The Supreme Court has now stated in an Order that strikes and bandhas are a part of the freedom of expression. As reported by the Times of India, this despite a Supreme Court ruling in 1998 that the calling of a bandh is not permitted by the Constitution. This post may be treated as explaining the nature and history of this right under the Constitution.
The right to strike as such is held to be sacred to the history of labour movements and unfolds with the idea of socialism and industrial disputes in our Country. While the Industrial Dispute Act has appropriate provisions to regulate the calling of strikes, in Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166. the Court held that there is no right to resort to a strike under the Indian Constitution and doing so would be violative of the fundamental rights of the citizens who would be affected by it. In TK Rangarajan v. Gov. of Tamilnadu, the Court while deciding on Jayalalitha’s sacking of service officers for striking held that;
“law on this subject is well settled and it has been repeatedly held that the employees have no fundamental right to resort to a strike. Take strike in any field, it can easily be realized that the weapon does more harm than any justice. The sufferer is the society- the public at large”.
As regards bandhs, the case referred to by the Times of India is that of Communist Party of India v. Bharat Kumar, (1998 ) 1 SCC 201. The court held here that there cannot be any right to call or enforce a bandh which interferes with the exercise of the fundamental freedoms of other citizen, in addition to causing national loss in many ways. Under no circumstances, does the Constitution give sanction to such a right. Interestingly, this case was an appeal from the kerala HC on a decision that the present Chief justice Balakrishnan (then as a HC judge) had ruled.
So day before yesterday when the Court was asked to issue a stay on the bandh issued by the DMK as a protest for the treatment of the tamils in Srilanka; there was clear precedence that the Court should have done so. However, what the Court did do was to state;
“What has this Court to do with stopping strikes? India is a democratic state where everyone has a right to express their feelings”
In one sitting, taking not more than an hour I am told, the Court deviated from years of precedence and ruled otherwise. This is outrageous in my personal opinion. Writing on the Indian judiciary, one foreign author wrote that what is fascinating about the Indian Supreme Court is how serious questions of policy and law are decided by an unelected elite in just a few minutes of argument in Court. This departing from a formal process of lawmaking which takes months of thinking in that area.
The author has made a right comment and it has a great bearing in the present situation. The Court should not have stated something like this. When the case comes up for hearing again on the 15th of feb., it is hoped that it would realize its folly and make amendments to its order.