Debating India


A right under attack


Tuesday 19 August 2003, by SWAMINATHAN*M.S.

Article paru dans Frontline, Volume 20 - Issue 17, August 16 - 29, 2003.

The Supreme Court’s judgment declaring strikes by government employees illegal is criticised by trade unions and Left parties as `retrograde’ and `unacceptable’.

On August 6, the Supreme Court ruled that government employees had no "fundamental, legal, moral or equitable right" to strike work. A Division Bench of the court made the observation while disposing of a writ appeal and petitions challenging the Madras High Court’s dismissal of the petitions against the summary dismissal of government employees in Tamil Nadu under the Tamil Nadu Essential Services Maintenance Act (TESMA), 2002 as amended by an Ordinance on July 4. Over a million government employees and teachers in the State launched an indefinite strike on July 2. About two lakhs of them were dismissed from service on July 4 under the draconian Act (Frontline, August 1 and 15).

Central trade union organisations and Left parties have protested against the apex court’s ruling. Protest rallies and demonstrations have been held across the country.

Disposing of a writ appeal against the July 11 decision of a Division Bench of the Madras High Court holding the petitions challenging TESMA and the summary dismissal of employees non-maintainable on grounds of jurisdiction, the Supreme Court Division Bench, comprising Justices M.B. Shah and A.R. Lakshmanan, passed orders asking the Tamil Nadu government to reinstate all but 8,063 of the dismissed employees and teachers on certain conditions. The August 6 order of the Bench was in continuation of its July 24 direction, which followed the government’s acceptance of a `suggestion’ from the Bench for the conditional reinstatement of the dismissed employees. The conditions were that the dismissed employees "should tender unconditional apology for resorting to strike and also an undertaking to abide by Rule 22 of Conduct Rules (for government servants, 1973 of the Tamil Nadu government)".

Apparently, the order rested on the government’s contention that the strike was in violation of Rule 22 that prohibited its employees from going on strike. "We also agree that misconduct by the government employees is required to be dealt with in accordance with law," the Bench said in the judgment. However, the Bench said that "even though the provisions of the Act and the Rules are to be enforced, they are to be enforced after taking into consideration the situation and the capacity of the employees to resist (pressure on them to join the strike)" and hence the "suggestion" for reinstatement. The Court did not stop with it but dilated on the "right to strike", devoting one-third of the 21-page judgment to this question. Significantly, the Bench criticised the Madras High Court’s dismissal of the petitions on grounds of jurisdiction instead of intervening in the matter in view of "the extraordinary situation" that had arisen out of the dismissal of thousands of employees at one stroke. The court observed: "We make it clear that we have not at all dealt with and considered the constitutional validity of Tamil Nadu Essential Services Maintenance Act, 2002, and the Tamil Nadu Ordinance No. 3 of 2003 or interpretation of any of the provisions thereof as the State government has gracefully agreed to re-instate most of the employees who had gone on strike." The writ appeal itself, it has to be noted, was against the High Court order dismissing as non-maintainable the petitions challenging the amended TESMA as also the summary dismissals under it.

THAT the Bench thought it fit to devote much of its time to negating the right to strike was not surprising, because during the hearing itself the Judges were making observations critical of strikes. They said that strikes "hold the State to ransom" and "cause heavy loss of man-days". At one stage, they observed that strike was the most misused weapon in the country. In the judgment too, there were numerous such descriptions of strike. "Now, coming to the question of right to strike whether fundamental, statutory or equitable moral right - in our view, no such right exists with the government employees," the judgment said and went on to quote a number of earlier judgments of the apex court to establish this view.

"Law on this subject is well settled and it has been repeatedly held by this court that the employees have no fundamental right to resort to strike," the Bench asserted. The Bench recalled that in Kameshwar Prasad and Others vs. State of Bihar and Another (1962), the Constitution Bench of the Supreme Court had held as valid a rule that prohibited strikes on the grounds that there was no fundamental right to resort to strike. It also referred to the Supreme Court’s order upholding the validity of certain sections of the Essential Services Maintenance Ordinance of 1960, which was invoked by the Union government to deal with the postal employees’ strike in July 1960. The Bench noted that the court had then observed that "a perusal of Article 19 (1) (a) (of the Constitution) shows that there is no fundamental right to strike and all that the Ordinance provided was with respect to any illegal strike". Quoting the judgment in a case relating to an all-India strike by bank employees, the Bench said that the Supreme Court had "specifically held that even very liberal interpretation of sub-clause (C) of clause (1) of Article 19 cannot lead to the conclusion that trade unions have a guaranteed right to an effective collective bargaining or to strike, either as part of collective bargaining or otherwise".

Referring to a case arising out of a recent strike by lawyers, the Bench noted that the Constitution Bench of the apex court had "specifically observed that for just or unjust cause, strike cannot be justified in the present-day situation". It noted: "Take strike in any field, it can be easily realised that the weapon does more harm than any justice. Sufferer is the society - public at large."

The Bench also quoted a 1998 judgment upholding the Kerala High Court’s judgment banning bandhs: "There cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people." It quoted the Kerala High Court as having said in that judgment that "no political party or organisation can claim that it is entitled to paralyse the industry and commerce in the centre, State, nation and is entitled to prevent the citizens not in sympathy with its viewpoints from performing their duties... Such a claim would be unreasonable and could not be accepted as a legitimate exercise of a fundamental right by a political party or those comprising it."

The Bench asserted that there was no legal or statutory right to go on strike. "There is no statutory provision empowering the employees to go on strike," the judgment said. It added that, on the other hand, Rule 22 in the Tamil Nadu Government Servants Conduct Rule, 1973, prohibited strikes by government employees.

Asserting that there was "no moral or equitable justification to go on strike", the Bench said that apart from statutory rights the government employees could not claim that "they can take society at ransom" by going on strike. "Even if there is injustice to some extent, as presumed by such employees, in a democratic welfare State, they have to resort to the machinery provided under different statutory provisions for the redress of their grievances," the Bench said. It noted: "Strike as a weapon is mostly misused, which results in chaos and total maladministration. Strike affects the society as a whole and particularly when two lakh employees go on strike en masse, the entire administration comes to a grinding halt." In the same vein, the Bench said that when teachers struck work the entire educational system suffered, and when doctors went on strike innocent patients suffered. The Bench said that when the employees of the transport system stopped work, movement of society as a whole suffered.

The Bench said that it agreed with the submission of counsel for the Tamil Nadu government that "in a society where there is a large scale unemployment and number of qualified persons are eagerly waiting for employment in government departments or in public sector undertakings, strikes cannot be justified on any equitable ground". Finally, the Bench had a word of advice for the employees: "For redressing their grievances, instead of going on strike, if employees do some more work honestly, diligently and efficiently, such gesture would not only be appreciated by the authority but also by people at large... [because, as government employees] they are part and parcel of the governing body and owe duty to the society."

CENTRAL trade unions and political parties took strong exception to the judgment. They said that working people resorted to strike only as the last weapon. The Polit Bureau of the Communist Party of India (Marxist) observed in a statement: "This is an unprecedented judgment which at one stroke deprives lakhs of government employees of their basic right to organise and resort to strike action. This judgment is contrary to the fundamental rights in the Constitution and the ILO [International Labour Organisation] conventions to which India is a party." Criticising the "unwarranted assertions against the political parties and organisations which seek to register the protest of people who are suffering under severe socio-economic oppression", the party said: "Instead of safeguarding the rights of citizens, the judgment has more or less endorsed the draconian ordinance amending the Tamil Nadu Essential Services Maintenance Act." Calling the judgment "retrograde", the statement noted: "The democratic forces in the country will find this judgment unacceptable."

Former West Bengal Chief Minister and CPI(M) Polit Bureau member Jyoti Basu said in Kolkata that State government employees had the right to strike. He said: "The West Bengal government has already given the government employees the right to strike by amending the British Act." CPI(M) Polit Bureau member Prakash Karat said: "The working class movement cannot accept this judicial assault on the basic rights of the workers and the citizens of the country."

Leaders of the Left parties are of the view that the judgment must be seen as part of an increasingly unsympathetic and negative attitude to the rights of workers, which, in their opinion, is but a natural corollary of the World Bank-driven neo-liberal regime, to which the governments at the Centre and several States are committed. The Central Secretariat of the Communist Party of India described the judgment as a "judicial assault" on the democratic rights of workers and employees who had won their rights, including the right to strike, after several years of struggles and sacrifices. The Secretariat sought a review of the ruling by a Full Bench of the Supreme Court.

Former Union Finance Minister P. Chidambaram, who appeared for some of the petitioners in the Supreme Court, said that the right to strike was a basic right that had been accepted the world over and a civil and political right, but it should be used only "in the rarest of rare" cases. He, however, held the view that the Division Bench’s stand on the right to strike was "only an opinion to be respected and not a binding ratio. Whether the strike was illegal or not was not a point of discussion and the Supreme Court can give a verdict only on a point of discussion."

Terming the Supreme Court ruling on the right to strike as "uncalled for" and "beyond comprehension", Attorney-General Soli Sorabjee said on August 10 that the right of collective bargaining and the ancillary right to strike was an invaluable right of employees. "It was secured after years of toil and effort," he said. Sorabjee said: "There can be horrendous situations in which the employees have no effective mechanism for redressal of their grievances and left with no option but to resort to strike." Referring to the court’s comments that government employees did not have the "moral or equitable right" to go on strike, he said "a court of law is concerned with legal and constitutional issues. The observation that the employees have no moral or equitable right to strike was really uncalled for and is beyond one’s comprehension". However, he said: "No one can dispute that strikes should not be indiscriminate and resorted to for trivial reasons." He agreed with the court that strikes caused inconvenience to the public and damaged the smooth functioning of the administration.

Centre of Indian Trade Unions (CITU) general secretary M.K. Pandhe told Frontline that the Supreme Court had not taken into account the fact that several countries had granted workers the right to strike. "The right to strike is a fundamental right of the working people and we will have it," he asserted. All India State Governments’ Employees Federation honorary president M.R. Appan said that the right to strike, freedom of association, the right to collective bargaining and freedom from exploitation were rights that flowed from the right to live, a fundamental right guaranteed by the Constitution. "Government employees will resist any attempt to deny them of this last weapon through struggles," Appan said.

All India Trade Union Congress (AITUC) general secretary Gurudas Das Gupta said in a statement that the right to strike was "sacrosanct" and "in consonance with the letter and spirit of the Constitution". He pointed out that Central and State government employees had exercised their right to strike on many occasions in the past and that at no point of time in the history of Independent India their right to strike had been questioned by the judiciary.

Protest rallies and processions against the judgment were held across West Bengal on August 7. Government employees cutting across party affiliations responded in a big way to the call given by the State Secretariat of the ruling CPI(M) to stage a demonstration in front of Writers Building, the administrative headquarters of the State government. In New Delhi, CPI(M) workers staged a demonstration in front of the Supreme Court on August 8. Central trade union organisations have announced a series of agitations at several centres in the various States "to defend the working people’s right to strike". In Tamil Nadu, AITUC activists went on a day’s hunger-strike at 75 centres across the State.


Pic1:DESHAKALYAN CHOWDHURY/AFP : West Bengal government employees stage a demonstration against the Supreme Court verdict at Writers Building in Kolkata on August 7.

Pic2:V. SUDERSHAN : Left activists led by CPI(M) leader Brinda Karat staging a demonstration outside the Supreme Court building against the ruling.

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