This article is written by Sidra Khan, a student of Amity University, Noida. The article discusses the provisions of the Essential Services Maintenance Act.

Introduction

Indeed, all citizens have received equal rights without any discrimination. India is a democratic country. It is also an essential right of citizens to peaceful protest. Nonetheless, some people want to protest if the government doesn’t fulfil their demands. Streik activity impacts the public’s everyday life.

Nevertheless, the government elected by the public at large uses such laws to reduce the population’s problems. There is legislation enacted by the Parliament Essential Services Maintenance Act, 1968 to deal with the problem.

Meaning of Essential Services Maintenance

In 1968 the Parliament of India passed the Essential Services Maintenance Act. Its main goal is to maintain the smooth movement of those things which are essential for ordinary citizens’ normal lives. To avoid excessive strikes the Essential Services Maintenance Act, 1968 (ESMA) is enforced. If the employees of any important department participate in the strike and the government refuses their demands and encourages them to end the strike, but the employees do not end their strike, then under Essential Services Maintenance Act rules the government in question takes action against them.

Before enforcing Essential Services Maintenance Act, 1968 provisions, however, the government concerned must alert the agitating employees through newspaper notification or other media. ESMA may be enforced for a maximum period of six months but it may be prolonged by the Central Government for any period not exceeding six months if it is satisfied that it is appropriate to do so in the public interest. 

The phrase is bandied around whenever a big strike or bandh takes place. It is the acronym of a law, Essential Services Maintenance Act, which can be invoked by the government to ban striking employees from refusing to work in certain essential services which are necessary to maintain normal life in the country.

What are Essential Services

Essential services can be defined as any service for which the Parliament has the power to make laws or the government feels that its discontinuation would affect the maintenance of life-sustaining supplies and services is considered a vital service. Essential Services include:

• some service for the mail, telegraph or telephone;
• any railway service, or other transport services that are allowed by Parliament to make laws for the transport of passengers or goods by land, water or air;
• any service relating to aircraft operation or maintenance, or to aircraft operation, repair or maintenance;
• any loading, unloading, transportation or storage service in any port;
• any operation relating to the clearance or prevention of smuggling of goods or passengers by means of customs;
• any mint or safety press service;
• any service in any Indian government defence establishment;
• any operation relating to the Union’s affairs;
• any other service-connected with issues on which Parliament has the powers on legislating and a strike in which public safety or the preservation of supply and service is felt by the Central Government shall be affected.

Applicability of the Act

In the Union of India, each state has a different State Essential Services Maintenance Act with minor variations in its provisions from central law. The legislation in India has not been widely used and many strikes have been going on for weeks without the Union Government or State Government invoking ESMA. Citizens have approached courts in cases of the ESMA ‘s implementation, and court orders have forced the executive to declare ESMA over a strike and strikes to be dismissed overnight. 

While ESMA, 1968 is a Central legislation, some states choose to make State Legislations namely:

• Rajasthan enacted the law in RESMA (1970);
• Maharashtra has enacted it as, Maharashtra Essential Services Maintenance Act, in 2017;
• Andhra Pradesh Essential Service Maintenance Act 1971;
• Kerala Maintenance Act of Essential Services, 1994. This law has been in effect since 1994 in the state of Kerala. As is the general rule, the provisions of the law from the central act differ slightly. The Kerala Service Maintenance Order of 1993 existed before this act.
• Karnataka Essential Services Maintenance Act 1994. This Act was passed by the Government of Karnataka, in force since 16 April 1994. The life of the Act, which lapsed on 15 April 2004, was ten years pursuant to Section 1(3) of the Act. The Karnataka Government, although the Act lapsed in 2004, has threatened repeatedly to invoke the Act after that year. The State, however, has the power, without modification, to impose the Central Law, unless a new law is enacted. The Government of Karnataka planned to reintroduce ESMA in 2013, and ESMA has been reproduced in Karnataka effective June 9, 2015, with the Karnataka Essential Services Maintenance Bill.

Banning strikes with Essential Service and Maintenance Act

What is a strike

When the individuals who provide any essential service stops working, it is known as a strike. This definition of the strike also includes denial of additional time for maintaining any essential service, when necessary. It also covers any other behaviour leading to the cessation of work or a significant delay in any essential service.

After 1980, a major effort to reform essential labour laws was initiated by the administration. Trade unions across India have launched a range of strikes, demonstrations and union rallies against this initiative. This decade of the 80s is frequently called the “decade of syndical action.” The ESMA was systematically used to suppress the workforce movement as a consequence of the Union action. The ESMA was implemented in 1957, 1960, and in 1981 a four-year long term initially extended to 1990 for a further five years. 

The Federal State may prohibit the strikes in essential services listed in this Act, including any postal, telegraph, telephone, railway, transport service, etc. Different state governments have implemented  ESMA at different times, such as Tamil Nadu in 1979,  Maharashtra in 1981. The government revived the Essential Services Maintenance Act (ESMA) in 1992 as the protests against the new economic policies grew. The ESMA was a handy tool in which workers, and particularly public sector workers, suppressed strikes and protests.

The government of Uttar Pradesh used ESMA and the NSA in January 2000 to stop the worker grief at the Uttar Pradesh Electricity Board. Many states, including Uttar Pradesh, Andhra Pradesh and Orissa, have included the ESMA health services and called for action against doctors in a strike. ESMA was forced to strike airport employees in 2006 who resisted the Delhi and Mumbai airports privatization process.

In Tamil Nadu, ESMA was the most famous and sensational event. In 2003, following a general strike by government and government officials, the government of Tamilnadu called upon ESMA to remove 170,000 staff. Later, a certain relief was given and the number of workers removed was eventually reduced to 6,074. The court also delivered a judgement in granting this relief, setting the precedent for the right of government employees to strike and the court clearly held that they did not.

Tamilnadu ESMA (TESMA) is very unique in the sense that the ‘strike’ in the Act includes not only the refusal of employees associated with these ‘essential services’ to ‘continue to work or accept assigned work,’ but also ‘refusal to work overtime’ and ‘any other conduct that is likely to result in, or result in, cessation or substantial delay in any essential service.’ TESMA allows for the involvement in a strike involving critical services to impose a sentence of up to 3 years in prison and a fine of 5,000 rupees. Under TESMA, an activist who calls for a strike or instigates workers to go into a strike, or whoever provides financial support for strike conduct, risks the same penalties as the striking workers. TESMA includes a large number of public services within the “essential” definition, including those relating to water and electricity supply, passenger and freight transport, fire fighting and public health.

In 2011 the government of Gujarat imposed ESMA on the healthcare providers of the UN Institute for Cardiology and Research who went on a strike, which called for the Sixth Pay Committee recommendations to be implemented.

Important provisions of the Act

The Act also provides for certain penalties: 

Section 3 of that Act gives the central government the power by a special order to prohibit the striking of any essential service. The government itself would have to include the critical service industry in the said order. While in the public interest the central government can issue such an order, or if it is expedient to do so. Thus, if any person who starts a strike after having given the special order to the central government then that strike is illegal.

Section 5 also provides that a person who starts such a strike may be punished with imprisonment for a term not exceeding six months, or one thousand rupees or both may be fined. 

Section 6 provides that a person who instigates or incites a strike that is illegal pursuant to Section 3 of the Act may be punished with up to one year’s imprisonment or a fine of 2,000 rupees or both. Section 7 provides that the person who provides financial assistance for such a strike will be punished with imprisonment of two thousand rupees or both for one year or for a fine.

Section 8 of the Act gives power to the police to arrest without warrant. Regardless of the provisions of the Code of Criminal Procedure of 1973, any police officer shall arrest, without a warrant, anyone reasonably suspected of committing any offence under this Act.

Section 9 states that offences committed under this Act should be tried summarily. Whatever is contained in the 1973 Criminal Procedural Code, in summary, form, a first-class judicial magistrate specially empowered in that regard by [State Government] and, to the extent possible, in accordance with Section 262 to 265 (both of which include) of that Code shall apply to such trial in all offences under the Criminal Procedure Code. tIf a conviction is made for any crime in a summary proceeding under this paragraph, then for any term for which the offence under this Act may be subject to punishment, the Magistrate shall enforce the sentence of imprisonment.

Is ESMA effective

India has made a significant contribution since the days of the Essential Services Maintenance Act, 1968. It was an effective tool in the government’s hand during the pre-liberalisations days to prevent services disruption by striking workers. Invoking the Act in the entire country was also easier since most countries were ruled by one party. Instead of being a reactive measure, the Act was used more often as a preventive measure. The government should, for example, be ready well before the striking began if a number of workers were to strike in February and if it was suspected that the dialogue between government and unions should collapse.

Since the 1990s, the economic scenario is shifting and many industries are strongly privatized. In these industries, one can never hear of unions interrupting services and ransoming customers. The government should now take a close look at the services in which the syndicates remain strong and consider inducing the involvement of the private sector to mitigate the economic and consumer impacts of strikes.

In the main, since ESMA retains its power to violate all existing laws and to instil a fear of arrest on citizens, it has the potential to be successful. But this power is sadly not being used to handle problems proactively but to save a crisis already out of control. This is more a weapon today in political parties’ hands that use or do not use the use of this Act as they please. ESMA needs to be used as a competitive and policy foresight effective governance tool to take far more harsh and effective measures to proactive monitoring of the situation, for example in mid-70, when pre-emptive and timely measures taken against the initiators prevent a complete breakdown in the functioning of Indian Railways. 

The All India Trade Union Congress (AITUC) strongly opposes the implementation of the ESMA and other punitive measures to stop workers’ strikes and collective action. The right to strike is a fundamental and fundamental right. The employees retain the right to collective bargaining with the employer through strikes and the right to join labour associations. This also applies to the officer class, which is also booming. The brutal attack on the rights of the trade union was seen when oil industry officials, angered by the government’s refusal to even negotiate, decided that a strike would be organised. It imposes on ESMA, assumes arbitrary power of prohibition, forbids officers from striking the party, or participates in any form of work-related to their union, and threatens to arrest, suspend, and dismiss them. Instead of taking a mediatory attitude to resolve the problem enablement, it imposes ESMA.

Conclusion

Essential Services Maintenance Act of 1968 is one of the country’s important laws for the protection of the public interest. Under this Act, the central government has a broad range of powers to maintain services that are essential for ordinarily living common citizens moving smoothly. The Essential Services Maintenance Act (ESMA) is applied in order to prevent unnecessary attacks. If the employees of any significant department take part in the strike, and the government refuses its demands for a halt to the strike, but the workers do not stop their strike, the government acts against them under ESMA provisions. It allows the government to ban strikes in certain “essential” industries and demand conciliation or arbitration. The interpretation of the “essential services,” however, varies from state to state. There are legal mechanisms for contesting a decision under this Act when a dispute arises. 

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