A bench, comprising Chief Justice VN Khare and justice SB Sinha, overcame the dilemma of what to do with the petition and issued notice after taking the views of Attorney General Soli J Sorabjee and senior advocates Ram Jethmalani and Kapil Sibal who all opined that there cannot be a total ban on the strike.
The bench was facing the dilemma as the earlier order of banning the strike was also passed by a two-judge bench headed by justice MB shah while dealing with the issue emanating from the strike by Tamil Nadu government unions.
Mr Sorabjee, reiterating his caustic views expressed earlier against the judgement banning strike, said the petition presents, a good opportunity to discuss the issue afresh. He said the observations of the bench in its August 6 judgement were totally unnecessary in the context of the case. I am not in favour of indiscriminate strikes, but at the same time, the right to strike to protest against injustice cannot be taken away altogether, he said.
Mr Jethmalani, agreeing with Mr Sorabjee, said complete abrogation of the right to strike would not be in the interest of justice.
Echoing similar views, Mr Sibal said it is a bit too much to say that the employees do not have any right to strike.
However, legal view does not seem to be unanimous over the issue. Commenting on Fridays development, Supreme Court senior advocate Raj Birbal said, justice Shahs judgement relates to government servants only. It does not relate to workers in general, who are covered by sections 22 and 23 of the Industrial Disputes Act and have the right to strike.
The apex court review will be clarificatory in nature because of misrepresentation of the judgement, he said. There is no provision for government servants to go on strike and the rules say clearly that they have to face consequences if they go on strike, he added.
The apex court had said government employees have no fundamental, legal, moral or equitable right to go on strike and hold the society to ransom. This ruling had evoked widespread protests across the country, not only from trade unions but also many intellectuals.
The petition, filed by the AITUC Andhra unit general-secretary P Nageshwar Rao and others, said strike is an assured fundamental right of workers. Any ban on strikes, the petitioners said, would be a sure road to totalitarian governments.
It said though strike has not been recognised separately as a right, strikes are internationally accepted as a part of workers right of collective bargaining.
Collective bargaining includes negotiations, talks, mediation, state intervention, arbitration and referring of disputes to tribunals and, if all fail, then the desperate ultimate option is strike, the petitioner said.
Unsurprisingly, trade unions have welcomed the development. Centre of Indian Trade Unions secretary Swadesh Dev Roye told FE, the decision is a welcome step. He said the working class take to the path of strike only when all other avenues for amicable settlement of their grievances fail. Therefore, the important right to strike should not be taken away.
Indian Trade Union Congress president G Sanjeeva Reddy said the SC should completely reverse the earlier order only then the working class will regain its fundamental right to strike as any ban on strikes would be a sure road to totalitarian governments.