Striking Out Strikes

In a fresh bout of judicial activism, the Supreme Court of India, lastweek, banned government employees from going on strike. In a sweepingstatement a two-judge bench declared that government servants had nofundamental, legal or moral right to strike work. An extremely provocativestand that led many legal minds and constitutional experts to declare thatthe Supreme Court this time had overstepped its brief and that theobservation was most unfortunate and undemocratic. 

For the trade unions, already grappling somewhat unsuccessfully with the harsh realities ofglobalisation, this judgememt came as a deadly blow. "This judgement hitsat our core activity rendering us less effective,' says DL Sachdev,secretary, All India Trade Union Congress (AITUC). Adds Hasubhai Dave,all-India president of the Bharatiya Mazdoor Sangh (BMS), "The right ofcollective bargaining (which the SC recognises) has no meaning if the rightto strike is taken away."

The constitution does not explicitly talk of the right to strike. It is nota fundamental right. But trade unionists argue that because the constitution provides the freedom ofexpression and since strikes are another form of expression, the Supreme Court order is in effectunconstitutional. And theyare unwilling to accept that this "right" could be open to judicialinterpretation.

The Supreme Court was forced to take up the issue of the right to strikewhen a petition challenging the dismissal of nearly two lakh employees of theTamil Nadu government came up for hearing. The employees were protestingthe withdrawal of certain pensionary benefits by the state government. Butthe latter responded by invoking the Essential Services Maintenance Act (ESMA) todismiss the striking workers. Under ESMA, strikes are illegal. To the court's credit, it did offer practicalrelief by  asking the government to take back most of the striking workers, but the relief came with arider - it also askedthem to tender an unconditional apology and to promise not to go on strikein future. The court observed that the government employees cannot holdsociety to ransom by going on strike and that strike as a weapon was mostlymisused and resulted in chaos and total maladminstration.

It is the Industrial Disputes Act (IDA) which gives workers the right to strike undercertain conditions:  for example, if they are working under inhumanconditions. But they have to give a notice of 14 days. Thisnotice is critical for the strike to be considered legal. While mostgovernment departments, including PSUs,  are covered under the IDA, the government can in almost all cases invoke ESMA when itwants to deal strongly with striking workers, as "essential services" are entirely defined by the state governments. Says labour expertProfessor CS Venkataratnam, "By invoking ESMA, thegovernment can ban strikes. It is considered a dark legislation, but aslong as it is on the statute book, like POTA (Prevention of Terrorism Act),it can be used by the government."

But Ratnam adds that the judgement is not unconstitutional because he feelsthat there is no direct or automatic relationship between the freedom ofassociation and right to strike. He says that neither in the IndianConstitution nor in the ILO (International Labour Organisation) standardshave the two been equated. In fact, with regard to ILO standards, India has ratified neither Convention No 87(Freedom of Association and Protection of the Right to Organise) nor Convention No. 98 (The Application of thePrinciples of the Right to Organise and to Bargain Collectively)

The trade unions on their part would like to wipe out this ambiguity. Theyare going to petition the Prime Minister to seek an amendment inthe Constitution so that the right to strike gets a clear mention. "Today out of the four crore pluspeople employed with the government,only about 2.5 crore are covered under the Industrial Disputes Act. Wewould like the others who work in departments like electricity andtransport (that are defined as essential services) to also be given theright to strike," Dave argues.

The trade unions have also planned to lobby against this order with thePresident of India and have planned a nation-wide demonstration. One tradeunion leader says, "Inspite of the court order, those who have to go onstrike will, this is not going to work as a deterrent." The militant mood isevident, but trade unions might be fighting a losing battle. All over theworld, trade unions have enjoyed power and strength only as long as statepatronage continued. Once the state becomes neutral, their power isneutralised and when the state decides to defend employer interests,the unions get marginalised. And in an ecomomy trying to liberalise, like India's, stories about the growing marginalisation of trade unions andworkers are bound to grow.

While even the Attorney General of India, Soli Sorabjee, agrees that strikescause grave inconvenience to the public, he has come out strongly againstthe apex court's verdict, calling it "uncalled for" and "beyond comprehension". He haspointed out that the right of collectivebargaining and the ancillary right to strike is an invaluable right ofemployees secured after years of struggle and that there could be "horrendous situations in which theemployees have no effective mechanism for redressal of their grievances and are left with no option but toresort to strike".  

Supreme Court lawyer, Prashant Bhushan is equally direct: "the Supreme Courtorder is contrary to the law and to earlier judgments. It is one thing tosay that workers in essential services cannot strike, but quite anotherthing to club all government employees together." Another Supreme Court lawyer, Bina Madhavan, feelsthat the two-judge bench ought to have referred to all precedents before coming up with thisdirective. 

In fact, the Supreme Court in its order has also stayed away from discussingthe merits or demerits of the Tamil Nadu Government invoking ESMA bypassing an ordinance overnight. Lawyers feel that the court should havediscussed these issues before passing a statement that in fact reprimandsworkers.

Despite the heated debate over the issue, the harsh reality of ourtimes is that the trade union movement which is at such a vulnerable statein the country, stands to be further decimated by this pill ofjudicial pro-activism.