The Right to Strike

So, here is an article by my famous uncle (Periappa) Alladi Kuppuswami on the `Right to Strike'. Unlike me who has no credentials in jurisprudence, he is a retired Chief Justice of Andhra Pradesh, a great scholar, author and jurist. The point of view is from a juridical point of view written in response to a judgement of the Supreme Court some years ago, and in response to some observations of the Hon. court. A must for anyone interested in the subject, no matter of what point of view. I am giving the link here, and am also cutting and pasting the article.

The right to strike

By Alladi Kuppuswami

It is true that in some cases the right to strike is being misused but that is no reason why all strikes should be condemned as immoral.


IN T.K. Rangarajan vs. Government of Tamil Nadu and Others (the Tamil Nadu Government Employees Case), Justice M.B. Shah, speaking for a Bench of the Supreme Court consisting of himself and Justice A.R. Lakshmanan, said, "Now coming to the question of right to strike — whether fundamental, statutory or equitable moral right to strike — in our view no such right exists with the government employee."

Even as early as 1961, the Supreme Court held that even a very liberal interpretation of Article 19 (1)(c) cannot lead to the conclusion that the trade unions have a guaranteed right to strike as part of collective bargaining or otherwise [1962 (3) SCR 269)]. In support of the theory of "concomitant right" to collective bargaining, reliance was placed on Romesh Thappar's case (1950 SCR 404) where it was observed, "There can be no doubt that freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation." It was argued if freedom of speech and expression "in Article 19 (1) (a) was given the liberal construction so as to effectuate the object for which the freedom was conferred, a similar construction should be adopted regarding the freedom of association guaranteed under Article 19 (1) (c)."

The Supreme Court observed, "There was no analogy between the two cases", that it was "one thing to interpret each of the freedoms guaranteed liberally" but it was another "to read each guaranteed right as involving the concomitant right necessary to achieve the object which might be supposed to underlie the grant each of such rights, for such a construction would, by ever expanding concentric circles in the shape of rights concomitant to concomitant right and so on, lead to an almost grotesque result."

The Supreme Court in the instant case also referred to Kameswar Prasad vs. State of Bihar (1962) Supplement 3 SCR 369 in holding there is no fundamental right to strike. The Supreme Court was perhaps therefore right in following its earlier judgments that there is no fundamental right to strike.

The Supreme Court referred to Tamil Nadu Government Servants Conduct Rules 1973 where Rule 22 provides that no Government employee shall engage himself in strike or in incitements thereto or in similar activities. In view of this rule the Supreme Court was right in holding that the strike was illegal. It is not known whether other Government Servants Conduct Rules contain a similar provision.

Earlier, before referring to the Tamil Nadu Rules, the Supreme Court gave the reason for holding the strike as illegal that there is no legal/statutory right to go on strike. The Supreme Court was evidently referring to the case of the Tamil Nadu Government employees with which it was concerned, for there are statutory provisions like the Industrial Disputes Act, which gives the right to strike to certain categories of employees.

Even if the judgment refers to the absence of statutory provision in the case of Tamil Nadu Government employees, it is respectfully submitted that no statutory provision is needed to enable employees to go on strike. If the right of an employee is denied by the employer or is interfered with, he has the right not to do work, i.e., to go on strike. If it is denied to a group of employees or all the employees, all of them can refuse to work for the employer (or go on strike) and a union representing the employees may ask them to go on strike.

As Soli Sorabjee, the Attorney-General, pointed out, the right to strike is a valuable right. In B. Singh's case, Justice Ahmadi observed that the right to strike is an important weapon in the armour of workers as a mode of redress. Therefore, no statutory provision is needed to confer on the employees the right to strike.

It is quite another matter if any statute or rule makes it illegal for the employees to go on strike unless and until the statue or rule is struck down.

Unfortunately, the Supreme Court goes further and says that there is no moral or equitable justification to go on strike. Though broadly worded as if to apply to every employee, it is clear from the sentence that follows, viz., "Government employees cannot claim that they can take the society at ransom by going on strike," that the Supreme Court refers to the moral right of Government employees.

Even so, it is respectfully submitted that the Supreme Court is not right in saying that Government employees have no moral right to strike. There may be many instances when the employees may be harassed and all avenues of their rights being recognised are closed, in which case the employees may have no other course than to go on strike.

Evidently, the Supreme Court was carried away by the fact that nearly two lakh Government employees went on strike in the instant case and the Government machinery came to a standstill. It seems to have also been influenced by the fact stated by senior counsel for the State Government, K.K. Venugopal, that 90 per cent of the State's revenue in Tamil Nadu is spent on salaries of Government servants.

It is true that Government employees everywhere are paid better salaries and enjoy more privileges and amenities than other employees. The public sympathy is generally against Government employees who go on strike. But that is no justification for the Supreme Court to say that Government employees have no moral justification to go strike in every case.

Not stopping with the case of Government employees, the Supreme Court refers to several categories of employees in the following words, "In case of strike by a teacher entire educational system suffers... In case of strike by doctors innocent patients suffer; in case of employees of transport services entire movement of the society comes to a standstill; business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or from one city to another. On occasion public properties are destroyed... "

It is respectfully submitted that there was no necessity for this extreme reaction against all cases of employees when the Supreme Court was dealing with the strike by Tamil Nadu Government employees. The Supreme Court must be certainly aware that in certain States teachers are not paid salaries for several years. Doctors, especially junior doctors, have on many occasions genuine grievance against the Government or other employers. Destruction or damage of public property is not always the result of strikes. It is true that in some cases the right to strike is being misused but that is no reason why all strikes should be condemned as immoral.

There seems to be some move to have the judgment of the Supreme Court reviewed. As far as the Tamil Nadu Government is concerned, the Supreme Court, perhaps having in mind the judgment of Justice V.R. Krishna Iyer that even illegal strikes need not attract dismissal (vide Gujarat State Steel Tube Case), directed that all employees who were suspended except those who resorted to violence should be reinstated if they apologise and that direction has been complied with. So there is no need for review in their case.

In case of other employees, the strong opinions expressed against strikes by other categories of employees is not even obiter dictum and is the mere expression of personal views of the two judges concerned and there is no need to ask for any review except as regards the obiter dicta that there can be no strike if there is no legal/statutory right to do so.

(The writer is a former Chief Justice of the Andhra Pradesh High Court.)