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Insights into Editorial: No fundamental right to strike

 

 

Context:

Recently, the Minister of Defence introduced the Essential Defence Services Bill, 2021, in the Lok Sabha to provide for the maintenance of essential defence services so as “to secure the security of nation and the life and property of the public at large and prevent staff of the government-owned ordnance factories from going on strike.

The Essential Defence Services Ordinance 2021 comes in the backdrop of major federations affiliated with the 76,000 employees of the Ordnance Factory Board (OFB) making an announcement that they would go on indefinite strike from July 26 in protest against the government’s decision to corporatize the OFB.

 

Right to Strike:

  1. The word ‘strike’ comes from ‘strican to go’ which means to quit, hit or impress in case of a trade dispute.
  2. It is the most effective and final resort in the hands of workers to secure economic justice.
  3. This meaning of strike has undergone various changes across the world and most of the nations have given the right to strike to the workers.
  4. The right to strike is a statutory right in India guaranteed under Section 22(1)(a) of the Industrial Disputes Act, 1957.

 

Background: Rules and rights:

This is not for the first time that strikes by government employees are being made explicitly illegal by the government.

The Madhya Pradesh (and Chhattisgarh) Civil Services Rules, 1965, prohibit demonstrations and strikes by government servants and direct the competent authorities to treat the durations as unauthorised absence.

A strike under this rule includes “total or partial cessation of work”, a pen-down strike, a traffic jam, or any such activity resulting in cessation or retardation of work. Other States too have similar provisions.

 

Features of the Bill:

  1. The Bill defines Essential Defence Services, it includes any service in any establishment or undertaking dealing with production of goods or equipment required for defence related purposes or any establishment of the armed forces or connected with them or defence.
  2. The Bill seeks to empower the government to declare services mentioned in it as “essential defence services” and prohibit strikes and lockouts in any industrial establishment or unit engaged in such services.
  3. The Minister, however, assured the Ordnance Factory Board (OFB) employees that their service conditions will not be affected.
  4. The Bill amends the Industrial Disputes Act, 1947 to include essential defence services under public utility services.

 

Constitutional provisions related to Right to strike:

  1. For the armed forces and the police, where discipline is the most important prerequisite, even the fundamental right to form an association can be restricted under Article 19(4) in the interest of public order and other considerations.
  2. Under Article 33 of the Constitution, Parliament, by law, can restrict or abrogate the rights of the members of the armed forces or the forces charged with the maintenance of public order so as to ensure the proper discharge of their duties and maintenance of discipline among them.
  3. India recognized strike as a statutory right under the Industrial Disputes Act, 1947.
  4. Strike is not expressly recognized in the Constitution of India. The Supreme Court settled the case of Kameshwar Prasad v. The State of Bihar 1958 by stating that strike is not a fundamental right. Government employees have no legal or moral rights to go on strikes.
  5. The Supreme Court in Delhi Police v. Union of India (1986) upheld the restrictions to form association by the members of the non-gazetted police force after the Police Forces (Restriction of Rights) Act, 1966, and the Rules as amended by Amendment Rules, 1970, came into effect.
  6. While the right to freedom of association is fundamental, recognition of such association is not a fundamental right.
  7. Parliament can by law regulate the working of such associations by imposing conditions and restrictions on their functions, the court held.
  8. In K. Rangarajan v. Government of Tamil Nadu (2003), the Supreme Court held that the employees have no fundamental right to resort to strike.
  9. Further, there is prohibition to go on strike under the Tamil Nadu Government Servants’ Conduct Rules, 1973.
  10. Also, there is no moral or equitable justification to go on strike. The court said that government employees cannot hold the society to ransom by going on strike.

 

Arguments given by government:

  1. In its objectives, the government has stated: “Indian Ordnance Factories is the oldest and largest industrial setup which functions under the Department of Defence Production of the Ministry of Defence.
  2. The ordnance factories form an integrated base for indigenous production of defence hardware and equipment, with the primary objective of self-reliance in equipping the armed forces with state-of-the-art battlefield equipment.
  3. In view of the prevailing situation on the northern front of the country, it was felt necessary that the Government should have power to meet the emergency created by such attempts.
  4. It ensures the maintenance of essential defence services in all establishments connected with defence, in public interest or interest of the sovereignty and integrity of India or security of any State or decency or morality.

 

International practices:

  1. The English judiciary has been very amenable towards the right to strike. They have recognized the said right as justiciable one.
  2. Lord Denning held that strike is the last remedy and that it has emerged as an inherent right of the worker which forms the essence of collective bargaining.
  3. Even in the US, the National Labour Relations Act, 1935 provides the right to strike to bargain for better wages and working conditions, health and hygiene etc. However, no such recognition has been given to the aforesaid right in India. It is just a statutory right.
  4. International Labour Organization mandates that a right to organize and collective bargaining shall be given to the employees.
  5. Although, there are no express provisions on the right to strike. But ILO Committee of experts has highly regarded this right as indispensable and an integral part of the right to organize.
  6. India has implemented and promoted almost all the principles embodied in these two conventions except the right to strike.
  7. Universal Declaration of Human Rights, 1948 provides for the protection of workers’ interests. They have the right to form trade unions and associations. And the right to strike is a sequel of their constitutional privilege to form association.
  8. International Covenant of Economic, Social and Cultural Rights, 1966 also provides for the recognition of the right to strike with the condition that it is in conformity with the law of the member states.

 

Conclusion:

There is no fundamental right to strike under Article 19(1)(a) of the Constitution.

Strikes cannot be justified on any equitable ground. Strike as a weapon is mostly misused which results in chaos.

Though the employees of OFB have threatened to go on strike, Parliament, which has the right to restrict even the fundamental rights of the armed forces, is well within its right to expressly prohibit resorting to strike.

Collective bargaining is the essence of trade unions and associations but it is only possible if right to strike is given the fundamental right status.

Considering the dismal conditions of industries, employer domination, minimum wage issues and social aspects of the strike, it casts a legal and constitutional obligation on the State to made strike as a fundamental right under Article 19(1)(c).