Right to Form Association v/s Right to Trade and Profession

B.B.A.LL.B / B.A.LL.B. (Integrated Law degree course)

Labor Law I (VII Semester)

“Right to Form Association v/s Right to Trade and Profession”

Project Submission as the Partial Fulfillment of Periodic Evaluation

Of Labor law -I

Submission To: Submitted By:

Mr. Samarat Dutta Palak Jain - L/1553

Faculty of Labor Law Scholar

Designation: Assistant Professor

Session: July-Dec., 2018

Semester-VII

Raffles University
School of Law

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 Right to Form Association v/s Right to Trade and Profession

TABLE OF CONTENTS

1. Acknowledgment.............................................................................................. 03
2. Case List………………………………………………………………………..04
3. Introduction…………………………………………………………………....05
4. Freedom to form association and union……………………………………….06
5. Freedom of Association and Constitution of India…………………..………..09
6. Restrictions on the Freedom of Association…………………………..….10
7. Right To Occupation Under Article 19(1)(G) with Reasonable Restriction Under Article
19(6)…………………………………………………………………………….12
8. Bibliography........................................................................................................14

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 Right to Form Association v/s Right to Trade and Profession

ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to Mr.
Samarat Dutta for inspiring me and guiding me during the course of this project work and also
for his cooperation and guidance from time to time during the course of this project work on the
topic.

Neemrana - Palak Jain

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 Right to Form Association v/s Right to Trade and Profession

CASE LIST

 All India Bank Employees Association v. N.I. Tribunal 1962 AIR 171
 All-India Bank Employees Association v. National Industrial Tribunal (Bank Disputes),
Bombay AIR 1962 SC 17
 Chaitanya Prakash v. Board of Secondary Education Rajasthan 1960 Raj. L.W. 209.3
 Fertilizer Corporation kamgar Union, Sindri v.UOI AIR 1981 SC 344.
 Gujarat Steel Tubes Ltd v. Gujarat Steel Tubes Mazdoor Sabha 1980 AIR 1896
 Mohd.Zahoor v. State of MP & Ors AIR 2010 MP 22.
 Raja Kulkarni Vs State of Bombay (1954) SC 73
 Rama Krishna v. President, District Board, Nellore, AIR 1952 Mad 253.
 Rohtas industries ltd v. Rohtas industries staff union AIR 1976 SC 425
 RS Ruikar v. emperor AIR 1934 Nag 149
 State of Gujarat v.Dharamdass AIR 1982 SC 781.
 State of Madras v. V.G. Rao AIR 1972 SC 196
 State Of Madras v. V.G. Rao.Union Of India & State 1952 SCR 597
 T.K. Rangarajan v. State of Tamil Nadu AIR 2003 SC 3032

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 Right to Form Association v/s Right to Trade and Profession

Introduction
Constitution of India empowers us many rights, liabilities and duties. No provision of the holy
constitution should be breached by any citizen of the country. The constitution of India has
covered all basic and essential parts which the country needs. India is a labor intensive country.
The economy of country depend lot on the work of laborer. If labor is not available at work it
puts hindrance to the working of economy as no production or other manual work would be
done. Therefore, constitution also involves the rights, liabilities and duty for the laborers,
workers and for others also in form of the fundamental right in Part III of constitution. Article 19
of the constitution provides for rights regarding freedom of speech and expression, etc. Article
19(1)(c) provides for right to form association or union or co-operative societies. It is one of the
powerful rights provided to the laborers with some reasonable restriction towards it under Article
19(4) of the constitution. This Article gives power to state to make law to impose or prevent
things in interest of sovereignty and integrity of India or public order or morality. The article
19(1)(c) is very much being used by laborers to avail their demands from their employee. The
laborers by doing strike get their demands fulfill. This power is many a times being misused by
the workers which ultimately affects the production and financial position of industry and
ultimately loss to the economy of the country. The laborers right to strike is also controlled
through other legislations like Trade unions Act, 1926 and Industrial Disputes Act, 1947.

Further, this right to form association or to do strike many a times violates right to trade and
profession of the industries. These both right of laborers and industrialist many a times create
conflict between them. The Supreme Court of India in its various judgments has tried to clear the
position according to facts and circumstances of the case. The courts via interpreting law
mentioned in different statutes that which kind of strikes are illegal and as upheld right to trade
and profession of industrialist, etc. the courts always tries to maintain balance between the both
the parties and do take care of fundamental right of the both provided in article 19(1).

Further, the laborers right of association is also being provided in international labor
organization’s convention. Convention no. 87 of ILO provided for Freedom of Association and
Protection of the Right to Organize Convention, 1948 and 98 provides Right to Organize and
Collective Bargaining Convention, 1949. Even though the convention does not refer to the right
of strike, the ILO committee on experts has been regarding it as an essential part of the basic

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 Right to Form Association v/s Right to Trade and Profession

right to organize. India has ratified neither of these two conventions. The main reason for our not
ratifying these two Conventions is the inability of the Government to promote unionization of the
Government servants in a highly politicized trade union system of the country. Freedom of
expression, Freedom of association and functional democracy are guaranteed by our constitution.
The Government has promoted and implemented the principles and rights envisaged under these
two Conventions in India and the workers are exercising these rights in a free and democratic
society. Our Constitution guarantees job security, social security and fair working conditions and
fair wages to the Government servants. They have also been provided with alternative grievance
redressal mechanisms like Joint Consultative Machinery, Central Administrative Tribunal etc .
Even though, these conventions were not ratified, the requirement was not felt prior to the
Supreme Court judgment banning the right to strike.1

Freedom to Form Association and Unions

For the proper working of the society we need multiple association and organization and no
democracy can function without freedom to form association and unions like for example- trade
unions, political parties, organizations are part of democratic functioning of the government and
society. Article 19(1)(c) of the constitution guaranteed freedom to form association and unions
and upon this reasonable restrictions on the freedom may be imposed in the interest of integrity
and sovereignty of India.

The right to form associations or unions can be restricted only in the interests of public order or
morality. There can be no association or union for an illegal or conspiratorial purpose. Nor can
there be an association to further immorality. Interpreting the scope of the right the Supreme
Court held in the case of State of Madras v. V.G. Rao2 "The right to form associations or unions
has such wide and varied scope for its exercise and its curtailment is fraught with such potential
reactions in the religious, political and economic fields.

That the vesting of authority in the executive government to impose restrictions on such right,
without allowing the grounds of such imposition, both in their factual and legal aspects, to be

1
http://www.legalservicesindia.com/articles/legill.htm (Last accessed on 23/11/2016)
2
State Of Madras v. V.G. Rao.Union Of India & State 1952 SCR 597

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 Right to Form Association v/s Right to Trade and Profession

duly tested in a judicial enquiry, is a strong element which, in our opinion, must be taken into
account in judging the reasonableness of the restrictions imposed on the exercise of the
fundamental right under Article 19 (1) (c)."

Accordingly this include the matter of strike well in India right to strike is not expressly
recognized by law and for the first time in the Trade Union Act, 1926 provide limit to strike by
legalizing certain activities of a registered trade union in trade dispute. The act also recognized
the right to strike under section 18 and 19 of the act which states immunity upon trade unions on
strike from civil liability right to strike is recognized only to limited extent that means when
strike is held illegal when it involve criminal aspects.

In case of RS Ruikar v. emperor3 in this there was strike held by president of nagpur textile union
was convicted under section 7 of the criminal law amendment act 1932 for criminal conspiracy
The aforesaid union called for the strike on the ground that certain terms of the settlement had
not been honored by employer and the decided to go for picketing and the members of the union
on orders on president started picketing which became violent and members on behalf of
applicant that facts found against him are no offence and it was their valuable right to declare a
strike and their immunity as per section 17 and 18 of the trade unions act further court observed
that trade union have right to go for strike and to do certain acts in furtherance of the trade
dispute they are not liable civilly for such act as trade union permits but there is nothing in the
act which apart from immunity from criminal conspiracy allows immunity from any criminal
offence

Now as per the matters of strike under industrial dispute act implies right to strike in industries
and there is wide interpretation of term industry which includes hospitals, education institutions,
clubs and governmental departments under section 2(q) of the industrial disputes act defines the
term strike, section 22, 23, 24 all recognize the right to strike and section 24 says about all the
legal as well as illegal strike. All the strike which are in contravention to the procedure laid down
section 22 and 23 of the act will be termed as illegal strike and all the strike which are in
conformity of the procedure laid down will be legal strike .the statutory provisions make a

3
AIR 1934 Nag 149

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 Right to Form Association v/s Right to Trade and Profession

distinction between the legality and illegality of the strike it is for the judiciary to examine
whether the strike id legal or illegal according to cases put before them.

As stated by Justice Krishna Iyer in case of Gujarat steel tubes v. GST mazoor sabha4 that ‘a
strike could be legal or illegal and an illegal strike could be a justified one.
Every fundamental is subject to reasonable restrictions the same in the case to form trade union
to give a call to the workers to go on strike and the state can impose reasonable restrictions.

Further, in All India Bank Employees Association v. N.I. Tribunal5, the SC held, inter alia, that
“the right to strike or right to declare lockout may be controlled or restricted by appropriate
industrial legislation and the validity of such legislation would have to be tested not with
reference to the criteria laid down in clause (4) of Article 19 of the Constitution but by totally
different considerations.”

A worker who is involved in an illegal strike may be penalized with imprisonment of up to a

month and/ or fine. As per the Industrial Disputes Act, no person shall provide any sort of
financial aid to any illegal strike. Any person who knowingly provides such a help in support of
any illegal strike is punishable with imprisonment up to six months and/or fine.

In T.K. Rangarajan v. State of Tamil Nadu,6 the Supreme Court in its verdict made it amply clear
that “Government employees have no fundamental, legal, moral or equitable right to go on
strike”, thus holding the state machinery and citizens to ransom.

Also, in the case of Rohtas Industries ltd v. Rohtas Industries Staff Union7, in this case the issue
was in relation with right to form association under article 19(1)(c) and right to trade under
article 19(1)(g) and the immunity in civil proceeding specific immunity on specific facts and
actions in this case there was a dispute between management and union regarding wages because
of which trade union went for strike now the question arise here was in respect of two right they
went for arbitration and said that the employers should get compensation due to strike because of
loss in business which leads to conflicting things and the matter went before supreme court and
question arise was whether the employers have any right to claim damages against an illegal

4
Gujarat Steel Tubes Ltd v. Gujarat Steel Tubes Mazdoor Sabha 1980 AIR 1896
5
1962 AIR 171
6
AIR 2003 SC 3032
7
Rohtas industries ltd v. Rohtas industries staff union AIR 1976 SC 425

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 Right to Form Association v/s Right to Trade and Profession

strike and thereby causing loss to the production and business. Purpose of strike was to protect
their interest. Court said that predominance to section 18 of the trade unions act the immunity
under section 18 will be applicable and no compensation will be given.

Further, the court have also dealt recognition issue with Article 19(1)(c) of the constitution. In
Raja Kulkarni v. State of Bombay 8 the Supreme Court held that the unions are classified as
representative unions and qualified unions under the Bombay Industrial Relations Act, 1946 is
according to the percentage of membership. Giving the right to unions with membership of 15%
alone to represent workers was a reasonable classification and there was no infringement of the
fundamental right of the workers to freedom of speech and expression and to form association or
unions under Article 19(a) and (c) of the Constitution.

In All-India Bank Employees Association v. National Industrial Tribunal (Bank Disputes),

Bombay9; Supreme Court of India again had occasion to consider content and scope of the right,
guaranteed under Article 19(1)(c) of the Constitution. It was held that even a very liberal
interpretation of the said constitutional provision cannot lead to the conclusion that the
fundamental right to form unions carries with it a concomitant guarantee that the trade unions so
formed shall be enabled to carry, effective collective bargaining or shall achieve the purpose for
which they were brought into existence. The court held:

“In our opinion, the right guaranteed under sub-clause (c) of clause (1) of Article 19 extends to
the formation of an association and insofar as the activities of the association are concerned or as
regards the steps which the union might take to achieve the purpose of its creation, they are
subject to such laws as might be framed and the validity of such laws is to be tested by reference
to the criteria to be found in clause (4) of Article 19 of the Constitution10”.

Freedom of Association and Constitution of India

Article 19(1)(c) of the Constitution of India guarantees to all its citizens the right “to form
associations and unions”. Under clause (4) of Article 19, the state may by law impose reasonable
restrictions on this right in the interest of public order or morality or the sovereignty and integrity
of India.

8
Raja Kulkarni Vs State of Bombay (1954) SC 73
9
AIR 1962 SC 17
10
ibid

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 Right to Form Association v/s Right to Trade and Profession

The right to form associations or unions has a very wide and varied scope including all sorts of
associations viz., political parties, clubs, societies, companies, organizations, entrepreneurships,
trade unions etc.
It was held in Kulkarni’s11 case that the right of association pre-supposes organization. It is an
organization or permanent relationship between its members in matters of common concern. It
thus includes the right to form companies, societies, partnership, and trade union. The right to
form trade unions should not lead to the conclusion that trade unions have a guaranteed right to
an effective collective bargaining or to strike as a part of collective bargaining or otherwise.
The right to strike or to declare a lock-out are controlled or restricted by various industrial
legislations such as Industrial Dispute Act or Trade Unions Act.
In All-India Bank Employees Association v. National Industrial Tribunal (Bank Disputes),
Bombay,12 the Supreme Court of India again had occasion to consider content and scope of the
right, guaranteed under Article 19(1)(c) of the Constitution. The court held that ‘In our opinion,
the right guaranteed under sub-clause (c) of clause (1) of Article 19 extends to the formation of
an association and insofar as the activities of the association are concerned or as regards the
steps which the union might take to achieve the purpose of its creation, they are subject to such
laws as might be framed and the validity of such laws is to be tested by reference to the criteria
to be found in clause (4) of Article 19 of the Constitution’.

Restrictions on the Freedom of Association

The right of association like other individual freedom is not unrestricted. Article 19 (4)
empowers the State to impose reasonable restrictions on the right to freedom of association and
union in the interest of ‘public order’ or ‘morality’ or ‘sovereignty or integrity’ of India. It saves
existing laws in so far as they are not inconsistent with fundamental right of association.
The Criminal Law (Amendment) Act, 1908, as amended by the Madras Act, 1950, provides that
if the State Government is of opinion that any association interferes with the administration of
law or with the maintenance of law and order or that it constitutes a danger to the public peace it
may, by notification in the Official Gazette declare such association to be unlawful. Such a
notification was to be placed before an Advisory Board.

11
Raja Kulkarni v. State of Bombay, AIR 1954 SC 73.
12
AIR 1962 SC 17

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 Right to Form Association v/s Right to Trade and Profession

If the Advisory Board was of opinion that the association was not unlawful the Government was
to cancel the notification. The validity of the above Act was challenged in the case of State of
Madras v. V.G. Rao,13 The Supreme Court held that the restrictions imposed by Section 16(2)(b)
of the Act were unreasonable.
The test under it was subjective satisfaction of the Government and the factual existence of the
grounds was not a justifiable issue. Therefore, the vesting of power in the Government to impose
restriction on this right, without allowing the grounds tested in a judicial enquiry, was a strong
element to be taken into consideration in judging the reasonableness of the restrictions on the
right to form association or union.
The existence of an Advisory Board could not be a substitute for judicial inquiry. But a
Government order requiring municipal teachers not to join unions other than those officially
approved was held to impose prior restraint on the right to form association and union, which
was in the nature of administrative censorship, and hence invalid.14
From a reading of the two decisions, namely, Smt. Maneka Gandhi's case 15 (seven-Judges
Bench) and All India Bank Employees Association's case, (five-Judges Bench), the following
principles emerge:
i. a right to form associations or unions does not include within its ken as a fundamental
right a right to form associations or unions for achieving a particular object or running a
particular institution, the same being a concomitant or concomitant to a concomitant of a
fundamental right, but not the fundamental right itself. The associations or unions of
citizens cannot further claim as a fundamental right that it must also be able to achieve
the purpose for which it has come into existence so that any interference with such
achievement by law shall be unconstitutional.
ii. A right to form associations guaranteed Under Article 19(1)(c) does not imply the
fulfillment of every object of an association as it would be contradictory to the scheme
underlying the text and the frame of the several fundamental rights guaranteed by Part III
and particularly by the scheme of the guarantees conferred by Sub-clauses (a) to (g) of
Clause (1) of Article 19.

13
AIR 1972 SC 196
14
Rama Krishna v. President, District Board, Nellore, AIR 1952 Mad 253.
15
AIR 1978 SC 597

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 Right to Form Association v/s Right to Trade and Profession

iii. While right to form an association is to be tested by reference to Article 19(1)(c) and the
validity of restriction thereon by reference to Article 19(4), once the individual citizens
have formed an association and carry on some activity, the validity of legislation
restricting the activities of the association shall have to be judged by reference
to Article 19(1)(g) read with 19(6).

Right To Occupation Under Article 19(1)(G) with Reasonable Restriction

Under Article 19(6)

Article 19 (1) (g) of Constitution of India provides Right to practice any profession or to carry
on any occupation, trade or business to all citizens subject to Art.19 (6) which enumerates the
nature of restriction that can be imposed by the state upon the above right of the citizens. Sub
clause (g) of Article 19 (1) confers a general and vast right available to all persons to do any
particular type of business of their choice. But this does not confer the right to do anything
consider illegal in eyes of law or to hold a particular job or to occupy a particular post of the
choice of any particular person.16

Moreover a citizen whose occupation of a place is unlawful cannot claim fundamental right to
carry on business in such place since the fundamental rights cannot be availed in the justification
of an unlawful act or in preventing a statutory authority from lawfully discharging its statutory
functions.17 Keeping in view of controlled and planned economy the Supreme Court in a series of
cases upheld the socially controlled legislation in the light of directive principles and the
activities of the private enterprises have been restricted to a great extent. However under Article
19(6), the state is not prevented from making a law imposing reasonable restrictions on the
exercise of the fundamental right18 in the interest of the general public.

Article 19 (1) (g) confers a broad and general right which is available to all persons to do work
of any particular kind and of their choice. It does not confer the right to hold a particular job or to
occupy a particular post of one’s choice. The right to pursue a calling or to carry on an
occupation is not the same thing as the right to work in any particular post under a contract of

16
Fertilizer Corporation kamgar Union, Sindri v.UOI AIR 1981 SC 344.
17
State of Gujarat v.Dharamdass AIR 1982 SC 781.
18
Mohd.Zahoor v. State of MP & Ors AIR 2010 MP 22.

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 Right to Form Association v/s Right to Trade and Profession

employment. In Fertilizer Corporation v. Union of India 19 the workmen challenged the validity
of sale of certain plants and equipments on the ground that they will be deprived of their
employment and their constitutional right under Article 19 (1) (g) will be violated. The court
held that Article 19 (1) (g) does not protect the right to work in a particular post under a contract
or employment as such Article 19 (1) (g) cannot be invoked against the loss of a job or removal
from service. But this does not confer the right to do anything considered illegal in the eyes of
law or to hold a particular job or to occupy a particular post of the choice of any particular
person.20 Further Article 19 (1) (g) does not mean that conditions be created by the State or any
statutory body to make any trade lucrative or to procure customers to the business/
businessman.21

19
AIR 1981 SC 344.
20
Ibid
21
Chaitanya Prakash v. Board of Secondary Education Rajasthan 1960 Raj. L.W. 209.3

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BIBLIOGRAPHY

 http://shodhganga.inflibnet.ac.in/bitstream/10603/8118/12/12_chapter%204.pdf
 http://www.lawteacher.net/free-law-essays/employment-law/labour-law-and-right-to-
strike-employment-law-essay.php
 http://www.legalserviceindia.com/articles/dispute.htm
 http://www.legalservicesindia.com/articles/legill.htm
 https://www.academia.edu/5667906/RIGHT_TO_STRIKE-
AN_ANALYSIS_._SEMINAR

Statutes Reffered:

Constitution of India

Industrial Disputes Act, 1947

Trade Unions Act, 1926

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