The Indian Supreme Court’s interpretation of the doctrine of Separation of Powers within the Constitution has sparked considerable debate, particularly concerning labor rights and the court’s jurisdiction. While the Constitution’s Seventh Schedule delineates legislative powers between the Union and State Governments, and Entry 22 of the Concurrent List addresses labor relations, questions arise when the Supreme Court appears to overstep its adjudicative role.
The act of pronouncing opinions on the right of employees to strike can be viewed as judicial legislation, a practice that legislative bodies might reasonably scrutinize. The Supreme Court’s stance that workers lack a moral or equitable right to strike has been deemed controversial, especially in light of international labor standards.
International instruments emphasize the importance of the right to strike. Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights mandates that signatory states ensure the right to strike, exercised in accordance with national laws. While Article 8(2) allows for lawful restrictions for members of armed forces, police, or state administration, Article 8(3) does not authorize curtailing workers’ rights through legislative measures. The concern arises when the judiciary, tasked with adjudication, appears to impose restrictions on these rights.
The Union Government holds the power to manage international relations under Entries 12, 13, and 14 of the Union List in Schedule VII of the Constitution. Therefore, the question becomes how a domestic judicial body can potentially compromise international obligations. Some argue that the Supreme Court may have overstepped its jurisdiction, rendering its ruling without legal force.
Furthermore, various conventions underscore workers’ rights to collective bargaining, including the right to strike. The Committee on Freedom of Association, examining the right to strike under ILO provisions, recognizes strikes as legitimate means to further members’ interests. The Committee suggests that state employees should generally have the right to strike, subject to restrictions that do not prohibit the right entirely. It also recommends against preventing worker organizations from striking against a government’s social and economic policies.
Replacing striking employees with new recruits can severely impact trade union rights. The Committee acknowledges that the right to strike is not absolute and may be restricted in exceptional circumstances or prohibited for certain public servants, provided that compensatory guarantees are in place.