A hardhanded response that strikes at the root of rights

The urgency with which governments in India promulgate the Essential Services Maintenance Act (ESMA) highlights the suppression of the democratic rights of many stakeholders

March 30, 2023 12:16 am | Updated 08:21 pm IST

ESMAs empower the government to define any economic activity as essential, which is an example of a dangerous weaponisation of the government.

ESMAs empower the government to define any economic activity as essential, which is an example of a dangerous weaponisation of the government. | Photo Credit: Mohammed Yousuf

An estimated 19 lakh government and semi-government employees, including those in schools, colleges, zilla parishads, and government hospitals, to name a few, have been on strike demanding that the government return to the Old Pension Scheme (OPS); they have been on the National Pension Scheme since 2005. In several States such as Rajasthan, Chhattisgarh, Himachal Pradesh and Punjab, there has been a return to the OPS. Employees in Maharashtra desire that their State does the same.

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The government’s response has been predictable. It constituted a panel to study the implications of a return to the OPS, which is to submit a report in three months. The absence of union leaders in this panel is striking. But, most importantly, the Maharashtra Assembly has passed the Maharashtra Essential Services Maintenance and Normal Life of community Act (MESMA). Negotiations took place and the government made the assurance in writing that, in principle, it accepts the OPS. Based on this, the unions called off the strike on March 20, 2023. What is of interest now is the principal and typical method by which the State seeks to handle the strike by its employees.

An unchanged response

Since 1960, the government’s approach, be it central or State government, to strikes by their employees has been to invoke ESMA, or the Essential Services Maintenance Act. It was historically a colonial instrument, though clothed differently under the Defence of India Rules. And, since 1950, several States, on numerous occasions, have promulgated ESMA.

Therefore, the question is this: is this the right response on the part of the government? In fact, private sector employers argue, not without reason, that the government which is supposed to be a model employer, often uses its elaborate legislative and police powers, while in contrast, they do not have any choice but to face a strike in the industrial relations sense and attempt negotiations with striking employees.

Second, who defines what is essential? What are the criteria for defining essential services? How long can an industry be called as an essential service in order to prohibit strikes or protests? ESMAs empower the government to define any economic activity as essential, which is an example of a dangerous weaponisation of the government (which tilts the balance in industrial relations in the government sector dangerously towards the government).

International situation, essential services

What is the global picture like? The International Labour Organization is the global organisation universally regarded to be the authoritative and legitimate body that can answer issues in connection with labour. The ILO’s supervisory institution, the Committee on Freedom of Association (the Committee), among others, constructed the principles on the right to strike; this is worth noting as they serve as the guidepost to assess the government’s actions.

The basic principle is that workers enjoy the right to strike, which is one of the principal means to legitimately promote and defend their economic and social interests. Purely political strikes are rare just as purely economic strikes are. However, it may prove to be difficult to label a strike to be political or otherwise. Who can go on strike? The committee recognises “a general right to strike” while allowing for an imposition of restrictions on strikes by some categories of public servants and workers in essential services. There could be a prohibition of strike action during acute national emergencies. Public servants who exercise “the right in the name of the State” cannot enjoy the right to strike — an example is public servants working in public sector enterprises (central or State), oil, banking and metropolitan transport undertakings, and those employed in the education sector.

The point of alternate dispute mechanisms

According to the Committee, employees in essential services do not enjoy the right to strike. Essential services are those where “the interruption of which would endanger the life, personal safety or health of the whole or part of the population” (ILO). The question of essentiality will, of course, depend on the peculiarities prevalent in countries. It has identified essential services such as the hospital sector, and services such as electricity, water supply, telephone, and air traffic control. Strikes in these may even be prohibited or strictly regulated. What is important is that where the right to strike is prohibited or strictly regulated, alternate dispute-resolution mechanisms must be put in place. In fact, it has mentioned a negative list of industries which are not essential which includes the transportation and education sectors.

The urgency with which governments promulgate ESMA, the “regulatory itch”, betrays their colonial mindset. Governments have clothed themselves with wide powers to include any economic activity as essential, which is “irresponsible, unwise and anti-democratic”. Democracy means an equitable distribution of power and ESMA monopolises power while suppressing the democratic rights of stakeholders. India is a pluralistic democracy where protests hold an important place and their sanctity needs to be respected by the govern

K.R. Shyam Sundar is Adjunct Professor at the Management Development Institute (MDI), Gurgaon

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