People's Democracy

 Right To Strike Is Inalienable

 Tapan Sen

THE recent Supreme Court judgement striking down government employees right to strike is a grave assault on the fundamental rights of not only government employees but of the entire working class. The 21-page judgement of the apex court, delivered on petitions relating to the government employees strike in Tamilnadu and the subsequent developments, has been so worded as to make it prone to wild interpretation by the employers’ class and the government.

The judgement pronounced that the “right to strike – whether fundamental, statutory or equitable/moral right – in our view, no such right exists with the government employees.” It stated in another place, further extending the canvas of prohibition, “Even the trade unions that have a guaranteed right for collective bargaining, have no right to go on strike.”

Going further, it lauded the unparalleled repression unleashed by the Tamilnadu government by way of summary dismissal of around 1.7 lakh employees, large scale midnight arrests etc. The justification cited was that “there is no alternative today to deal with the strike”. Peculiarly enough (?), almost similar tune has been emanating from many of the employers’ organisations and in the editorial comments of many national dailies, much before the said judgment has been pronounced.

Even while virtually pronouncing a ban on the right to strike, the apex court preferred, in its wisdom, not to deal at all with the issues or grievances which led to the strike. It admitted without regret by saying “we have not dealt with the grievances of the employees against various orders issued by the government affecting their service benefits.” The judgement clearly demonstrated a bias in favour of the employers and the government, reflecting the dominant philosophy of the ruling class in the post-liberalisation era.

In the same judgment, the apex court, while dealing on the right of the High Court to entertain petition on employee related matters, has endorsed the Mallinath Committee’s Report on the functioning (or malfunctioning?) of administrative tribunals. The court stated among other things, “Not all of them (administrative tribunals), however, have inspired confidence in public mind. The reasons are not far to seek. The foremost is the lack of competence, objectivity and judicial approach…” It also noted that in Tamilnadu, at present, the administrative tribunal is manned by only one man. Interestingly, in the same breath the court advised the striking employees to “resort to the machinery provided under different statutory provisions for redressal of their grievances” in the event of any injustice, instead of resorting to strike. The administrative tribunal is one such, rather the only statutory forum on whose quality and incompetence the court passed such colourful opinion. Novel indeed!

The apex court asserted that the Indian Constitution does not guarantee the right to strike for government employees. The Constitution does not mention anything specifically about the right to strike to any section of workers, which does in no way mean denial of the said rights to government employees. Rather, the ban on the right to strike is tantamount to violation of the fundamental rights relating to freedom of expression and association.

A PRODUCT OF STRUGGLE

The right to strike for workers and employees is the product of a long history of struggle and sacrifice by the working class since the pre-independence days. It was not just conferred on them or doled out in charity. The workers and employees, including in the government sector, earned this right by exercising this right braving force and coercion from the days when it was not at all recognised. The existing labour related legislations recognising the right to strike came into being much afterwards. The ILO conventions (No. 87, 98, 151 and 154), adopted with the concurrence of government of India, upheld this right of employees of both the government and private sector subsequently.

Thereafter, on many occasions workers and employees in various sectors had to assert their right to strike through strike action in the face of arbitrary prohibitive orders by the government declaring the strike illegal. The railway strike of 1974, the port and dock workers strike in the 1970s and in 2000, the telecom strike and the postal employees strike in the 1990s were examples of such assertion of the right to strike by the working class. This right is organically linked with the right to collective bargaining and will continue to remain an inalienable part of various modes of response/expression by the working people, wherever the employer-employee relationship exists, whether recognised or not.  The apex court failed to comprehend this very dynamics of the evolution of the right to strike.

The judgment has a comment that “Strike as a weapon is mostly misused which results in chaos and total maladministration.” Is this a fact? The right to strike is always exercised by the workers and their unions as a last resort, after exhausting all other avenues of grievance redressal. It is not for pleasure or for fun the workers resort to strike, as even if the demand is achieved through strike, the workers will lose their wages for the strike period. In the Tamilnadu case also, the concerned employees had resorted to strike only when their months-long persuasion for a hearing of their grievances on unilateral and arbitrary curtailment of their pensionary and other benefits failed owing to the arrogance of the authorities concerned. But, the offender has been lauded for its offensive deeds and those affected by the offence have been penalised.

While referring to the situation arising out of the government employees strike in Tamilnadu, the apex court made too generalised comments on the working class without any substantiation by facts. It said that the through strikes, the employees are holding the society to ransom. The fact is just otherwise. The number of mandays lost due to strikes has gone down substantially during the last five years while there has been a steep rise in the mandays lost due to lock-outs, due to closures and lay-offs (Annual Report of the Union Labour Ministry (2002-03). In 2001, mandays lost due to lock-out had been three times more than that due to strike. In 2002 (January-September) lock-outs wasted four times more mandays than the strikes. Who are holding the production process to ransom? Definitely, not the workers. The apex court preferred to overlook the recent strike by the business class against the value added tax and also the transport company’s strike against the judicial directive on usage of non-polluting fuel, both of which created much more chaos and inconvenience to the common people. Should not the apex court consider banning closures, lock-outs, muscle-flexing by the business class etc, which not only put people to inconvenience but also throw the workers, who are also part of the people, into starvation?   

SHOCKING, BUT NOT SURPRISING

The judgement of the Supreme Court is no doubt shocking, but not surprising. As we have noted earlier, the present judgement reflected the ethos of liberalisation and privatisation philosophy of the ruling class. This is not surprising because it is only a reaffirmation of the time tested truth that the judiciary is one of the instruments of “state” and also that all the instruments of “state” ultimately converge in upholding the interest of the ruling class to perpetuate their class rule. To quote Lenin, “the state is an organ of class rule, an organ of the oppression of one class by another” (Lenin, The State and Revolution, 1917).

Many of the apex court judgements relating to workers during the post-liberalisation period bear testimony to this fact. The judgment upholding the Kerala High court’s banning of so called “forcible bandh”, the SC judgment nullifying its own earlier judgment in the Air India case on contract labour, its refusal to intervene against the retrograde move of privatisation of profit making companies by the government on technical ground and the judgement upholding the Balco sell-off are some of the examples of the attitudinal change in the highest judiciary. This change is in line with the ethos of the neo-liberal policy paradigm of the ruling class.

It should not, of course, be lost sight that during the pre-liberalisation decades there had been many landmark judgments by the apex court and also by different levels of judiciary, which to a considerable extent upheld the rights of workers and common people. Such developments had been probably the reflection of the kind of welfare-statist approach, accommodated within the framework of the capitalist path of development pursued by the ruling classes then. The prevalence of strong socialist camp in the world scenario had also been an important factor in the ruling classes adopting such an approach.

But that had been a temporary phenomenon, and it had to be so. To quote again from Lenin’s writing on the character of “state” – where he referred to Engels saying, “the modern representative state is an instrument of exploitation of wage labour by capital. By way of exception, however, periods occur in which the warring classes balance each other so nearly, that the state power as ostensible mediator acquires, for the moment, a certain degree of independence of both.”  The role of various instruments of state in the pre-liberalisation period, particularly since the seventies and the early eighties, displayed in varying degrees such temporary exceptions owing to various factors mentioned earlier.

RESIST UNITEDLY

The post-Soviet era and the onset of liberalisation, have forced out the so-called welfare-statist veil of post-war capitalism. It made the oppressive drive of the forces of capital more fierce with the deepening of the crisis of capitalism signalling terminal recession worldwide. All the previous gains of the so-called welfarist regime are being taken away by the state in its vigorous pursuit of neo-liberal policies under imperialist pressure. This is being done in the form of curtailment of subsidies on people and public services, privatisation and commercialisation of public utilities, including education. In the face of popular opposition to such measures, which has sometimes forced retreat by the ruling polity in certain instances, intolerance towards democratic expressions of the people started surfacing in various forms.  And precisely in this background, vigorous move is afoot from all sides, by all instruments of the state, to completely clip the wings of the working class, the most organised social force which is a thorn in the flesh of the liberalisers.  

Hence the executive wing of the state has begun sabotaging the enforcement of labour laws, inspections have been discontinued in most of the states, both officially and unofficially; the legislature is complementing the executive with its vigorous drive to change the labour laws in favour of employers – the Second National Commission on Labour has already drawn up a blue print for this. The latest judicial decree to ban strike along with the previous ones on allowing non-regularisation of contract labour despite doing permanent jobs, not allowing back-wages to dismissed workers on reinstatement etc is also converging with the other wings of the state apparatus to perpetuate and intensify its oppressive class rule. 

What is important to note here, as history taught us, is that the onslaught on the rights of the working class is the prelude to an all-round offensive on the democracy itself. Already, under the NDA regime, various democratic institutions are being undermined signalling ominous portents. In this background, the manner in which the so called logic of “inconvenience to people” is being sought to be pitted against a basic democratic right – the right to strike – which is recognised in all democratic societies, displays a dangerous trend and a particular bent of mind, which can be extended to any extent to deny democratic rights to any section of people, by pitting one section of people against the other.

The working class has to defend its right to strike by asserting the right more forcefully and unitedly. The democratic movement must also correctly assess this danger and raise the voice of united resistance against the aggressive misrule of the state in its entirety.