Labour Law And The Right To Strike

It is settled position of law now that right to strike is not recognized as a fundamental right under Article 19 of the Indian Constitution. This project shall critically examine the adoption of a uniform approach by the apex court of the country in declaring all strike related rights as not a fundamental right. The researcher shall be looking at different forms of strikes that are adopted by the trade unions in India and their position under the prevailing law. The central argument of this project shall be to put forth a proposition stating that the strikes should be classified into various forms and accordingly the nature of the right evolving in that particular circumstance should be decided to be fundamental or not. The paper will illustrate through various cases that the apex court of the country could have adopted a better approach by examining the nature of right involved in each particular case of strike on the basis of classifying the strike according to its nature rather then treating the entire concept of strikes in an overarching manner and declaring the right to strike as a whole to be not a fundamental right without dealing the specific cases in an individuated manner.

It is obvious that not all forms of strike are strikes of very high intensity. Therefore, it shall be the prerogative of the researcher to examine whether or not the different kinds of strike would fall under the ambit of a strict application of the doctrine of declaring right to strike as a non fundamental right of the workers. The researcher shall go case by case in identifying various forms of strike and shall distinguish on the basis of facts of cases, the fact that the nature of the strike in that particular case was of high intensity or not. It is important to note that a fundamental right to strike is stronger in nature then a statutory right to strike. The apex court of the country could only be moved in cases of a breach of a fundamental right and not a legal right under Article 32 of the Indian Constitution. Moreover, fundamental rights are rights which have to be guaranteed by the state to the citizens under all normal circumstances. Therefore, the lab our courts and the other courts should be careful in disregarding the right to strike as a non fundamental right in all situations.


Strikes, it is said, are as old as work itself. [1] It is of common knowledge that strikes results in the stoppage of production which affect the resources and efficiency of the economy of a country. The employer thinks that since the employees are not getting wages for the time period of strike, they shall soon return to work whereas the employees think that since the employer is not able to carry out production it shall lead him to give up to the demands of the employees. However, there remains no doubt that in this entire process, the community to which the industry serves gets affected. It is true that industrial conflicts are inevitable in industrialized societies although while strikes cannot be eliminated totally statesmanship lies in reducing their frequency, in toning down their intensity and in re-establishing the temporarily disrupted labor-management relations as early as possible. [2] Strike has been defined as a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal; or a refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment. [3] 


Prior to 1926 there was no law which prevailed with regard to industrial conflicts. After the passing of the Trade Unions Act, 1926 the right of the industrial workers to strike was recognized in an indirect manner by granting to the members, office- bearers of registered trade unions certain immunities. [4] The Industrial Disputes Act of 1947 recognized the right to strike of the employees and the right to lockouts of the employers. Although, the right under this act doesn’t come in an unbridled manner and the same is regulated through rules and other provisions of the same act. [5] The right to strike has been recognized under the same Act by defining the circumstances under which a strike is to be regarded as illegal. [6] 

It is essential to take note of the fact that the very purpose of formation of trade unions is collective bargaining. Collective bargaining can only be successful if the right to strike is provided to the trade unions because without that the trade unions will only be able to demand for a lot of things but not be able to effectively bargain for the same. Workers are required to resort to strike because without a strike they cannot secure a rectification of the terms of employment imposed upon them because basically there is no equality between them and their employers. They always appear to be in the wrong in the sense of committing a breach of contract. But that is inevitable in the situation in which they are p1aced. [7] 

In the landmark case of All India Bank Employees Association v. National Industry Tribunal [8] l, it was held that even a very liberal interpretation of Article 19 (1)( c ) of the Indian Constitution cannot lead to the conclusion that the trade unions have a guaranteed right to collectively bargain in an effective manner or to strike as a part of collective bargain or otherwise. [9] 

Strikes are of different types i.e. the employees use distinct strategies of protest in different situations. The researcher in this segment of the project shall distinguish between different form of strikes and propose whether or not the right involved should be fundamental in nature or not depending on the kind of strike. The following are some of the kind of strikes which have been employed by the employees in the past:


Various employers and scholars on labour law have used the expressions "stay-in-strike," “sit-down strike", "pen-down strike" and "tool down strike" as synonym of each other. This is a form of strike where the employees come together and decide not to go on work at all. [10] The best illustration of this form of strike could be seen in the case of Punjab National Bank Ltd. v. Their Workmen [11] in which the Supreme Court held that although the employees went on strike which was allowed under the definition of strike provided but the fact that they took the seats of the bank and didn’t vacate the same was a problematic in the way the union functioned. It was also held in LD Sugar Mills v. Pt. Ramsarup [12] that stay in strikes, tools down strike etc. in which the workers, though physically present, virtually withhold their lab our, are as much strikes as where the workers are physically absent.

The researcher states that this form of strike is definitely the conventional form of strike which is and always was held not to be a fundamental right under the Indian Constitution. It is important to take cognizance of the fact that a sit down or pen down strike is a strike in which the workers completely refrain from going on to work and the work comes to a complete standstill. The rationale behind holding right to strike as a non fundamental right has been that since collective action is not permissible under Article 19 of the Indian Constitution to individuals therefore even the trade unions cannot have the same right. [13] In this case the collective action of the trade union will ultimately affect the working efficiency of the industry and therefore the right to pen down/ stay in strike can rightly be stated to be a non fundamental right.


Another form of strike is when the employees decide to go slow on work and not give their full efficiency to work. Although, the economic implications are very serious of these kinds of strikes like the cost of production goes up, delivery schedule gets upset and very often, raw material and machinery are adversely affected. This is primarily because no cessation of work takes place which has been stated as an essential under the definition of strikes under the relevant act. Go Slow tactics is not like an ordinary strike which has been recognized as a lawful weapon under certain circumstances. [14] It is not a legitimate weapon in the armoury of lab our in the process of collective bargaining. [15] 

In the case of Bharat Sugar Mills Ltd. v. Jai Singh [16] the labour tribunal held that go – slow tactics are far more serious then the normal strikes because the employees get full wages while giving a very less output. The employees in some cases are also successful through this kind of a strike like in the case of Fine Knitting Company Ltd. [17] the labour tribunal held that since the work was not stopped at any time there was no strike declared.

With regard to go – slow tactics the researcher is of the opinion that since it is not a recognized form of strike in the first place, therefore the question of the right to strike being fundamental or not does not arise. Although, the owners of the industry and the administration will be the appropriate authority to detect go slow tactics. The administration is free to take an appropriate decision for the workers who are pursuing go slow tactics with work as the productivity and efficiency of the industry shall be affected. The workers are free to adopt these tactics on their own volition and risk. The legal mechanism has very little or no role to play with regard to these tactics.


Hunger strike is a strike where a part of the employees or even the relatives or friends of the employees go on a hunger strike where they do not eat anything. [18] It is resorted to instill sympathy into the heart of the employer and to attract other workers and the public in general. Hunger strike is not generally looked upon as such heinous offence as to justify dismissal from service. In fact, hunger strike is resorted to exert moral force and when a worker starts “hunger strike" and other workers go to see him, then he cannot be held to be guilty of preaching or propagating indiscipline amongst the workers. [19] 

The main feature being that the hunger strikes are not strikes having violent nature. These are peaceful in nature and are more in the form of a Satyagraha. “Satyagrah" or “ Hunger Strike" are forms of strike where the workers do not commit any offence under the Criminal Law and it cannot also be described as an act of misconduct. [20] Although, the Criminal Law does mandate that any person doing an act in furtherance of committing a suicide shall be punished for one year of imprisonment. [21] 

The researcher submits that right to hunger strikes cannot be held to be non fundamental in nature. Article 21 of the Indian Constitution clearly mandates that every person shall have the right to personal liberty and life. It includes within itself the means to food, livelihood etc. Therefore, if a group of people do wish not to eat for a period of time, the same cannot be forced on to them. This kind of a strike is sentimental and emotional in nature which cannot be curtailed through legislative means or judicial pronouncements.


The fundamental feature of this kind of a strike is that the employees withdraw immediately and bargain afterwards. Such strikes are prohibited in public utility services under the Industrial Disputes Act 1947. [22] In the case of Swami Oil Mills v. Their Workers [23] certain workers resorted to wild cat strike owing to the fact that the government was not referring a dispute to the adjudicatory authority. The question before the court in this case was that whether or not the strike was legal or illegal and the court held that strikes of a high intensity with no proper system of notice is an illegal action.

This kind of a lightening or wild cat strike is again similar to a stay in or pen down strike. The essential features of these strikes are that productivity reduces and the Industry has to suffer as the workers withdraw without any notice. These strikes are of a higher intensity since the workers withdraw immediately and bargain afterwards. This kind of a strike can never given a fundamental right status because the same shall lead to weakening of the position of the employers as the employees will use this tool of strike in an arbitrary and unreasonable manner.


The expression “Gherao" in its etymological sense means to encircle. It is comparatively a new form of demonstration which is being largely resorted to by the lab our in this country. [24] Gherao is a physical blockade of a target, either by encirclement intended to block the exit or entry from and to a particular office, of even residence or forcible occupation. The target may be a place or person, usually the managerial or supervisory staff of an establishment. Some of the offences under this category are cruel and inhuman, like confinement in a small place without lights, fans and for long periods without food or communication with the outside world. The object of “Gherao" is to compel those who control the establishment to submit to the demands of the workers without recourse to machinery provided for by law and in wanton disregard of it. It is more of a mechanism which uses violence as an approach to get their demands met. [25] 

The researcher states that “Gherao" should be completely banned and no kind of a statutory or fundamental right should be awarded to this kind of a strike. On the contrary, this kind of a strike is violent in nature and therefore should be treated as a criminal offence under the Criminal legislations of the country.

The judicial dicta on the position of right to strike being a fundamental or a statutory right has been more or less consolidated since the very beginning. It is important to note that initially there were a few judgments passed by the various courts of the country which stated that right to strike is a fundamental right. Although, after the Kameshwar Prasad ratio which was re affirmed in the All India Bank Employees case, it has been consistently held that right to strike is a non fundamental right.

However, while pronouncing this line of judicial dicta, the courts have forgot that there are various kinds of smaller instances of collective action and strikes which happen on a routine basis. The status of these smaller instances of collective action and strikes has been left in ambiguity and doubt. The question which looms largely is that whether or not the principle of holding right to strike as a non fundamental right should be applied universally across the board to all kind of situations or whether the different forms of strikes should be distinguished on the basis of their intensity and nature and then the rights involved should be examined. The courts in India seem to be universally applying the principle of right to strike being a non fundamental right in all situations till now.


The researcher is of the opinion that this universal and all pervasive application could be a problematic for the workers of the industry. It will mean that the basic fundamental rights which were guaranteed to the people at large may also be withdrawn in the guise of holding right to strike as a non fundamental right. The courts definitely need to take a more nuanced and individuated view of the various situations which arise relating to strikes. As already stated in the project some strikes like hunger strikes are a perfect example of the manifestation of the fundamental right to eat and live. The courts cannot curtail rights which have been mentioned under various Articles of the Part III of the Constitution in order to ensure that Article 19 of the Constitution is not being read in an expansive manner. Therefore, to conclude the researcher shall like to state that the Indian Judiciary should reform their approach towards strikes and should be more conservative and individuated in declaring a right to be a non fundamental right only in accordance with the situation given at hand.