Restriction or Prohibition? Testing the Strike Notice Regime of the Industrial Relations Code, 2020 Against Articles 14, 19(1)(c) and 19(4)
Author
Samridh Sharma, Ahmed Raza Khan
Abstract
The Industrial Relations Code 2020 extends the mandatory fourteen-day strike notice, which the Industrial Disputes Act 1947 confined to public utility services, to every industrial establishment. It also brings concerted casual leave by fifty per cent or more of the workers within the definition of strike, and it attaches criminal penalties to strikes that break section 62. This paper tests that regime against articles 14, 19(1)(c) and 19(4) of the Constitution. The Supreme Court has repeatedly held that there is no fundamental right to strike, so the paper does not rest on such a right. It argues instead that the regime is constitutionally vulnerable on three counts: the universal notice rule fails the necessity stage of proportionality, the fifty per cent threshold lacks an adequate determining principle, and the penalties do not grade the seriousness of a breach. Comparison with ILO standards and recent reforms in the United Kingdom supports this view. The paper proposes tiered notice, a functional test for casual leave, time-bound conciliation and graded penalties.
Keywords
right to strike; Industrial Relations Code 2020; proportionality; manifest arbitrariness; freedom of association; labour law
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References
The Industrial Relations Code 2020 extends the mandatory fourteen-day strike notice to all industrial establishments and widens the definition of strike to include mass casual leave. A rule designed for public utility services now applies to almost all collective action.
The State’s defence is that these are procedural regulations, and the Supreme Court has held that there is no fundamental right to strike. This paper has argued that the vulnerability lies elsewhere. Under article 14, the universal notice rule and the fifty per cent casual leave threshold are open to the charge of manifest arbitrariness. They lack an adequate determining principle, treating a hospital and a small workshop alike and turning a spontaneous protest into an illegal strike by head-count. The penalties add to this, since they do not grade the gravity of the breach.
Tested against proportionality, the regime is likely to fail at the necessity and balancing stages. A notice requires conciliation, and either party may then go to the Tribunal, so statutory bars can follow one another. The ILO standards and the recent UK reforms suggest that industrial peace can be secured by less restrictive means, such as tiering the requirements by the nature of the service.
Courts defer to the legislature on socio-economic policy, so a judicial invalidation of the Code is uncertain. The more reliable remedy is legislative: tiered notice, a functional test for casual leave, time-bound conciliation and graded penalties. Without them, the Code leaves lawful strikes available in form but hard to use in practice, and regulation shades into prohibition.