The Telegraph
Since 1st March, 1999
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Second look at strike ban verdict

New Delhi, Nov. 7: The Supreme Court today decided to hear arguments to “reconsider” its August 6 order banning strikes by government employees.

The petition has been filed by P. Nageshwar Rao, general secretary of the Andhra Pradesh unit of the All India Trade Union Congress.

In August, the Supreme Court had said government employees and trade unions in general did not have the “legal, fundamental and moral or justifiable right” to strike.

The verdict, aimed at toning up India’s moribund work culture, came as the court pronounced judgment in a case relating to the dismissal of over two lakh Tamil Nadu government employees. Chief minister Jayalalithaa had sacked the employees for going on strike in July.

The matter reached the Supreme Court when some unions and individuals challenged Jayalalithaa’s action of invoking the Essential Services Maintenance Act and applying it in the state with retrospective effect to sack the employees.

The August judgment had sparked a big controversy, with attorney-general Soli Sorabjee saying the decision was bad in law. The country’s top law officer said there “may not be a constitutional right to strike but certainly there is a legal right”. He added that all labour laws like the Industrial Disputes Act and Trade Union Act allow employees the right to strike, which he termed a Parliament-guaranteed right.

The Chief Justice of India today asked Sorabjee if the court should review its order banning strikes. The attorney-general responded that there were “unwarranted” and “unnecessary” observations in the August order passed by a division bench headed by Justice M.B. Shah, who has since retired. The observations had to be “looked into”, he added.

Rao, who filed the petition through counsel Ramakrishna Reddi and Bharati Reddi, has argued that courts cannot take away the “statutory and legal right” given by various parliamentary rulings.

He argued that a ban on strikes would “be a sure road to totalitarian governments”. The petitioner said although strikes had been recognised separately as a right, “strikes are internationally accepted as a part of workers’ right of collective bargaining”.

Sorabjee had criticised the court order when it was passed in August. He had 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 comprehension.”

Today, the attorney-general told the court that “resorting to strike indiscriminately” might be wrong and illegal, but “strike as the last resort” and “as a weapon” for the workforce could not be eliminated. He even quoted Mahatma Gandhi in this regard to support his argument.

Sorabjee said Rao’s petition had presented a “good opportunity” to discuss the matter threadbare. At this, the court bench asked former Union minister Ram Jethmalani and Kapil Sibal their views. Both agreed that the right to strike could not be eliminated.

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