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Friday, July 20, 2018

ESMA: The essentials,the maintenance

The Essential Services Maintenance Act,1968,was enacted to provide for “the maintenance of certain essential services and the normal life of the community”....

Published: January 13, 2009 1:09:04 am

The Act

The Essential Services Maintenance Act,1968,was enacted to provide for “the maintenance of certain essential services and the normal life of the community”. It extends to the whole of India except Jammu and Kashmir. ESMA enables the Government to ban strikes and demand conciliation or arbitration in certain “essential” industries. However,the interpretation of “essential services” varies from state to state. Legal mechanisms exist for challenging a decision taken under the terms of this Act if a dispute arises.

History of the Act

The decade of 1980s was “the decade of trade union action”,specifically against the Government’s attempt to change labour laws. There was a historic demonstration on November 23,1981,before Parliament where a call for a one-day countrywide industrial general strike was given for January 19,1982. This turned out to be a red-letter day for the working class struggle in India. In the action that followed,there was promulgation of an ordinance on ESMA banning strikes in 12 industries.

The ‘Essential Services’

In the Act,“essential services” include (i) any postal,telegraph or telephone service; (ii) any railway service or any other transport service for the carriage of passengers or goods by land,water or air with respect to which Parliament has power to make laws; (iii) any service connected with the operation or maintenance of aerodromes,or with the operation,repair or maintenance of aircraft ; (iv) any service connected with the loading,unloading,movement or storage of goods in any port; (v) any service connected with the clearance of goods or passengers through the Customs or with the prevention of smuggling; (vi) any service in any mint or security press; (vii) any service in any defence establishment of the Government of India; (viii) any service in connection with the affairs of the Union; (ix) any other service connected with matters with respect to which Parliament has the power to make laws and a strike in which,the Central Government feels the public safety or the maintenance of supplies and services will be hit.

The penalty

Notwithstanding anything contained in the Code of Criminal Procedure,any police officer may arrest without warrant any person who is reasonably suspected of having committed any offence under this Act. Any person who commences or remains on a strike which is illegal under this Act can be punished with imprisonment for a term which may extend to six months,or with fine which may extend to Rs 200,or both. Any person who instigates,or incites other persons to take part in the strike can be imprisoned for a term extending up to one year,or with fine up to Rs 1,000,or with both. Even a person who knowingly gives money to help the strike can be imprisoned up to one year,or fined up to Rs 1,000,or both.

The application

In 2003,teachers of government-run educational institutions and employees of the Tamil Nadu Government declared an indefinite strike,demanding the repeal of an Act that reduced their pension benefits. Jayalalithaa’s government declared the strike illegal as it prevented the “maintenance of essential services” and terminated the services of the striking employees,numbering around 170,000. The High Court and the Supreme Court of India ordered the constitution of a three-member Committee of High Court Judges to consider the appeals of the employees on an individual basis and ordered the reinstatement of all but a little less than 4,000 employees,and recommended minor punishment to around 6,000 employees. Later,it reinstated all the dismissed employees and withdrew the penalties imposed,despite the Committee of Judges’ findings.

In December 2003,the Court ruled that lawyers had no right to go on strike,or to boycott the courts.

With most states including health services under ESMA,many states,including Uttar Pradesh,Andhra Pradesh and Orissa,have invoked the Act against striking doctors.

It was also imposed against striking airport employees in 2006,who were opposing the privatisation process for the modernisation of the Delhi and Mumbai airports.

Pallavi Singh

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