Tracing the right to strike as part of customary international law, the International Labour Organisation has referred the matter to the International Court of Justice (ICJ). The author examines the legal position of the right to strike in India and collective bargaining.
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IN a significant development, the governing body of the International Labour Organisation has called upon the International Court of Justice (ICJ) to authoritatively decide whether a right to strike can be read into the Freedom of Association and Protection of the Right to Organise Convention, 1948 (Convention no. 87).
Convention no. 87 provides formal recognition of workers’ freedom to organise and have collective organisations for advancing their interests.
The request for an advisory opinion comes against the backdrop of unrelenting resistance from the employers’ group in the ILO governing body towards affording formal recognition to the right to strike.
Article 37 of the ILO Constitution underscores the international court’s legitimacy as the final arbiter of disputes in interpreting convention rights.
Right to strike as customary international law
The ILO has a committee of experts that monitors the implementation of convention rights at the domestic level by State parties that have ratified these treaties.
After the socialist government led by Salvador Allende had been deposed in Chile by a coup d’état, Augusto Pinochet’s regime in Chile imposed onerous restraints on collective bargaining in a bid to facilitate economic deregulation.
Notably, the body of independent experts in the committee has opined that the right to strike is a ‘corollary to the right to freedom of association’ protected under Convention No. 87.
The governing body concedes that it was the contestation of this viewpoint by the employers’ group that led to an ICJ reference for resolving the deadlock.
After the socialist government led by Salvador Allende had been deposed in Chile by a coup d’état, Augusto Pinochet’s regime in Chile imposed onerous restraints on collective bargaining in a bid to facilitate economic deregulation.
The erosion of constitutional protections for labour activism including the right to strike prompted the intervention of a Fact-Finding and Conciliation Commission appointed by the ILO’s governing body.
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The commission had underlined workers’ freedom of association as a customary rule beyond the text of existing =ILO convention norms even as Chile was being transformed into a laboratory for neo-liberal reforms in accordance with the Chicago Boys’s prescribed shock therapy.
Consequently, the Chilean government was urged by the commission not to withhold recognition to the right to strike.
Much like the committee of experts, the ILO’s Committee on Freedom of Association (COFA) has also held the unwavering position that the right to strike represents a fundamental right of workers and it may be utilised as a tool of last resort for pressurising employers to redress labour grievances.
A blanket prohibition on strike calls by trade unions would thus be contrary to the spirit of Convention No. 87 unless justified by an ‘acute national emergency’.
Emergency restrictions on the right to strike also cannot operate indefinitely without temporal constraints. Limitations on the right are otherwise permissible in the essential services domain, the ambit of which would have to be narrowly delineated in accordance with an illustrative list provided by the COFA.
Moreover, an interruption of an essential sector by striking workers must endanger the ‘life, personal safety or health of the whole or part of the population’. The retributive dismissal of workers for participating in or organising legitimate strikes was also said to violate the Right to Organise and Collective Bargaining Convention, 1949 (Convention No. 98).
Taking a cue from the ILO institutions, regional human rights treaty forums have gone on to uphold workers’ right to strike. For an emerging norm to be designated as customary international law, there must be consistent State practice that emanates from a sense of legal obligation to be bound by the same.
A blanket prohibition on strike calls by trade unions would thus be contrary to the spirit of Convention No. 87 unless justified by an ‘acute national emergency’.
With constitutions and national courts in diverse geographical locations being receptive to a right to strike, the mainstream academic view is that the right to strike has been crystallised as customary international law.
The Indian position on the right to strike
State institutions in India have not hesitated from appropriating the logic of economic efficiency fostered by the forces of globalisation to disempower labour unions.
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Fuelled by a paranoia that ratifying ILO instruments with a collective bargaining guarantee would result in conceding workers’ right to strike, India has refused to ratify the two ILO conventions nos. 87 and 98 even as the instruments have received wide acceptance from more than 150 states.
The statutory regime of labour laws in India does not confer an explicit right to strike.
The judiciary in India has also been excessively hostile to collective bargaining actions that have embraced strikes as a weapon of choice even as the freedom of association to workers is bestowed in Part III of the Constitution.
Adopting the elitist logic that strikes by workers paralyse the industry and cause national losses, it has been unequivocally held by courts that there exists no fundamental right to engage in strikes.
In T.K. Rangarajan versus Government of Tamil Nadu, the Supreme Court had even put the onus on state government employees to work with necessary diligence instead of resorting to confrontationist tactics such as strikes.
The paternalism of the Supreme Court is best exemplified by vacuous rhetoric about how a pursuit of strike action by government employees constitutes a dereliction of their duty towards society.
By refusing to pronounce that the right to strike is concomitant to the guarantee of freedom of association, constitutional courts in India have significantly deviated from the position held by the ILO supervisory bodies.
Judicial deference to considerations of disciplining a recalcitrant labour force entrenches a culture of impunity wherein State functionaries operate as performative agents of market rationality.
Emboldened by the pusillanimity of courts, governments in India have cavalierly utilised laws designed for maintaining essential services to oppose strikes or protests by workers under the guise of public emergencies.
Fuelled by a paranoia that ratifying ILO instruments with a collective bargaining guarantee would result in conceding workers’ right to strike, India has refused to ratify the two ILO conventions nos. 87 and 98 even as the instruments have received wide acceptance from more than 150 states.
The draconian Essential Defence Services Act, 2021 was also introduced with the object of curtailing trade union agitations against corporatisation of the Ordnance Factory Board.
Responding to a complaint filed by Indian trade unions against the enactment, the COFA endorsed the right of civilian workers in the manufacturing establishments of the armed forces to engage in strikes subject to the standardised exception for essential sectors.
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The situations in which strikes could be declared as illegal under the law such as ‘public interest’ and ‘security of the state’ were said to be overly sweeping and outside the purview of national emergencies.
The future of collective bargaining
From a political standpoint, an emphatic assertion of the right to strike by the ILO will go a long way in dispelling the notion that labour movements for securing livelihoods or better conditions of work merely operate as a perniciously disruptive force against the interests of capital.
While a momentous opportunity lies before the ICJ to offer a pushback against the neo-liberal triumphalism of the day, a death knell for the right to strike would offer an impetus for further crackdowns on organised labour by corporate-friendly regimes.
While a momentous opportunity lies before the ICJ to offer a pushback against the neo-liberal triumphalism of the day, a death knell for the right to strike would offer an impetus for further crackdowns on organised labour by corporate-friendly regimes.
Even if the international court affirms the right to strike as a customary international law principle with a circumscribed set of exceptions, it is unlikely that the current dispensation in India would infuse a new lease of life to the democratic rights of workers.
The government’s unilateral imposition of new labour codes suggests that the prospect of a right to strike emerging as an outcome of concerted political mobilisation appears to be bleak.
Yet, it cannot be denied that elevating the strike as a fundamental freedom under the Constitution would reinvigorate the collective bargaining rights of a weary labour force that has borne the brunt of the pandemic and increasing casualisation of work in recent years.
