Essential Services Maintenance Act

K R Shyam Sundar

the public policies, including ESMA need to be evaluated.

Manifestation of ‘Colonial Logic’

The use of emergency powers to contain strikes dates back to colonial times, especially during the second world war

The “colonial logic” of control has been replaced by the “logic of globalisation” that strives to maintain uninterrupted economic services and a conducive climate to attract capital. The invocation of the Essential Services Maintenance Act by almost all political parties at one time or another (except the left) is a clear manifestation of this.

K R Shyam Sundar (krshyams@gmail.com) is with the department of economics, Guru Nanak College of Arts, Science and Commerce, Mumbai.

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Predictably, consumers’ and citizens’ associations have welcomed the Act especially in the light of rather frequent agitations and withdrawal of service by public transport trade unions like those of the autorickshaws and taxis in Mumbai. In a sense ESMA reflects not only the conflicts among the warring social actors but also the imbalances and inadequacies in the public policies of the governments in the country. The advocates of state intervention in the industrial relations system (IRS) even during the classic days of economic planning in India desired that eventually the bipartite institutions and social dialogue (essential components of a pluralistic framework) should replace state intervention (Ramaswamy 2000). The freedom to strike or lockout is an essential component in the pluralistic institutional make-up. The standards framed by the International Labour Organisation (ILO), especially the “fundamental human rights” (the core ILO conventions) and the principles enunciated by its bodies guide the policymakers to design the institutional framework of a democratic and pluralistic IRS. These institutional outcomes and parameters constitute the benchmark against which

(Defence of India Rules) and this “colonial attitude” continues to persist. While the government preaches dialogue and democracy to the private sector, it has never tolerated industrial actions in the government sector (state or central), especially by government employees and from the time Jawaharlal Nehru was at the helm (a strike by central government employees and others in 1960 was described by him as bordering on “rebellion”). It has thus been ever willing to invoke ESMA. States like Andhra Pradesh, Orissa, Maharashtra, Tamil Nadu and Madhya Pradesh have invoked this law. It reached serious proportions when the Tamil Nadu government invoked the Tamil Nadu ESMA to not only prohibit a strike by its employees but also dismiss thousands of them in 2003 and resulted in the (in)famous judicial verdict on the right to strike of public employees (see Shyam Sundar 2004 for a discussion of this issue). Signifi cantly, the governments never fail to renew the emergency regulations – ESMA, 1981 was enacted for four years and later extended till 1990 (Upadhyay 1983). The decision to invoke ESMA is often executed via an ordinance. Almost all the major political parties (national and state level) save the left parties have sought to exercise the emergency law. Even the West Bengal government was keen to “protect” the information technology and IT-enabled services sector from the “bandhs and general strike calls” in the state (Economic Times 2005, 2006) – the “colonial logic” of control replaced by the “globalisation logic”, i e, to maintain uninterrupted engagement of economic services and a conducive climate to attract capital. The Emergency was a radical manifestation of this logic (see Shyam Sundar 2009 for an analysis of the role of the State and the Emergency). These may seem like straightforward exercises in administration and even

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enjoy public support but there are many underlying issues involved.

The Freedom of Association Committee of the ILO defines “essential services” as “services whose interruption would endanger the life, personal safety or health of the whole or part of the population”. The ILO committee has in fact endorsed the “essentiality” of services like hospitals, electricity and water supply, telephone and air traffic control and given an “indicative” negative list that includes petroleum, ports (loading and unloading), posts, banking, education, metropolitan transport, and so on. While the prohibition of strikes in the essential services is consistent with democratic principles, they have to be complemented by adequate, impartial and speedy grievance and dispute resolution procedures with a binding award system (Gernigon et al 1998).

However, the use of ESMA in India not only shows divergence from the ILO principles but also produces negative outcomes. The ESMA 1981 (which was preceded by the National Security Act 1980) covered as many as 16 specifi c economic activities including, posts and telegraphs, aerodromes, major ports, establishments connected with defence, activities relating to foodgrains procurement to distribution, banking, petroleum, mint and so on and a “general clause”, viz, “any other service.…”. The Maharashtra ESMA 2005 included transport services connected with passengers and goods (land or water), services connected with supply of water or cooking gas or milk, public services connected with the state legislature or local authorities, and “any other service…”. ESMA has been used for a variety of purposes not always unjustifi ed. Political (e g, internal Emergency, the Telangana struggle), economic (e g, privatisation policies to purportedly contain infl ation in 1981) and consumerist (e g, ensuring uninterrupted services in any sector) considerations dictate these regulations. The government on several o ccasions has sought to use it to counter the “threats” arising out of unusual unity moves by the major trade unions (in 1974-75, 1981-82, and in 1992). It is invoked against various economic actors like truck drivers, government employees, chemists, medicos, and even college and university teachers (ToI 2002, 2012). In fact, media reports indicate that the West Bengal government was contemplating its application to counter the strike by 1,750 contract workers involved in loading and discharging coal and iron shipments in Haldia port in 2009 (Economic Times 2009). These invocations of the law dilute the seriousness of the “essentiality” of services. The blanket powers vested with the government under it and the generality and ambiguity of terms like “any other service”, and “in public interest” empower the governments to invoke ESMA indiscriminately.

The employment of ESMA especially in the non-emergency services like the e ducational sector is an escapist strategy to brush aside the responsibility to ensure negotiations and dialogue to resolve the grievances and industrial disputes. ESMA is not only indicative of the “authoritarian tendency” of the government but is also reflective of the inadequate development of the negotiation and dialogue institutions. The harmful effects of state intervention on the development and sustenance of bipartite institutions are well documented (see Ramaswamy 2000 and the references contained therein).

Who Is Held to Ransom?

The moot question is who should defi ne essential services – the bureaucrats/ political leaders or technically informed people? The latter are necessary to make informed choices. The inclusion of any industry as a whole under essential services may not be correct though a component service of the industry may warrant inclusion – for example, the airlines industry as a whole is not an essential service but air traffic control is surely an essential service, the disruption of which can endanger human life. Similarly, IT in general is not an essential service, but some IT-enabled services might be linked with the provision of public services which could affect public health significantly. The logic of consumer welfare and public convenience often lead the consumer and citizen pressure groups to demand application of ESMA to public services, especially transport and communication services, which may not always merit i nclusion as an essential service. Of course, the government happily obliges them. Public transport (especially road transport) (http://www.itfglobal.org/transport-international/ti8rights. cfm, accessed on 28 April 2012) is a vulnerable segment subject to public attack and tough government measures. Public support (essentially of the urban middle class) is the biggest factor encouraging the governments to declare services in the public ambit as “essential”. They reflect the middle class attitudes of the pressure groups and betray the populist tendencies on the part of the government. The popular media phrase “holding the society to ransom” stirs up social and political condemnations and builds public opinion against the strikers even in the technically non-essential industries. It is thus not difficult to imagine the endorsement of these regulations by the employers and even their demands for promulgation of such emergency regulations to ensure uninterrupted economic activity. Thus, the two principal norms that justify these regulations are, public interest and health and economic growth.

It is interesting to note that the judiciary also seeks to defi ne what is an essential service. In December 2000 during the postal strike, the Delhi High Court considered postal services to be an “essential service” and asked the government to intervene in any manner (including the application of ESMA, as the court asked the central government whether the latter was considering its use) to normalise the services (http://www.tribuneindia.com/ 2000/20001212/nation.htm, re-accessed on 27 April 2012).

While ESMA bans only a few industrial actions of the employers like lockouts, and lay-offs, it prohibits strikes, refusal to work overtime, and “any other conduct” by workers which affects work in any essential service. The legitimacy of a pluralistic IRS is based on a legal and i nstitutional framework characterised by equality (workers and employers are equal before the law) and balance, i e, workers’ and employers’ actions and their consequences must be proportionately matched, like lockouts for strikes. However, in the era of globalisation, given the relatively greater mobility of capital and the “clamour for capital” by governments,

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the employers often use “threat of relocation” to secure their demands, while the employees need to use industrial actions to secure their d emands which are under threat with these emergency regulations. The globalisation process has surely exacerbated the inequalities in the industrial relations system and the state has been an (un)witting ally in it.

Implications for Workers’ Rights

These regulations have to be seen in the context of (a) tough regulations in the Industrial Disputes Act (ID Act), 1947,

(b) the weak institutional base for labour rights, (c) the shrinking legal base for industrial actions by trade unions in the wake of new industrial and labour policies by the government, and (d) the adversities emanating from the managerial policies. The ID Act empowers the appropriate government to prohibit strikes in the industries on grounds of public welfare and safety and on technical grounds like pendency of conciliation and define tough procedures for the conduct of strikes at least in the “public utilities” which could include even textiles or IT related industries (Economic Times 2005). The Indian government refuses to ratify the two ILO core conventions relating to freedom of association and collective bargaining (numbers 87 and 98). Though labour rights are assured in the special economic zones and likely to be proscribed or abridged in the proposed national manufacturing zones, trade union and bargaining rights suffer owing to their organisational weaknesses. The continual decline in government employment and permanent employment in the private sector complemented by the rise in the non-regular workers’ categories like contract workers (Shyam Sundar 2011) and the rising informality (NCEUS 2009) shrink the agitational base of trade unions and workers’ organisations. ESMA and other laws and regulations like the Indian P enal Code (IPC) could hurt the interests of the workers in the unorganised sector as they in the absence of clear employment relationship use “public spaces” to conduct their struggles for their “livelihood issues” and often target the “state agencies” which could conveniently be brought under these repressive codes. These have implications for their voice and other forms of securities. In order to get around the “policy non-action” (by the government in response to their d emands for amendments to the labour laws), the employers used managerial strategies like relocation of industries, parallel production, outsourcing, etc, and this adver sely further weakens the collective labour institutions.

The government needs to exercise great caution in invoking the emergency regulations considering the “institutional deficits” they could generate.

References

Economic Times (2005): “CPI(M) Demands Labour Laws for IT Sector”, http://articles.economictimes.indiatimes.com/2005-10-26/news/ 27501895_1_labour-laws-essential-service-inions, accessed on 28 April 2012.

/2009-07-01/nes/28487002_1_esma-contractuallabourers-haldi-dock-complex, accessed on 28 April 2012.

Gernigon, Bernard, Alberto Odero and Horacio Guido (1998): “The ILO Principles Concerning the Right to Strike”, International Labour R eview, Vol 137, No 4, pp 441-81.

NCEUS (2009): The Challenge of Employment in I ndia: An Informal Economy Perspective, Vol I – Main Report, NCEUS, Government of India, New Delhi.

Ramaswamy, E A (2000): Managing Human Resources: A Contemporary Text (New Delhi: Oxford University Press).

Shyam Sundar, K R (2004): “The Issue of the Right to Strike” in Workers and the Right to Strike Report on Four Consultations, Indian Society of Labour Economics and Institute for Human Development, New Delhi.

ToI (2002): “ESMA on GU Teachers Was Needless: Shastri”, Times of India, http://articles.timesofi ndia.indiatimes.com/2002-03-19/ahmedabad/27121176_1_esma-exams-communal-tension, 19 March.

– (2012): “Teachers to Face Esma for Duty Dereliction”, Times of India, http://articles.timesofi ndia.indiatimes.com/2012-02-25/bhopal/ 31100378_1_evaluation-process-derelictionevaluation-duties, 25 February.

Upadhyay, Satindra K (1983): Law of Essential Services in India: A Critical Study of the Essential Services Maintenance Act, 1981 (New Delhi: Deep & Deep Publications).

Invitation for Research Proposals

Dr. Avabai Wadia and Dr. Bomanji Khurshedji Wadia Archives for Women at the Research Centre for Women’s Studies invites short research proposals of 1000 words for three research fellowships of Rs 50,000 each, for a period of six months beginning in July 2012.

The proposals should aim at retrieving and/or generating research based archival material like diaries, campaign posters, photographs, important communications, journals, film clippings, institutional material etc in the following areas:

The proposal should specify the methodology and time frame of the project. Shortlisted candidates will be required to submit detailed proposals and appear for an interview.

Applicants for the grant should be senior social scientists or activists who have worked with oral and primary sources of histories.

The proposals will be scrutinized by a selection committee of academics and professionals.

The decision of the committee would be final. Terms and conditions would apply.

Proposals along with two copies of the CV of the applicant should reach the following address latest by the 15th of June 2012:

Dr. Avabai Wadia and Dr. Bomanji Khurshedji Wadia Archives for Women Research Centre for Women’s Studies

Email – rcwssndt@bom3.vsnl.net.in Details: rcswssndt.org

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