This decision followed a long line of Indian judicial authorities on the same point. Essential services legislation banning strikes have been unsuccessfully challenged in the Indian High Courts and Supreme Court since the 1960s. The Courts have pointed out that Article 19(1) of the fundamental rights chapter of the Constitution does not guarantee a right to strike or picket. It only guarantees the right to form associations and unions.
The Courts have also relied on the principle that each person’s fundamental rights cannot be exercised in a manner that unduly interferes with the rights and freedoms of other citizens. In a 1998 case the Kerala High Court observed as follows:
"There cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section for the people. It is on the basis of this distinction that the High Court has rightly observed that there cannot be any right to call or enforce a ‘bandh’ which interferes with the fundamental rights and freedoms of other citizens, in addition to causing national loss in many ways."
The Kerala High Court went on to say: "No political party or organization can claim that it is entitled to paralyze the industry and commerce in the entire State or nation and is entitled to prevent citizens not in sympathy with its viewpoints from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the nation."
In the case of Tamil Nadu, the Government Servants’ Rules of 1973 expressly prohibited government servants in the State from engaging in strikes or inciting others to do so. In considering these Rules, the Court observed that:
"There is no moral or equitable justification to go on strike`85.. Government servants cannot claim that they can take the society at ransom by going on strike. Even if there is injustice to some extent, as presumed by such employees, in a democratic welfare State they have to resort to the machinery provided under different statutory provisions for redressal of their grievances."
The Court referred to doctors, teachers and public transport employees as categories of State sector workers who, by striking, could bring society to a standstill. It also noted the high proportion of the State’s tax revenue that was spent paying the salaries of public employees – reportedly about 90 per cent in Tamil Nadu.
Stressing the need for people to be conscious not only of their rights, but also of their duties and responsibilities, the Court stated that "in a democracy, even though they are Government employees, they are part and parcel of the governing body and owe a duty to society".
However the Court also tempered justice with mercy, noting that "on occasion, even if the employees are not prepared to agree with what is contended by some leaders who encourage strikes, they are forced to go on strike for reasons beyond their control. Therefore, even though the provisions of the Act and the Rules are to be enforced, they are to be enforced after taking into consideration the situation and the capacity of the employees to resist."
Hence the Court suggested that the State government, which had sacked the striking workers, should reinstate them, except for those who had been arrested or against whom information had been lodged. However such reinstatement was to be on condition that the workers tendered an "unconditional apology" and agreed to abide by the no-strike rules of the State.
The action of the Indian Courts appears to be in conformity with the relevant Conventions of the International Labour Organization (ILO) which confer a right to form and join unions and engage in collective bargaining, but do not confer a right to strike.
Article 8 of ILO Convention 151 on Labour Relations in the Public Service provides as follows: "The settlement of disputes arising in connection with the determination of terms and conditions of employment shall be sought, as may be appropriate to national conditions, through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved."
In Sri Lanka, Article 14(1)(d) of the Constitution guarantees only "the freedom to form and join a trade union". The "right to strike", which is actually the right to immunity from legal action for damage caused by strikes, is a labour law concept that existed in Britain at the time that our Trade Unions Ordinance was drafted. It has since been modified in Britain but remains in its 1930s form in this country.
Section 26 of Sri Lanka’s TU Ordinance provides that there shall be no action in any civil court against a trade union or a member or officer thereof, in respect of "any act done in contemplation or furtherance of a trade dispute". Section 27 gives trade unions immunity in respect of any "tortious" (i.e. delictual) act alleged to have been committed by or on behalf of a trade union. There is no immunity for unions or their members in respect of criminal acts.
Although the Ordinance places some restrictions on trade unions formed by public servants, such as a ban on having political objectives or a political fund, these unions receive the full benefit of sections 26 and 27 referred to above.
In India and most countries with written constitutions, any laws that predate the constitution have to be read subject to the constitution, and may even be struck down for inconsistency with it. Under Sri Lanka’s Constitution, however, all pre-existing laws are expressly kept alive, notwithstanding any inconsistency with the fundamental rights.
Another interesting development in this field took place in Bangladesh in the mid-1990s when a public interest group filed a writ petition to halt a strike by government doctors. The Court issued an interim order directing the doctors to resume work on the grounds that their indefinite strike was a threat to the life of the people.
While its members returned to work in obedience to the court order, the Bangladesh Medical Association thereupon filed action against the Government to show cause why an agreement reached between the doctors and the Health Ministry some time earlier should not be implemented. It was apparently the failure to implement this agreement that had led to the strike.
This incident has much relevance to Sri Lanka where no doubt there are grievances on the part of medical personnel as well as the long-suffering public. The answer, to use the words of the ILO Convention quoted above, is to establish "independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved."
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