ON MAY 21, 2026, the International Court of Justice (‘ICJ’) delivered its advisory opinion in Right to Strike under ILO Convention No. 87, holding by a ten is to four votes margin that the right to strike of workers and their organisations is protected under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The opinion, rendered on a request transmitted by the Governing Body of the International Labour Organization in November 2023, resolves more than a decade of institutional uncertainty engineered by the Employers’ group at the International Labour Conference, beginning with the 2012 dispute that paralysed the work of the Committee on the Application of Standards.
The opinion is of immediate relevance to Indian workers. Just months before the ICJ’s opinion, the Indian Government oversaw one of the most extensive crackdowns on industrial action in recent memory. This essay situates the Court’s opinion against the current situation in the country. It first briefly summarizes the analytical core of the Court’s opinion, and then turns to the domestic Indian framework, surveying the constitutional jurisprudence alongside the legislative regime under the Industrial Relations Code, 2020. Further, it considers the events of early 2026 in India not as isolated acts of repression but as the routinised functioning of the system. Finally, it argues that, notwithstanding India’s non-ratification of Conventions Nos. 87 and 98 (the Convention on Right to Organise and Collective Bargaining), the Court’s advisory opinion is of considerable practical and strategic utility to workers, trade unions, and the lawyers who represent them.
What was the ICJ’s reasoning?
The question put to the ICJ was whether the right to strike of workers and their organisations is protected under Convention No. 87. The Court answered in the affirmative, by ten votes to four, on the basis of the application of the rules of treaty interpretation codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.
The Court reached its conclusion based on the plain text of Convention 87, read in light of its object and purpose. Article 3(1) of Convention No. 87 protects the right of workers’ organisations to organise their administration and activities and to formulate their programmes. Article 10, in turn, defines the term “organisation” by reference to the object of “furthering and defending the interests of workers”. The ICJ concluded, pursuant to Article 31 of the Vienna Convention, that the ordinary meaning of “activities”, read in the light of the Convention’s overarching aim of safeguarding freedom of association, necessarily comprehends the collective withdrawal of labour. To hold otherwise would empty the guarantee of much of its substantive content, given that the strike is, in industrial relations practice, the principal means by which workers compel attention to their collective demands.
Just months before the ICJ’s opinion, the Indian Government oversaw one of the most extensive crackdowns on industrial action in recent memory.
In reaching this conclusion, the Court found that Article 8 of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) and Article 22 of the International Covenant on Civil and Political Rights (‘ICCPR’) provide "relevant rules of international law applicable in the relations between the parties," and noted the high degree of overlap between ratifications and the Human Rights Committee's twenty-five years of practice treating the right to strike as encompassed within ICCPR Article 22. The ICJ also gave “great weight” to the consistent practice of the ILO supervisory bodies — the Committee of Experts on the Application of Conventions and Recommendations, the Committee on Freedom of Association, as well as Commissions of Inquiry — all of which, over seven decades, have affirmed that the right to strike is protected under Convention No. 87.**
The Court was not tasked with defining the precise scope, content, or permissible limitations of the right, leaving such matters to the ILO’s supervisory machinery. In sum, the right to strike falls within the Convention’s ambit, and the lawfulness of any given restriction must be assessed against the standards developed by the supervisory bodies.
What does the Indian legal architecture look like?
India is a founding Member of the ILO and a party to the Universal Declaration of Human Rights and the ICESCR, the latter of which expressly protects the right to strike in Article 8(1)(d) (when India acceded to the ICESCR on April 10, 1979, it entered no reservations in respect of Article 8(1)(d). Nevertheless, India has declined to ratify either Convention No. 87 or Convention No. 98.
Article 19(1)(c) of the Indian Constitution mandates that all citizens have the right to freedom of association subject to restrictions as set out in Article 19(4). Unfortunately, the Supreme Court of India has rejected the proposition that the right to strike is a fundamental right. In All India Bank Employees v. National Industrial Tribunal (1961), the Court held that the right to strike is not a fundamental right but can be circumscribed by statute. It reiterated this view in T.K. Rangarajan v. Government of Tamil Nadu (2003), while upholding the en masse dismissal of approximately 170,000 striking government employees in the state. There, a two-judge bench held that government employees have no fundamental, statutory, or moral right to strike. Although the Court’s pronouncement in that case was strictly addressed to public servants, the case has cast a shadow across all of Indian strike jurisprudence.***
The statutory regime was tightened markedly with the enactment of the Industrial Relations Code, 2020, brought into force by notification on November 21, 2025 — one of the four new labour codes brought out by the Indian government in recent years, consolidating, restating and, in significant measure, restricting the provisions of some twenty-nine earlier enactments. Section 62 of the Code requires that no person employed in any industrial establishment can go on strike without giving notice within sixty days before striking and prohibits any strike from commencing within fourteen days of the giving of such notice. It further prohibits strikes during the pendency of conciliation proceedings (and for seven days thereafter), during the pendency of proceedings before a tribunal or arbitrator (and for sixty days thereafter), and for the duration of any settlement or award.
The notice obligation, formerly confined to public utility services under the Industrial Disputes Act, 1947, has thus been extended to the entirety of the industrial sector. The Code imposes monetary and criminal penalties on participants in illegal strikes and on those who instigate them. Participation in an illegal strike is also grounds for disciplinary action and dismissal. The cumulative effect of the lengthy conciliation and arbitration procedures, as well as the notice periods, is likely the effective negation of the right to strike. Indeed, it will be in the interest of employers to prolong the conciliation proceedings as long as possible, rendering the exercise of the right to strike impossible to exercise.
The 2026 Crackdowns
The events of 2026 illustrate the working of this government. The general strike of February 12, called by the Joint Platform of Central Trade Unions, was an industrial action of historic dimension. By the unions’ own assessment, more than 300 million workers, farmers and members of the unorganised sector participated in stoppages and demonstrations across some 600 districts. The grievances were comprehensive, including against the four consolidated labour codes, the casualisation of employment, real-wage compression, and the trade arrangements perceived by the trade union movement to be threats to Indian industrial and agricultural workers.
In the first week of April 2026, protests broke out at the Honda Motorcycle and Scooter plant at Manesar, Haryana, after contract workers at the plant went on protest to demand better wages, an eight-hour workday with double overtime pay, and an end to the mistreatment of workers. In response to the scale of the protests, the Haryana government announced an insignificant increase in the minimum wage. On April 9, factory management hired thugs to incite violence. Using this violence as a pretext, police arrested several labour leaders claiming, with no evidence, that they were “training workers to make and use petrol bombs”.
In Noida, in the second week of April 2026, sustained protests by industrial workers demanding a meaningful revision of minimum wages were ‘infiltrated by provocateurs’ which led to police attacking workers with batons and tear gas, and the arrest of approximately 300 protesters. Although the Uttar Pradesh government ultimately announced a partial wage revision, the workers’ demand was met only after the criminal apparatus had completed its disciplinary work.
Unfortunately, the Supreme Court of India has rejected the proposition that the right to strike is a fundamental right.
These episodes are best understood not as departures from a system that otherwise respects industrial liberties, but as the system functioning according to its own logic. Where the legal architecture treats the strike as a deviation requiring administrative tolerance rather than as a right requiring legal protection, the State’s response to large-scale industrial action will tend ineluctably toward repression. The criminalisation is not incidental, but integral.
Mobilising the ICJ’s Advisory Opinion in the Indian Context
The decisive question for Indian workers, unions and lawyers is the use to which the Court’s opinion can be put. First, the opinion fortifies the doctrinal foundation for the proposition that India, by virtue of its ILO membership alone, is bound to respect, promote and realise the principle of freedom of association — including the right to strike. The 1998 ILO Declaration on Fundamental Principles and Rights at Work, amended in 2022, provides in terms that all Member States, whether or not they have ratified the fundamental Conventions, are under an obligation arising out of the very fact of membership in the Organization to give effect, in good faith and in accordance with the Constitution, to the principles concerning the fundamental rights that are the subject of those Conventions. The Court’s opinion makes clear that the right to strike is among those principles.
Second, India remains subject to the Article 19 reporting obligation in respect of unratified Conventions and to the jurisdiction of the Committee on Freedom of Association, which examines complaints concerning violations of freedom of association principles irrespective of whether the respondent State has ratified Convention No. 87 or 98. The ICJ’s opinion will inform the standards applied by the Committee, and should serve to anchor complaints addressing the criminalisation of strikes, the mass arrests of 2026, the application of essential services legislation to industrial action over economic grievances, and the structural restrictions imposed by the Industrial Relations Code, 2020. Workers’ organisations should consider the systematic submission of complaints to the Committee, supported by detailed factual records developed in coordination with international counsel.
Third, the opinion has a place in domestic constitutional argument. Indian courts have long recognised the relevance of international human rights instruments to the interpretation of fundamental rights, most prominently in Vishaka v. State of Rajasthan (1997). The Supreme Court has accepted that international Conventions and norms are to be read into the Constitution where there is no conflicting domestic law, and that the international standard may offer an interpretive frame consistent with the constitutional text.
The reasoning in T.K. Rangarajan, anchored in pre-1962 authorities and unaccompanied by serious engagement with the post-war international human rights architecture, is now vulnerable. The Court’s opinion makes available an authoritative international interpretation of the right to strike as a constituent element of freedom of association and provides the doctrinal basis for inviting the Supreme Court to reconsider its jurisprudence.
Fourth, the opinion informs the operation of the trade-and-labour clauses now embedded in a wide range of bilateral and regional instruments. The labour chapters of agreements concluded with the European Union, for example, refer to the 1998 Declaration and the right to freedom of association specifically. Should India’s industrial relations regime persist in its current trajectory, the Court’s opinion provides a clear juridical basis upon which trade unions and counterparty governments may invoke the sustainable development clause to press for reform. The opinion thereby strengthens the labour provisions of the trade architecture.
Fifth, and most immediately, the opinion is of utility in the international advocacy and domestic litigation that will surround particular disputes. The mass arrests and criminal cases will have to be defended in court over the months ahead. Lawyers representing the affected workers and union can deploy the Court’s opinion as authoritative evidence that the underlying conduct — the collective withdrawal of labour to advance economic and social demands — is the exercise of an internationally protected right, and that any restriction must be evaluated against the standards consistently elaborated by the ILO supervisory bodies.
The Supreme Court has accepted that international Conventions and norms are to be read into the Constitution where there is no conflicting domestic law.
Conclusion
The advisory opinion of May 21, 2026, does not, of itself, compel ratification of Conventions Nos. 87 or 98, materially alter the jurisprudence established since the Supreme Court’s decision in T.K. Rangarajan, or invalidate any provision of the Industrial Relations Code, 2020.
The Court’s pronouncement can, however, contribute to the reform of the constitutional and legislative framework. The responsibility falls now to Indian workers, trade unions, and lawyers who are now furnished with a juridical instrument of considerable potential utility. The events earlier this year demonstrate the costs of an industrial relations regime that conceives of the strike as a crime rather than as right. The response of the Indian workers made plain that the assertion of the right to strike is, in practice, a matter on which Indian workers will continue to insist. The advisory opinion lends international juridical recognition to a claim that workers have been making, and will continue to make, that the right to strike is a fundamental right.
Notes:
* More on this in Jeffrey Vogt et al., The Right to Strike in International Law, Oxford, Hart Publishing, 2020.
** For a summary of relevant jurisprudence of the CEACR and CFA on the question of the right to strike and its relationship to Convention 87, see J. Vogt at the previous note.
*** A notable exception to this has been the decision in Gujarat Steel Tubes Mazdoor Sabha and Ors (1979) which recognised the “the right to strike as an intrinsic element of collective bargaining and a crucial weapon for weaker working classes to negotiate with capital, and finding that mere participation in an illegal strike does not automatically justify the wholesale mass termination or "economic death" of workers.