ESMA and COVID-19

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COVID-19 has breathed life into the antiquated laws of India. One such law is the Essential Services Maintenance Act (ESMA), 1968. It is an act to provide for the maintenance of certain essential services and the normal life of the community. It empowers the government to prevent disruption in essential services such as transportation (by land, water or air), electricity supply, police, defence, operation of petrol pumps. It is used to contain strikes that may hit an essential service thereby causing public hardship.

About the act

The act first came into existence in 1952 by replacing the Ordinance XI of 1941. Later, it was repealed. ESMA, 1968 (59 of 1968) came into force on December 28, 1968 replacing the Ordinance of 1968. It extends to the whole of India including the newly declared union territory of Jammu and Kashmir after the revocation of Article 370 in August, 2019. It is a central law made by the Parliament of India; however discretion on the execution of it mostly lies with the state governments. 

Section 2 (1) of the act defines essential services to be maintained under the act. Some of these are any postal, telegraph or telephone service, including any service connected therewith; railway service or any transport service for the carriage of passengers or goods by air and any service connected with the operation or maintenance of aerodromes, any service in any major port. The government has the right to decide on transport, which in this case is restrictions on domestic and international flights, and passenger trains.

In short, any service with respect to which the Parliament has power to make laws or the government feels that its discontinuation would affect the maintenance of supplies and services necessary for sustaining life is considered an essential service. It prohibits the employees providing such services from striking. The employees cannot even refuse to work overtime if their work is considered necessary for maintenance of essential services. The act allows the State government to choose the essential services within their State. The interpretation of essential services hence varies from state to state. Hence, each state has a separate ESMA.

In case the nature of a strike is such that it disrupts only a state or states, then the states can invoke it. In case of disruption on a national scale, especially like in railways, the ESMA can be invoked by central government.

The act ceases to have effect on expiry of three years from the date of commencement of the act. However, the things done or omitted to be done before such cesser of operation of the act continue to be in effect. Upon three years of operation, Section 6 of General Clauses Act, 1897 will apply to affect such cesser as if the act has been repealed by a Central Act.

Why was the act introduced?

ESMA was created based on the colonial logic of using emergency powers to contain strikes back in those times. Since then the government was keen to invoke a law like ESMA because of the inherent danger of strikes taking the shape of a rebellion especially in certain essential services thereby causing public adversity.

Evolution of ESMA

On August 7, 1957, the President of India for the first time promulgated the Essential Services Maintenance Ordinance. At that time the post and telegraph employees, backed by the Confederation of the Central Government Employees, had threatened to go on strike. After the promulgation of the ordinance the strike did not materialize and thus the ordinance was revoked on August 12, 1957. On July 8, 1960 it was again promulgated to meet the challenge of the strike by the central government employees. The ordinance made the strike by government employees a penal offence. In 1968 for the third time the President of India promulgated the Essential Services Maintenance Ordinance on September 13, to meet the threat of strike by the central government employee.

The Ordinance of 1968 was the same as that of 1960 except the scope of the expression, “strike” was extended. Later on the Ordinance of 1968 was converted into a central act called the Essential Services Maintenance Act, 1968. 

Examples of invocation of ESMA

1980s was the “decade of trade union action” as the State started making amendments to some important labour laws.” In joint agitation the Trade Unions all over the country launched strikes, demonstrations and rallies. In response to this union action, the State invoked ESMA banning strikes in 12 industries in order to suppress the movement.

Earlier ESMA was enforced in 1957, 1960, and 1981 with a long term perspective of four years and later extended to another five years till 1990.  As the protests against the new economic policies grew, the government re-invoked Essential Services Maintenance Act (ESMA) in 1992. ESMA became a handy instrument to suppress strikes and protests by workers and particularly those launched by public sector employees. 

Various State governments at different times have enacted/involved ESMA for example in Tamil Nadu in 1979, 1981, Maharashtra in 1981. The Uttar Pradesh Government used ESMA and the National Security Act (NSA) to halt the Uttar Pradesh Electricity Board Workers’ strike in January 2000. In 2006, ESMA was imposed against striking airport employees who were opposing the privatization process in the Delhi and Mumbai airports.

In 2016, the Delhi Government imposed ESMA against DTC bus drivers’ strike.

Salient features

  • Power to prohibit strikes in certain essential employments

Upon application of any provision or issuance of any order under this act, no person employed in any essential service shall go or remain on strike. Further any strike declared before or after such an order shall be declared illegal. Any order under the central law of ESMA shall be in force for only six months and the Central Government may extend it for a period of another six months if satisfied of a public interest necessity. As for the State Governments, they are bound by their respective state ESMA provisions.    

  • Penalty for commencing, instigating, providing financial aid to an illegal strike

Persons who commence as well as those who instigate it are liable to disciplinary action to the extent of dismissal. According to Section 4, Section 5 and Section 6 of the act legal action can be taken against any person who commences a strike, instigates, or incites other person to take part in it or knowingly expends or supply money in furtherance or support of a strike deemed illegal under the act.   

  • Allows state governments to have their own act

The ESMA is a law made by the Parliament of India under List No. 33 in Concurrent List of the Seventh Schedule of Constitution of India. However, the discretion of execution largely depends on the State governments. Thus, each state has a separate act with a slight variation in provisions from the central act as deemed suitable by the state governments. This freedom is provided by the central law only. Many states, including Uttar Pradesh, Andhra Pradesh and Orissa, included the health services under ESMA and invoked the act against striking doctors. However, in case of a dispute legal mechanisms exist to challenge any decision taken under the terms of the act.

  • The Right to arrest without warrant

After the enforcement of ESMA under the Criminal Procedure, 1898, it gives the police the right to arrest anyone without a warrant who is found violating the Act’s provisions or any order issued under the terms of the same.

  • Punishment

The Act mandates imprisonment for a term of six months to one year depending upon the offence committed and/or a fine.

  • Provision to override other laws

For the time being in force, the provisions of ESMA or any other order issued under the same have the power to override any other laws including the Industrial Disputes Act, 1947. 

Legal history: Is invocation of ESMA against employees’ fundamental right to freedom of speech and expression?

The crucial question to be answered when ESMA was introduced as an Ordinance in 1960 was whether restrictions imposed under it took away the right to freedom of speech and expression of the employees conferred to them under Article 19(1) (c) to form associations or unions?  

In the Bombay High Court Case of S. Vasuderam And Ors. V. Mittal and Ors (1961), the above issue was examined as to whether or not such restrictions under the ESMA ordinance were reasonable restrictions under Article 19 (4).  

The Court applied the test of reasonableness where it took into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It was also held necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general public.

The court also observed that the right to go on strike is different in character. That is, it is not joint or collective expression of views but is joint or collective action. By its very nature it is fraught with possibilities of leading to violence. The legislative intent of the Constitution was taken into account that if the makers had intended to confer on the citizens the right to go on strike as a fundamental right, they would have expressly said so.

Thus, it was held that the right to go on strike is not included in the right conferred on the citizens under Article 19(1) (c) to form associations or unions. Further, that with regard to the danger to be averted the restrictions imposed by the ordinance promulgated by the President were reasonable restrictions imposed in the interest of public order and hence not in contravention of Article 19(4) of the Constitution.

There have been no proceedings against the current act of 1968. Further, the Supreme Court has not yet ratified the holding of the High Court. Therefore, this is the current position of law on the issue.

Relevance during covid-19 lockdown

In wake of the COVID-19 outbreak the country has gone into an unprecedented state of lockdown. Following which the Union Cabinet Secretary on 11 March, 2020 announced all the States and Union Territories to invoke Section 2 of the Epidemic Act, 1897. According to Section 2 the State governments and UTs are empowered to take special measures and prescribe regulations as to dangerous epidemic disease. Following this, the State Governments have invoked ESMA in the respective states in order to minimize human-to-human contact and break the virus contagion’s chain. The government has restricted the movement of people to essential services only. Thus, on 24 March, 2020 the Ministry of Home Affairs issued guidelines as to what shall constitute essential services during the 21-day lockdown period. Pertaining to the current state of affairs the ESMA read with the aforementioned order from the Ministry of Home Affairs are guiding us to understand what constitutes essential services in the country. Disobedience of the orders stated the offender shall be subjected to punishment according to Section 188 of IPC and/or Section 4, Section 5, Section 6 of the ESMA. 

Considering the current situation, invocation of ESMA is an imperative to ensure a steady supply and maintenance of essential services like any system of public conservancy, sanitation or water supply, hospitals or dispensaries which are indispensible during a health crisis. Further, in order to maintain the normalcy of life of the community during the lockdown services like food and electricity supply are vital. It is surprising that a law introduced more than half a century ago is still relevant to use as an aiding tool for battling the modern disease of COVID-19. Different States are creatively using the provisions of ESMA to promulgate orders for expedite containment of the pandemic. For instance, Himachal Pradesh procured N95 masks, surgical masks and hand sanitizers under the Essential Services Maintenance Act by amending the Himachal Hoarding & Profiteering Prevention Order.

With the increase in the number of cases all over the country, the maintenance of essential services is crucial to fight the pandemic with least casualty. WHO has also stressed on maintenance of essential health services and given out guidelines to help countries navigate through these challenges in balancing the demands of responding directly to COVID-19 and in mitigating the risk of system collapse.

Thus, the relevance of ESMA during the present health crisis is paramount, however in order to give the act its fullest effect certain issues have been raised in the following section.  

A critical outlook

The Epidemic Diseases Act, 1897 under which the states have been empowered to take special measures and prescribe regulations like ESMA against COVID, proves to be an inefficient tool in battling the public health crisis. It prima facie decentralizes the power and requires the Central government to rely on State governments for adoption of necessary acts like the ESMA, the Essential commodities act, The Indian Ports Act and so on. Moreover, in order to empower itself to lay down specific guidelines with respect to essential services and other things the central government had to invoked Section 6 (2)(i) of the Disaster Management Act. Thus, the law provides fragmented power to the central government obstructing it from enacting policies that are necessary for immediate action. Hence, a centralised response especially in case of a pandemic is imperative to expedite the implementation of necessary measures uniformly across the country. 

Conclusion 

ESMA despite being a law of the 20th century is a pillar in fighting against the modern disease. However, a more centralised response will be helpful in binding the actions of the State governments in containing the pandemic. There is a need to empower the central government to override the decisions of state governments during medical emergencies to ensure optimal outcomes in a health crisis. Therefore, it is imperative that the failures that have characterized India’s response to COVID-19 forces policymakers to re-evaluate existing legal provisions to efficiently contain the spread of the on-going crisis and be better prepared for any such future outbreaks.

Author: Muskaan Garg from Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana.

Editor: Tamanna Gupta from RGNUL, Patiala.

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