The
Right To Strike
By Rajeev Dhavan
The Hindu
22 August, 2003
Ever
so often, the Supreme Court needs to be reminded of the sobering thought
that it is "supreme, but not infallible." From 1955
when it made a major reversal of a decision of 1953 the Supreme
Court has been conscious that it makes mistakes, needs to iron out inconsistencies
and change its mind. There are at least two instances in which a former
Chief Justice of India frankly stated that he had made a mistake. It
takes a great deal of judicial valour to do this. In 2002, the Supreme
Court invented a new `curative petition' to `cure' injustice
even in cases dismissed twice over by the Supreme Court itself. It is
in this spirit that it is necessary to make a plea that Justice M.B.
Shah's (for himself and Justice Lakshmanan) observation in the Tamil
Nadu Mass Dismissal case that the right to strike is not a legal or
moral right needs to be reviewed.
Hard cases make
bad law. The Mass Dismissal case is one such case. The strike was prompted
by the peremptory action of the Tamil Nadu Government to alter pension
payments among other grievances. The Government decided to tackle
the workers instead of their grievances. By April 2003, 27 entities
were brought under the Tamil Nadu Essential Services Maintenance Act
(TESMA). The `protest' strike was intended for July. From around June
30, the arrests and harassment of workers began. On July 3, various
Government circulars declared that the strikers could not return to
work. On July 4, a draconian ordinance `mass-dismissed' all workers
who did not return to work `at once' even though the July 3 circulars
forbade it. But could the employees return to work and also not return
to work? The law required the impossible while mass dismissing 1,70,000
Government employees. The workers estimated the total number of `mass-dismissed'
employees at around 3,00,000. A large part of the Chennai Secretariat
disappeared in the dismissal. If the Government's lockout of July 3
was illegal, the `mass dismissal' was possibly the worst known to Indian
labour history. A Government refusing to negotiate to resolve a situation
made peremptory arrests, declared an illegal `lockout,' commanded the
employees to return to work which it had itself made impossible and
indulged in a `mass dismissal' unprecedented in labour-management relations.
Unfortunately, whilst forthright on the responsibilities of workers,
the Supreme Court remained singularly silent on the `mass dismissal'.
In fact, the Government created the problem for both the workers and
the public.
The Supreme Court's
main aim was to quell the situation. All of the 1,70,241 employees were
reinstated except 6,072. The Court moulded the relief. On July 5, a
single judge of the Madras High Court restored jobs to the employees
who were willing to return to work. The Supreme Court did not go that
far but created a special procedure for the 6,072 dismissals to enable
each case to be examined by three retired High Court judges. Mildly
remonstrating that the High Court should have decided the matter rather
than send it to a non-existent tribunal (to which the non-government
workers could not go in any case), the Supreme Court closed the case
by allowing the employees to chase their remedy on the Government's
illegality and Ordinance in Chennai.
Having moulded the
relief and virtually remanded the matter, the Supreme Court should not
have gone further. That would have been fair to both sides. Judicial
forbearance was an option. But Justice Shah had strong views on `strikes'
which were strongly stated in his minority judgment in the Lawyers'
Strike case (2002) where the majority countenanced one-day lawyers strikes
in the rarest of rare cases. But to be fair, during the hearings in
the Tamil Nadu case, Justice Shah did not mince his words, made his
views known and indicated that he would put them in the judgment. But,
while moulding the relief (which he did admirably), he did not permit
or request any detailed argument on the question of strike. Had he done
so, he might have seen the chapter and verse of the law that permitted
strikes both as a legal and a moral right. While references were
exchanged, no cases on strikes were actually cited or considered. This
is the most unsatisfactory way of declaring the law on so important
an issue. A full review on the law after hearing both sides was necessary
and proper if the judge wanted to declare the law beyond moulding interim
relief.
The judgment takes
an extreme view on strikes contrary to the letter and spirit
of the law, including Supreme Court judgments. The judgment totally
avoided the principle issue of the `Mass Dismissal'. The general law
(well articulated in a 1993 Supreme Court case) is that automatic termination
of employment cannot take place without hearing employees. This natural
justice requirement to Government employees is embedded in the Constitution
and can be given the go-by only if it is circumstantially impossible
to give a hearing to each one of them. In the RAW employees case (1985),
a hearing was deemed impossible, in the Railways case (1993), it was
not. Clearly, the Tamil Nadu case of 2003 was crying out for natural
justice which was abjured by `mass dismissal' by Ordinance. The judgment
was forceful against strikes but silent on mass dismissals.
No one argues that
all strikes are legal or justified. Even the 1962-64 judgments, denying
a constitutional right to strike, require examination. The lead judgments
of 1961-62 say that the right to strike is not a part of the right to
`freedom of association.' But apart from a stray observation in the
1964 judgment, the Supreme Court has never decided whether the right
to strike is a demonstrative act which is part of free speech. Australia
endorsed by its Supreme Court has approved of the right
to strike. The Indian Industrial Disputes Act, 1947 (IDA), recognises
the right to strike declaring strikes during negotiation and
adjudication illegal. In fact, Section 22 of the IDA permits legal strikes
even in public utility services provided notice is given. Only sudden
`wild cat' strikes are illegal. Further, as Justice V.R. Krishna Iyer
pointed out in the Gujarat Steel Tube case (1980), even illegal strikes
may be justified so as not to attract dismissal.
So, Justice Shah's
judgment 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." Where did this come from? Certainly not from
the law as we know it. Apart from the Court's own jurisprudence that
even `illegal strikes' may be justified, this statement militates against
Justice Ahmadi's statement for three judges in B.R. Singh's case (1989)
that "the right to strike is an important weapon in the armoury
of workers... recognised by almost all democratic countries... as a
mode of redress." Which statement should the Courts follow? Should
the prior verdict of a co-equal bench be ignored? Justice Shah's statement
that even in Government departments "strikes cannot be justified
on any equitable ground" overstates the democratic tolerance of
the law. The judge's canvas seems over-coloured extending prohibiting
strikes in all cases.
The Tamil Nadu judgment
goes on to suggest that "even if there is injustice to some extent"
employees must seek redress outside strikes. The significant words are
"to some extent." This means that there may be cases where
strike is justified. Or, does it? But good law is not built by injecting
hope in three casual words. The judgment as a whole denies the legal,
moral and equitable right to strike for everyone everywhere.
While arguing this
matter for the workers, we were more concerned with moulding the relief
for the wageless workers who had been dismissed into immediate oblivion.
No one expected such a wide overstatement of the law. To avoid strikes
is everyone's responsibility. But to assert that strikes under any circumstances
are illegal, immoral, inequitable and unjustified is contrary to our
law and industrial jurisprudence.
Strikes and demonstrations
are a democracy's hard-fought weapons against oppression. They cannot
be wished away by a Supreme Court, which has hitherto supported their
disciplined use. What is at issue is democracy itself. Strikes empower
the disempowered to fight injustice in oppressive cases when no constructive
option is left. It took one and a half centuries to discipline strikes
into responsible governance. This cannot be wiped out in a few sentences
which should not have been written. This needs urgent review by the
Supreme Court itself.