Critically Analysing India's Reasons For Not Ratifying The Convention On Freedom Of Association And Protection Of The Right To Organise

The Centre of Indian Trade Unions ['CITU'] had knocked the doors of the International Labour Organization ['ILO'] and the Apex Court to rescind the bill (in its nascent stage), claiming a violation of one of the fundamental conventions of ILO.^[4] One of them is the Freedom of Association and Protection of the Right to Organize Convention No. 87 ['Convention 87'], which to our surprise has not yet been ratified by India. Despite the Convention 87's genesis which can be traced back to 1948, India's accession remains in limbo because it essentially is a voluntary process and neither has a mutually agreed time frame nor a prescribed timeline.

The present article aims to critically analyse government's decision to not ratify the Convention 87.

Understanding From The Basic- Right To Association

The right to association of workers and employers entitles them to establish and join organizations of their choice;^[5] it forms the basis of a liberated society. It is an enabling right which ensures a participative socio-economic fabric of nation, thus lies at the fulcrum of democracy and rule of law. It portrays the voice of workers and employers and is therefore crucial not only for the labour markets, but also for the democratic functioning of administrative structures in a country.^[6]

Understanding Government's Stand

The authors believe that critical examination of the underlying rationale is perhaps the most effective way to judge/assess the government's decision/reservation. Article 2 of the Convention 87 bestows upon all workers and employers, without distinction, a right to association, a right to organise themselves. Consequently, government servants have also been included within its ambit. The bone of contention for not signing this Convention 87 has been this obliteration of a  distinction between a government servant and other workers as far as right to associate is concerned ^[7] The government strongly contends that such right to association cannot be guaranteed to public servants primarily on account of ensuring administrative control/discipline and enabling proper observance of public duties. However, it has failed to establish a proximate nexus between recognizing such right of the employees (allowing for formation of worker's associations) and the discipline amongst, and the efficiency of, the members of the said association in their respective working domain^[8] Indian judiciary has been striking down the government conduct rules requiring government servants to join or continue to be a member of a recognized union or imposing any other restriction in violation of the freedom of association guaranteed under Article 19(1)(c) of the Constitution of India^[9] This portrays the government's stand as a mirage.

Constitutional Perspective

Irrespective of whether we ratify Convention 87, the Constitution guarantees the freedom of association under Article 19(1)(c) of the Constitution of India; the expression "all citizens" includes civil servants as well.^[10] It becomes pertinent to emphasize that fundamental rights are on a higher pedestal than other constitutional rights. However, it comes under certain vaguely defined restrictions like sovereignty & integrity of India, public order and morality. Ambiguity while defining or limiting the scope of such qualifications to the exercise of freedoms enshrined under Article 19 of the Indian Constitution is inevitable.

In All India Bank Employees' Association v. National Industrial Tribunal & Ors.,^[11] it was  laid down that there are certain rights embedded within Article 19(1)(c) of the Indian Constitution which are usually available to the members of trade unions. These are-

• Right to meet
• Right to discuss their issues and further propagate their views
• Right to hold property

Government servants in absence of right of association are missing out on the above stated rights.

Jurisprudential Analysis

From a jurisprudential perspective, especially considering Prof. Hohfeld's Theory of Jural Relations, he had rightly opined that duty and right are jural correlatives.^[12] Correlatives are such legal interests which apply to two separate entities who are involved in a legal relationship. It signifies that if one person has a right, there necessarily exists a corresponding duty upon the other individual in the pair, so this right can be legally enforced at the cost of this person who owes the duty. Now, considering this in light of the current debate, right to associate of the public servants  is to be assured by the employer- the Government. Even as a Fundamental Right it is the government's duty to ensure that the right is accessible to all citizens.

Critically Analysing Government's Reasons

Ratifying the Convention 87 would ensure bestowing certain rights which are prohibited by the statute and its underlying by-laws, rules of conduct that dictate conduct of government servants. The government is sceptical that in the event if ratification of the Convention 87 the following would ensue —

Rampant Strikes- The government anticipates that ratification will translate into rampant strikes by public servants. This may very well be misused as a tool in hands of government servants to realise unwarranted, cosmetic and extraneous demands at the cost of obstructing the government machinery. Government servants may also indulge in demonstrations against government's policy decisions causing a ruckus. Additionally, it becomes all the more important to consider such instances as indiscipline on their part otherwise the government administrative machinery might not be able to function properly.

However, this belief is misplaced. In All India Bank Employees Association v. National industrial Tribunal,^[14] it was maintained that right to association does not amount to conferring a clear right to strike. Regardless, in India, there is no provision conferring a right to strike under any Statute. Instead, it is derived from Article 19(1)(c) of the Constitution; the exercise of freedom therein is also qualified by "reasonable restrictions".^[15] Having said that, it is clear that merely recognising their right to organise themselves would not give them a clean chit to strike. Strikes can be declared as illegal and it carries with it certain unavoidable repercussions which justifies such restriction.

The existing Indian legislation is also biased in this context; benefits under the Trade Unions Act, 1926 are accessible only to employees who qualify as "workmen".^[16] Further, "workmen" constitutes "all persons employed in trade or industry";^[17] it bars white collar staff employed at government offices; government servants functioning in administrative branches are excluded from this limited scope. Unions formed by government employees are not recognised under the Trade Unions Act, 1926.^[18] Nonetheless, industrial employees of government, are clearly entitled to form their union which can be attainted through ratification. The Apex Court has held that the ambit of an employee's right to be represented can be restricted by statutes, rules or regulations.^[19] Smt. Damyanti Naranga v. Union of India & Ors.,^[20] the bench opined that the right to associate of a government servant is conditioned upon the approval of the workers' union by the government.

Substantial Criticism Being Hurled/Directed At Government Policies- Convention 87 grants right to establish and join federations and confederations and further lays down the right to affiliate with international organisations of workers and employers.^[21] This augments the concern associated with ratifying the Convention 87. It is so, as there has been a growing tendency of various trade unions getting political affiliation.^[22] When government servants come together in the form of an association on the basis of their political inclination, their decisions most likely emanate from their vested political interest, this might cause serious instability in the proper functioning and administration of the country.

Joining Foreign Organizations And Freely Accepting Financial Contribution, etc.- Article 5 of the Convention 87 grants the right to affiliate with international organisations of workers and employers in furtherance of the right to establish and join federations and confederations.^[23] Now, foreign affiliation of such employee associations is another menace (accident waiting to happen). It may threaten the security of the nation, on the pretext that if foreign contribution (financial aid) is being extended, it impliedly gives a de facto control of the association in foreign hands. Ergo, we may even compromise our national sovereignty.

In accordance with the 1998 Declaration of Fundamental Principles and Rights at Work by the ILO,^[24] Conventions 87 and 98 constitute a small group of 'core conventions', whereby all member nations are "bound to promote and respect the core conventions", regardless of their real time ratification. Furthermore, ILO devised an umbrella procedure to secure compliance of pertinent conventions in non-ratifying states. Ergo, at the behest of ILO a Committee on Freedom of Association ['CFA'] was set up to examine/assess complaints alleging violations of freedom of association, irrespective of ratification by the State accused of such incompliance. The CFA is a Governing body, that constitutes of an independent chairperson and three representatives respectively/speaking for the governments, workers and employers. Irrespective of Convention 87's ratification, violation of freedom of association may be heard by CFA.^[25] Hence, we as students of law with advancing knowledge of law firmly suggest that government should reconsider its decision to not ratify the Convention 87.

Convention 87 is renowned as the most authoritative law on freedom of association. In addition to this, the International Covenant on Civil and Political Rights ["ICCPR"] establishes a clear right to freedom of association; it makes it explicit that such right includes a right to form and join trade unions to safeguard one's interests.^[26] In comparison to the ICCPR, the grievance redressal mechanism of the ILO instruments is rather robust.^[27] Hence, it is more logical to ratify the Convention as we are already a party to ICCPR and we will be bound by almost similar obligations.

Our failure to ratify ILO standards acts as an impediment in bringing a case alleging violations by the countries which have ratified the Convention 87.^[28] Hence it is much needed to ratify the said Convention 87 in an attempt to improve the soft power of India at the international forum. To conclude, we cite an age-old proverb "union is strength"; The authors truly believe that the manner of execution of such strength, must not dictate the formation of unions in first place which is a matter of employees' rights, it's a civil right which should be accessible to every employee.

The authors are students at National Law University, Jodhpur.Views are personal.