'Strike for your rights; even if you lose, your conscience will be at
peace.'-- Mahatma Gandhi
The synergy between capital and labor is the basis of complex industrial
structures, and their cooperation is essential for prosperity. Nevertheless,
disputes are inevitable and industry law promotes harmonization and calls for
resolving disputes through negotiation and arbitration.
At the heart of this
situation are trade unions, who play a central role in advocating for better
conditions through the powerful tools of collective bargaining, legislation,
mutual insurance and strikes. the International Labor Organization (ILO)
recognizes the right to strike as a fundamental human right internationally.
However, in India, it is enshrined not as a fundamental right but as a legal
provision given to the people. Strikes, a way for workers to demand better
working conditions and fair wages, play an important role in addressing
grievances. However, there is a veil of ambiguity surrounding this right, and
the uncertainty about the limits to its exercise discourages workers.
independence, India had no specific laws regarding the right to strike. The
Industrial Disputes Act of 1947 was a turning point, providing the legal
framework that defined and enabled the right to strike. Article 19(1)(c) of the
Constitution of India recognizes the right to form associations and trade
unions. The same also recognizes the right to strike peacefully, subjected to
However, this legal privilege is not generally
available, but is limited to certain classes of workers. This study examines the
evolution of the right to strike in India, analyzes the objectives behind the
reasonable restrictions set out in Article 19(1)(c), and identifies the
challenges and challenges associated with these restrictions.
navigates the labor rights landscape and explores the historical background and
current hurdles associated with exercising this fundamental aspect of employee
representation in India's legal framework.
The world is ruled by free-market capitalism, and every country's economy is
dependent on the output and financial profit of industry." Even though labour
and capital are the backbones of industry, and their cooperation is critical to
the economy's health, the capital class has the upper hand. Thus, some
democratic weapons are used by them to ventilate grievances and protect the
interests of the labour class, such as the right to form associations or unions
and collective bargaining by trade unions. Industrial disputes are disputes that
arise as a result of a disagreement over industrial relations.
relations are the bonds that form between an employer and an employee because of
various interactions. When there is a disagreement or a conflict of interest in
an industrial relationship, it causes dissatisfaction among the parties and
leads to industrial disputes. Strikes, protests, lockouts, and other forms of
conflict arise because of these disagreements. The Industrial Disputes Act of
1947 allows for a peaceful resolution of these disputes and promotes
'Strike' means stoppage or cessation of work by a group of workers to bring
forth their demands and/or grievances seeking resolution by the employer or
management. It may also be defined as a forceful weapon in the hands of workmen,
effectively useful in oppressive and exploitative situations. When all modes of
appeal fail, strike is used as the last resort to attract the attention of the
people who matter[i]. Skilful use of this tool leads to conclusive resolution of
the grievances and demands of the workforce. On the other hand, the misuse of
this tool results in disaster for all.
Strikes manifest in many forms, each serving as a voice for employee grievances.
A general strike, a common form, unites workers around collective demands
focused on economic factors such as wages and benefits, prevalent in sectors
such as transportation and government services. The situation is similar in
India's general strike "bandh" practice.
Mass casual leaves are planned absences
that violate established protocols. One example is the protests by teachers in
Gujarat against pension changes[ii]. In 2021, Indian farmers protesting against
the farm laws are drawing attention to individual demands in a variety of
ways[iii], including hunger strikes. On the other hand, a go-slow strike subtly
affects productivity and poses a risk to the machine without completely stopping
During stay-ins and strikes, when workers do not work, workers occupy
space but refuse to work. Refusal to vacate a building upon the management's
request is considered illegal. Sympathy strikes express solidarity with other
striking forces and obscure their legality under the Industrial Disputes Act.
The Wildcat strike takes place without the union's permission and destroys the
Gherao, which involves restrictions on freedom of movement, can be
legal or illegal depending on how it is carried out. Strikes typically arise
from issues such as inadequate pay, poor working conditions, job insecurity, or
disagreements over policies or benefits and reflect general dissatisfaction
In India, the right to strike is not expressly recognized in the constitution of
India [iv]. This is not an absolute right as it branches from the Article 19 of
the constitution which grants the fundamental rights. Article 19 states that. All
citizens shall have the right to:
- freedom of speech and expression;
- assemble peacefully and without arms;
- form associations or[v] unions;
like all other fundamental rights, these also come with riders and restrictions
provided in clauses 2 to 6 of the Article. These imposed restrictions may either
be substantive or procedural; in either case, they must pass the test of
reasonableness. The power of determination of reasonableness lies with the court
based on its interpretation of the facts and hence, varies from case to case.
The Trade Union Act, 1926, was the first provision that gave limited rights to
strike by legalizing certain activities[vi]. The Industrial Disputes Act, 1947,
recognizes this right legally and is available to all covered under this Act.
Section 2 of the Act defines 'workman' as any person (including an apprentice)
employed in any industry to do any clerical, mechanical, technical, skilled,
unskilled[vii], supervisory or manual work, for hire or reward.
interpretation of the term 'industry' by the courts includes educational
institutions, clubs, hospitals and various govt.[viii] departments, apart from
mines, factories and businesses. Sections 22 and 23 of the Act lays down the
procedures of going to strike and any deviation from the provisions stated here
makes the strike 'illegal' in the eyes[ix] of law. Section 24 of the Act defines
and differentiates between a legal strike and an illegal strike. It states that
an illegal strike is one which breaches the procedure of strike as mentioned in
Sections 22 and 23[x].
Thus, it's quite evident that The Industrial Disputes
Act, 1947, implies the legal recognition of those strikes which conform to the
laid down procedures. The statutory provisions are in place to differentiate
between the legality or illegality of the strike; with the final call regarding
it to be taken by the judiciary[xi].
Strike under the Industrial Disputes Act, 1947
According to Webster's dictionary, the term strike is defined as 'the act of
quitting work done by mutual understanding by a body of workmen as a means of
enforcing compliance with demands made on their employers; a stopping of work by
workmen in order to obtain or resist a change in condition of employment. [xii]'
Justice Bhagwati was of the opinion that the right to strike is an integral
aspect of collective bargaining and right is a process recognized by industrial
jurisprudence[xiii] and supported by social justice[xiv].
Section 2(q) of the
Industrial Disputes Act, 1947 states that a cessation of work by a body of
persons employed in any industry acting in combination or a concerted[xv]
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[xvi]
[xvii]. If the procedure to go on a strike which is mentioned in the act is not
followed then the strike is supposed as an illegal strike. Section 22(1) of the
Industrial Disputes Act talks about the certain prohibition on the right to
In the case of Uden v Schaeffer
[xix], the court gave the
definition of the word strike in a comprehensive manner: 'Strike is act of
quitting by a body of workmen, for[xx] the purpose of coercing their employer to
accede to some demands they have made upon him and which he has refused; but it
is not a strike for workmen to quit work[xxi], either singly or in a body, when
they quitted without intention to return to work, whatever may be the reason
that moves them to do so'.
The right to Strike is an advantage for the employees
who are given to them to help them to negotiate and to get their demands
fulfilled. The right to strike also works in favour for the trade unions and
workers union and help them get justice for the workers if there is any
violation of their rights. If workers stop the work individually, it won't
amount to strike whereas if bodies of person who are employed in any industry do
cessation of work, then it will be considered as a strike.
Disputes Act which talks about right to strike has an essential element for
strike and i.e. Cessation of work or refusal to do any work. If there is no
refusal to do the work then it won't amount to Strike. Thus, it is important to
prove that there was a refusal to do the work or stoppage of work from the
worker's end, that too with a common understanding, then only it would be
considered as strike.
If a worker is mere absent from work it won't constitute a
strike, it must have a refusal to do the act. In the case of Standard vacuum oil
co. Madras v. Gunaseelam M.G
[xxii], the workers of the company wanted a holiday
on the occasion as they wanted to celebrate "May Day"[xxiii]. The workers of the
company even requested the employers to declare it as a holiday and assured that
they will compensate the loss of the work by working on one Sunday. The company
did not give them a holiday on occasion of May Day and hence, they all applied
The court in this case held that there was no cessation of work or a
concerted refusal to work, hence, the actions done by the workers won't be
considered as a strike[xxiv].
Section 22(1) of the act states 'that no person
employed in a public utility service shall go on strike, in breach of
- Without giving to the employer notice of strike, as hereinafter provided,
within six weeks before striking; or
- Within fourteen days of giving such notice; or
- Before the expiry of the date of strike specified in any such notice as
- During the pendency of any conciliation proceedings before a
conciliation officer and seven days after the conclusion of such
The prohibitions mentioned under section 22(1) of the act
does not state that the workmen cannot go on strike but it states that these
prohibitions should be followed while going on a strike and these conditions
should be fulfilled. The provisions of section 22 are mandatory and it should be
specified the date in the notice on which the workmen proposed to go on strike[xxvi] [xxvii].
In case, the date of strike is expiring, fresh notice has
to be given. Further held that deduction of wages for the days of illegal strike
would be justified[xxviii] [xxix]. The Bombay High Court held that once the
strike is held to be illegal the question of justifiability does not arise and
the workmen in Public Utility service are[xxx] not entitled to seek wages for
the strike period unless they prove the strike legal and justifiable[xxxi].
Right to Strike: A Legal Right or a Constitutional Right?
Globally, the right to strike is considered as a fundamental right but the
constitution of India does not recognize the right to strike as a fundamental
right but it only gives fundamental right to form a Union [xxxii]. In the Indian
Constitution, none of the schedule among the seventh schedule talk about the
right to strike. In the case of Kameshwar Prasad v. the state of Bihar
the court held that the strike is not a fundamental right that is given to the
people. The court also stated that government employees do not have a legal or
moral right to go on a strike[xxxiv].
Similarly, the Court view that right to
strike is an important weapon in the armoury of employees as a mode of
redress[xxxv] [xxxvi] . Right to strike is a right that is earned by the
employees as form of direct action and it is given as a weapon to the people to
safeguard and preserve the liberty. Right to strike is a legal right though not
elevated to the status of a fundamental right[xxxvii] and there is no
fundamental right for workers to go on strike[xxxviii] [xxxix].
Article 19 of
the Indian Constitution enshrines that the right to protest is a fundamental
right but if we talk about right to strike, it is only recognized as a legal
right and not a constitutional right. According to the Industrial disputes Act
of 1947, the right to strike has some restrictions and that need to be followed.
The Indian courts have observed in the case that the significance of right to
strike is core of significance to the principle of collective bargaining of each worker[xl]. According to the Justice Krishna Iyer view that the strike could be
legal or illegal and even an illegal strike could be justified one[xli] [xlii].
In one of the cases where right to strike was raised as major issue, All Indian
Bank Employees association v National Industrial Tribunal & Others.[xliii], the
Apex court of India observed and stated that: 'Even by broad interpretation of
Article 19(1)(c), it cannot be held that trade unions have a guaranteed right to
an effective collective bargaining or fundamental right to strike.
The right to
strike or right to declare lock out may be controlled or restricted by
appropriate industrial legislation and the validity of such legislation need to
be tested not with reference to Clause (4) of Article 19 rather with totally
Are Workers Entitled to Wages During Strike Period?
In a prior Supreme Court judgement concerning wages during a strike, the court
held that workers are entitled to receive their wages for the day of the strike.
If the strike is legal and justifiable. In the case Management of Chitrakulam
Tea Estates (P) Ltd. vs. Its Workman[xliv] and Crompton Greaves Ltd v.
Workmen[xlv] It was held that the strike in these cases are neither illegal nor
unjustified and further held that the factory workers are entitled to wages for
that day of strike.
The Apex Court held in Bank of India v T.S. Kelawala
[xlvi] that workers are
entitled to wages during strike periods, but that the strike must be both legal
and justified[xlvii]. Whether a strike is legal and justified is a question of
fact that the industrial adjudicator must decide in each case[xlviii]. It must
be both legal and justified, according to Justice Krishna Iyer, for them to be
entitled to wages during the strike period. A strike is a legal strike that has
been recognized as a legal right, and it is legal if the procedures outlined in
the Act are followed.
If the reasons are not irrational, the strike can be
justified. The courts have stated that the use of force, coercion, violence, or
other forms of coercion by workers during a legal strike will deprive them of
their right to wages during the strike period. As a result, it is held that
resorted to by workers during a legal and justified strike would disentitle them
to wages during the strike period[xlix].
The supreme court in Syndicate Bank v. K. Umesh Nayak
[l], clarifies the
conflict view in the Management of Chitrakulam Tea Estate Case and T.S Kelawala
Case. The court emphasised that for entitlement of wages during a strike, it
must be both legal and justified. The legality is determined by examining any
breach of the Industrial Disputes Act, while justification involves considering
factors such as service conditions, nature of demands, the cause leading to the
strike, urgency, and the reason for not resorting to dispute resolution
Right to Strike by Government Servants and Employees
Whether the government servants and employees are having the right to go on
strike was debated since long period. The dispute came before the Supreme Court
of India in the case of T.K. Rangarajan vs. State of Tamil Nadu
[li]. This case
deals with the action of Tamil Nadu Government, whereby it had terminated the
services of all employees who had resorted to strike for the fulfilment of their
The said decision was challenged before the High Court of Madras by
filing writ. Learned single judge by interim order, inter alia, directed the
State Government that suspension and dismissal of employees without conducting
enquiry be kept in abeyance until further orders and such employees be directed
to resume duty. That interim order was challenged by the State Government of
Tamil Nadu by filing writ appeals.
On behalf of the Government Employees, writ
petitions were filed challenging the validity of the Tamil Nadu Essential
Services Maintenance Act, 2002 and also the Tamil Nadu Ordinance No.3 of 2003.
The Division Bench of the High Court set aside the interim order and arrived at
the conclusion without exhausting alternative remedy of approaching
Administrative Tribunal, writ petitions were not maintainable.
came up on appeal against the said order and for the same reliefs; writ
petitions under Article 32 of the Indian Constitution[lii] the petitioner
approached the Supreme Court[liii].
The right to strike is one of the most effective tools available to workers to
achieve their goals. All employees have the right to peacefully strike and make
just and reasonable demands. Although it is not a fundamental right, it is
protected by the Industrial Disputes Act of 1947. The Labor Court and the
National Court shall deal with workers' demands for higher wages and better
living conditions and cases of negligence on the part of employers under Article
11(A) of the Act.
In this case, the court acts as a balancing force between the
employee and the employer, taking into account the employer's desire to increase
profits and comply with both international and domestic regulations. The right
to strike is discussed in this article only as a statutory right, not as a
fundamental right. The reason this right is a statutory right rather than a
fundamental right is the need to protect a company's interests and prevent
employees from disrupting the workforce with unreasonable needs from time to
Consequently, the legal provisions under Article 19(1)(c) of the Indian
Constitution recognize the right to form associations as the framers of the
Constitution recognized the importance of maintaining peace and stability in
society. However, the right to strike is not recognized. With the advent of
trade unions, which protect workers from being exploited by employers because of
their capital status, the right to strike has become important to protect
workers from abuse by employers because of their vulnerability. It has come to
be recognized as a framework.
Written By: Geetika Rathore,
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a student of B.A. LL.B. at S.S. Jain Subodh Law College, Jaipur.