Going into the history of how the concept of strikes started, it could be seen as a result of the “Industrial Revolution” that took place in the country in different phases. The use of the English word ‘strike’ first appeared in 1768 when sailors in support of demonstrations in London, struck or removed the topgallant sails of merchant ships at port thus, thus crippling the ships. With the invention of machinery to supplant human labour, unemployment, lowering of wages in a competitive market, supply of labour in excess of demand – became the order of the day.
Both of them are regarded as weapons against each other to make the other fulfil the demands and conditions of them respectively. The Industrial disputes act,1947 provided with the prohibition of strikes and lockouts and the situation in which these rights of the workers and employers become illegal. Specifically, Section 24 of chapter 7 of the Industrial disputes act deals with the illegal strikes and lockouts in the country. Through this paper, we focus on analyzing the concept of illegal strikes and lockouts with special emphasis on the ongoing nationwide protest of the Farmers regarding the farms’ laws passed in 2020.
What is a Strike?
A strike is recognized as an ordinary right of social importance to the working class to ventilate their grievances and thereby resolve industrial conflict. It signifies the suspension or stoppage of work by the worker while in case of lock-out the employer compels persons employed by him to accept his terms or conditions by shutting down or closing the place of business. Both the strikes and lockouts occur in form of collective stoppage. In a nutshell, strikes and lockouts occur about a dispute between the employer and his worker, in the course of which there is a suspension of employment.
Strikes and Lockouts
Strike as defined in clause (q) of Section 2 of the Act means- Cessation of work by a body of persons employed in any industry acting in combination; or A concerted refusal of any number of persons who are or have been employed in any industry to continue to work or to accept employment; or a refusal under a common understanding of any number of persons who are or have been employed in any industry to continue to work or to accept employment. Thus the definition given in the act postulates three main things or ingredients:
(a) More than a single workman;
(b) Combined or concerted action;
(c) Refusal to do work.
What are the conditions to go on strikes and lockouts?
As per sections 22(1) and 22(2), certain conditions have to be fulfilled for the strikes and lockouts respectively to restore public utility services in totality. The intention behind laying these requirements by the legislature was to provide safeguards against a sudden strike or lockout which may violate the right of the other person and the Nation as a whole.
According to section 22(1), no person shall go on strike: –
- Without giving notice to the employer within a period of six weeks from the starting of the strike.
- Within fourteen days of giving such notice.
- Before the expiry of the date of strike specified in the notice.
- During the pendency of the conciliation proceedings and seven days after the conclusion of such proceedings.
These provisions do not prohibit the workmen from going on strike but require them to fulfil the conditions before going on strike. These provisions apply to a public utility service only and not to a non-public utility service. The notice within six weeks before striking is not necessary where there is already a lock-out in existence. Also, notice may be given by the Trade Union or representatives of the workmen to do so; a notice of strike shall not be effective after six weeks from the date it is given. The strike can take place only when 14 days have passed but before 6 weeks have expired after giving such notice.
According to Section 22(2): No employer carrying on any public utility service shall lock out any of his workmen:
a) Without giving them notice of lock-out as hereinafter provided within six weeks before locking out; or
b) Within fourteen days of giving such notice; or
c) Before the expiry of the date of lock-out specified in any such notice as aforesaid; or
d) During the pendency of any conciliation proceeding before a Conciliation Officer and seven days after the conclusion of such proceedings.
These sections because of their general nature of prohibition cover all strikes and lock-outs irrespective of the subject matters of the dispute pending before the authorities. However a conciliation proceeding before a conciliation officer is no bar to a strike or lock-out under this section, it is only a conciliation proceeding before a Board which is mentioned in this Act.
What happens when the conditions to perform strike are not fulfilled?
When these conditions are not fulfilled and the situation from these gets out of hand and leads to inconvenience to the public in general, the right to perform strike and lockout becomes illegal. Meaning thereby that they lose the identity for the purpose for which it is done by the workers or the employer and does not grant them protection from the acts done in furtherance of it. A strike or lock-out which commenced as legal under Section 22 & 23 can be continued unless an order under Section 10(3) has been passed prohibiting the continuance of an existing strike or lock-out.
The first known lock-out was declared in 1895 in Budge Jute Mills. A lockout can act to force unionized workers to accept changed conditions such as lower wages. If the union is asking for higher wages or better benefits, an employer may use the threat of a lockout or an actual lockout to convince the union to back down. It is defined in section 2 (1) meaning the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him.
The word “breach in the contract” used provides for the breach in the contract of employment be it an express or implied contract. There can also be no contract between the parties to not go on strike and if made it won’t be a valid contract of service. Breach means the breach in whole and not only a mere condition.
Important case laws of Strikes and Protests.
In the case of Madura coats ltd. V. Inspector of factories Madurai, the Supreme Court held that the workers who claimed for wages for the period when the strike fell into the day of the National holiday are not entitled to the wages because they went on strike without giving notice to the employer.
A mere breach in standing order cannot render a strike illegal, for it to attract the illegal nature the workmen must have gone on a strike without any breach in the contract. The objects of strikes must be connected with the employment, non-employment, terms of employment, or terms and conditions of labour because they are prominent issues on which the workers may go on strikes for pressing their demands and such objects include the demands for the codification of proper labour laws in order to abolish unfair labour practices prevalent in a particular area of industrial activity.
In 2005, the Supreme Court reiterated that lawyers have no right to go on strike or give a call for a boycott and not even a token strike to espouse their causes.
In the case of Bhaskaran v/s Sub-Divisional Officer, it was held that posts and YTelegraphs Department, being Public Utility Service, cannot declare lock-out without notice and that the employees of the department cannot go on strike without notice.
Also what if the strike or lockout is genuine and does not lead to inconvenience to the public, it will not be held illegal in cases where: (i) At the commencement they are not in contravention of the provisions of this Act; (ii) Their continuance has not been prohibited by the appropriate Government under section 10(3) of the Act; (iii) A lock-out is declared in consequence of an illegal strike or vice versa.
Section 25 of the Act prohibits financial aid to illegal strikes and lock-outs. The provisions of this section are attracted only if the strike or lock-out is illegal and not otherwise. It says that no person shall knowingly spend or apply any money in direct furtherance or support of an illegal strike or lock-out. Thus when a person is helping the strikers by way of providing clothes or food or shelter does not attract punishment even if the strike is illegal, but is punishable when the person helping them knows that the strike is illegal and the money given by him is used in the actions causing harm to the public and property of the country. And, Section 28 provides a penalty for giving financial aid to illegal strikes and lock-outs. Punishment may extend to six months imprisonment or one thousand rupees fine or both.
Strike by Farmers on the Farm Laws.
Three Farm laws were passed by the parliament on 20th June 2020, namely,
1. Farmer’s Produce Trade and Commerce (Promotion and Facilitation) Act which allows the farmers to trade beyond the physical market which overrides all state-level Agricultural Produce Marketing Committee‘s (APMC) law. This law also proposes online trading of produce and promotes barrier-free marketing of farmers’ produce.
2. The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services, gives the provision to the farmers to engage in direct agreement with the corporates to sell their produce.
3. The Essential Commodities (Amendment) Act, removes cereals, pulses, oilseeds, edible oils, onion, and potatoes from the list of essential commodities.
These lead to the major concern of the farmers of the country to analyze and feel they are made against their services which s agriculture and is anti-national for them. They said it was in lieu of converting the present markets into a ‘One Nation-One Market’ system, meaning that they can go to any part of the country to sell their goods and they are not guaranteed the minimum selling price for the same. This provides that they do not have the guarantee of the investment in growing the goods and lead to the nationwide protest against the passing of these laws.
The farmers have gone on a strike which is continued in way of Fasting, Tractor Rally, Road blockage, etc. As the protest strategies that take to oppose those three farm laws until they are repealed, and till the time all these laws are suspended. According to them, they are not beneficial to them rather they are the step in making the country a private mandi and helping the corporates who can easily buy, stock, and contract for the agriculture produce without any restrictions. Farmers also seem to be fearful of the removal of the ‘Mandi system’ and the abolishment of Minimum Support Prices (MSP) and procurement.
The protests started as a peaceful strike but it can be seen from the actions of the farmers that they are adopting violence as a means now to make the legislature fulfil their demands by sitting at the border of Delhi and Uttar Pradesh mainly.
For instance, the taking of the Tractor rally by the farmers on Republic day saw several instances where they entered into the prohibited area and also killed policemen and people coming in their ways. The situation became out of control of the Delhi government leading to the deploying of Special Forces and a kind of curfew in Delhi’s main areas. Police from Haryana tried to prevent protestors from entering the city by erecting barriers at the border. Police were also reported to have used tear gas and water cannon on protestors trying to enter Delhi. They also blocked roads and disobeyed the traffic rules sitting at the borders causing inconvenience to the public crossing these borders.
This is turning into and majorly escalated into violent protest all together in a time when the whole world is facing the covid-19 pandemic which has caused deaths of millions of people worldwide. The protestors are not following any caution against the same and have also led to the increase in the number of deaths amongst them due to the deadly virus. As of mid-May 2021, thousands of farmers remain camped out outside the capital.
In early December 2020, the Government was reported to have offered several concessions to farmers. It offered to amend the laws in some areas, though said it will not scrap them as many farmers have demanded. It also said it assured that the MSP regime would continue, though it does not appear to offer to put this guarantee on a legal basis. But it is seen that the farmers are not ready for any concession and want the laws passed to be repealed as fast as possible. The one-and-a-half-year protest is turning into an open violence situation whereby the protestors’ anger is leading to non-bargaining of the whole matter.
All these incidents show that the protest which was started as a peaceful one is changing its nature and has become an illegal one where thousands of farmers and their supporters are in a position of doing anything they can in the name of asking the government to repeal the laws. The politics of the states have also led to an increase in such matters.
The agitation is still being staged in the hope that the government will listen to them and understand their fear of losing the whole market to the corporates which to date is not done.
Even though the right to strike is not specifically a fundamental right under the constitution of India but it is open to a citizen to go on strike or withhold his labour. The requirements for the same are needed to be fulfilled that are laid out in the act. In general, the strike must be for some valid fulfilment of the demands that were promised by the employer and not provided or the situation has arisen whereby the employer has done some act which is not tolerable in the working space of the workers.
In case of lockouts, the employer closes the workspace or the establishment in furtherance of the acts committed by the workers collectively either by going on a strike or doing acts causing harm to the property of that establishment. The illegal nature of them cause inconvenience and harm to both public and property and slows done the work, for example, the workers of a manufacturing unit of milk goes on strike. This will lead to the shortage of milk in that area. . It is usually associated with collective bargaining by workers and is permissible under the Industrial dispute Act, 1947. However, strikes and lock-outs are prohibited during the pendency of conciliation adjudication and arbitration proceedings.