The Hindu : Supreme Court and the right to strike

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Wednesday, Aug 13, 2003

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Supreme Court and the right to strike

A CLOSE READING of the Supreme Court's August 6, 2003 judgment in T.K. Rangarajan vs Government of Tamil Nadu & Others shows that the Court has, following in the footsteps of a string of illiberal verdicts on Government servants beginning in 1962, got hold of the wrong end of the stick. The Attorney General for India, Soli Sorabjee, has done a public service by speaking up against the apex court's observation that there was no moral or equitable right to go on strike. Characterising this as "uncalled for" and "beyond comprehension," he has pointed out that the right of collective bargaining, including the right to strike, was an invaluable entitlement of workers and employees won through years of toil and struggle. Further, there could be "horrendous situations in which the employees have no effective mechanism for redressal of their grievances and are left with no option but to resort to strike." Implicit in this opinion is a distinction between the merits of particular strikes and the legal and moral status of the right to strike. Here is the voice not merely of law and order and the tenets of `strong' governance — but of democratic entitlement and a sense of history. There were two core issues before the two-member bench. The first was the constitutionality, legality and rightness of the summary dismissal of about 170,000 State Government employees in Tamil Nadu under the State's Essential Services Maintenance Act (ESMA), as amended post facto by an ordinance conferring on the Government the divine right of dismissal, without any application of mind and without giving the employees an opportunity to be heard. The second issue was the status of the right of workers and employees to freedom of association and collective bargaining, including the right to agitate and strike.

In response, the apex court resorted to the technique of providing practical relief in place of a determination of the issues of justice. The relief came through the Court's success in pressuring and persuading the Tamil Nadu Government "gracefully" to agree to reinstate the overwhelming majority of the dismissed employees — not unconditionally, of course, but on submission of an apology and an undertaking not to strike or indulge in "similar activities" in future. The Court rightly found fault with the Madras High Court for not properly construing its power under Article 226 of the Constitution (the power of High Courts to issue certain writs) to "exercise its extraordinary jurisdiction to meet [an] unprecedented extraordinary situation having no parallel." Referring to the High Court's totally impractical ruling that over 170,000 employees should first exhaust the "alternative remedy" of going to the one-member State Administrative Tribunal for justice, the Supreme Court found "no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute." There is no doubt that getting the Tamil Nadu Government to agree to having three retired High Court Judges decide on the fate of 6072 dismissed or suspended employees within approximately a month is a much better way of providing practical relief than what the High Court offered. The fact that the retired Judges would be nominated by the Chief Justice of the Madras High Court and not by the State Government, that they would decide the representations by the employees without taking into consideration the amended Section 7 of the Act, that the retired Judges' decision would be binding on the State Government, and that aggrieved employees would be free to challenge the decisions before "an appropriate forum" must also be welcomed. However, there is a disturbing implication in the double standards that apply to Ministers and ordinary Government employees facing criminal proceedings. It is unfortunate that the Supreme Court has not ruled against the injustice in the Tamil Nadu Government's stand that 6072 employees could not claim "a right to be reinstated" because First Information Reports (FIRs) — which merely set the investigative ball in motion — had purportedly been filed by the State police against them. This contrasts glaringly with a situation where powerful politicians in government, at the Centre and in the States, remain in office unfazed by the fact that charge-sheets have been filed against them in grave criminal cases after the investigations have been completed, and charges have even been framed against them, in some cases, by a court of law.

What is most disturbing about the Supreme Court's judgment in the Tamil Nadu Government employees' case is the a-historical, iniquitous and democratically unsustainable position taken against the right to strike as a part of internationally recognised basic democratic rights. At one level, the judgment seems to revolve round the question whether Government employees have a constitutional or statutory right or moral and equitable justification to go on strike. However, the Court's observations in a case relating exclusively to Government employees go well beyond the immediate issues into status quoist absolutism in the social and philosophical domain. Such absolutism flies in the face of modern India's historical experience of worker agitations and strikes, and the assertion of the right to strike — an experience that begins in the late nineteenth century. Not just Communist organisers, but a range of freedom movement leaders supported the right to agitate and strike as an inalienable democratic right of workers and employees. This newspaper, which will soon be celebrating the 125th anniversary of its founding, may be allowed to recall that during the militant 1921 strike by 10,000 workers of the Buckingham & Carnatic Mills in Chennai, its proprietor and Editor, Kasturi Ranga Iyengar, boldly championed their cause — in The Hindu's columns and through direct involvement in the relief and solidarity efforts. The Supreme Court's latest stance contrasts sadly with both the substance and spirit of earlier progressive rights-led rulings by the apex court, delivered by outstanding jurists of the stature of V.R. Krishna Iyer, Y.V. Chandrachud, A.C. Gupta, D.A. Desai, Jagannatha Shetty and A.M. Ahmadi. Contrary to the impression given by the two-member bench's citation of judgments relating to Government employees, the Supreme Court from the early 1960s has generally upheld the justifiability of, and the moral reasons behind, strikes as legitimate actions by the working class. It is this stream of juridical pronouncements that Mr. Sorabjee was drawing on in criticising the Court's new-fangled observation that there was "no moral or equitable right to go on strike." In the recent case, the Court has cited, not always in context, various judgments to the effect that "employees have no fundamental right to strike," that there is no constitutionally guaranteed right to "effective collective bargaining," that strikes cannot be justified "in the present-day situation" either for a "just or unjust cause," and that the strike weapon "does more harm than any justice." If these quotations were to match the ground reality, then India in 2003 could not claim to be a democracy with any kind of regard for its working people. It would be an authoritarian state out of step with the International Labour Organisation's Conventions on "Freedom of Association and Protection of the Right to Organise" (No. 87) and "The Application of the Principles of the Right to Organise and to Bargain Collectively" (No. 98), neither of which India has ratified. Undoing the damage done by the Supreme Court's observations in the Tamil Nadu case is the challenge before democratic, political India and it is heartening that the Attorney General has shown the way.

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