People's Democracy

 ANDHRA PRADESH

Convention Criticises SC Ruling Against Right To Strike

M Venugopala Rao

THE judgement given by the Supreme Court of India on August 6 that government employees have no “fundamental, legal, moral or equitable” right to strike came under incisive criticism from former judges, lawyers, academicians and trade union leaders at a day-long convention on “Supreme Court Judgement and the Right to Strike” organised by the state committee of All India Lawyers Union (AILU) and Sundarayya Vignana Kendram Trust at Sundarayya Kalanilayam in Hyderabad on  September 21. 

In his inaugural address, Nisith Adhikary, minister for law and judiciary, government of West Bengal, explained that before taking such a serious decision affecting the right of working class, the Division Bench of the Supreme Court did not consider several settled principles and landmark decisions of eminent jurists like Justice Chagla, Chief Justice Gajendragadkar and Lord Denning.  In 1960, in a judgement of the full Bench of the Supreme Court, Chief Justice Gajendragadkar maintained: “Collective bargaining for securing improvement on matters like these viz., basic pay, dearness allowance, bonus, provident fund and gratuity, leave and holidays is the primary object of a trade union and when demands like these are put forward and thereafter a strike is resorted to in an attempt to induce the Company to agree to the demands or at least to open negotiations the strike must prima facie be considered justified”.   He further observed: “In the struggle between capital and labour the weapon of strike is available to labour and is often used by it, so is the weapon of lockout available to the employer and can be used by him.  The use of both the weapons by the respective parties must, however, be subject to the relevant provisions of the Act”.  Chief Justice Chagla observed that if a strike did not fall under section 97 of Industrial Disputes Act, 1947, there was no law which made a strike illegal. Quoting Justice Lord Denning’s observation - “it is well settled for last 60 years that strike is legal” -  Justice O Chinnappa Reddy observed in 1970 that the strike was the inherent right of the workmen for the last 100 years.

Nisith Adhikary maintained that the Division Bench of the Supreme Court, before making such a general observation affecting the working class “there is no statutory provision of employees to go on strike”, it was expected from it that cogent reasons would be given.  He pointed out that the Court did not consider the fact that up till now the Industrial Disputes Act has not been declared ultra vires of the Constitution. Since its inception, the Supreme Court, as a protector of citizens’ rights traditionally, has constantly been expanding the scope of fundamental rights of the citizens. Adhikary maintained that the present judgement of the Supreme Court deviated from that established path of its traditional functions. Saying that this judgement has belied the expectation of the citizens, especially of the working class, he felt that it would result in making the Supreme Court weaker. The trend of taking away the attained rights of the workers began with the onset of the so-called liberalisation, privatisation and globalisation, said Adhikary.  However, he found a silver lining in dark clouds, saying that right thinking judges moved in the right direction – the latest Supreme Court judgement in HPCL-BPCL disinvestment case being one such example.

Justice P A Chowdary, former judge of the A P High Court, said that in a free society everything that was not specifically forbidden in common law was permitted. He maintained that if the citizen was deprived of his liberties, including the right to strike, he would cease to be a free man and become a slave. He felt that mere reading of the law alone would not suffice and that the judges should also read the Communist Manifesto, Bible, Mahabharat etc.  Justice Chowdary found it very difficult to understand as to how the Division Bench of the Supreme Court ignored the point that waging of strike was a principle of natural justice.  A fitting reply to the judgement of the Supreme Court was to wage more strikes, he suggested.

VIOLATIVE OF TREATIES & COVENANTS

Justice K Ramaswamy, former judge of the Supreme Court, dwelt at length on conventions of the International Labour Organisation (ILO) and maintained that though the international conventions were not formally ratified by the Indian government, to the extent they were consistent with our Constitution and the laws, they also had an influence on the operational structure of human rights regime applicable to the workmen/employees including freedom of association and collective bargaining. He argued that the right of the workmen to strike and the right of the employer to declare lockout were subject to restrictions contained in the Industrial Disputes Act consistent with Article 19(4) of the Constitution. The right to strike was an important weapon in the armour of workers and it has been recognised by almost all democratic countries, he said.  Though it was recognised as a mode of redress for resolving the grievances of workers, the right to strike was not absolute, felt Justice Ramaswamy. He said the judgement of the Supreme Court had no bearing on, nor was it applicable to, the workmen in an industry, and they need not have a wink of doubt on their right to strike as a part of collective bargain.

K G Kannabiran, the president of the People’s Union for Civil Liberties, argued that the concept of collective bargaining should normally imply the right to strike and that regulating the exercise of the right to strike was different from derecognising the right itself. Strike is a legitimate response to the arbitrary and authoritarian exercise of power, observed Kannabiran. 

One of the judges in the Division Bench, Justice Laxmanan, had asked the counsel for the employees whether under the Constitution the employees had any right to strike. It did not occur to him or the other learned judges sitting with him to ask whether any chief minister, by using the law-making power, could grant to himself/herself such absolute powers as the Tamilnadu CM had done so and which provision of the Constitution enabled a law to supersede the rights by a series of judgements, asked Kannabiran.  This decision of the Supreme Court was worse than its earlier decision in the ADM Jabalpur, justifying the Emergency, he said.  Jayalalitha banned strikes in Tamilnadu and the Supreme Court legislated banning strikes by government employees, state and central.  Would it be contempt if we talked about judicial tyranny, asked an inquisitive Kannabiran.

Dr Mohammed Zaheeruddin, Assistant Professor, Post Graduate College of Law, Osmania Univerity, dwelling at length on the international treaties, covenants and conventions, which recognise the right of workers and employees to form association for the purpose of protecting their interest, came to the conclusion that the denial of right to strike was permitted only in case of members of the armed and police forces, public servants who exercised authority in the name of the State and workers employed in essential services in the strict sense of the term (the interruption of which could endanger the life, safety or health of the whole or part of the population), or in situations of acute crisis.  He asserted that the present decision of the Supreme Court was not in conformity with international covenants and conventions.  The direction given by the Court to the employees of Tamilnadu government who participated in strike to tender unconditional apology, as well as to give an undertaking to the effect that they would abide by rule 22 of Tamilnadu government servants conduct rules, 1973, which provided that “no government servant shall engage himself in strike or in incitements thereto or in similar activities”, could be compared with ‘Yellow-Dog Contracts’ practiced in the United States of America till they were made unenforceable in federal courts by statute in 1932, he said. The working class in the developed countries such as the UK and the US fought for and achieved the right to strike in the face of collective hostility towards it from the employers, the ruling classes and judiciary. They realised that it was only through the method of collective bargaining they could fight back this hostility and redress their grievances, said Dr Zaheeruddin. Therefore, in India also, to meet such challenges there was an urgent need for strong trade unionism, he suggested.

WORKING CLASS WILL FIGHT BACK

S Veeriah, general secretary of A P state committee of the CITU, asserted that it would not be possible for anybody to disarm the working class by depriving it of the right to strike.  He made it clear that the right to strike was not bestowed through law but the law itself was the outcome of struggles of the working class. Since the emergence of capitalism, laws were in favour of the managements. The working class fought and got new laws enacted and existing laws amended to safeguard its interests.  In the name of liberalisation, attempts are being made to implement the existing laws fully in favour of the managements.  Veeraiah explained that in the name of development, stability and democracy and through implementation of liberalised economic policies,  the interests of the capitalists and the multinational corporations were being served much to the detriment of the working class. Because trade unions were fundamentally opposed to free trade and exploitation, increasing attacks were being made on the TUs and the working class right to strike, he said.  Courts, being influenced by the liberalised economic policies, were also giving judgements, interpreting the laws in tune with those policies. Veeraiah emphasised that by defeating the liberalised economic policies, the working class could assert its right to strike and make the judiciary change its approach in its favour. Dr G B Reddy, Assistant Professor, University College of Law, Osmania University, also addressed the seminar, which was presided over by Bodepudi Radhakrishna, president of the state committee of AILU.  Around four hundred lawyers, middle class employees and others participated in this convention.