EPFO APFC 2023 General Studies · Question 35 of 120

Correct — C, (c) Common Law Right. The question is asking about the source of the right to strike, and the classification the Commission has keyed rests on two propositions that are firmly settled in Indian law. The first is that the Constitution does not confer it. Article 19(1)(c) guarantees the right to form associations or unions, and in the bank employees' case of 1962 the Supreme Court held that this guarantee does not carry with it a guaranteed right to strike or to effective collective bargaining; the companion decision of the same year on government servants took the same view of demonstrations and strikes, and the Court restated the position in the Tamil Nadu government employees' case of 2003, holding that there is no fundamental right to go on strike and adding, in terms, that government employees have no legal, moral or equitable right to do so. So option (a) is out, and the Court's own language disposes of option (d) as well. The second proposition is that the labour statutes do not confer the right either. The Industrial Disputes Act, 1947 defines a strike in Section 2(q), requires notice before a strike in a public utility service under Section 22, forbids strikes at specified stages of conciliation, adjudication and arbitration under Section 23, declares strikes commenced in breach of those provisions illegal under Section 24 and penalises them under Section 26. Every one of those provisions restricts an activity; none creates it. A statute that says when a thing may not be done presupposes that the thing could otherwise be done, and what it presupposes is the ordinary liberty of workers, at common law, to refuse in combination to continue working. The Trade Unions Act, 1926 works in the same register: Sections 17 and 18 do not grant a right to strike, they shield union members from criminal conspiracy and from certain civil suits when they exercise it. The right therefore stands on the common law and is hedged about by statute — which is the classification in option (c).

• (a)Fundamental Right — A fundamental right would mean a right guaranteed by Part III of the Constitution and enforceable against the State under Articles 32 and 226, and the strike has never had that status in India. The bank employees' case of 1962 held that the freedom to form associations under Article 19(1)(c) does not extend to a guaranteed right to strike, reasoning that a guarantee of the right to form an association does not carry with it a guarantee that every activity the association is formed to pursue must also be protected; the decision on government servants the same year, and the Tamil Nadu case of 2003, applied the same reasoning. Note the practical consequence: because the strike is not a fundamental right, restrictions on it need not satisfy the reasonableness tests of Article 19(4).
• (b)Statutory Right — This is the near-miss and the option most candidates who know the subject will hesitate over, because they remember that strikes are dealt with at length in the Industrial Disputes Act, 1947. But look at what those provisions actually do. Section 2(q) defines the term; Section 22 requires notice before a strike in a public utility service; Section 23 forbids a strike during conciliation, adjudication or arbitration and for stated periods afterwards; Section 24 declares a strike in breach of those requirements illegal; Sections 25 and 26 penalise illegal strikes and financial aid to them. That is a scheme of regulation and prohibition, not of conferment — the statute nowhere says that workmen shall have a right to strike. A right the statute assumes and confines is not a right the statute creates, which is the distinction this option is testing.
• (d)Equitable Right — An equitable right is one recognised by the jurisdiction developed in the courts of equity — trusts, specific performance, injunctions and similar remedies — and the strike has no place in that catalogue. The option can also be discarded on direct authority: in the 2003 case on the mass dismissal of Tamil Nadu government employees the Supreme Court said that government employees have no fundamental, legal, moral or equitable right to go on strike, which is as express a rejection of this classification as could be wished for. The option is present to complete a four-way taxonomy of sources — constitutional, statutory, common law and equitable — and its function is to test whether a candidate knows what the fourth category actually contains.

Rights in Indian law can be sorted by where they come from, and the sorting matters because it decides how they may be curtailed and where they may be enforced. A fundamental right is conferred by Part III of the Constitution, binds the State and is enforceable under Articles 32 and 226, and can be restricted only on the grounds the Constitution itself allows. A statutory right is created by an Act of the legislature and can be modified or abolished by amending that Act. A common law right descends from the general body of judge-made law that Indian courts inherited and continue to apply where no statute occupies the field; it exists unless and until it is taken away. An equitable right is one recognised by the principles of equity, concerned with conscience and with remedies such as specific performance and injunction. The strike sits in the third category. The Constitution protects the right to form unions but not the right to strike; the labour statutes assume the activity and regulate it — notice periods, prohibited periods, illegality, penalties — and the Trade Unions Act, 1926 supplies immunities so that exercising the liberty does not expose a union to conspiracy charges or to suits for inducing breaches of employment contracts. The strike is therefore lawful when exercised within the statutory limits and unlawful outside them, and the Industrial Relations Code, 2020 tightens those limits by extending a notice requirement to all industrial establishments rather than only to public utility services.

This is a classification question, and classification questions reward the candidate who can say what each label would entail rather than the one who recognises the topic. Ask what would have to be true for each option to be the answer: for a fundamental right, a provision in Part III; for a statutory right, a section conferring it; for an equitable right, a place in the law of conscience and remedies. Then check which of those exists. The exercise takes seconds and is far more reliable than reaching for the label that sounds most protective. The item is also a good illustration of how the paper handles constitutional labour law generally: it asks about the status of a right, the authority that decides a dispute, or the article that supports a claim, and it expects the settled judicial position rather than any argument about what the law ought to be. Note the printed form as well — the stem is an incomplete sentence with no question mark, completed by each option, and the booklet capitalises 'Right' in the middle of it, which is reproduced here as printed.

• The right to strike is not a fundamental right in India: Article 19(1)(c) guarantees the right to form associations or unions, and the Supreme Court held in the bank employees' case of 1962 that this does not carry a guaranteed right to strike or to effective collective bargaining.
• In the Tamil Nadu government employees' case of 2003 the Supreme Court held that government employees have no fundamental, legal, moral or equitable right to go on strike, language which rules out the equitable classification as well as the constitutional one.
• The Industrial Disputes Act, 1947 regulates rather than confers: Section 2(q) defines a strike, Section 22 requires notice in public utility services, Section 23 prohibits strikes during conciliation, adjudication and arbitration and for stated periods after, Section 24 makes strikes in breach of these provisions illegal and Section 26 penalises them.
• The Trade Unions Act, 1926 protects the exercise of the liberty rather than granting it: Section 17 gives immunity from prosecution for criminal conspiracy in furtherance of union objects and Section 18 immunity from certain civil suits over acts done in contemplation or furtherance of a trade dispute.
• The Industrial Relations Code, 2020 extends the notice requirement that applied only to public utility services under the 1947 Act to all industrial establishments, and correspondingly widens the periods during which a strike may not be commenced.

• Choosing the most protective-sounding label; the strike is not a fundamental right, and the Supreme Court has said so repeatedly, most bluntly in the 2003 case on government employees
• Reading the detailed treatment of strikes in the Industrial Disputes Act as conferment; those sections define, restrict, prohibit and penalise, and a right that a statute assumes and confines is not a right the statute creates
• Confusing immunity with entitlement — Sections 17 and 18 of the Trade Unions Act shield union members who act in furtherance of a trade dispute, but they do not grant a right to strike
• Treating 'equitable right' as a vague synonym for a fair claim; it names a specific jurisdiction concerned with trusts and remedies such as specific performance and injunction

Constitutional and jurisprudential labour questions on this paper come in a small number of shapes: the status of a right, the article that supports a claim, the authority that decides a class of dispute, and the effect of a leading decision. The strike is the most frequently asked of them because its status is counter-intuitive — an activity central to trade unionism that the Constitution does not protect. Prepare it as a four-way classification exercise, with one sentence of authority for each label you reject, and the same preparation will carry you through questions on collective bargaining and on the position of government servants.

No directly related past PYQ was found.

• practice — not a real PYQ

  Under the Industrial Disputes Act, 1947, the requirement to give notice before going on strike applies to persons employed in

  • (a)every industrial establishment
  • (b)a public utility service
  • (c)establishments employing more than one hundred workmen
  • (d)establishments in which a registered trade union exists

  Answer(b) a public utility service — Section 22 of the Industrial Disputes Act, 1947 bars a person employed in a public utility service from striking without notice within the prescribed period, within fourteen days of giving such notice, before the date specified in it, or during conciliation proceedings and seven days after, with corresponding restrictions on lock-outs. The Industrial Relations Code, 2020 later extends a notice requirement of this kind to all industrial establishments.

• practice — not a real PYQ

  Which one of the following statements about the right to strike in India is correct?

  • (a)It is expressly guaranteed by Article 19(1)(c) of the Constitution
  • (b)It is expressly conferred by the Industrial Disputes Act, 1947
  • (c)It is not a fundamental right, and its exercise is regulated and restricted by statute
  • (d)It is available only to members of registered trade unions

  Answer(c) It is not a fundamental right, and its exercise is regulated and restricted by statute — the Supreme Court has held that the freedom to form associations under Article 19(1)(c) does not carry a guaranteed right to strike, and the Industrial Disputes Act, 1947 does not confer such a right but instead requires notice in public utility services, forbids strikes during specified proceedings, declares breaches illegal and penalises them.