The Curious Case of Right to Strike Under the Indian Constitution - A Comparative Perspective

In India, T.K.Rangarajan v. Government of Tamil Nadu and others is the latest division bench judgment delivered by the Supreme Court (“SC”) on the constitutionality of the legislation restricting right to strike of government employees in India. Here, the SC validated the dismissal of government employees by the Tamil Nadu Government and echoed All India Bank Employees’ Association v. National Industrial Tribunal and others and Kameshwar Prasad v. State of Bihar to say that there is no fundamental right to strike under the Indian Constitution. The SC went on to say that so far as the government employees are concerned – there is no moral, legal or fundamental right to strike. This paper highlights the patent loopholes in T. K. Rangarajan, reassesses it from a comparative perspective and presents the uncertainty in judicial approach towards this sensitive issue of strike. In doing so, it also revisits the previous judgments of Indian constitutional courts and uses Kameshwar Prasad and B. R. Singh and others v. Union of India to conclude that there is a fundamental right to strike under the Indian Constitution. Needless to say, on several occasions the superior courts in India had sought for a uniform constitutional answer to the question whether right to strike is at all a right, if not a fundamental right and if yes, where does it derive its validity from. Although the recognition of right to strike as a statutory right for non-government employees’ is well settled , there still lacks patent unanimity in judicial reasoning over its constitutional status. The dilemma over according right to strike a fundamental status had also troubled the constitutional courts in South Africa , U.S., Canada, among others’. The only difference is that while Indian judiciary is still struggling to come up with a constitutionally sound response, or at least seems to be doing so, some of its foreign counterparts have not only recognized and accepted this right but have also read it into the core principles of an ideal democracy through their comparative discourse on the significance of equality, individual autonomy, and dignity in human life. In addressing the above issues, the paper is divided into four small parts. The authors here first, emphasize upon the different international human rights covenants and conventions, particularly the International Labour Organization to argue for international recognition of a fundamental right to strike and secondly attempt to compare and analyze different constitutional provisions among the selected countries viz. U.S., Canada and South Africa to elaborate upon the reasoning the constitutional courts have advanced in the conclusive determination of the issues surrounding right to strike. Thirdly, we argue for the constitutionalisation of right to strike by employing the comparative constitutional analysis which is to act as a guiding course of action for the Indian constitutional courts. Fourthly, as a part of the conclusion we also underscore the inadequate appraisal and replication of these foreign decisions by Indian courts and argue in favour of the incorporation of “comparative constitutionalism” in the adjudication of issues of “constitutional importance” so that our principles do not conflict with the international norms and standards so far as the examination of the validity of the right to go on a strike is concerned.

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