‘A legal strike may be unjustified and an illegal strike may be justified’. Legal strike vs illegal strike. In the context of the law relating to strikes in India with Case Laws.
In India, strikes are governed by the Industrial Disputes Act, 1947 and the Trade Unions Act, 1926. As per the provisions of these Acts, strikes are generally legal if they are in accordance with certain procedures such as giving notice to the employer and not engaging in any illegal activities. The statement “a legal strike may be unjustified and an illegal strike may be justified” simply refers that the legality of a strike does not determine that the strike is morally or ethically justified. Thereby, a strike that is conducted in compliance with the legal requirements may not have a valid reason or justification for its demands, whereas a strike that is technically illegal may have a legitimate cause.
For example, in our country, the Act requires that the trade unions to give a notice 14 days before striking and certain industries such as public utility services are prohibited from striking. Therefore, even if the strike is conducted in compliance with the legal requirements, it may be unjustified if the demands are not reasonable.
Secondly, an illegal strike may be justified if the workers have a valid reason for their demands. For example, if the workers are striking against discrimination by the employer, the strike may be morally justified even though it is not in compliance with the legal requirements.
The strike in the Indian context
The right to strike in the Indian constitution is not an absolute right but it flows from the fundamental right to form a union. In India, the right to protest is a fundamental right under Article 19 of the Constitution of India. But the right to strike is not a fundamental right but a legal right with statutory restrictions as stated under the Industrial Dispute Act, 1947.
In India, the trade unions Act, 1926 for the first time provided limited rights to strike by legalizing certain activities of a registered trade union. Section 2(q) of the Industrial Dispute Act, 1947 defines the term strike, which means a cessation of work by a body of persons employed in any industry. Section 22^1_ of the Act, put certain prohibitions on the right to strike. Therefore, whenever employees want to go on strike they have to follow certain procedures as provided under the Act otherwise such a strike will be considered as an illegal strike. Further, the Industrial Dispute Act, 1947 states that no person employed in public utility service shall go on strike without giving notice to employer within six weeks before striking etc.
It is worth mentioning that these provisions do not prohibit the workmen from going on strike but require them to fulfil the condition before going on strike.
In Mineral Miner Union vs. Kudremukh Iron Ore Co. Ltd., it was held that the provisions of section 22 are mandatory and the date on which the workmen proposed to go on strike should be specified in the notice.
In M/S Burn & Co. Ltd. V, Their Workmen, it was held that mere participation in the strike would not justify suspension or dismissal of workmen. Further, Supreme Court held that in case of illegal strikes, the quantum of punishment should be decided by making a clear distinction between violent strikers and peaceful strikers.
In Crompton Greaves Ltd. v. Workmen, it was held that in order to entitle the workmen to wages for the period of strike, the strike should be legal and justified.
In the end, the statement “a legal strike may be unjustified and an illegal strike may be justified” highlights the fact that the legality of a strike does not always reflect its moral or ethical justification.