Right to strike in light of Fundamental Rights

Right to strike in light of Fundamental Rights

Author: Prashant Chandak,

3rd Year BBA LLB (Hons) ,

Christ (Deemed to be University).

This paper tries to examines whether Right to strike is a fundamental right and whether it comes under the ambit of seven freedoms guaranteed by Article 19. This paper intends to highlight India’s stance on right to strike in comparison with other countries around the world. The paper highlights that it is important to know the meaning of strike before analysing whether right to strike is a fundamental right or not. In this research paper, the emergence of the concept of right to strike under article 19(1) will be examined by relevant decided case laws. This paper tries to examine whether Article 19 is wide enough to include right to strike. The economic implications of the strike are also discussed in this paper. This paper identifies the right to strike not only under Indian Constitution but also other statutory provisions. This paper identifies that the right of the judiciary is to decide the legality or illegality of the strike not to pronounce that there is no right to strike. This paper highlights how the Universal declaration of human rights recognises the right to strike. It highlights that India despite being a member of International labour organization has not signed those conventions which included right to strike. The paper also states the stance of India in cases of lockout which is the antithesis of strike. This paper has compared few decisions of the court in matters relating to the illegality of the strike with the provisions of the International Covenant on Economic, Social and Cultural Rights.


India is a world’s largest democracy and has a longest constitution in the world but in reality we lack basic democratic rights such as right to effective collective bargaining and right to strike as they are not directly protected under the Indian Constitution. It is important to know the meaning of strike to determine whether the right to strike is a fundamental right under Article 19(1)[1] of Indian Constitution or not.

Strike is a cessation of work by the employees to make the employer accept their demands. Strike is the last resort available to the employee when no other constructive option is left to ensure acceptance of their demands. It puts pressure on the employer to act in accordance with whim of the employees. Strike is basically a weapon of the workmen to ensure that their demands are fulfilled.

The state of Indian economy cannot afford hindrances at regular intervals in the form of strikes. The country and its economy calls for more and more production. Strikes will create frictions and worsen the tensions between employer and employees. Strikes have the potential to violate law and order of the country. India cannot handle frequent stoppages of work due to strikes as it will retard the nation’s economic growth and development.

It is important to know what are the contents of Article 19 of the Indian constitution to determine whether it is broad enough to contain right to strike.

Article 19 guarantees the following freedoms:
a) Freedom of speech and expression.[2]
b) Freedom to assemble peacefully and without arms.[3]
c) Freedom to form association and unions.[4]
d) Freedom to move freely throughout the territory of India.[5]
e) Freedom to reside and settle in any part of the territory of India.[6]
f) Freedom to practice any profession or to carry on any occupation, trade or business.[7]
The unique feature of the freedoms guaranteed by Article 19 is that they are not absolute terms and, and clauses (2) to (6) provide for reasonable restrictions imposed on these freedoms. The restrictions may be procedural or substantive, but both must satisfy the test of reasonableness. Whether a restriction is reasonable or not is to be determined by the Court.

According to Justice Bhagawati, “the principle of reasonableness which legally as well as philosophically, is an essential element of equality and non- arbitrariness pervades Article 14 like brooding omnipresence of the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right, just, fair, and not arbitrary, fanciful or oppressive, otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.”[8]

Strike – Statutory provisions

Strike is not recognized fully in Indian laws like it is recognized by the laws of United States of America. It was recognized for the first time in Trade Unions Act 1926. The Act gave a limited right to strike in its Section 18 and Section 19. These sections give an immunity upon trade unions on strike from civil liability. Strike is permissible only up to a limited extent as allowed by law and trade unions cannot exercise the right more than the permissible limits.

The Industrial Disputes Act, 1947 implies a right to strike in industries. Section 2(q) [9]of the Act defines Strike. Section 22[10], 23[11] and 24[12] recognize strike. Illegal strikes are those strikes which are not consistent with Section 22 and 23 of the Act. Strikes which are in conformity with the procedure are legal. Hence it is safe to conclude that Chapter 5 of the Industrial Disputes Act recognizes strikes.

International Covenant of Economic, Social and Cultural Rights

India is signatory to the International Covenant of Economic, Social and Cultural Rights and this covenant ensures that parties which have ratified this covenant must ensure that right to strike shall only take place if it is exercised in conformity with the domestic laws of a particular country.[13] The covenant also provides that states which are signatory to the covenant must adopt legislative measures[14], Hence India is bound to enshrine right to strike by adopting legislative measures in accordance to the provisions of the covenant. Article 8 of the covenant highlights about the right to strike.

International Conventions

India is a member of International Labour Organization and has even ratified around 40 of its conventions. However, India has not ratified those conventions which include right to strike. India has not ratified Convention no. 87 of 1948 and Convention no. 98 of 1949. Convention 87 provides for freedom of association and protection of right to organize. Convention 98 is concerned with right to organize and collective bargaining, both of which conventions assure the right to effective collective bargaining (which includes right to strike, though not expressly stated) by the employees.

All the members of the International Labour Organization even if they have not ratified the conventions shall act in good faith and protect the fundamental rights and act in accordance with the principles which these conventions mean to promote. All the members shall ensure elimination of all forms of forced labour, right to collective bargaining, right to association, abolition of child labour and elimination of all kinds of discrimination in employment.

Position of Right to strike in Universal declaration of Human rights

Right to strike is not directly found in the Universal declaration of Human rights of the United Nations Organization but it is indirectly found in the declaration. The assertion of Right to work for everyone, Right to just and favourable remuneration ,Right to form and join trade unions[15], Right to leisure , rest and leave[16] and Right to fair living conditions with social benefits[17] ensure that employees deserve a democratic environment and strike in accordance with law is part of a vibrant democracy.

Recognition of Right to Strike by Constitution of Other Countries [18]

Indians often boosts that they have the largest democracy in the world and have a longest written constitution in the world. However, the ground reality is that we lack certain basic constitutional values like right to strike, right to collective bargaining which are even possessed by certain small third world countries. Few countries which provide absolute right to strike are:
  • South Africa (Article 23 of the Constitution)
  • Brazil (Article 9 of the Constitution)
  • Greece (Article 23 of the Constitution)
  • Hungary (Article 70C of the Constitution)
  • Macedonia (Article 38 of the Constitution)
  • Poland (Article 59 of the Constitution)
  • Slovakia (Article 37 of the Constitution)
  • Portugal (Article 57 of the Constitution)
  • Japan (Article 28 of the Constitution)
  • South Korea (Article 33 of the Constitution)

Right to Strike – Judicial Interpretation

Various case laws can be used to determine whether right to strike is fundamental right or not and whether it comes under the ambit of Article 19 or not.
In All India Bank Employees’ Association v. National Industrial Tribunal and others[19], The court held that the very liberal interpretation of Article 19(1)(c)[20] cannot lead to a conclusion that Trade unions have an absolute right to strike and effective bargaining.

  In B.R. Singh v. Union of India,[21] Justice Ahmadi opined “The Trade Unions with sufficient membership strength are able to bargain more effectively with the management than individual workman. The bargaining strength would be considerably reduced if it were not permitted to demonstrate by adopting agitation methods such as ‘work to rule’, ‘go-slow’, ‘absenteeism’, ‘sit-down strike’, and ‘strike’. This has been recognized by almost all democratic countries”.

In Gujarat Steel Tubes v. Its Mazdoor Sabha[22], Justice Krishna Iyer is of the opinion that right to strike is a part of right to effective collective bargaining. He further stated that right to strike is recognized by the concept of social justice and industrial jurisprudence. Further, Justice Krishna Iyer had opined that “a strike could be legal or illegal and even an illegal strike could be a justified one” in this case and it is thus beyond doubt that the Industrial Disputes Act, 1947 recognizes a right to strike.

In T.K. Rangarajan Appellant v. Government of Tamil Nadu and others[23], Justice Shah was of the opinion that that “no fundamental statutory or equitable moral right to strike exists with the government employees”. This opinion of Justice Shah is against the basic principles governing the labour law in India. This lead to large scale protests by the employees and labour organizations around the country. The human rights activists also raise their concerns after this obiter dictum. The Attorney and Solicitor General of India were also not in favour of this interpretation and called for a larger bench to review the judgement and undo the error in judgement to set a right example.[24] Justice Shah’s judgment in Rangarajan case does not seem to be right when saying: “There is no statutory provision empowering the employees to go on strike.” Going further, the judge then declared that there was “no moral or equitable justification to go on strike”. This observation is not in confirmation with the Indian Law and International conventions.


Indian economy has slowed down lately due to frequent strikes by labour organisations and bandhs by the political parties. Strikes are a result of Marxist theory which supports the argument that workers can strike if the capitalist acts in an autocratic manner. In the recent years, Strikes have occurred in a large number leading to underproduction. Strikes suggest there isn’t harmony between the employers and employees. Strike is an option which is a last resort of the employee out of exasperation. Strikes played a huge role in Indian National Movement however an absolute right to strike is not granted by the Constitution of India and Right to strike is not a fundamental right. It doesn’t come under the ambit of Article 19 of the Constitution.

[1] Right to Freedom

[2] Article 19(1)(a)

[3] Article 19(1)(b)

[4] Article 19(1)(c)

[5] Article 19(1)(d)

[6] Article 19(1)(e)

[7] Article 19(1)(f)

[8] Mrs. Maneka Gandhi v. Union of India, AIR 1978 SC 59

[9] “strike” means a cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment

[10] Prohibitions of strikes and lockouts

[11] General prohibition of Strikes and lockouts

[12] Illegal strikes and lockouts

[13] Article 8 (1)(d) of the covenant.

[14] Article 2(1) of the covenant.

[15] Article 23 of the UDHR.

[16] Article 24 of the UDHR.

[17] Article 25 of the UDHR.

[18] Sharma, I. Mallikarjuna. “RIGHT TO STRIKE.” Journal of the Indian Law Institute, vol. 46, no. 4, 2004, pp. 522–533. JSTOR, www.jstor.org/stable/43951934. Accessed 17 Feb. 2020.

[19] (1962) 3 SCR 269

[20] Right to form Associations or Unions.

[21] (1990) Lab IC 389 SC

[22] AIR 1980 SC 1896

[23] (2003) 6 SCC 581.

[24] Prakash, Aseem. “Workers’ Right to Strike.” Economic and Political Weekly, vol. 39, no. 39, 2004, pp. 4317–4320. JSTOR, www.jstor.org/stable/4415584. Accessed 17 Feb. 2020.

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