1

PROJECT REPORT OF LABOUR LAWS

AND INTERNATIONAL LABOUR

TOPIC FREEDOM OF ASSOCIATION

Submitted to:- Compiled by:-

DR. KUSUM Mohit Munjaal
197/11
10th Semester
University Institute
Of Legal Studies,
Panjab University,
Chandigarh
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ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been
possible without the kind support and help of many individuals. I would like
to extend my sincere thanks to all of them.

I am highly indebted to Dr. Kusum for their guidance and constant

supervision as well as for providing necessary information regarding the
project & also for their support in completing the project.

I would like to express my gratitude towards my parents & friends for their
kind co-operation and encouragement which help me in completion of this
project.

MOHIT MUNJAAL
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INDEX
Freedom of Association
Freedom of Association and ILO Convention No. 87

1. Convention No. 87
2. Application of the Convention
3. Rights recognised in the convention
4. Who can enjoy these rights?
5. No restriction on these rights
6. Certain Duties of the organizations and its members
7. Undertaking by the member States

Freedom of Association and Constitution of India

1. Right to form association does not carry the right to recognition

2. Right to form association does not carry the right to strike
3. The right not to join an association is not a fundamental right
4. Restrictions on the Freedom of Association (Article 19(4))

a) Meaning of Reasonableness
b) Test to Determine the Reasonableness of a Regulatory Law
c) Grounds of Restrictions

i. Freedom of Association and the Sovereignty and Integrity of India

ii. Public Order
iii. Morality

Bibliography
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Freedom of Association
Freedom of association is the right to join or leave groups of a person's own choosing, and for
the group to take collective action to pursue the interests of members. It is both an individual
right and a collective right, guaranteed by all modern and democratic legal systems, including the
United States Bill of Rights, article 11 of the European Convention on Human Rights and the
Canadian Charter of Rights and Freedoms, and international law, including articles 20 and 23 of
the Universal Declaration of Human Rights, and Conventions 87 and 98 of the International
Labour Organization.

Freedom of association is primarily manifested through the right to join a trade union, free
speech or debating societies, political parties, or any other club or association such as religious
groups, fraternities, or sport clubs. It is closely linked with the freedom of assembly, particularly
under the US Bill of Rights. More specifically the freedom of assembly is understood in a
political context, although depending on the source (constitution, human rights instrument, etc.)
the right to freedom of association may be understood to include the right to freedom of
assembly.1

Kahn Fruend expressed that freedom of association involves two aspects

absence of restraints and

presence of positive guarantees.

Absence of restraints means the state shall not impose any restrictions. Previously there was an
Act called Combinations Prohibition Act 1799, which prohibited any organization of workers
and there was no right to form associations. With regard to second aspect, the presence of
positive guarantees means that the state as well as employer should provide suitable atmosphere
to unions to grow in a healthy manner to work for the welfare of the workers. In Britain after a
long struggle workers achieved the right to form organization.2

1 http://www.grkarelawlibrary.yolasite.com/resources/LLMSY-Lab-1-Prakash.pdf

2 Kahn Fruend, Labour and the Law, Stevens and sons, London (1983)
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According to the dictionary meaning of the freedom of association, it means, the right to form
societies, clubs, and other groups of people, and to meet with people individually, without
interference by the government.3

Freedom of Association and ILO Convention No. 87

Workers' organizations had been demanding recognition of freedom of association well before
the establishment of the ILO. As an integral part of basic human rights and as a cornerstone of
the provisions intended to ensure the defence of workers freedom of association is particularly
important for the ILO in view of the latter's tripartite structure. It is also of undoubted interest to
employers' organizations, which now make greater use of the procedures which have been
established for the purpose of ensuring its application. The ILO could therefore not fail to
include this principle in its Constitution of 1919 as one of the objectives of its programme of
action. The Preamble to Part XIII" of the Treaty of Versailles mentioned "recognition of the
principle of freedom of association" among the objectives to be promoted by the ILO, and the
general principles set forth in Article 427 of the Treaty contained a provision concerning "the
right of association for all lawful purposes by the employed as well as by the employers4".

Freedom of association having thus been proclaimed from the outset as one of the fundamental
principles of the Organization, the need was rapidly felt to adopt provisions aimed at defining
this general concept more precisely and to set forth its essential elements in a formal ILO
instrument in order that its general application could effectively be promoted and supervised. An
initial attempt to do this failed in 1927.

In 1944, the Constitution of the ILO was supplemented by the inclusion of the Declaration of
Philadelphia, which reaffirmed the fundamental principles on which the Organization is based

3 http://dictionary.reference.com/browse/freedom+of+association

4 Freedom of Association and Collective bargaining, ILO Pub. Geneva (1994) p.2
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and, in particular, that freedom of expression and of association is essential to sustained

progress".

The two main instruments of the ILO that protect the freedom of association of workers are the
Freedom of Association and Protection of the Right to Organize Convention, 1948 (Convention
No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (Convention No.
98). On account of the importance of the principles contained in the two Conventions, they have
been categorised as fundamental conventions requiring universal observance.5

Convention No. 87

The Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87),
applies to workers and employers and their organizations and set forth certain rights and
guarantees. 150 member states of the ILO have ratified Convention No. 87.

In this Convention, Article 2 recognises the right of the workers and employers to establish and
to join organisations of their own choosing without previous authorisation.

Application of the Convention

The Convention applies to all workers-with the exception of the armed forces and the police and
all employers. The Convention guarantees to all workers, without any distinction, the right to
establish and join organizations of their own choosing, without prior authorization. It makes an
exception in the case of the armed forces6 and the police by providing that the extent to which

5
https://books.google.co.in/books?id=N_jusSSm2QMC&pg=PA131&dq=international+labour+organisation+convent
ion+87&hl=en&sa=X&ei=pBT7VJbnCYa6uATr6IHgBg&ved=0CCAQ6AEwAQ#v=onepage&q=convention%20no.%208
7&f=false

6 Article 9.
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the Convention shall apply to the armed forces and the police shall be determined by national
laws or regulations.

Rights recognised in the convention

Article 3 according to this article, the organisations should have the following rights:

To draw up their constitutions and rules,

To elect their representatives in full freedom,
To organise their administration and activities, and
To formulate their programmes.

Article 4 recognises the right of the organisations not to be suspended or dissolved by the
administrative authority. Thus, there cant be any suspension or dissolution of the organisation
by any administrative authority.
Article 5 recognises the other right of the organisations. According to this article, the
organisations shall have the right to establish and join federations and confederations and any
such organisation, federation or confederation shall have the right to affiliate with international
organisations of workers and employers.

Who can enjoy these rights?

According to Article 6, the provisions of Article 2, 3 and 4 also applies to the federations and
confederations of the organisations. Thus, all the rights confronted by the convention can be
enjoyed by

the organizations
federations and
confederations of the organizations.
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According to Article 10, the term organisation means any organisation of workers or of
employers for furthering and defending the interests of workers or of employers.

No restriction on these rights

According to Article 7, the conditions for the acquisition of the legal personality by the
organisations, federations and confederations cant restrict the rights confronted by the
convention.

Certain Duties of the organizations and its members

According to Article 8, in exercising the rights provided for in the Convention, workers and
employers and their respective organisations, like other persons or organized collectivities, shall
respect the law of the land. The law of the land shall not be such as to impair, nor shall it be so
applies as to impair, the guarantees provided for in the convention.

Undertaking by the member States

According to Article 11, each Member of the International Labour Organisation for which this
Convention is in force undertakes to take all necessary and appropriate measures to ensure that
workers and employers may exercise freely the right to organise.
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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. 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 Kulkarnis7 case that the right of association
pre-supposes organization. It as 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 may be controlled or
restricted by various industrial legislations such as Industrial Dispute Act or Trade Unions Act.

Right to form association does not carry the right to recognition

In Raja Kulkarni Vs. State of Bombay8 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,

7 Raja Kulkarni Vs State of Bombay (1954) SC 73

8 Ibid.

9 AIR 1962 SC 17
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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.

The legal position being thus well-settled that Article 19(1) (c) does not confer on a trade union a
right to claim the grant of recognition by the employer, it is not possible to accept the petitioner's
contention that the denial of recognition to it by the Board constitutes a violation of the
petitioner's fundamental right under the said article of the Constitution. There being no other
statutory provision in force in this State which confers on every trade union, irrespective of the
state of its membership, a right to be recognised by the employer, or imposes a corresponding
obligation on the employer to grant such recognition to all trade unions, it must be held that the
petitioner-union has no legal or enforceable right for the grant of recognition to it by the Board.

Withdrawal of recognition of a trade union to represent workmen in certain categories,

consequent upon recognition of another union, which had a membership of the majority of such
workmen, as their sole bargaining agent does not violate Article 19(1)(c)11.

10 Ibid.

11 A.C.Mukherjee Vs Union of India, (1972) Lab IC 929

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Right to form association does not carry the right to strike

In T.K.Rangarajan Vs State of Tamil Nadu12, the Supreme Court delivering its final verdict on
August 6, 2003 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.

Although the Tamil Nadu Government had initially dismissed 1,70,241 employees, the
government in response to the wishes of the Supreme Court agreed to take back those employees
who had not resorted to violence on compassionate grounds, yet still 6,072 employees remain
dismissed. The Supreme Court had recommended the establishment an effective redressal
machinery to take care of the grievances and demands of employees.

The right not to join an association is not a fundamental right

In Tika Ramji Vs U.P.13 the contention of the petitioner was that right to form an association
implied the right not to form or join it, he further contented that both rights were one integral
right guaranteed by Article 19(1)(c). The facts of the above case are under provisions of the U.P.
Sugarcane (Regulation of Supply and Purchase) Act, 1953, two notifications issued by the U.P.
Government were impuned, inter alia, as violating Article 19(1)(c). The petitioner urged that the
provision relating to the supply of sugarcane by a co-operative society to factories manufacturing
sugar would in substance compel him to join such a society, thus violating his fundamental right
under Article 19(1)(c) not to form, or join, an association. Bhagwati J held that assuming that the
right to form an association implies a right not to form an association, it does not follow that the
negative right must also be regarded as a fundamental right. The citizens of India have many
rights which have not been given the sanctity of fundamental rights and there is nothing absurd
or uncommon if the positive right alone is made a fundamental right. The whole fallacy in the

12 AIR 2003 SC 3032

13 Tika Ramji Vs U.P (1956) SCR 393

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argument urged on behalf of the petitioners lies in this that it ignores that there is no compulsion
at all on any cane grower to become a member of the cane growers co-operative society14.

Here the author H.M.Seeravai submits that the observations of Bhagwati. J that the negative right
was not a fundamental right are not correct. Besides the contention the petitioner urged that he
was compelled to join in cane growers co-operative society failing which he could not supply
sugarcane to factories, was rejected by saying that he was not compelled.

Restrictions on the Freedom of Association (Article 19(4))

Art. 19 (4) incorporates that reasonable restrictions in the interest of sovereignty and
integrity of India or public order or morality may be imposed on this right by law.

Art. 19 (4) serves two purposes, viz., on the one hand, it specifies that these freedoms are not
absolute but are subject to regulation; on the other hand, it puts a limitation on the power of a
legislature to restrict these freedoms.

Essential elements of Art.19 (4) are as follows.

The restrictions can be imposed only by or under the authority of law; no restriction can be
imposed by executive action alone without there being a law to back it up.
Each restriction must be reasonable.
A restriction must be related to the purposes mentioned in Clause (4) of Art. 19

(a) Meaning of Reasonableness

It is difficult to give an exact definition of the word reasonable. There is no definite test to
adjudge reasonableness of a restriction. Each case is to be judged on its own merits, and no

14 H.M.Seervai, Constitutional Law of India, Volume 1, Universal Law Pub (2007) p.806
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abstract standard or general pattern of reasonableness is applicable uniformly to all cases as

observed by Supreme Court in V. G. Row.15

For adjudging reasonableness of a restriction, the courts consider such factors as: the duration
and the extent of the restrictions; the circumstances under which, and the manner in which, that
imposition has been authorized. The nature of the right infringed, the underlying purpose of the
restrictions imposed, the extension and the urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions at the time, all these considerations
enter into the judicial verdict.

In Papnasam Labour Union v. Madura Coats Ltd.16, the Supreme Court has stated that the
following principles and guidelines should be kept in view while considering the
constitutionality of a statutory provision imposing restrictions on a Fundamental Right
guaranteed by Art. 19 (1) (c) when challenged on the ground of unreasonableness of the
restriction imposed by it:

(1) The restriction must not be arbitrary or of an excessive nature.

(2) There must be a direct and proximate nexus or reasonable connection between the restriction
imposed and the object sought to be achieved.
(3) No abstract or fixed principle can be laid down which may have universal application in all
cases.
(4) In interpreting the constitutional provisions, the Court should be alive to the felt need of the
society and complex issues facing the people which the legislature intends to solve through
effective legislation.
(5) In appreciating the problems and the felt need of the society the judicial approach must
necessarily be dynamic, pragmatic and elastic.

15 Supra Note 3.

16 Jain MP, Indian Constitution, (LexisNexis Butterworths Wadhwa, Nagpur, 5th Ed.2008) at 984
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(6) The reasonableness has got to be tested both from the procedural and substantive aspects.
(7) A restriction to be reasonable must also be consistent with Art. 14 of the Constitution.
(8) A restriction so imposed which has the effect of promoting or effectuating a Directive Principle
can be presumed to be reasonable restriction in public interest.

These are only a few general guiding norms and not the fixed principles in judging the
reasonableness of a restriction. The Judges enjoy a lot of discretion in this respect as the
Supreme Court itself has stated:

In evaluating such elusive factors and forming their own conception of what is reasonable in all
the circumstances of a given case, it is inevitable that the social philosophy and the scale of
values of the Judges participating in the decision should play an important part, and limit to their
interference with legislative judgment in such cases can only be dictated by their sense of
responsibility and self-restraint and the sobering reflection that the Constitution is meant not only
for the people of their way of thinking but for all, that the majority of the elected representatives
of the people have, in authorizing the imposition of the restrictions, considered them to be
reasonable.

(b) Test to Determine the Reasonableness of a Regulatory Law

A question arises as to what is the test to be applied to ascertain whether a regulatory law is
reasonable or not. Should the courts look into the subject matter or the effect of the regulatory
law?

The Court has held in cases like Bennett Coleman, Bank Nationalization, Maneka Gandhi17
that the true test is whether the effect of the impugned legislation is to take away or abridge the
Fundamental Right and the subject matter of legislation should not be considered.

17 Id at 986
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(c) Grounds of Restrictions

IN THE INTEREST OF:

The expression used in Art. 19 (4) in the interest of give a wide amplitude to the permissible
law which can be enacted to impose reasonable restrictions on the right guaranteed by Art.19 (1)
(c) under one of the heads mentioned in Art.19 (4). No restriction can be placed on the right to
freedom of association on any ground other than those specified in Art.19 (4).

In O. K. Ghosh v. E. X. Joseph,18the Supreme Court has lucidly explained the effect of the
clause in the interest of in this case as follows:

This clause again cannot be interpreted to mean that even if the connection between the
restriction and the public order is remote and indirect, the restriction can be said to be in the
interest of public order. A restriction can be said to be in the interest of public order only if the
connection between the restriction and the public order is proximate and direct. Indirect or far
fetched or unreal connection between the restriction and public order would not fall within the
purview of the expression in the interest of the public order.

It can be seen that the ground of the sovereignty and integrity of India and public order are in
conformity with the national interest and the ground of morality is conceived in the interest of
society.

(i) Freedom of Association and the Sovereignty and Integrity of India

The right of citizens to form association or union is subject to the restrictions provided under Art
19(4) of the Constitution. The State can impose reasonable restrictions in the interest of
sovereignty and integrity of the country. POTA is enacted to protect sovereignty and integrity of
India from the menace of terrorism and therefore imposing restriction under Art. 19(4) also
includes declaring an organization as a terrorist organization as provided under POTA.

18 Id at 1010
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(ii) PUBLIC ORDER:

Public order is virtually synonymous with public peace, safety and tranquility as held in O. K.
Ghosh.19

In Madhu Limaye v. S. D. M. Monghyr,20 it was said that the term public order covers a small
riot, an affray, breaches of peace, or acts disturbing public tranquility. But public order and
public tranquility may not always synonymous. For example, a man playing loud music in his
home at night may disturb public tranquility, but not public order. Therefore, such acts as disturb
only the serenity of others may not fall within the term public order. All grounds on which
action can be taken under S. 144, Cr. P. C., fall within the term public order with this rider that
annoyance should be of grave proportions.

In D. Anantha Prabhu v. Distt. Collector, Ernakulm,21it was held that there should be some
element of disturbance of peace to bring a matter under public order.

(iii)MORALITY:

The term morality is of variable content having no fixed meaning as the ideas about morality
varies from society to society and time to time depending on the standards of morals prevailing
in the contemporary society.

In the case of Manohar v. State of Maharashtra,22it was held that the term morality in Art. 19
(4) is to be given a broad connotation as meaning not merely sexual morality but public
morality as well in the wider sense as understood by the people as a whole.

19 Ibid

20 Ibid

21 Ibid

22 Id at 1014
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BIBLIOGRAPHY

Books :-

Mishra, S.N., An Introduction to Labour & Industrial Laws, Allahabad Law Agency, Allabhad,
2011.
Paul Meenu, Labour &Industrial Laws, Jain Book Depot, 2010.
Kumar Narender, Constitutional law of India, Allahabad Law Agency, Faridabad, 2011
Freedom of Association and Collective bargaining, ILO Pub. Geneva (1994)
Kahn Fruend, Labour and the Law, Stevens and sons, London (1983)

Websites :-

https://indconlawphil.wordpress.com/tag/freedom-of-association-2/
http://www.gktoday.in/article-19-of-constitution-of-india-and-freedom-of-speech/
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--
normes/documents/publication/wcms_087990.pdf
http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1270&context=intl
http://www.grkarelawlibrary.yolasite.com/resources/LLMSY-Lab-1-Prakash.pdf
http://dictionary.reference.com/browse/freedom+of+association
https://books.google.co.in/booksid=N_jusSSm2QMC&pg=PA131&dq=international+labour+organ
isation+convention+87&hl=en&sa=X&ei=pBT7VJbnCYa6uATr6IHgBg&ved=0CCAQ6AEwAQ#v=
onepage&q=convention%20no.%2087&f=false
http://www.ilo.org/dyn/normlex/en/fp=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:31
2232