribunal by the aggrieved party which can be extended beyond the 60-day statutory period. In this period similarly as enunciated above, going on strike is not permitted. This essentially proves that the present legislation does not allow for representation of collective bargaining.

Suggestion

Considering the inability of workers to strike due to the strict legislation in force, the Apex court must be vigilant and Suo-Moto institute a case for recognizing right to strike as a fundamental right. The same is advisable because as held in Syndicate Bank v Umesh Nayak[x] strike is the weapon of last resort and when alternative mechanisms of settlement fail, this weapon must be used. Having understood that the labour laws have been introduced to protect the rights of the workers, taking away the right to strike is unfair and plays right into the hands of companies who can take advantage of these workers by absolving themselves of any responsibilities if these workers strike.  If the same is not done, the poor worker does not have a path to justice either legislatively or judicially.

Conclusion

As enunciated in the article, right to strike is a weapon of last resort when negotiations or any form of discussion ceases to exist. The new law makes it extremely difficult for workers to put forth their demands and get justice as the law makes going on strike almost impossible. Considering the precedents discussed above, the course of action would be to Suo-moto make right to strike a fundamental right. The same would be the ideal situation as then it would fair on those for whom the law was changed “the workers”.


[i] The Industrial Relations Code, 2020, Section 62,63,64, No. 35, Acts of Parliament, 2020 (India)

[ii] The Industrial Disputes Act, 1947, Section 2(q), No. 14, Acts of Parliament, 2020 (India)

[iii] The Industrial Disputes Act, 1947, Section 22,23,24, Acts of Parliament, 2020 (India)

[iv] (1990) Lab I.C. 389 (SC)

[v] 1960 AIR 893

[vi] Crompton Greaves Ltd. v Workmen, AIR 1978 SC 1489

[vii] 2003 SOL Case No. 429

[viii] AIR 1980 SC 1896

[ix] International Covenant on Economic, Social and Cultural Rights, 1967, Article 8, 1967 (United Nations)

[x] (1994) II LLJ 836 (SC)


Nikhilesh Koundinya, 4th Year Student, SLS Pune.

Picture Credits: iPleaders


by

Tags:

Comments

Leave a Reply

Your email address will not be published. Required fields are marked *