Foreign Contribution Regulation Act (FCRA)

Foreign Contribution Regulation Act 
(FCRA) 

FCRA, 2010 seeks to regulate the foreign
contributions or donations to organizations and individuals in India and to curb those contributions which might be detrimental to the national interest.

Foreign Contribution includes currency, articles other than gifts for personal use and securities received from foreign source.

It was brought in 1976 to check that foreigners are not affecting India’s electoral politics, public servants, judges, journalists, NGOs etc. for wrong purposes.

The FCRA, 2010, the FCRA Rules, 2011, and FCRA Amendment Rules, 2015 were respectively enacted to regulate the inflow of foreign funds received by NGOs.

  •The FCRA, 2010 replaces the erstwhile Foreign Contribution (Regulation) Act of 1976.

It enables an association or an NGO to receive foreign funds, and they have to mandatorily
register under it to receive such funds.

The term ‘foreign source’ also has an extensive ambit and includes:

! Foreign citizens
! Foreign companies, corporations and MNCs
! Foreign government and their agencies
! International agencies other than specifi ed and government notifi ed agencies
! Foreign trusts, foundations, trade unions,
societies, clubs or any other associations of
individuals formed outside India

According to terms stipulated in the FCRA, an
organisation cannot receive foreign funding unless it is registered under the 2010 Act, except when it gets government approval for a specifi c project.

One of the main requirements under the FCRA is that organisations have to submit their annual return to the government within nine months from the closure of the previous fi nancial year.

It narrowed the scope and purpose for foreign financing and increased the frequency of reporting it to every three months. But to foster a culture of compliance; the NGO sector was one of the first to feel the brunt of anti-corruption campaign.

#Controversies_around_FCRA

Despite being a law related to fi nancial regulation, FCRA does not fall within the purview of the RBI but under the Home Ministry as it is internal security legislation.

FCRA registration under the earlier law was
permanent, but under the new one, it expired after five years, and had to be renewed afresh.

The new law put a restriction (50 per cent) on the proportion of foreign funds that could be used for administrative expenses.

The 1976 law was primarily aimed at political parties, the new law set the stage for shifting the focus to “organisations of a political nature”.

 The FCRA Rules, 2010, framed by the United Progressive Alliance government, has served the NDA well as a manual on how to target inconvenient NGOs, especially those working on governance
accountability.

•United Nation’ views on FCRA, 2010

FCRA provisions “are not in conformity with
international law, principles and standards”.
The right to freedom of association is incorporated under the International Covenant on Civil and Political Rights, to which India is a party.
Access to resources, particularly foreign funding, is part of the right to freedom of association.
Restrictions in the name of “public interest” and “economic interest” as invoked under the FCRA rules fail the test of “legitimate restrictions”.

The terms are too vague and give the state excessive discretionary powers to apply the provision in an arbitrary manner.

Besides, given that the right to freedom of
association is part of the Universal Declaration of Human Rights (article 20), a violation of this right also constitutes a human rights violation.

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Draft Forest Act 2019 ☆

Context

The Ministry of Environment, Forest and Climate Change (MoEF&CC) has finalised the first draft of the comprehensive amendments to the Indian Forest Act, 1927 (IFA) and sent to states for consultation which are to be completed by June 7 

Indian forest Act 1927
• The Indian Forest Act, 1927 was enacted after repealing Indian forest Act 1878 to ‘consolidate the law related to forest, the transit of forest produce, and the duty liable on timber and other forest produce’.
• The Act gave the Government and Forest Department the power to create Reserved Forests, and the right to use Reserved Forests for Government use alone.
• Britishers impose Indian Forest Act, 1927 to take over Indian forests, use them to produce timber, while curtailing and extinguishing rights of millions.

Need of Indian forest Act, 2019

1. To address the issue of Indian Forest Act, 1927: The Indian Forest Act, 1927 provides immense discretion and powers to the forest bureaucracy. Many experts and several Central government reports have blamed the draconian powers of the forest bureaucracy for alienating tribal and also fuelling left-wing extremism in Central Indian region.
2. To address contemporary challenges to India’s forests: There was severe decline in the forest cover of the country mainly because of large-scale diversion of forest lands for agriculture, diversion for “development” projects and regularisation of encroachments by state governments.

Key feature

• Define forests: Forest is defined to include “any government or private or institutional land recorded or notified as forest/forest land in any government record and the lands managed by government/community as forest and mangroves, and also any land which the central or state government may by notification declare to be forest for the purpose of this Act.”
• Defines community: The amendment defines community as “a group of persons specified on the basis of government records living in a specific locality and in joint possession and enjoyment of common property resources, without regard to race, religion, caste, language and culture”
• Focus on conservation and sustainable management: The amendment has increased the focus to conservation, enrichment and sustainable management of forest resources and matters connected therewith to safeguard ecological stability

state governments may declare any area as a conservation area for the purpose of enhanced carbon sequestration and such area shall be brought under active forest management for enhancing vegetational growth by reforestation and afforestation.

• International commitments: It address the concerns related to climate change and international commitments
• More Power to forest officers: under Section 66(2) of the Indian Forest (Amendment) Act forest-officer, may if necessary, use firearms for securing of the forest-produce.
• power to centre: The Union government has proposed that the Centre will be able to intervene in the states on matters of management of forestlands, overruling the states on several counts when it deems fit

• Production forest: The amendment introduces a new category of forests — production forest. These will be forests with specific objectives for production of timber, pulp, pulpwood, firewood, non-timber forest produce, medicinal plants or any forest species to increase production in the country for a specified period.
• Levy taxes for forest development: It provides for empowering the state governments to levy cess upto 10% of value assessed of mining products removed from the forests and water used for irrigation or on industries. The cess shall be used exclusively for reforestation, forest protection and other purposes connected with the tree planting, forest development and conservation.
• The proposed amendments also stated that the state government “may recognise and notify private forest at the request of the owner” if the forest is used primarily for environmental conservation and preservation including, protecting water catchments

Issues with the draft Indian Forest Act, 2019

• Clash with Forest Rights Act: The exclusion of ‘village forestry’ from the preview of Forest Right Act (forest official supersedes gram sabha) is legally contradictory and would add confusion on the ground
• Give more power to forest officials:The draft Bill reinforces the idea of bureaucratic control of forests, providing immunity for actions such as use of firearms by personnel to prevent an offence. Critics argue that this would turn quarter of India’s land into police state.
• Definition of forest: Various national and international agencies such as FAO, CBD, UNFCCC and FSI have adopted the definition of forest that account density and area under tree as the basis of definition. While proposed amendment consider only administrative needs and ignores ecological parameters while defining forest.
• Forced relocation of forest dweller:The draft mentions that the state governments could take away the rights of the forest dwellers if the government feels it is not in line with “conservation of the proposed reserved forest” by payment to the people impacted or by the grant of land

Conclusion

India’s forests play a key role in moderating the lives of not just the adivasis and other traditional dwellers, but everyone in the subcontinent, through their impact on the climate and monsoons. Few things that should be kept in mind before finalising the law

• It should aim to reduce conflicts, incentivise tribals and stop diversion for non-forest uses. This can be achieved by recognising all suitable landscapes as forests and insulating them from commercial exploitation.
• The Centre must hear the voice of all stakeholders and communities, including independent scientific experts.

Source: https://www.thehindu.com/opinion/editorial/humanise-the-law/article26891105.ece

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All about VVPAT

How do VVPAT machines work?

When a voter presses a button in the EVM, a paper slip is printed through the VVPAT. The slip contains the poll symbol and name of the candidate. It allows the voter to verify his/her choice.  After being visible to the voter from a glass case in the VVPAT for seven seconds, the ballot slip will be cut and dropped into the drop box in the VVPAT machine and a beep will be heard. VVPAT machines can be accessed by polling officers only.

What is the Election Commission’s stand on the issue?

The EC has time and again reiterated that EVMs cannot be tampered with It has made public the findings of inquiries into specific charges of tampering in Madhya Pradesh’s Bhind and Rajasthan’s Dholpur that give a clean chit to the machines.  With the Opposition insisting on doing away with the EVMs and the controversy refusing to die down, the EC has now thrown open a challenge, inviting computer experts and political leaders to prove that the machines can be hacked, in the presence of the EVM manufacturers. The exercise will be conducted in the first week of May. Meanwhile, Chief Election Commissioner Nasim Zaidi has requested the Union Law Ministry for urgent release of funds, given the “prevailing environment,” to facilitate procurement of VVPAT machines for the 2019 Lok Sabha elections.

What does the Supreme Court say?

The Supreme Court on April 13, 2017, asked the Centre to respond by May 8 to a plea by the BSP to comply with a 2013 Supreme Court directive to introduce paper trail in EVMs. In 2013, the SC had asked the Commission to introduce paper trails in EVMs in a phased manner for the 2014 Lok Sabha Elections. "EVMs with VVPAT system ensure the accuracy of the voting system. With an intent to have fullest transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs with VVPAT system because vote is nothing but an act of expression which has immense importance in democratic system," the Bench had said.

Source : The Hindu

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Know about Dr BR Ambedkar

Dr B.R. Ambedkar

14th April: His Birthday celebrated as Ambedkar Jayanti

• Known as the Chief Architect of the Constitution of India
• Dr. Ambedkar was an outstanding leader of our freedom struggle and a staunch crusader for the rights of the downtrodden and traditionally disadvantaged sections of our society.
• A scholar, educationist, legal luminary, social reformer and political leader, Dr. Ambedkar’s philosophy and life are an inspirational profile of courage and conviction.
• Dr. Ambedkar envisioned a society where the weaker sections, the historically deprived, peasants, labourers, and especially women, get equal rights and respect.
• He was an ardent advocate of resolving all issues through democratic, peaceful, non-violent and harmonious means.
• The path shown by him strengthens the spirit of fraternity, compassion and equity.

Mahaparinirvan Diwas: Death Anniversary of Ambedkar

• Bhimrao Ramji Ambedkar (14 April 1891 – 6 December 1956), popularly known as Babasaheb Ambedkar, was an Indian jurist, economist, politician and social reformer who inspired the Dalit Buddhist movement and campaigned against social discrimination towards the untouchables (Dalits), while also supporting the rights of women and labour.
• He was independent India’s first law and justice minister, the principal architect of the Constitution of India, and a founding father of the Republic of India.

His autobiography: Waiting for a Visa

His books:

• Annihilation of Caste – It strongly criticised Hindu orthodox religious leaders and the caste system in general, and included “a rebuke of Gandhi” on the subject.
• Who Were the Shudras? – Ambedkar tried to explain the formation of untouchables. He saw Shudras and Ati Shudras who form the lowest caste in the ritual hierarchy of the caste system, as separate from Untouchables.

Ambedkar and Untouchability

While practising law in the Bombay High Court, he tried to promote education to untouchables and uplift them. His first organised attempt was his establishment of the central institution Bahishkrit Hitakarini Sabha, intended to promote education and socio-economic improvement, as well as the welfare of “outcastes”, at the time referred to as depressed classes. For the defence of Dalit rights, he started five periodicals –

1. Mooknayak (the leader of the dumb, 1920)
2. Bahishkrit Bharat (Ostracized India, 1924)
3. Samta (Equality, 1928)
4. Janata (The People, 1930)
5. Prabuddha Bharat (Enlightened India, 1956)

Manusmriti Dahan Din: In a conference in late 1927, Ambedkar publicly condemned the classic Hindu text, the Manusmriti (Laws of Manu), for ideologically justifying caste discrimination and “untouchability”, and he ceremonially burned copies of the ancient text. On 25 December 1927, he led thousands of followers to burn copies of Manusmrti. Thus, annually 25 December is celebrated as Manusmriti Dahan Din (Manusmriti Burning Day) by Ambedkarites and Dalits.

Kalaram Temple movement: About 15,000 volunteers assembled at Kalaram Temple satygraha making one of the greatest processions of Nashik. The procession was headed by a military band, a batch of scouts, women and men walked in discipline, order and determination to see the god for the first time. When they reached to gate, the gates were closed by Brahmin authorities.

Poona Pact:

In 1932, British announced the formation of a separate electorate for “Depressed Classes” in the Communal Award.

• Gandhi fiercely opposed a separate electorate for untouchables, saying he feared that such an arrangement would divide the Hindu community. Gandhi protested by fasting while imprisoned in the Yerwada Central Jail of Poona. Following the fast, Congress politicians and activists such as Madan Mohan Malaviya and Palwankar Baloo organised joint meetings with Ambedkar and his supporters at Yerwada.
• On 25 September 1932, the agreement known as Poona Pact was signed between Ambedkar (on behalf of the depressed classes among Hindus) and Madan Mohan Malaviya (on behalf of the other Hindus). The agreement gave reserved seats for the depressed classes in the Provisional legislatures, within the general electorate.
• Due to the pact, the depressed class received 148 seats in the legislature, instead of the 71 as allocated in the Communal Award earlier proposed by British Prime Minister Ramsay MacDonald. The text uses the term “Depressed Classes” to denote Untouchables among Hindus who were later called Scheduled Castes and Scheduled Tribes under India Act 1935, and the later Indian Constitution of 1950. In the Poona Pact, a unified electorate was in principle formed, but primary and secondary elections allowed Untouchables in practice to choose their own candidates.

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Shifting Magnetic North Pole -RSTV⏱

Source :Rajya sabha T.V

Recently, it was observed that the Earth’s north magnetic pole had been exhibiting strange behavior and quickly moving away from Canada, even crossing the International Date Line last year. As of now, this pole has been redefined by the World Magnetic Model because of its rapid movement. This extreme wandering has caused increasing concerns over navigation, especially at high latitudes.

Earth’s Magnetic Field

Earth’s magnetic field surrounds and protects our planet from the hottest, most statically charged particles that the sun can throw our way. This shield — the natural product of molten ironswirling around the planet’s core – has had our backs for billions of years and has prevented Earth from becoming an irradiated, electrified wasteland.

The World Magnetic Model records those changes. The model is a joint product of the British Geological Survey and the United States National Oceanic and Atmospheric Administration. The two agencies were planning to report changes in the magnetic north pole, as they do every five years, at the end of 2019. But the pole has moved so quickly they had to release the information much sooner.

Scientists have found that the magnetic north pole is moving at a speed of about 55 kilometres every year. One hundred years ago, the pole was located near the coast of northern Canada. It crossed the International Date Line, the imaginary line running through the Pacific Ocean from the North Pole to the South Pole, in 2017. Now, the magnetic north pole is in the middle of the Arctic Ocean and moving towards Russia.

Why could this phenomenon be occurring?

Researchers have suggested that it may be because of the deeply embedded hydromagnetic waves, the movement of liquid iron in the Earth’s core, climate change, or a combination of all these factors.

The Earth’s physical structure is behind all this magnetic shifting. The planet’s inner core is made of solid iron. But the reason is turbulence in Earth’s liquid outer core. There is a hot liquid ocean of iron and nickel in the planet’s core where the motion generates an electric field.

The Earth itself spins on its axis. The inner core spins as well, and it spins at a different rate than the outer core. This creates a dynamo effect, or convections and currents within the core. This is what creates the Earth’s magnetic field — it’s like a giant electromagnet.

Exactly how the dynamo effect changes the field isn’t widely understood. Shifts in the core’s rate of spin and the currents within the molten material most likely affect the planet’s field and the location of the poles. In other words, the poles move because the convection in the core changes. These changes might also cause the poles to switch places. Irregularities where the core and mantle meet and changes to the Earth’s crust, like large earthquakes, can also change the magnetic field.

Uses of World Magnetic Model

1. The military uses the WMM for undersea and aircraft navigation, parachute deployment, and more.
2. Other governmental organizations, such as NASA, the Federal Aviation Administration, US Forest Service use this technology for surveying and mapping, satellite/antenna tracking, and air traffic management.
3. The constant shift is a problem for compasses in smartphones and some consumer electronics.
4. Airplanes and boats also rely on magnetic north, usually as backup navigation.
5. GPS isn’t affected because it’s satellite-based. But airplanes and boats do depend on magnetic north in emergencies.
6. Airport runway names are based on their direction toward magnetic north and their names change when the poles move. For example, the airport in Fairbanks, Alaska, renamed a runway 1L-19R to 2L-20R in 2009.
7. Migratory animals that use the Earth’s magnetic field would find it difficult to orient themselves.

Is Earth’s Magnetic Field About to Flip?

While the rapid movement of Earth’s magnetic North Pole may cause concern over the potential flip of magnetic poles, there is no evidence that such a flip is imminent. Geologists can interpret magnetic minerals in rocks around the world to reveal the history of magnetic reversals on Earth.

Earth’s magnetic poles have flipped many times in its history, with the latest reversal occurring 780,000 years ago and 183 times in the past 83 million years. When Earth’s magnetic poles do flip, it won’t be a catastrophic “end of the world” scenario. From examining fossil records, there is no evidence that a magnetic field reversal causes increased extinctions, volcanic activity, etc.

Note: The phenomenon called Aurora

The magnetic North Pole is responsible for more than just the direction a compass points. It’s also the source of the aurora borealis, the dramatic lights that appear when solar radiation bounces off the Earth’s magnetic field. This happens at the South Pole as well. In the southern hemisphere, the lights are called the aurora australas.

https://www.facebook.com/Aovious1

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India At OIC ☆

Geneva conventions

Geneva Conventions

They are a set of international treaties finalised in 1949, which set down the limits of acceptable conduct in war to ensure that warring parties remain humane to non-combatants such as civilians and medical personnel, as well as to combatants who are no longer participating in hostilities, such as prisoners of war, and wounded or sick soldiers. They have been  acceded to by all countries.

There are four set of conventions in all.
1.The first deals with the protection of wounded and sick soldiers on land during war; 

2. The second deals with the protection of wounded, sick and shipwrecked military personnel at sea during war
3.The third applies to prisoners of war
4.The fourth protects civilians, including those in occupied territory.

Additionally, there are 3 Protocols:
1.Protocol I of 1977 relates to the Protection of Victims of International Armed Conflicts
2. Protocol II, also of 1977, deals with the Protection of Victims of Non-International Armed Conflicts
3.Protocol III of 2005 is about the Adoption of an Additional Distinctive Emblem, of the Red Crystal, in addition to the Red Cross and Red Crescent.

• Authority - The Geneva Conventions have a system of “Protecting Powers” who ensure that the provisions are being followed by the parties.
• In theory, each side must designate states that are not party to the conflict as their “Protecting Powers”.
• In practice, the International Committee of the Red Cross (ICRC) has been mandated under the conventions to ensure the application of the law.
• ICRC visits prisoners, both military and civilian.

Is the convention applicable in the present conflict?

• Both India and Pakistan have been careful not to term the confrontation a war.
• India has specifically said that its airstrikes were a “non-military” intelligence-led operation.
• Nevertheless, both sides are bound by the Geneva Conventions.
• As, the provisions of the conventions apply at the following times:

1. in peacetime situations
2. in declared wars
3. in conflicts that are not recognised as war by one or more of the parties

• This means the IAF officer is a prisoner of war, and his treatment has to be in accordance with the provisions for PoWs under the Geneva Conventions.

What is prohibited under the convention?

• According to the provisions, the nations should avoid the following acts:

1. Violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment and torture
2. taking of hostages
3. outrages upon personal dignity, in particular, humiliating and degrading treatment
4. the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court

• Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war is prohibited.
• It will be regarded as a serious breach of the present Convention.
• Particularly, physical mutilation or medical/scientific experiments which are not justified medically and not in PoW's interest are prohibited.
• Likewise, PoWs must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
• Any acts of vengeance against prisoners of war are prohibited as per Article 13 of the Convention.
• The responsibility for the "humane" treatment of PoWs lies with the detaining power, and not just the individuals who captured the PoW.

What rights is a PoW entitled to?

• Article 14 of the Convention lays down that PoWs are entitled to, in all circumstances, respect for their persons and their honour.
• In captivity, a PoW must not be forced to provide information of any kind under physical or mental torture, or any other form of coercion.
• Refusal to answer questions should not invite punishment.
• A PoW must be protected from exposure to fighting.
• Use of PoWs as hostages or human shields is prohibited.
• A PoW has to be given the same access to safety and evacuation facilities as those affiliated to the detaining power.
• Access to health facilities, prayer, recreation and exercise are also written in the Convention.
• The detaining power has to facilitate correspondence between the PoW and his family, and must ensure that this is done without delays.
• A PoW is also entitled to receive books or care packages from the outside world.

What about the release of prisoners?

• Parties to the conflict “are bound to send back” or repatriate PoWs, regardless of rank, who are seriously wounded or sick, after having cared for them until they are fit to travel.
• The conflicting parties are expected to write into any agreement they may reach to end hostilities and for the expeditious return of PoWs.
• Parties to the conflict can also arrive at special arrangements for the improvement of the conditions of internment of PoWs, or for their release and repatriation.
• E.g. at the end of the 1971 war, India had more than 80,000 Pakistani troops who had surrendered to the Indian Army after the liberation of Dhaka
• India agreed to release them under the Shimla Agreement of 1972.
• During the Kargil War, after intense diplomatic efforts, Pakistan returned Flight Lieutenant Nachiketa, who was captured after ejecting from his burning Mi27.
• In the present case, Pakistan can decide to send Wing Commander Abhinandan unilaterally, or negotiate his release with India.

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RIGHT TO STRIKE -INDIA

Introduction

Every right comes with its own duties. Most powerful rights have more duties attached to them. Today, in each country of globe whether it is democratic, capitalist, socialist, give right to strike to the workers. But this right must be the weapon of last resort because if this right is misused, it will create a problem in the production and financial profit of the industry. This would ultimately affect the economy of the country. Today, most of the countries, especially India, are dependent upon foreign investment and under these circumstances it is necessary that countries who seeks foreign investment must keep some safeguard in there respective industrial laws so that there will be no misuse of right of strike. In India, right to protest is a fundamental right under Article 19 of the Constitution of India. But right to strike is not a fundamental right but a legal right and with this right statutory restriction is attached in the industrial dispute Act, 1947.

Position in India

In India, unlike America, right to strike is not expressly recognized by the law. The trade union Act, 1926 for the first time provided limited right to strike by legalizing certain activities of a registered trade union in furtherance of a trade dispute which otherwise breach of common economic law.¹ Now days a right to strike is recognized only to limited extent permissible under the limits laid down by the law itself, as a legitimate weapon of Trade Unions.

The right to strike in the Indian constitution set up is not absolute right but it flow from the fundamental right to form union.² As every other fundamental right is subject to reasonable restrictions, the same is also the case to form trade unions to give a call to the workers to go on strike and the state can impose reasonable restrictions. In the All India Bank Employees Association v. I. T.³, the Supreme Court held,

"the right to strike or right to declare lock out 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 but by totally different considerations."

Thus, there is a guaranteed fundamental right to form association or Labour unions but there is no fundamental right to go on strike.⁴ Under the Industrial Dispute Act, 1947 the ground and condition are laid down for the legal strike and if those provisions and conditions are not fulfilled then the strike will be illegal.

Provision of valid strike under the Industrial Dispute Act, 1947-

Section 2(q) of said Act defines the term strike, it says, "strike" means a cassation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding of any number of persons who are or have been so employed to continue to work or accept employment. Whenever employees want to go on strike they have to follow the procedure provided by the Act otherwise there strike deemed to be an illegal strike. Section 22(1) of the industrial

Dispute Act, 1947 put certain prohibitions on the right to strike. It provides that no person employed in public utility service shall go on strike in breach of contract:

1. Without giving to employer notice of strike with in six weeks before striking; or
2. Within fourteen days of giving such notice; or
3. Before the expiry of the date of strike specified in any such notice as aforesaid; or
4. During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

It is to be noted that these provisions do not prohibit the workmen from going on strike but require them to fulfill the condition before going on strike. Further these provisions apply to a public utility service only. The Industrial Dispute Act, 1947 does not specifically mention as to who goes on strike. However, the definition of strike itself suggests that the strikers must be persons, employed in any industry to do work.

Notice of strike

Notice to strike within six weeks before striking is not necessary where there is already lockout in existence. In mineral Miner Union vs. Kudremukh⁵Iron Ore Co. Ltd., it was held that the provisions of section 22 are mandatory and the date on which the workmen proposed to go on strike should be specified in the notice. If meanwhile the date of strike specified in the notice of strike expires, workmen have to give fresh notice. It may be noted that if a lock out is already in existence and employees want to resort to strike, it is not necessary to give notice as is otherwise required. In Sadual textile Mills v. Their workmen⁶ certain workmen struck work as a protest against the lay-off and the transfer of some workmen from one shift to another without giving four days notice as required by standing order 23. On these grounds a question arose whether the strike was justified. The industrial tribunal answered in affirmative. Against this a writ petition was preferred in the High Court of Rajasthen. Reversing the decision of the Tribunal Justice Wanchoo observed:

"…We are of opinion that what is generally known as a lightning strike like this take place without notice…. And each worker striking ….(is) guilty of misconduct under the standing orders …and liable to be summarily dismissed…(as)… the strike cannot be justified at all. "

General prohibition of strike-

The provisions of section 23 are general in nature. It imposes general restrications on declaring strike in breach of contract in the both public as well as non- public utility services in the following circumstances mainly: -

1. During the pendency of conciliation proceedings before a board and till the expiry of 7 days after the conclusion of such proceedings;
2. During the pendency and 2 month’s after the conclusion of proceedings before a Labour court, Tribunal or National Tribunal;
3. During the pendency and 2 months after the conclusion of arbitrator, when a notification has been issued under sub- section 3 (a) of section 10 A;
4. During any period in which a settlement or award is in operation in respect of any of the matter covered by the settlement or award.

The principal object of this section seems to ensure a peaceful atmosphere to enable a conciliation or adjudication or arbitration proceeding to go on smoothly. This section because of its general nature of prohibition covers all strikes irrespective of the subject matter of the dispute pending before the authorities. It is noteworthy that a conciliation proceedings before a conciliation officer is no bar to strike under section 23.

In the Ballarpur Collieries Co. v. H. Merchant⁷ it was held that where in a pending reference neither the employer nor the workmen were taking any part, it was held that section 23 has no application to the strike declared during the pendency of such reference.

Illegal Strike-

Section 24 provides that a strike in contravention of section 22 and 23 is illegal. This section is reproduced below:

1. A strike or a lockout shall be illegal if,
1. It is commenced or declared in contravention of section 22 or section 23; or
2. It is continued on contravention of an order made under sub section (3) of section 10 or sub section (4-A) of section 10-A.
2. Where a strike or lockout in pursuance of an industrial dispute has already commenced and is in existence all the time of the reference of the dispute to a board, an arbitrator, a Labour court, Tribunal or National Tribunal, the continuance of such strike or lockout shall not be deemed to be illegal;, provided that such strike or lockout was not at its commencement in contravention of the provision of this Act or the continuance thereof was not prohibited under sub section (3) of section 10 or sub section (4-A) of 10-A.
3. A strike declared in the consequence of an illegal lockout shall not be deemed to be illegal.

Consequence of illegal Strike-

Dismissal of workmen-

In M/S Burn & Co. Ltd. V, Their Workmen⁸, it was laid down that mere participation in the strike would not justify suspension or dismissal of workmen. Where the strike was illegal the Supreme Court held that in case of illegal strike the only question of practical importance would be the quantum or kind of punishment. To decide the quantum of punishment a clear distinction has to be made between violent strikers and peaceful strikers.⁹

In Punjab National Bank v. Their Employees¹⁰, it was held that in the case of strike, the employer might bar the entry of the strikers within the premises by adopting effective and legitimate method in that behalf. He may call upon employees to vacate, and, on their refusal to do so, take due steps to suspend them from employment, proceed to hold proper inquires according to the standing order and pass proper orders against them subject to the relevant provisions of the Act.

Wages-

In Cropton Greaves Ltd. v. Workmen,¹¹ it was held that in order to entitle the workmen to wages for the period of strike, the strike should be legal and justified. A strike is legal if it does not violate any provision of the statute. It cannot be said to be unjustified unless the reasons for it are entirely perverse or unreasonable. Whether particular strike is justified or not is a question of fact, which has to be judged in the light of the fact and circumstances of each case. The use of force, coercion, violence or acts of sabotage resorted to by the workmen during the strike period which was legal and justified would disentitle them to wages for strike period.

The constitutional bench in Syndicate Bank v. K. Umesh Nayak decided the matter, the Supreme Court held that a strike may be illegal if it contravenes the provision of section 22, 23 or 24 of the Act or of any other law or the terms of employment depending upon the facts of each case. Similarly, a strike may be justified or unjustified depending upon several factors such as the service conditions of the workmen, the nature of demands of the workmen, the cause led to strike, the urgency of the cause or demands of the workmen, the reasons for not resorting to the dispute resolving machinery provided by the Act or the contract of employment or the service rules provided for a machinery to resolve the dispute, resort to strike or lock-out as a direct is prima facie unjustified. This is, particularly so when the provisions of the law or the contract or the service rules in that behalf are breached. For then, the action is also illegal.

Right of employer to compensation for loss caused by illegal strike-

In Rothas Industries v. Its Union¹³, the Supreme Court held that the remedy for illegal strike has to be sought exclusively in section 26 of the Act. The award granting compensation to employer for loss of business though illegal strike is illegal because such compensation is not a dispute within the meaning of section 2(k) of the Act.

Conclusion

The right to strike is not fundamental or absolute right in India in any special and common law, Whether any undertaking is industry or not. This is a conditional or qualified right only available after certain pre-condition are fulfilled. If the constitution maker had intended to confer on the citizen as a fundamental right the right to go on strike, they should have expressly said so. On the basis of the assumption that the right to go on strike has not expressly been conferred under the Article 19(1) (c) of the Constitution. Further his Lordship also referred to the observation in Corpus Juris Secundum¹⁴ that the right to strike is a relative right which can be exercised with due regard to the rights of others. Neither the common law nor the fourteenth Amendment to the federal constitution confers an absolute right to strike.¹⁵ it was held in the case that the strike as a weapon has to be used sparingly for redressal of urgent and pressing grievances when no means are available or when available means have failed to resolve it. It has to be resorted to, to compel the other party to the dispute to see the justness of the demand. It is not to be utilized to work hardship to the society at large so as to strengthen the bargaining power. Every dispute between an employer and employee has to take into consideration the third dimension, viz. the interest of the society as whole.¹⁶ Recently Supreme Court held that if the strike is illegal then the employer have right to take action against the workers or employees who had taken part in the strike.

Footnotes

1. Buckingam and Carnatic Co. Case

2. article 19 of the constitution of India.

3. (1961-62) 21 FJR 63.

4. Kameswar v. State of Bihar, 1962 SCR 369.

5. (1989) 1 Lab LJ 227 (Karn).

6. (1958) 2 L.L.J. 628 Rajasthen.

7. (1967) 2 LLJ 201 Pat.

8. AIR 1959 SC 529.

9. Indian General Navigation and Railway Co. Ltd. V. Their Workmen, AIR 1960SC 219.

10. AIR 1960 SC 160.

11. (1978)3 SCC 155.

12. AIR 1994 SC 319.

13. AIR 1976 SC 425.

14. Coupus Juris Secundum, vol. 83 p.525.

15. S. Vasudevan and Others v. S.D. Mital, AIR 1962 Bom. 53.

16. Syndicate Bank v. K. Umesh Nayak, AIR 1994 SC319.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Contributor

Vijendra Vikram singh Paul

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