The First World War brought about the industrialization. The political scenario
of the European world was not so developed as to cope up and regulate the degree
of industrialization. The industries were run with total authoritarianism when
capitalist economy started to flourish. The absence of any kind of regulation or
intervention by the state, the employers used their unfettered power and
exploited the workers to a despicable degree.
There were no determined working
hours, working and living conditions contributed in deteriorating the health of
the workers and, consequently, their families, who migrated from villages to the
cities in search of work and the most palpable of all; there was no such concept
of fair wage at all. This resulted in the coming together of the masses, to not
deliberate but, bring revolution in the society. Various groups were formed
consisting of anguished workers who were against such treatment. And with this
the entity called 'Trade unions' started to emerge as a perceptible concept.
With the consolidation of such unions, the power of collective bargaining with a
new possibility of threat to withhold labour was accredited with the working
class and consequently the 'Strike' started emerging as a way of reaching a
compromise between the labours and the industrialists. With the advent of
socialism and communism, the state started interventions and regulation of the
industrial mechanisms including employer-employee relationships.
Similarly, in India until the enactment of the trade union act in 1926, the
strike was not recognised as a tool of bargain, instead the non-continuance of
work of seen as a breach of contract and in some cases even committing an
offence. This was so because the notion of strike and even formation of any
trade unions was deemed illegal and was completely restricted even in England,
which at the time decided India's legal frameworks, under the contributions Act
of 1799 and 1800.
After the promulgation of the trade union Act, the strike was
legally distinguished from mere breach of contract and even a right to conduct
the same was recognised to some miniscule level. Section 18 and 19 of the Act
absolved some trade unions from the liabilities arising out of contracts and
some tortious liabilities relevant enough to let them strike without breaking
any laws. The strike formally began a legally valid and justifiable tool in
the hands of the workers with the enactment of the industrial dispute Act, 1947.
However, the same did not confer the absolute right to strike but distinguished
the strike into two categories; of legal nature and that of illegal nature. The
people could strike as the last resort to propel the employer to listen to them
but a proper procedure should have been followed and in some cases, of public
importance and urgency, the employees don't have any such right to strike.
The right to strike since then has been in debate. The Apex court has multiple
times interpreted the provisions related to right to strike through various
judgements, as early as since 1960's, according to the prevalent conditions of
What is strike?
Strike can be defined as a conduit taken up by a group of persons, which
involves discontinuance of some, or all, the work which was allotted to them
under some employment, to compel other person(s) to concede to some terms and
conditions benefiting the Strikers
According to the Industrial dispute Act, 1947 strike is defined as:
cessation of work by a body of persons employed in any industry acting in
combination, or an understanding of any number of persons who are or have been
so employed to continue to work or accept employment.
highlights some important key distinctions between the protest and strike.
Firstly, the strike should be held by employees, or workers, employed under by
some industry only and must raise demands against person(s) who is employing
them i.e. the employer. The other major component that constitutes a strike is
that there should be some 'action in combination' i.e. there should be some
concerted efforts amongst the strikers in reference to a particular purpose of
that strike; otherwise it wouldn't be called so.
The right to strike is based on a very crucial principle i.e. the 'collective
bargaining' principle. This principle holds that the balance of power between
various parties in the economic structure should be so distributed that the
group of employee should enjoy the power to threaten as to withhold their
labour. This threat forms the very basis because of which a strike becomes
effective and has been termed as a fundamental tool within the worker's hand
against exploitation done by the employer.
The western world's workers have fought strenuously and arduously to gain such
right against exploitative policies of the industrialists. The same is
conspicuous in the international laws and covenants that followed the post-world
war II developments in the sphere of global standards of laws.
Accordingly, the international covenant on economic, social and cultural rights
adopted in 1966, article 8 (1)(d) expressly recognizes the right to strike and
puts an obligation on the member states to ensure its enforceability with
restrictions according to the laws of lands of the particular states. Article
2(1) further consolidates the obligation as it mandates the promulgation of
relevant legislations by the state members in their respective territories with
an objective to achieve such conferment of rights upon the people of their
The conventions of the International labour organisation, either expressly or
impliedly, for multiple times, observed that right to strike is a fundamental
right in the hand of the employees of the world. Specifically, in the convention
No. 98 and convention No. 154 ILO focuses on the importance of collective
bargaining for the employees and workers against any kind of exploitation at the
workplace, directly or indirectly caused by the policies taken up by the
The intrinsic significance of the right to strike to secure such
balance of power as to consolidate the power of collective bargaining has also
been recognised.Article 9 even recognises the right of the public employees to
strike, subjected to some restrictions.
Even the United Nation's 'Declaration of Human rights' recognises the 'Right to
trade unions for the protection of interests' in accordance with article 23 and
Legal nuances of the right; Indian perspective
The legal position of the right to strike in India can be explained and
understood by analysing the statutes that contain provisions related to strikes
and also at the same time by going through the judgements of the various courts.
The international covenants also put certain obligations on Indian state as
their member to abide by them. All of these are going to be categorically
B) With the help of statutes
As mentioned earlier, in India the right to strike wasn't recognised up until in
1926 when the Trade Unions Act came into force. According to provisions of
this act some people were exempted from the civil liabilities arising out of
contracts, who were members of any trade union and hence the act indirectly
recognised their right to strike for the first time. Then the Trade Union Act of
1929 was enacted, which further consolidated these rights. Several legislations
such as the Employer and workmen dispute Act 1869 and rule 81 A of defence of
India rule were also promulgated but failed to address the issue of dispute
resolution in employer- employee relationship.
The right to strike, finally, expressly observed in the Industrial Dispute Act
of 1947 which was a resultant of post industrialization and world-war II and
came into force on April 1, 1947. The Act defines Strike
in section 2(q) and
contains relevant provisions on chapter V of the Act. Section 22 and 23
differentiate between a legal strike and illegal strike under the aeigis of
section 24. Further section 26 contains in itself, the punishments if any
contravention of the laws and regulation is observed by any person. Section
10(3) and section 10A(4A) deal with the prohibition of a strike on the order of
the government if the case for the resolution of the same has been transferred
to some tribunal or for arbitration. Further, if the strike continues even after
promulgation of such order(s), the strike would be termed as illegal.
A perusal of the provisions contained in chapter V of the Act makes it clear
that though the right to strike is available to some people, it surely is not
available to all the citizens. The act specifically mentions that people working
in public utility services should give a prior notice to the employer and
puts other procedural restrictions in the way of the exercise of the right. It
is conspicuous that if the appropriate government decides that the strike should
discontinue, it will pass an order and do so.
Continuation of the strike after
such order has been passed will be illegal and accordingly the strikers will be
liable for punishment under section 26 and their wages may also be denied to
them. Hence this right in no way available to all the citizens as it contains so
many unreasonable restrictions. In a case the strikers are not satisfied by the
award given by the arbitrator and do not want to go to the court because of lack
of proper legal help or any other reason, and they want to continue the strike,
they simple cannot. This is because the right is not fundamental in nature and
hence the government can interfere with ease in the enjoyment of the right.
C) With the help of judicial decisions
In Harish Uppal v. UOI
, the court denied that advocates have any right to
strike, because the role played by them is too precious in the administration of
justice but at the same time declared that” in the rarest of rare cases where
the dignity, integrity and independence of the Bar and/or the Bench are at
stake, Courts may ignore (turn a blind eye) to a protest abstention from work
for not more than one day.
In B.R. Singh v. UOI
, the Apex Court noticed
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 All India Bank Employees'
Association v. National Industrial Tribunal and others the court opined
that” even a very liberal interpretation of sub clause (c) of Clause (1) of
Article 19 cannot lead to the conclusion that the trade unions have guaranteed
right to an effective collective bargaining or to strike either as a part of
collective bargaining”. In one of the above judgement it also observed that:
right to association may be extended to the right to protest through
demonstrations provided it does not disturb public order.” The Apex court in
case of Indian General Navigation and Railways Co. Ltd., v. Their
 found out a paradoxical issue that:
It is a little difficult to
understand how a strike in respect of a public utility service, which is clearly
illegal could at the same time be characterised as perfectly justified”. Further
in the case of Gujurat Steel Tubes V. Gujurat Steel Tubes Mazdoor Sabha
court ruled that:
Mere illegality of the strike does not per se spell unjustifiability” And “it is a little difficult to understand how a strike in
respect of a public utility service, which is clearly illegal could at the same
time be characterised as perfectly justified”.
It can be thus concluded that the right to strike, though not considered an
intrinsic part of freedom to form associations, but still is a fundamental tool
for employees against any kind of direct and indirect exploitation. The Supreme
Court also agrees upon the notion that without this tool in the hands of
workers, the power of collective bargaining and consequently power to form
associations would not stay true to its essence and hence ruled that, the
strike, after experimenting with other dispute resolving methods between
employers and employees must be the last resort kept with the workers/employees.
The court rather than focussing on the legality or illegality of strikes have
instead focussed on the question of its justification in every case. As
discussed in the above parts, that public servants do not enjoy the complete
right to strike as per international or national laws, but according to these
judgements, in some cases, even such strikes can be valid and justifiable, if
there exists; a probable and reasonable cause for the same.
D) Under the international obligations
The international covenant on Economic, Social and Cultural Rights has been
subscribed and ratified by Indian state. And hence all the obligations mentioned
earlier in the paper are on the Indian state to properly observe and fulfil.
India has been a founding member of the International Labour Organisation. Other
than that convention No. 86 of the ILO, puts an obligation on the member state,
by the virtue of membership to observe and ratify the fundamental conventions of
the ILO in their respective territories.
Further according to the Directive principle of state policy and Article 51,
Indian state should promote international peace and security and hence should
respect the international treaties of which India is signatory. Article
253 confers the Indian parliament with the adequate powers to ratify
International treaties for the same purpose. Indian judiciary have also noticed
in the case of Apparel Export Promotion Council v. A.K. Chopra
international treaties are like an obligation on India.
Due to all of the abovementioned Obligations, the right to strike should have
been made a fundamental right and have been conferred on the citizens of the
country. But the position of law in that regards is still debatable. The right
to strike is observed in India as a legal right and it is sparingly due to the
presence of these obligations on the Indian State to abide by.
Right to strike; what kind of a right it is?
There has been an on-going debate, almost from 1960's, weather the right to
strike in India has the same pedestal as a fundamental right and enjoyed by the
'citizens' or it's just a statutory right. Though the scope of this paper is a
limiting factor on further delving into the question whether right to strike is
a fundamental right or not but, it becomes imperative to find out whether
currently it has that status to ascertain its conferment to 'citizens' of the
The 'right to strike' has its roots in the fundamental right to form
associations mentioned in the constitution of India. The rudimentary issue is of
the interpretation of the said provision; whether Article 19(1)(c) includes the
right to strike as an intrinsic component or not. Currently, the right to strike
is not a fundamental right and the same has been reiterated again and again by
the Apex court in various judgements since 1960's till as late as 2003.
right has been as being a statutory right as its exercise entails a plethora of
restrictions that can be imposed by the state as and when necessary. There are
legal restrictions such as definite time period of providing a notice to the
employer, having to follow a regulated procedure of striking and also
constitutional restrictions such as maintenance of public order etc. as per
the exceptions provided in the constitution of India.
Further the Supreme Court remarked that if the right to strike is given the
stature of a fundamental right, this may impede the economic growth of the
country and hence adversely affect the economic structure of the state. This
means that the right to strike is still is not expressly available to every
'citizen' of the country; in the sense that one has to be a part of some trade
union or an employee to come under an imperceptible ambit to enjoy the right to
This will definitely leave out certain groups in the society whose
labour is not recognized as that of a formalised sector. The people working in
farms as individual labourers, people (especially women) engaged in domestic
work and other workers whose labour do not directly contribute to the national
income of the country will be left out and will not be able to exercise the
right to strike.
It is now clear that till the date the right to strike is not recognised as a
fundamental strike in India. There are some consequences due to that, those are
- The deduction or denial of wages during the Strike.
As the Supreme Court in the case of Crompton Greaves v. the workmen observed
that if a strike is found to be unreasonable, illegal and unjustified then the
employer has the right to cut some part or completely deny the workers of the
wages they would have gotten if they had been working instead of striking. This
position of the workers undermine their right to form associations and freedom
to express their thoughts as when they do so they have a fear that their wages
might cut down. Thinking, with a viewpoint of a labourer who earns daily to
sustain himself/herself and his/her family, this fear can lead him to not raise
voice and work under harsh conditions and hence silently and forcefully accept
exploitation by the employers.
- Strikes can be pushed around by the order of the appropriate
As already seen, according to the provisions of the Industrial disputes Act,
1947, the government acquires such power to dominate the strikers whenever it
wants and that too with just an order passed by it. This needs to stop because
of the arguments made earlier. Until the right to strike is transformed into a
fundamental right such arbitrariness in the laws will work as an impediment on
the freedoms of the workers and hence an impediment on basic fundamental rights
of the citizens.
- The right to strike is not available to public employees and people
working in un-organized sector.
Unless and until every citizen of the country gets the equal opportunity to
exercise the right to strike, it can't be said to be a right conferred on the 'citizens' of the country. As discussed in the paper, the people who are most
exploited by their employers i.e. the domestic workers, people working as farm labours may not come under the ambit of
'Industry' workers because they are not
present in trade unions and are not in majority in number. Even the public
employees have been denied of the unrestricted right to strike but they too
constitute the citizenry of the country.
All these issues have significance as to considering the right to strike as a
fundamental right. The fundamental rights are also restricted in one way or
another but the advantage of being redressible under article 32 will consolidate
the stature of the right to strike to overcome all above mentioned issues.
From the history to present we can see that the strike has played a major role
in bringing balance to the unequally distributed power between an employee and
her/his employer. The evolution of the right to strike as fundamental right of
the worker, at least in western part of the world, signifies its importance as
the discontinuance of any kind of work was considered illegal before any such
The right has been recognised globally because of its presence in the most
important domain of any time period i.e. production and industrialization. The
international laws very well recognize the right to strike and obligate upon
various member countries to enforce them in one way or other into their
territories. The global recognition of the right is a symbol of the hard fight
that is fought behind the achievement of the same.
In India though, the right has not gained such high degree of respect as in case
of other countries and even global level. The right is not recognised as a
fundamental right in Indian state. However, it still remains as a legal right
present in with the labourers and employees according to statutes, judicial
pronouncements and international obligations arising out of various treaties and
ratification of various covenants by the Union of India.
It cannot be concluded that the average Indian citizen has the right to strike
because of the views expressed in the paper. A right to be called as an right
that is enjoyed by the Citizens of a country, must be one of sacrosanct nature
with least restrictions in the pursuit to enjoy the right. Unfortunately that is
not the case when taking the right to strike in consideration.
- Das B and Rath B, 'Right to Strike: An Analysis' (2005) 41(2) IJIR accessed
25 December 2020
- Ranjan K, Strikes by Advocates in India (Legal Service India 2020)
accessed 04 December 2020.
- Saxena G, Right to strike and Constitutional Validity (Legal Bites
2020) < https://www.legalbites.in/right-to-strike/#_ftn4>
accessed 02 December 2020
- Warrier V, 'Right to Strike and Article 19(1) of Indian Constitution' (Lex
Warrier Foundation 2010) accessed 05 January 2021
- Vishnu S Warrier, 'Right to Strike and Article 19(1) of Indian
Constitution' (Lex Warrier Foundation 2010) accessed 05 January 2021
- B.P. Rath and B.B. Das, 'Right to Strike: An Analysis' (2005) 41(2) IJIR accessed
25 December 2020
- The Right to Organise
- The Convention for Collective Bargaining Rights
- Some parts of Article 25 also contain the relevant provisions
- Trade Unions Act 1926
- Industrial Disputes Act 1947, s 27.
- Industrial Disputes Act 1947, s 2(n)(vi).
-  2 SCC 45 (SC)
-  389 Lab IC (SC)
-  3 SCR 269 (SC)
- 1 LLJ 22 (SC)
-  389 LAB IC (SC)
- The Constitution of India, 1950.
- (1999) AIR 625 (SC)
- The Industrial Disputes Act, 1947, s 22
- The Constitution of India, article 19(4)
- (1978) AIR 1489 (SC)