INTRODUCTION
Trade Unions with sufficient membership strength are able to bargain more effectively ¦ The bargaining strength would be considerably reduced if it is not permitted to demonstrate by adopting agitational methods such as ¦ ‘sit-down strike’, and ‘strike’. This has been recognized by almost all democratic countries.
As the statement of the Indian Supreme Court quoted above indicates, the ability to go on strike is perhaps the labour class™ most effective weapon in its struggle to convince employers to heed its demands , and a key element of their bargaining power. Despite recognizing this fact, the Supreme Court displayed a very different attitude to the right to strike when confronted by this issue again.
The case of T.K. Rangarajan v. Government of Tamil Nadu arose from a mass strike organized by Tamil Nadu Government employees, who were agitating against the denial of certain benefits to them. In response, the TN Government, empowered by the Tamil Nadu Essential Services Maintenance Act, 2003 (TESMA), dismissed or suspended all striking employees, and ordered the arrest of many. This order and the TESMA were challenged before the High Court, and a Division Bench found for the State, ordering the employees to exhaust statutory remedies before preferring a writ. The Supreme Court heard the matter on appeal, and the Bench, comprising Justices Shah and Lakshmanan, concluded that government employees have no fundamental, statutory, moral or equitable right to strike; urged the employees to pursue alternate methods of resolving differences; and, thereafter achieved a compromise with the TN Government whereby some workers were reinstated upon tendering an apology. This decision evoked outrage in many quarters, and was also criticized by the Attorney-General
This paper critically analyses the judgment in T.K. Rangarajan, and argues that it wrongly deprived government of their vital right to strike. It is the author™s opinion that the Hon™ble Court erred on three main counts firstly, in its discussion of fundamental rights; secondly, in its consideration of moral and equitable rights; and thirdly, in its disregard of India™s international obligations.
1.1 THE RIGHT TO STRIKE AS A FUNDAMENTAL RIGHT
The T.K. Rangarajan judgment relies on 5 prior cases to conclude that it is well-settled that there is no fundamental right to strike. However, a more nuanced reading of those precedents indicates that this question has never been properly considered by the Court at all. The very first case to touch on this topic, was the All India Bank Employees’ Association case wherein the Court dealt with Article 19 (1) (a). However, it is worth noting that the case did not pertain to strikes at all rather the issue of strike was merely an illustration relied upon by the Court hence, the statement was, at best, merely obiter dicta. It is submitted that the courts in subsequent cases wrongly took the obiter dicta of the case to be the ratio of the said judgment.
In Kameshwar Prasad™s case , decided six months later, a 5-Judge Bench distinguished between a demonstration and strike, and blindly relied on All India Bank Employees’ Association case to conclude that there was no fundamental right to strike. However, this overlooked two crucial points firstly, that the previous case had only analyzed whether strikes fell within the ambit of Article 19(1)(c), but not considered the scope of Articles 19(1)(a) or (b); and secondly, that the issue of strike was never urged before the Court at all
Subsequent cases like Post Master General , and Harish Uppal , have merely cited the above two cases as authority for the proposition that there is no right to strike. Therefore, it is clear that these 4 cases cannot be considered as laying down a rule that there is no fundamental right to strike – rather, each case erroneously reads previous cases, and provides only conclusionary statements, without actually analyzing ˜strike™ as part of the rights to free expression and assembly a mistake repeated by the Court in T.K. Rangarajan . The only other case cited in the judgment, Communist Party of India™s case , actually distinguished between coerced Bandhs (which are illegal), and peaceful strikes (which are not), and therefore supported the petitioners™ case, not the governments!
Hence, the Court was hasty in concluding that there is no fundamental right to strike perhaps the Hon™ble Judges might have referred the matter for the consideration of a larger bench (since earlier cases were decided by 5-Judge Benches).
1.2 HEIRARCHY OF LAW
The Court in TK Rangarajan held that there was no Fundamental Right to strike by workmen . There was also a clear statutory mandate prohibiting the strike. However, the Court went on to delve into the moral right and justification of strikes. It is submitted that this is sets a dangerous precedent in so far as it gives a leeway to future petitioners to claim moral rights in the absence of Fundamental rights and the presence of a statutory prohibition. Moreover, the discussion also reflects a strong attitude against strikes. For example, the Court propagates alternative methods for redressal – which is not the best mechanism in case the workers are not protesting against the employer but merely asking for better wages, working conditions etc. Such a stance is a marked departure from the stance taken in previous cases- where courts were not so reluctant to recognise strike as a right.
1.3 ILO CONVENTIONS AND THE INDIAN POSITION
The International Labour organization recognizes the right to strike. Even though the Conventions and Resolutions of ILO do not explicitly state the right to strike, it can be read in the broader scheme of things. The International Labour Conference passed two resolutions which emphasize (even if not directly) strike as a right. The Resolution concerning the Abolition of Anti-Trade Union Legislation in the States Members of the International Labour Organisation, adopted in 1957 and the Resolution concerning Trade Union Rights and Their Relation to Civil Liberties, adopted in 1970 emphasize the importance of strikes in the eyes of the ILO. Moreover, the Freedom of Association and Protection of the Right to Organise Convention, 1948, allows the workmen to organize their administration and activities and to formulate their programmes according to their interests.
It is therefore clear that the ILO recognizes the right to strike. However, the ratio decidendi in T.K. Rangarajan does not keep this international standard in mind. The case brazenly strikes down strike as neither a constitutional right, nor a moral or equitable right. The decision goes against the norm followed by an international organization India is a signatory to. It shows a complete disregard of the international obligations India must conform to.
CONCLUSION
It is submitted that the judgment of the T.K. Rangarajan is a flawed one. However, it remains the law of the country, as it has not been overruled by any larger bench. It is submitted that the judges did not take into account the precedents set forth, the hierarchy of law or even India™s international obligations. This case must be reviewed because it goes against the rights of workers.
Submitted by
Harshita jalan
IVth year, B.A. LL.B (Hons.)
WB National University of Juridical Sciences
Kolkata
