What is all the din about the Essential Defence Services Bill that was recently passed in the Lok Sabha? The Bill was passed by voice vote without any debate, amid noisy protests from the Opposition benches. Critics of the Bill have castigated both the contents of the legislation and the undemocratic manner in which it was passed. Central trade unions have termed the Bill draconian and alleged that its provisions violate the International Labour Organization’s principles on the right to strike. Centre of Indian Trade Union has even threatened to move the Supreme Court and the ILO.
The Bill seeks to replace the ordinance issued in June this year. The June ordinance was necessitated as the workers in the ordnance factories engaged in producing military equipment and hardware, operating under the Defence Ministry, threatened to go on an indefinite strike against the Narendra Modi government’s decision to convert the Ordnance Factory Board into a government-owned corporate entity or entities under the Companies Act 1913. What will be the holding pattern of these new entities? Is this the route to eventual privatisation of defence production? Answers to these and similar questions are not yet forthcoming.
The Essential Defence Services Bill defines the terms “essential defence services” and “strike”, empowers the central government to prohibit strikes in essential defence services and provides for disciplinary action, including dismissal, against employees participating in strike. It also provides for penalties for “illegal strikes, instigation thereof and providing financial aid to such illegal strikes.”
The stated objective of the Bill is to improve autonomy, accountability and efficiency of ordnance supplies and prevent any disruption or dislocation. The Modi government’s contention is that, at a time when the country is faced with clear and present danger on its northern front, it should have special powers to meet any emergency that may arise if attempts are made to disrupt essential defence supplies. Public interest, the sovereignty and integrity of India and the security are cited in defence of the new legislation.
The right to strike is long recognised as a fundamental right of workers. But is it an absolute right? Can it be restricted or even prohibited in exceptional circumstances and for certain categories of workers? And where the right to strike is restricted or curtailed, what are the compensatory guarantees that should be put in place for efficient and impartial resolution of workplace disputes that may arise?
Understanding the right to strike
Right to strike flows from ILO Conventions No. 87 on Freedom of Association and the Right to Organize, and No. 98 on Right to Collective Bargaining. The first instrument stipulates that all workers, without distinction whatsoever, have the right to establish and join organisations of their choosing without prior authorisation. No distinction is made between workers in the private and public sectors. However, strike is recognised as a weapon of the last resort, consequent upon the failure of collective bargaining. The right to strike does not find mention in ILO’s constitution or the Philadelphia Declaration, nor is there any ILO Convention or recommendation specifically dealing with the subject. It is an implied right. But the principles from which the right emanates were fully discussed before adopting ILO’s core Conventions on Freedom of Association and Collective Bargaining and other ILO instruments.
Controversy over the right to strike is mainly due to the fact that they inevitably affect third parties that may have no nexus with the dispute. As far as the public sector is concerned, employer-employee relations are often difficult to define, and the problem of essential services is subject to varying interpretations. Although there is no international standard on the right to strike, the ILO has enunciated certain principles and defined limits within which the right may be exercised. Over the years, the pronouncements made by its Committee on Freedom of Association and the Committee of Experts have evolved into a body of principles or “case laws” on this sensitive subject.
The concept of public servant differs from one country to another. Too broad a definition may deny the right to strike to a very large section of public servants, which is clearly not the intent. Taking into account the variety of national circumstances, the ILO has suggested that the right to strike may be restricted or even prohibited for members of the armed forces and the police and public servants exercising authority in the name of the State, workers in essential services in the strict sense of the term and workers in certain public utility services. The corollary is that public sector workers employed in commercial or industrial companies, or enterprises owned by the State may enjoy the right in full measure and without major restrictions, just like workers in the private sector.
The right to strike is generally prohibited for workers in essential services. Although public servants employed in State-owned commercial or industrial enterprises do not exercise authority in the name of the State, those who carry out an essential service in the strict sense of the term may be excluded from having recourse to strike action. The moot question here is whether workers employed in the ordnance factories, engaged in producing vital military equipment for supply to our armed forces, are performing an essential service or not.
Drawing up a list of essential and non-essential services and incorporating them into the legislation is not a practical solution because national circumstances differ from time to time — what is non-essential today may become essential tomorrow, depending on a host of factors. Thus, a certain degree of flexibility and discretion is both pragmatic and permissible while preparing such lists. Essential services where the right to strike may be prohibited has been defined by ILO as services whose interruption would “endanger the life, personal safety and health of the whole or part of the population”.
The following essential services have been identified, where the right to strike may be severely restricted or even prohibited: hospital; electricity; water supply; telephone; and air traffic control. Where certain non-essential services are in the nature of public utilities – metropolitan transport or railway services – but where prolonged strike may cause disproportionate or irreparable damages, the public authorities may establish a system of minimum service and an outright ban on strikes may be limited. It is conceded that participation in strikes by public servants in defiance of national laws or regulations may lead to severe penalties, including dismissal from service. However, where major restrictions are imposed on the right to strike, the ILO has developed the concept of compensatory guarantees. It has held that procedures for conciliation, mediation and arbitration of labour disputes must be established to enable the affected workers to promote their socio-economic and occupational interests in such cases.
OFB workers in essential services
While introducing the Bill in the Lok Sabha, Defence Minister Rajnath Singh clearly stated that its provisions will not prevent the ordnance factory workers from expressing their grievances over salaries and working conditions in a democratic manner. He also assured the House that the legislation will be invoked for a limited duration, and come into force only in cases of extreme emergency. Without commenting on the manner in which the Bill was hastily passed, which certainly does not bode well for the health of our democracy, the Modi government’s interpretation that workers in ordnance factories perform an essential service cannot be dismissed out of hand.
It is well known that the country is facing external threats in its northern parts from Pakistan on the one hand and China on the other. The developing situation in Afghanistan adds an unknown factor to the equation. It is no exaggeration to suggest that the Modi government is dealing with a situation of grave and acute national emergency. In this exigency, should workers of government-owned ordnance factories be allowed to strike work to promote and defend their socio-economic and occupational interests, thereby disrupting production and supply of vital military equipment and hardware for our troops on the borders? No right-thinking citizen should question the government’s position as stated in the Objects and Reasons of the Bill and categorise ordnance factory workers as non-essential.
Abhik Ghosh AbhikGh53051673 is a former IAS and ILO Official. Views are personal.
(Edited by Anurag Chaubey)
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