The Right To Strike
By Rajeev Dhavan
The Hindu
22 August, 2003Ever 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.