An Analysis of Collective Bargaining

Article 19 of the Constitution of India enumerates the essential freedoms/ liberties that are to be guaranteed to every individual. 19 (1) (c), more specifically enumerates the right to form unions and associations. This article has been the source of theoretical and constitutional debate. The main questions surrounding this are whether the constitutional fundamental right to form unions and associations also includes the right to collective bargaining and the right to strike. Since the scope of this article is to check the interface between collective bargaining and 19 (1) (c), the right to strike will only be dealt with summarily.

Various constitutions of the world have recognized the implicit inclusion of the fundamental right to collective bargaining within the scope of its freedom of association clause. In this regard, the decision Canadian Court in the case of Health Services & Support-Facilities Subsector Bargaining Assn. v. British Columbia [1] should be bought to the forefront, wherein the court looked into the philosophy of the Charter and thence adumbrated collective bargaining into the Freedom of Association Clause. On the other hand the South African constitution finds specific mention of this right along with the right to strike. Therefore, what is sought to be highlighted here is the fact that there has been acknowledgement of the right in constitutions as being imperative to the cause of not only human dignity and liberty but also democracy.

On the other hand the Indian experience of the constitutional right to freedom of association has been somewhat different. The courts have interpreted 19 (1) (c), in a positivistic manner. In the case of All India Bank Employees Association v. National Industrial Tribunal & Ors [2] and subsequently Kameshwar Prasad v. State of Bihar [3] etc. the court has specifically said that the right to collective bargaining is not a constitutional right and neither a legal right and therefore is not a part of the freedom of association which is covered in 19 (1) (c). The courts have instead interpreted the freedom of association clause to mean freedom to form associations and unions not extending to right to collective bargaining.

When a synthesis of Jurisprudential theories and the rationale behind 19 (1) (c) is seen by examining the intent and the philosophy of the constitution, then a picture contrary to the one painted by the supreme court in the aforementioned cases will be noted.

Article 19 (1) (c) and the current position

It is a known fact that the scope of Article 19 has been rather contentious. The courts have time and again expanded the purview of the liberties that have been provided for under this article. Over a period of 50 years, various rights , including the right to press [4] , freedom to propagate ideas [5] , right to non violent demonstrations [6] , right to advertise [7] , amongst others, have been read into Article 19 (1) (a). Moreover, the other liberties enshrined under Article 19 have been interpreted so as to provide them with a large ambit.

Another instance of expansion of rights pertaining to Liberty and Freedom has been those under Article 21. The Supreme Court has construed “life & personal liberty” herein to mean more than mere animal existence [8] and therefore has included other rights like the right to shelter [9] , right against solitary confinement [10] .

The purpose of this inquiry being that the courts have recognized impliedly that there needs to be expansion of key rights which are based on the key concepts of democracy and liberty. The courts have realized that in order to ensure that the guarantees ensured in the Preamble are reflected in the Fundamental Rights it would be imperative to construe rights not in a pedantic manner but in one that would enable citizens to enjoy the rights in the fullest measure [11] . Moreover, the Supreme Court has, time and again, recognized that the provisions of the constitution touching Fundamental Rights must be construed broadly and liberally in favor of those on whom the rights have been conferred [12] .

In this regard it is important to mention that though the rights under 19 and 21 have been conferred a wide import considering the nature of the values underlying them, the same cannot be said specifically for Article 19 (1) (c), which confers the right to freedom of association.

The right to freedom to form Unions and Associations and its interpretation has been the bone of contention in many cases. In this context, the problem that arises is with respect to the right of collective bargaining and whether it can be a part of the right to form association or unions. In the case of All India Bank Employees Association v. N.I.Tribunal [13] it was contended that the right to collective bargaining is a part of the right to form associations. The court struck down this argument by giving a rather awkward line of reasoning. Firstly, the court treated the right to collective bargaining as a concomitant right. Secondly, the court read the right of collective bargaining with the right to strike and interpreting it as flowing into each other. [14] Thirdly, the court went off on a tangent stating that the rights under Article 19 (1) (c) would extend to those which are the result of any aggregation of persons including those of joint stock companies, since the right of collective bargaining would eventually encompass the right to fulfill every objective.. This would lead to double standards since the right to carry on profession which is covered under Article 19 (1) (g) would cover those of single individuals whereas those which are a joint collaboration would fall under 19 (1) (c). As a result those falling under 19 (1) (c) would be subject to a smaller ambit of restrictions under 19 (4). This line of reasoning can be critiqued solely on the grounds that collective bargaining is a method which allows the peaceful settlement/mediation of disputes and not necessarily accomplishment of the objects. Therefore, there is a thin line of distinction between collective bargaining and the mere fulfillment of every objective of the union or association.

The next case which dealt with these aspects was the case of Dharam Dutt v. Union of India [15] which reiterated the position and reasoning of the All India Bank Employees case [16] . The next section will focus on the jurisprudential analysis of the content of rights and will further endeavour to derive the ‘right of collective bargaining’ from the ‘right to form associations’.

Content of Liberty under Article 19 of the Constitution of India

Originalism as a technique of interpretation is one of immemorial antiquity. It envisages a method wherein the knowledge, perceptions and purposes of the founders are ascertained so as to interpret an ambiguity in the constitution. This process requires the usage of debates and other such documents so as to understand the content of a constitution [17] . Due to much debate about the insubstantial nature of intention of the framers as a primary interpretative tool the doctrine evolved into “Sophisticated Originalism”. This methodology involves a scrutiny of the objective meaning of the constitutional document and not the subjective intention of the founders. Therefore, in other words the principles of the constitution and not the principles of the founders are taken as primary considerations in the interpretation of the provisions of the constitution [18] . It can be asserted safely that this method highlights the true nature of the constitution.

Analogous to this theory is the doctrine of Purposive Interpretation. Purposive Interpretation seeks to analyze both the purpose and the intent. Therefore it takes conclusively both the subject aspect and objective aspect of the provision [19] . The subjective aspects herein are the goals, interests and values of the framers of the Constitution [20] . Whereas, the objective aspect being the goals, values and aims that the text seeks to actualize in a democracy [21] . A permutation of the Textualism, Intentionalism and supplementary theories (Purposive Interpretation) is the best possible way to realize the meaning of a fundamental right [22] before going into the question of deriving un-enumerated fundamental rights from it.

Therefore, in light of the aforementioned theories a construction of the content of the right given under Article 19 will be undertaken. Article 19, generally, adumbrates the “Seven Essential Freedoms” [23] which are essential liberties and freedoms for every citizen in a democratic state and are necessary to ensure a free society [24] . The intentions of the framers of the constitution are best ascertained by the course of the debates in the Constitutional Assembly. India’s Independence struggle against the British was witness to crucification of essential liberties at the will of the state. Therefore members of the constituent assembly and the drafting committee therein realized the importance of liberties and therefore enshrined it in Part III especially Articles 19 and 21. In this regard, the Constitutional Assembly debates reveal that the framers of the constitution constructed the rights under Art 19 upon the foundation stone of personal liberty [25] , democracy [26] & economic justice [27] .

The objective aspect requires an excursus into the philosophy of the constitution. In this regard the preambular principles as well as the courts interpretation of the text are relevant. The preamble is nothing but a vision of objects [28] that the constitution seeks to achieve i.e. it is the philosophy of the constitution [29] . It can be said that it envisages a scheme wherein the Government of India has resolved to secure liberty and justice among other ideals [30] to all. To study each concept herein would help ascertain the content of the principle and its characteristic with respect to liberty rights.

The preamble to the Constitution of India makes it a positive duty of the State to guarantee to all social, economic and political justice [31] . To withdraw such guarantee would lead to the destruction of the basic structure of the Constitution [32] . Social justice in essence has been said to ensure life to be meaningful and livable with human dignity [33] . It is a dynamic device which mitigates the sufferings of the poor and weak so as to elevate them to the level of equality to live a life with dignity of person [34] . As per J.Ramaswamy in the case of Air India Statutory Corporation v. United Labour Union [35] , social justice which is a constitutional aim, acts as a catalyst and Rubicon to the poor in a society like ours which is steeped with unbridgeable and ever-widening gaps [36] . He elucidated the constitutional meaning of social justice to say that

“The Constitutional Concern of Social Justice as an elastic continuous process is to accord justice to all sections of society by providing facilities and opportunities to remove handicaps and disabilities with which the poor, the workmen etc are languishing and to secure dignity of their person [37] “.

Furthermore, the rights that have been conferred by virtue of Article 19 have been said to be a reflection of the preamble’s objectives of liberty and democracy [38] . The courts while interpreting this article have also corroborated the same. In this regard the most important case is that of S.Valsamma Paul v. Cochin University [39] , the court herein established coherently that the triune concepts of liberty, equality and fraternity are central to each other and form a part of the greater ideal i.e. democracy [40] . Moreover, the court has also, while interpreting the values of the constitution, established that

“The constitution commands justice, liberty, equality and fraternity as supreme values to usher in the egalitarian social, economic and political democracy. Social Justice, equality, liberty….are cornerstones of social democracy.” [41]

Therefore it can be said that the rights under Article 19 while endorsing the values of justice, liberty and equality also impliedly endorses the value of democracy which essentially is an assimilation of all these goals.

Article 19 (1) (c) being a species of Article 19 also endorses the values which the genus endorses. It provides for the right to form associations and unions. For interpreting the essence of the liberty under 19 (1) (c), the Preambular aims, Principles of the constitution and the C.A.D’s as explained above will be used. In this context the subjective and objective intention behind the insertion of Article 19 (1) (c) of the Constitution is to confer a key economic and social liberty to all citizens i.e. to form associations and unions. Formation of unions and associations, as the constitution provides can be said to with the aim of providing for economic and social justice because by facilitating the formation of a union, the constitution necessarily aims at providing for machinery which allows the working class to be able to voice their grievances as mentioned above. In line with the assertion of the goals of justice and liberty being intertwined and connected so as to provide for a greater goal called democracy. It is seen that Article 19 (1) (c) endorses the statement by providing for a system of democracy by allowing the workers and the employers to participate in the day-day decisions. The courts themselves have explicitly endorsed this view in the case of Rohtas Industries Ltd. V. Rohtas Industries Staff Union [42] , J Krishna Iyer himself identifying the true nature of the right under 19 (1) (c) said that

“Our constitution guarantees the right to form associations, not for gregarious pleasure but to fight effectively for the redressal of grievances. Our Constitution is sensitive to workers rights”

Therefore, the synthesis of the jurisprudential theories with respect to the content of rights equivocally states that the principles of the constitution underlying the Liberties provided for under Article 19 and specifically Article 19 (1) (c) are those of Democracy, Social and Economic Justice, Equality and Fraternity.

Derivation of the Unenumerated Right to Collective Bargaining

Rights have been connoted in many different ways by different courts. Those with a strict approach prefer a narrow construction of the judicial role. This leads to recognition of only those rights which are enshrined explicitly in the constitution. It has already been shown in Section I of this paper that the Indian courts have deviated from this strict approach to embrace a liberal approach and recognize unenumerated rights. Unenumerated rights are not new rights but instead those rights which are structurally important rights but not mentioned in the constitutional document [43] . An attempt to derive the right of collective bargaining from the right given under Article 19 (1) (c) will be attempted, taking into consideration the values and the outline provided in the previous sections.

These unenumerated rights which are present are inferred from the text as they are less than explicit. For example, as provided by Ronald Dworkin that the right to abortion can be said to have a rather tenuous relationship to the right to life but forms an integral part of it since it promotes the values underlying the bill of rights and the derivative right in question.

The method for derivation of fundamental rights, jurisprudentially, has been determined by looking at the emanations of the core right. Each right has penumbras which are formed by an emanation from the principles underlying guarantees [44] .

At the outset it is put forth that when a demand is required to be elevated to the status of a right the right-holder has to provide more than a justification i.e. to say that the right holder has to establish that the reason by virtue of which he is claiming a given demand is intrinsic to a specific right [45] . These principles or reasons serve as the justifying force. There are two types of reasons which can classify demands to be rights. Firstly, Intrinsic reasons which form the primary reason behind which the demand is classified as a right. These usually consist of principles which underlie the right or the demand [46] . Therefore, intrinsic reasons do not only justify the demand but also justify the classification of this demand as a right [47] . Secondly, extrinsic reasons, which merely give force to the intrinsic reasons and are not solely responsible for the elevation of a demand to a right. They instead only provide for a reason to provide protection for the demand. Now the way to derive unenumerated rights is to list the intrinsic reasons and the extrinsic reasons behind the demand and then equate it on the morass of the right under which one seeks to include the demand.

Complimentary to the aforementioned method of Interpretation it is imperative use the interpretive school of thought. This school of thought preaches that when the question of law is with respect to a penumbral right the interpretation has to be determined by a framework of principles that provides the best justification of certain political practices of a community, a scheme that is identifiable through an interpretation of the practices that is sensitive both to the facts of the practices and to the values or principles that the practices serve [48] . The interpretation of the law must be done keeping in view the law as a whole so as to make the best interpretation of the law [49] . The law as a whole brings out the key characteristics and points towards the goals that are sought to be achieved by the legislation. The judges should see law as a continuous flow and thence commence upon the task of passing judicial decrees rather than looking at it as isolated single judicial decrees. Dworkin has asserted that by trying to find, in some coherent set of principles, about people’s rights and duties, the best constructive interpretation of the political structure and the legal doctrine of their community is the best method for interpreting the law [50] .

Now the process of derivation of the right to collective bargaining would essentially see the principles behind that of the right of collective bargaining which would be determined using the interpretivist school of thought and then compare it to the right which it seeks to base itself on and then match it to its own principles.

Collective bargaining is a process of negotiation between an employer and employees or Trade Unions which are aimed at resulting in collective agreements. Two functions of this are particularly important which are the procedural or contractual function of regulating the relationship between the collective parties themselves; and the normative or rule making function, which consists of thee establishment of terms and conditions which are applicable to the contracts of the individual workers [51] . Many authors have signified that its operation happens on different levels i.e. on the level of the industry as a whole, at the level of the enterprise and at the level of the plant or establishment. But in all it is a process of negotiation. Further in the case of Karnal Leather Karamchari Sangh v. Liberty Footwear Company [52] the court interpreted the term Collective Bargaining to mean a technique by which disputes as to conditions of employment are resolved peacefully and voluntarily although reluctantly between the management and labour.

The emergence of the concept of a welfare state, have ushered in values of social & economic justice which have in turn provided a concrete basis for norms which empower the citizens [53] . Therefore, according to the understanding of the term “Collective bargaining” [54] it can be said to be synonymous and connected to social justice [55] . Most of the persons employed as labor in industries constitute illiterate persons and the process of collective bargaining herein would facilitate appropriate settlements of industrial disputes against the economically and resourcefully stronger employer [56] . Therefore, getting the labourers collective voice at par with the management or the employers so as to rule out any possibility of injustice therefore secure social justice and economic justice [57] Moreover, the court while interpreting the legislative intent behind the Industrial disputes act the court has maintained that collective bargaining is a means to the end, which is social justice [58] .

Moreover the court has also realized that the process of collective bargaining promotes the aims of democracy in the constitution. A democracy is a government of the people by the people for the people. It ensures a system where-in the people through their elected representatives are able to participate in law making for their own governance. At a micro-level collective bargaining ensures that the workmen remain a part of the policy making management and thereby promotes the system of democracy [59] . Based on the different interests of workers and employers, the working of a true democracy and a system of social & economic justice conceives the right to be on decision making body of the enterprise and the right to participate in all major policy matters that concern them.

These being intrinsic reasons, there is a need to provide extrinsic reasons so as to give more force to the claim. The court has expressed that the system of collective bargaining promotes efficacious and smooth settlement of disputes [60] , maintains industrial peace and tranquility [61] on one hand and promotes industrial and commercial development on the other [62] . It is submitted that these are strong reasons for justifying the protection of these rights.

Therefore, since the penumbras created by the right under 19 (1) (c) can be said to be encompassing the principles underlying the rationale behind the concept of collective bargaining. Moreover the extrinsic reasons with force justify the fact that the right deserves protection as a higher value and should be bought under the purview of Article 19 (1) (c). Collective bargaining as a penumbral right falls squarely under the practices and principles of the community as it has been said. This proves that the principles which emanate the penumbras formed by the right under Article 19 (1) (c) would include the demand for inclusion of collective bargaining as a right and therefore not be concomitant to it.

Conclusion

It has been seen that the goals behind Article 19 (1) (c) of the Constitution are those of social justice, economic justice and democracy amongst others. The emanations of the right to form associations formed as result of the principles would encompass any right which has strong intrinsic and extrinsic reasons for justifying it as a right. Moreover other than the extrinsic reasons which have been mentioned. The directive principles also serve as a forceful extrinsic reason. In this regard the right to collective bargaining was scrutinized and it was conclusively asserted that it possessed features that were central to that under 19 (1) (c) and also possessed potent extrinsic reasons which are legitimately and theoretically desired like the smooth functioning of the country’s economy and maintenance of industrial peace

Therefore the analysis of the court in the cases that were mentioned earlier stand to be corrected by a larger bench which would in fact acknowledge not only the importance of this right but also the key features it has pertaining to the right under 19 (1) (c) . Therefore by virtue of this paper it has conclusively been proved that the right of collective bargaining lies central to the right of freedom to form associations.