Kameshwar Prasad and Others v The State of Bihar and Another (1962)

This is the case every answer on "the right to strike" must deal with, and it cuts both ways.

On one side, it holds that Government servants do not lose their fundamental rights by entering service. A rule forbidding them to take part in "any demonstration" about their conditions of service was struck down, because a demonstration can be a peaceful form of speech and assembly — wearing a badge, a silent gathering — and a blanket ban goes far beyond what public order requires.

On the other side, the same rule, so far as it forbade strikes, was upheld, because "there is no fundamental right to resort to a strike." The Court did not argue this afresh: it followed All India Bank Employees' Association v National Industrial Tribunal, and the appellants did not even contest it.

So the case gives you both halves of the doctrine: freedom to demonstrate peacefully is protected; the strike itself is not a fundamental right. Later decisions on strikes by Government employees, such as T.K. Rangarajan v Government of Tamil Nadu (2003), are read against this case and All India Bank Employees' Association.

By a notification of 16 August 1957 the Governor of Bihar inserted r. 4-A into the Bihar Government Servants' Conduct Rules 1956:

"No Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service."

Ten days later six appellants — the President of the Patna Secretariat Ministerial Officers' Association and assistants and clerks of the State Government — petitioned the Patna High Court under Article 226. They argued that the rule violated Article 19(1)(a), (b) and (c) and so exceeded the rule-making power under Article 309.

The Patna High Court held that the freedoms in Article 19(1)(a) and (c) did not include a right to strike or demonstrate for Government servants, and that the rule was in any case saved as a reasonable restriction in the interest of public order. It dismissed the petition but granted a certificate under Article 132. The Union of India intervened, as did appellants from a similar case decided by the Bombay High Court on an identical rule.

1. Are Government servants, as a class, outside the protection of the fundamental rights in Part III?
2. Is the right to hold a "demonstration" covered by Article 19(1)(a) or (b)?
3. If so, is a ban on all demonstrations saved by Article 19(2) or (3) as a reasonable restriction in the interest of public order?
4. Is the ban on strikes valid?

The appeal was allowed in part. The appellants got a declaration that r. 4-A, so far as it prohibits "any form of demonstrations", violates Article 19(1)(a) and (b) and must be struck down. The prohibition of strikes stood. No order as to costs.

Government servants keep their fundamental rights

The rule was framed under Article 309, which is "Subject to the provisions of this Constitution", so it had to be tested "by the same criteria as are applicable to all laws and subordinate legislation."

The Union of India argued that a person who voluntarily enters Government service accepts reasonable conditions for discipline, and that such rules need not satisfy Article 19(2)–(6). It relied on American decisions, including Holmes J's remark in McAuliffe v New Bedford that a man "may have a constitutional right to talk politics, -but he has no constitutional right to be a policeman." The Court rejected those decisions as unhelpful: in the United States free speech is limited by an undefined "police power", whereas Article 19 sets out the permissible limits "with definiteness and precision."

The decisive point was Article 33, which lets Parliament restrict or abrogate fundamental rights only for the armed forces and forces charged with maintaining public order. Having singled those out, the Constitution implies that other Government servants are not excluded. "We find ourselves unable to accept the argument that the Constitution excludes Government servants as a class from the protection of the several rights guaranteed by the several Articles in Part III save in those cases where such persons were specifically named." Government servants "cannot be excluded from the protection of the rights guaranteed by Part III by reason merely of their being Government servants", though the nature of their duties may involve some restrictions.

A demonstration can be speech and assembly

"it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group." It is "in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech." Some demonstrations — "stone- throwing by a crowd" — are outside Article 19(1)(a) and (b); others, such as members wearing a badge drawing attention to their grievances, are within them.

The blanket ban fails the public-order test

The only ground relied on was public order. Applying Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia, a restriction is "in the interests of public order" only if there is a proximate and reasonable nexus with public order; the connection "has to be intimate, real and rational."

The State argued that discipline among Government servants is a precondition of public order, and that disorderly agitation by them would demoralise the public. The Court disagreed: this was not a rule for the police, and "The threat to public order should therefore arise from the nature of the demonstration prohibited." Then the central passage:

"The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration--be the same however innocent and however incapable of causing a breach of public tranquillity and does not confine itself to those forms of demonstrations which might lead to that result."

A rule aimed only at demonstrations likely to disturb public tranquillity could have been sustained. But the rule could not be read so as to separate the valid from the invalid part: "As no such separation is possible the entire rule has to be struck down as unconstitutional" — that is, the entire prohibition on demonstrations.

No fundamental right to strike

Because of All India Bank Employees' Association, which held that the right to form associations under Article 19(1)(c) does not carry a right to strike, the appellants confined their challenge to demonstrations. "The validity of the rule therefore in so far as it prohibits strikes, is no longer under challenge." The Court concluded that the rule, so far as it prohibits a strike, cannot be struck down, "since there is no fundamental right to resort to a strike."

Official position may still limit rights

The Court added a caution: accepting that Article 19(1)(a) applies to Government servants does not mean that "the responsibility arising from official position would not by itself impose some limitations on the exercise of their rights as citizens." Its examples were the secrecy provisions of s. 54(2) of the Income-tax Act 1922 and s. 128(1) of the Representation of the People Act 1951.

1. Government servants are not, as a class, excluded from the fundamental rights in Part III; Article 33 marks out the only services whose rights may be abrogated. Service rules under Article 309 must satisfy Part III like any other law.
2. A demonstration may be a form of speech and expression or of peaceful assembly under Article 19(1)(a) and (b). A rule prohibiting every form of demonstration, however innocent, is not a reasonable restriction in the interest of public order, and where it cannot be severed it falls as a whole.
3. There is no fundamental right to resort to a strike, so a rule prohibiting Government servants from striking is not invalid under Article 19.

• Direct question: Is there a fundamental right to strike in India? Discuss with case law. Start with All India Bank Employees' Association on Article 19(1)(c), then Kameshwar Prasad: the strike ban upheld, but the ban on all demonstrations struck down. Then bring in later cases such as T.K. Rangarajan.
• Distinguish carefully: the right to strike (no fundamental right) and the right to demonstrate peacefully (protected by Article 19(1)(a) and (b), subject to Article 19(2) and (3)).
• Problem question: a State rule forbids employees to wear protest badges or hold silent gatherings about pay. Apply Kameshwar Prasad: a blanket ban on innocent demonstrations fails the public-order test. A rule forbidding them to strike would stand.
• Constitutional point: use Article 33 to answer the argument that Government servants waive fundamental rights by accepting service.
• Government servants do not shed their fundamental rights at the office door. Discuss with reference to Kameshwar Prasad v State of Bihar.