JUDA Strikes Back

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.