The strike by the Junior doctors and
the filing of the writ petition in this context has yet again raised the issue
as to whether strikes are illegal by genesis. It is strange that we deem our
selves a democracy and deny to groups the right to protest. The anachronism is
for all to see , if only willing. Every time a group takes to the street and
makes its demands heard, heard albeit through the inconvenience of the
majoritarian indifference, the debate rises to loudly declare that strikes are
inconvenient and therefore they must be banned.
There has also been a trend to be noticed by the discerning that questions on
the legality of strikes are being increasingly raised in the High Courts .
Courts which often sieve seeming interest from genuine get impressed by the
immediacy of the challenge and forget to examine the lis from the stance of its
bonafides. Also when courts repeatedly declare that it is for the Executive to
carry out the functioning of governance, it paradoxically and repeatedly pulls
up striking groups. It can only contextually be pointed out that Justice O.
Chinnappa Reddy dealing with the view of the Apex court on the right to go on
strike dubbed it retrograde and also added :These two judgements appear to
require reconsideration . The earlier the better. The court which was all along
on the right track towards labour, strikes, socialism, etc. appeared to change
its course and this is ominous to the preambular socialism.” Wise words of
caution from a reputed jurist. ,
Dealing with the need to balance the fundamental rights with the directive
principles Chief Justice Chandrachud said :to give absolute primacy to one over
the other is to disturb the harmony of one over the other .
It is thus the constant task of the courts to play the balancing act.
Situational constraints should guide constitutional courts to do the balancing
act between conflicting rights and not between the rights of a group and the
convenience of the rest. A mature democracy is judged by the fashion of its tolerance
against what is unacceptable, not what is popular. . Lord Atkinson said long
ago I view with apprehension the attitude of judges who on a mere question of
construction when face to face with claims involving the liberty of the subject
show themselves more executive minded than the executive.
It is in this context that it is my humble opinion that courts go on to examine
aggressively the demands of striking groups rather than pulling up the
Executive for its failure to address the grievance. Also should courts view
with cynicism resort to statutes like Essential Services Maintenance Act or
should they see it as the most obvious available instrument to put down
dissent?
It was in 1998 that the Supreme Court first sounded the bells against strikes .
There has been no legislation forthcoming banning strikes in the country.
Thanks for a political wisdom that may be guided by self interest rather than
any deep commitment to democracy and its nuances. Assuming that the silence of
the state to legislate against strikes is its policy would it be fair to
supervise it with judicial lenses, is an issue that we the collective must be
sensitive to . The blame must then lurk around the threshold of the Government
and I can only contextually seek to hide behind the wise words of former Chief
Justice Chandrachud But, if despite the large powers now conceded to the
Parliament , the social objectives are going to be a dustbin of sentiments ,
then woe betide those in whom the Country has placed such massive faith…
L.Ravichander.