On the right to strike

From: Rakesh Bhandari (rakeshb@STANFORD.EDU)
Date: Sun May 23 2004 - 20:43:04 EDT

Vol:21 Iss:02  URL: http://www.flonnet.com/fl2102/stories/20040130001007500.htm


On the right to strike


International and European Protection of the Right to Strike by Tonia
Novitz; Oxford University Press; pages 419, 70.

WHEN the Supreme Court takes up for hearing petitions for a review of
its judgment, delivered by a two-member Bench on August 6, 2003,
denying employees the time-honoured and well-established right to
strike, it would find this book most helpful in correcting the error.
So, also, Professor K.D. Ewing's work The Right to Strike, published
by the Oxford University Press. Both are part of the series, Oxford
Monographs on Labour Law. The author Tonia Novitz is a Lecturer in
Law at the University of Bristol.

The three General Editors of the series, including Prof. Ewing, are
jurists of eminence. Their preface is very relevant to the situation
in which we find ourselves today. It describes the problem and shows
the way out - a deeper study of the law then has been undertaken in
India. "The right to strike is one of the most difficult and
intractable issues of modern labour law. Although recognised as a
fundamental human right in international law, and indeed by the
British courts, it is a fundamental right that is rarely acknowledged
to its full extent, even in the domestic law of those countries that
have ratified the international treaties in which it is to be found.
Despite its protection in international law, the right to strike
needs to be better understood, both in terms of its role and purpose,
and in terms of its scope and content. This scholarly work meets that
need, with Dr. Novitz providing a detailed and sophisticated account
of why the right to strike should be protected, and the nature and
form which that protection should take."

Dr. Tonia Novitz's book is exhaustive and unrivalled. She analyses
the right to strike in international law and the protection afforded
to the right in the Council of Europe's Social Charter of 1961 and
International Labour Organisation (ILO) Convention 87. Drawing on
traveaux preparatoires (preparatory material preceding the treaty
before its adoption), she unearths material neglected by
international labour lawyers. The author analyses the relevant
provisions of the European Convention on Human Rights and the
European Union law, including the Charter of Fundamental Rights of
2000. The statement of the law is as on August 1, 2002.

As a 15-year-old student the author debated the issue of compulsory
trade unionism in her first summer job. As an 18-year-old waitress,
she participated in a strike; as a lawyer she grappled with the legal
issues the right raises; and as a jurist, she has produced this
outstanding work. The Indian media wrongly calls lawyers "jurists",

What we have is a cluster of rights, socio-economic, political and
civic. All merit legal protection. The right to strike is a political
right, as "a facet of industrial democracy". It can be exercised
legitimately not only in protest against employer policies but also
as a challenge to government policy. As a civil liberty it involves
three rights - freedom of association, freedom from forced labour,
and freedom of speech. No right is absolute. Every right is subject
to reasonable restrictions in the interests of other segments of
society or of society as a whole. That is no reason for denying the
right, but a challenge to define the limits sensibly.

Even in the haven of private enterprise, the United States, its
Supreme Court's ruling in National Association for the Advancement of
coloured People vs Clariborne Hardware Co. (458 U.S. 886; 1982)
should prod people here to reflect on the right. The NAACP had
organised a boycott to put pressure upon local civic and business
leaders to take steps to promote racial equality. The court upheld
their action as a form of political expression, and, therefore,
entitled to protection as speech. The author remarks, "A strike seems
to be no more coercive than a successfully organised economic

The work discusses thoroughly the reasons for legal protection as
well as restriction of strikes, the standard - setting in the ILO and
the import of international instruments. It is not widely known in
India that the ILO's Committee on Freedom of Association (CFA) held
that the right to strike is an essential aspect of freedom of
association, guaranteed not only in Conventions 87 and 98 (appended
to the book) but also in the ILO Constitution.

The author records that "in Case No.5 (India), the complainant
alleged that whenever industrial disputes arose, the Indian
government, under the guise of maintaining law and order, resorted to
the arrest and detention of trade union members and organisers. The
CFA pointed out that the complainant had made no reference to
specific cases in which the right to strike had been prohibited and
that therefore there was insufficient information to warrant further
examination of the case. The Committee merely observed that `in most
countries strikes are recognised as a legitimate weapon of trade
unions in furtherance of their members' interests'. Also, the
Committee added that strikes are regarded as legitimate in these
countries only `so long as they are exercised peacefully and with due
regard to temporary restrictions placed thereon (for example,
cessation of strikes during conciliation and arbitration procedures,
refraining from strikes in breach of collective agreements)'."

Over time, however, the Committee became more committed to the
protection of a right to strike. India is a member of the ILO. The
Supreme Court's ruling, unless reviewed and reversed, will be an
international embarrassment. This book will be of invaluable
assistance in that process of review.

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