| Soli Sorabjee in New Delhi on Monday. Picture by Jagdish Yadav
New Delhi, Aug. 11: In the wake of criticism by attorney-general Soli J. Sorabjee of the Supreme Court judgment against strikes by government employees, the Centre may refer the matter to a larger bench, perhaps a five-judge full Constitution bench.
Law ministry sources said the two-judge bench of Justices M.B. Shah and A.R. Lakshmanan “could not have said” that government employees have no “legal or statutory right” to strike and that “trade unions have no guaranteed right to effective collective bargaining”.
The bench examining the strike by Tamil Nadu staff and their subsequent dismissal had ruled that government employees had no “fundamental/constitutional, legal/statutory, moral/equitable/justifiable right” to strike.
“There may not be a fundamental right to strike, but how could it be that there is no legal or statutory right to strike'” asked a law ministry official.
Officials of the ministry argued that under the Industrial Disputes Act and provisions of labour laws, a trade union or an employees’ body is legally empowered to give notice for a strike and, if conciliation fails, resort to action.
Sorabjee said it was “beyond comprehension” that the court’s “dicta was (that) there is no moral or equitable justification to go on strike”.
“Right to strike is an important weapon in the armoury of workers and has been recognised by almost all democratic countries as a mode of redress to resolve the grievances of workers,” he said.
“There are occasions when long-standing and genuine grievances of workers causing tremendous suffering to them and their families have been ignored and remain unremedied. In such situations, workers are left with no option but to exercise their cherished right to strike.”
“Gandhiji had formulated certain maxims relating to strikes, one of which was that there should be no strike without a real grievance. He did not rule out strikes altogether,” Sorabjee said.
He admitted, though, that trade unions can be and are unreasonable in their demands and strikes are undertaken to pressure the management.
“But instances are also not unknown when employers have been intransigent and insensitive to the just demands of workers.”
The attorney-general emphasised the point — made by the court — that frequent and indiscriminate strikes cause serious inconvenience to the public and hinder functioning of the administration, but argued that this did not take away the “moral and legal” right to strike for just causes.
“The crux of the matter is that there should be no generalisation. Strikes have to be judged on a case-to-case basis without recourse to absolutism.”
“This strong opinion of the AG on a judgment of the apex court has made its impact, thereby prompting proper action of referring the matter to a larger bench,” said a legal source.
The attorney-general is the country’s top law officer.
The move to go before a full bench also comes in the backdrop of some political parties — the CPM being the most vocal, asking for government intervention — protesting against the judgment.