Unconstitutional, illegal, immoral strikes

The Supreme Court has held that trade unions do not have a constitutional, legal, or moral right to strike. I am not surprised that trade unions at the recent Indian Labour Conference denounced the verdict.

But I was surprised that Prime Minister Vajpayee failed to stand up for the verdict. Instead, he said the apex court’s judgement has not been liked by you, and perhaps I also do not like it. Some see this as clever obfuscation. I see it as a lack of courage.

The Court says that trade unions do not have a fundamental right to disrupt essential services or paralyse the country’s financial and transport systems, creating huge problems for ordinary citizens.

Surely politicians upholding the public interest should support that common sense view. Marxists will not, of course: they have long believed that they alone are the people. But why not other parties?

Trade unions claim that the right to strike is a civil right, even in free-market countries like the US . This is at best a half-truth. When air controllers went on strike in the US in the 1980s, President Reagan did not ban the strike, he simply sacked all air controllers! Liberal democracies have not only the right to strike but also the right to sack. Trade unionists that pick only those parts of liberal democratic practice that suit them are indulging in naked self-interest, not a defence of civil rights.

Liberal democracies view freedom of association as a basic right. So workers can form unions, just as steel or textile producers can form producer associations. But this does not mean freedom to cartelise, and gain at the expense of the public. It is illegal for steel producers or TV manufacturers to gang up to raise prices.

Why, then, is it legal for groups of workers to cartelise (create trade unions) to demand higher wages? Why do we ban cartels in general, but make an exception for labour cartels? Because the enormous imbalance in bargaining power between an individual worker and a powerful employer can lead to unfair outcomes. Permitting workers in a company to band together provides a fairer balance, and so we permit labour cartels even while banning others.

The underlying principle is important: normal rules (like those on cartels) should be modified to ensure fairness for the weak and voiceless. But government employees are not weaklings. They are politically powerful, and enjoy statutory mechanisms like the Pay Commission to ensure they get decent wages and pensions. The truly weak and helpless are ordinary citizens who are deprived of essential services during a government employees’ strike.

A strike is not just a private battle between employers and employees. It may also create scarcities and disrupt services for ordinary citizens, who have nothing to do with the wage-bargaining process. Any decent society needs to temper the right of workers to strike with rights of other citizens to goods and services.

one way is to have market competition: even if there is a strike in one steel or textile factory, citizens can buy goods from other competing factories. This does not suit unions, who sometimes form federations covering all steel or textile factories. However, even this is compatible with the public interest in an open economy where steel and textiles can be imported.

Unions will complain that this is anti-worker. More correctly, it is pro-citizen. Union power is cartel power, which we permit to the limited extent that it improves the bargaining power of workers against employers. But if such cartel power is used to deny public services and goods, it becomes a reprehensible form of citizen blackmail. No wonder the Supreme Court says there is no moral right to strike.

Legal experts will tell you that even fundamental rights are not absolute. Often there are conflicts between different rights, and between the right of a group and natural justice. In such cases it is permissible, indeed essential, to place limits on rights.

The right to strike too cannot be supreme. Indeed, it should not even be called a right. More correctly, it is a legally-permitted exception to law-forbidding cartels. There are good grounds for making this exception. But the Supreme Court is dead right in saying that it is not a fundamental or moral right.

why, then, does no political party support its verdict openly? Because of vested interests, not principle. All major parties have trade union wings that provide valuable cadres at election time. The Congress has the INTUC, the BJP has the BMS, the Marxists have CITU, the CPI has AITUC. It is no coincidence that the only chief minister willing to sack illegal strikers, Jayalalitha in Tamil Nadu, has no trade union wing.

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