Right of Lawyers to Strike in India: Ex Captain Harish Uppal V. Union of India

Topics: Strike action, Trade union, Human rights Pages: 11 (3882 words) Published: January 17, 2013
LEGAL METHODS

EX- CAPT. HARISH UPPAL v. UNION OF INDIA:
Exceptions to the Right to Strike

Table of Contents
TABLE OF CASES2
TABLE OF STATUTES2
Introduction:3
Research methodology:4
What is the right to strike and why do we need it?5
Exceptions:6
Case review7
Issues:7
Analysis:8
Conclusion11
Bibliography13

TABLE OF CASES
CASES:
1. Communist Party of India (M) v. Bharat Kumar, (1998) 1 SCC 201, (Supreme Court of India). 2. Ex- Capt. Harish Uppal v. The Union of India, (2003) 2 SCC 45, Supreme Court of India. 3. Raghubar v. Union of India, AIR 1962 SC 263, 270 (Supreme Court of India). 4. See B.L. Wadehra (Dr) v. State (NCT of Delhi), 9 AIR 2000 Del 266. 5. T.K. Rangarajan v. Government of Tamil Nadu, 2003 (6) SCALE 84, (Supreme Court of India). 6. U.P. Sales Tax Service Assn. v. Taxation Bar Assn., (1995) 5 SCC 716, (Supreme Court of India). TABLE OF STATUTES

1. The Advocates Act, 1961.

Introduction:
The right to strike is one of the fundamental corollaries of the right to freedom of association. This right of association provides individuals the means to organise themselves into groups for the purpose of upholding mutual interests, and in general terms, it has come to mean the right of workers to organise themselves into autonomous and representative groups for demanding their basic rights from their employees. Workers dissatisfied with the existing conditions of work require a legitimate means of protest so as to sensitise the authorities towards their problems, with the expectation that these problems will be solved. One such common means of protest is the ‘strike’, defined by the Committee of Experts of the International Labour Organisation as “Any work stoppage, however brief and limited.” Almost every country in the world allows for some form of protest in context of the freedom of association. However, the right to strike is not unlimited. There are certain categories of workers who are not permitted to strike on grounds that they perform vital services, without which the basic rights of other citizens (e.g. personal safety, health, life, etc.) will be obstructed. In the Indian context, there are numerous cases in which the right to strike has been prohibited for certain groups. One such case is the Ex- Capt. Harish Uppal v. The Union of India and anr., which is based on the issue of whether lawyers have the right to strike. Lawyers, in context of popular perception, are considered part of a profession that is expected to uphold justice; hence, their services may be considered essential to the functioning of the system of law and order. However, as with any other class of workers, they themselves will very rightly have grievances which also need to be addressed. This paper thus looks into the exemptions to the right to strike, with focus on whether the interests of lawyers ought to be protected in context of the freedom of association, or whether lawyers ought to be denied the right to strike in the interest of greater public good.

What is the right to strike and why do we need it?

The right to freedom of association, i.e. the freedom of organisation by people looking to promote common interests, has been acknowledged as a basic human right. For workers, in particular, the right to freedom of association is of importance as it allows them a platform through which they can put forward their grievances in an institutionalized manner. A vital off shoot of this right is the Right to Strike. Strike, at the basic level, is defined as “a cessation of work by a combination of employed persons in consequence of a dispute, done as a means of inducing their employer or any other employed persons accept or refute their terms of employment.” It is expected that by withdrawing their services altogether, the workers would be able to highlight the intrinsic importance of these services. Alternatively, the inconvenience caused by a strike could...

Bibliography: 2. International Labour Organisation, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, (5th edn., 2006).
3. Tonia Novitz, International and European protection of the right to strike, (2003).
4. Durga D. Basu and others, Commentary on the Constitution of India, (8th edn., 2007).
5. Lon Fuller, The Morality of Law, (2nd edn., 1969).
2. The Office of the United Nations High Commissioner for Human Rights, International Covenant on Economic, Social and Cultural Rights 1976, (2007), available at http://www2.ohchr.org/english/law/cescr.htm (Last visited on August 12, 2011).
3. Howard Jacobs, Attorney and Client: Criticism of Court as Ground for Disciplinary Action, 44(2) Michigan Law Review 300 (1945).
4. Gerry A. Danby, The Use and Abuse of Rights, 12 (3) Journal of Law and Society 375, (1985).
5. Labor Relations in the Public Service, 75(2) Harvard Law Review 391, (1961).
6. Moorfield Storey, The Right to Strike, 32(2) The Yale Law Journal 99, (1922).
2. UN DOCUMENT: ILO, Ratification and Promotion of Fundamental ILO Conventions, GB.303/LILS/5 (2008).
[ 5 ]. Ex- Capt. Harish Uppal v. The Union of India, (2003) 2 SCC 45, Supreme Court of India.
[ 6 ]. Human Rights Education Associates, Freedom of Assembly and Association, (2003), available at http://www.hrea.org/index.php?doc_id=406 (Last visited on August 11, 2011).
[ 7 ]. Durga D. Basu and others, Commentary on the Constitution of India, 2767 (8th edn., 2007).
[ 8 ]. Bernard Gernigon and others, ILO Principles Concerning the Right to Strike, 11 (2000).
[ 10 ]. Bill Jordan, The Past and Future of International Trade Unionism, Gent, Belgium (May 18, 2000) available at http://www.icftu.org/displaydocument.asp?Index=991210337&Language=EN (Last visited on August 11, 2011).
[ 11 ]. ILO, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO 110, (2006).
[ 13 ]. ILO, Freedom of association - Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, 112 (5th edn., 2006). 
[ 14 ]
[ 15 ]. The Office of the United Nations High Commissioner for Human Rights, International Covenant on Economic, Social and Cultural Rights 1976, (2007), available at http://www2.ohchr.org/english/law/cescr.htm (Last visited on August 12, 2011).
[ 18 ]. T.K. Rangarajan v. Government of Tamil Nadu, 2003 (6) SCALE 84, (Supreme Court of India).
[ 19 ]. Communist Party of India (M) v. Bharat Kumar, (1998) 1 SCC 201, 204 (Supreme Court of India).
[ 20 ]. Ex-Capt. Harish Uppal v. The Union of India, (2003) 2 Supreme Court Cases 45, (Supreme Court of India).
[ 27 ]. supra note 20, at 56. This was based on the grounds that Section 50 of the Advocates Act, 1961 repealed the earlier provisions which had permitted the courts to control the right of advocates to practice in court.
[ 30 ]. See The Bar Council of India, Professional Standards, (2011), available at http://www.barcouncilofindia.org/about/professional-standards/ (Last visited on August 12, 2011).
[ 34 ]. U.P. Sales Tax Service Assn. v. Taxation Bar Assn., (1995) 5 SCC 716, 723 (Supreme Court of India).
[ 35 ]. Sec. 7, The Advocates Act, 1961.
[ 43 ]. Gerry A. Danby, The Use and Abuse of Rights, 12 (3) Journal of Law and Society 375, (1985). The article refers to the balance of rights and duties, which the researcher found applicable in context of the case.
Continue Reading

Please join StudyMode to read the full document

You May Also Find These Documents Helpful

  • Right to Equality in India Essay
  • Fundemental Rights of India Essay
  • india Essay
  • Dalbir Singh V Union of India Essay
  • Balco Employee’s Union V. Union of India Essay
  • FDI in India Essay
  • India Essay
  • India Essay

Become a StudyMode Member

Sign Up - It's Free