Ordinance prohibiting strikes in Defence services- constitutional or unconstitutional

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INTRODUCTION

On June 30, 2021, the Essential Defence Services Ordinance, 2021 was promulgated by the President in exercise of the powers conferred by clause (1) of article 123 of the constitution. The Ordinance gives the federal government the power to prevent strikes, lockouts, and layoffs in defense-related units.

 Employees participating in the manufacture of defence equipment, services, the operation or maintenance of military-related industrial facilities, and employees engaged in the repair and maintenance of defence products are all covered by the ordinance, according to the official bulletin. 

Anyone who commences, continues, or continues an illegal strike under this Ordinance, or otherwise participates, may be imprisoned that can be extended for a period of up to one year. “You will be fined sexually for 10,000 rupees or both,” the Ministry of Justice stated in a notice.[1]

The notification added that anyone who instigated or instigated others to join in a strike declared illegal under the ordinance may face up to two years in prison in addition to the fines imposed.

On June 16, the government announced a long-term plan to restructure the Ordnance Factory Board, which operates 41 ammunition and military equipment manufacturing facilities and is almost 200 years old, into seven state-owned firms to improve accountability, efficiency, and competitiveness.[2]

Workers’ right to strike is a well-known tool they can use to settle their issues with management and force management to adopt their demands. In our daily lives, we frequently hear about worker unions going on strike to get their requests for better working conditions, such as higher salary, better benefits, and more holidays, recognized by their employer.[3]

Various national and international statutes have recognised the right to strike. According to Article 8(1)(d) of the International Covenant on Economic, Social, and Cultural Rights, States that are Parties to the Covenant must ensure that “the right to strike is exercised in accordance with the legislation of the specific country.”[4]

An ordinance to provide for the maintenance of essential defence services in order to protect the nation’s security and the lives and property of the general public, as well as matters related to or incidental thereto.

Because parliament is not in session and the President is satisfied that circumstances exist that necessitate immediate action, the president has promulgated the ordinance in exercise of the powers provided by clause (1) of Article 123 of the Constitution.[5]

The decision appears to be in response to trade union intentions to undertake a “indefinite strike” in response to the government’s proposal to corporatize the Ordnance Factory Board (OFB), a network of 41 state-owned defence companies employing almost 80,000 people, which were revealed in June.[6]

Following the Cabinet decision, Defence Minister Rajnath Singh stated that the OFB employees’ service conditions will not be affected, and that the decision was made to boost India’s defence manufacturing sector.[7]

LEGISLATIVE PROVISIONS RELATED TO STRIKE –

There was no law regulating industrial conflicts prior to 1926. The right to strike was indirectly recognised when the Trade Unions Act of 1926 was passed. Immunities were granted to members and office-bearers of recognised labour unions. Sections 18 and 19 of the Trade Unions Act of 1926 recognise the right to strike. Trade unions on strike are protected from civil liability under these sections.

Employees’ right to strike and employers’ right to lockout were eventually acknowledged by Chapter V of the Industrial Disputes Act of 1947. This right is not absolute and is governed by the same Act’s limitations. In Section 2(q) of Act, the term “strike” is defined.[8]

If an industrial issue is sent to the Labour Court, Tribunal, or National Tribunal, Section 10(3) prohibits a strike by order of the appropriate government. Section 10A(4A) deals with an order from the competent authority prohibiting a strike if an industrial dispute is brought to arbitration. It is considered illegal to prolong a strike in defiance of such orders.

Another consequence of an illegal strike is wage deduction or denial. In Crompton Greaves v. the Workmen[9], the Supreme Court held that it is well recognised that in order to entitle the workmen to wages for the period of strike, the strike must be both legitimate and justifiable.

A strike is legal if it does not breach any statutory provisions. A strike cannot be regarded to be unjustified unless the grounds for it are completely irrational or absurd. Whether a strike was warranted or not is a factual question that must be decided based on the facts and circumstances of each instance. It was also decided that if the workers used “force, violence, or acts of sabotage,” they would be denied salaries for the duration of the strike.

The Supreme Court took a different stance on the wages during the strike in the case of Bank of India v. TS Kelawala.[10] Workers are entitled to lost wages for the duration of the strike, regardless of whether it is lawful or illegal. The risk of losing pay does not make a strike illegal as a weapon, nor does it deprive employees of it. When employees use it, they do so fully aware of the consequences.

Furthermore, in Syndicate Bank v. K. Umesh Nayak[11], the Supreme Court considered the views expressed in various cases regarding whether workers who went on strike, whether legal or illegal, were entitled to wages for the duration of the strike, and the Constitution Bench held that workers may claim wages for strikes that are both legal and justified.

A combined reading of these decisions leads to the conclusion that if a strike is not in violation of statutory provisions, i.e., it is legitimate and reasonable, the workers cannot be refused wages during the strike. Workers, on the other hand, are not entitled to pay during an illegal and unjustifiable strike.[12]

While the new Ordinance promulgated, i.e. , The Essential defence services ordinance 2021, amends the Industrial Disputes Act, 1947 to include important defence services under the definition of public utility services. In the event of public utility services, the Act requires a six-week notice before (i) employees go on strike in violation of contract or (ii) employers carrying out such services perform lock-outs.[13]

Right to strikes and constitutional validity

Article 19 of the Indian Constitution has always been a point of contention. The Supreme Court of India has often interpreted the Article broadly and broadened its scope of application. Various rights, such as the right to freedom of the press[14], the right to access the internet[15], the right to information, and the right to nonviolent protests[16], have been added to Article 19 over time.

However, the interpretation of Article 19(1)(c), which grants the right to freedom of association, has frequently been a source of controversy.

The Indian Constitution provides all citizens the right “to form associations and unions” under Article 19(1) (c). This right is not absolute, and it is subject to certain reasonable restrictions imposed forth in Article 19(4) of the Constitution.[17]

The sovereignty and integrity of India, as well as public order and morality, are among the exceptions. These restrictions could be procedural or substantive in nature. In several cases, the Supreme Court has been asked to decide whether the right to strike constitutes a fundamental right under Article 19(1)(c). “Even a very liberal interpretation of sub-paragraph (C) of clause (1) of Article 19 cannot lead to the conclusion that trade unions have a guaranteed right to successful collective bargaining or to strike, either as part of collective bargaining or otherwise,” the Supreme Court stated clearly.[18]

It was argued that “collective bargaining must be enforceable in order to be effective, with labour withdrawing its cooperation from the employer, and thus there is a fundamental right to strike, which is thus a natural deduction from the right to form unions guaranteed by sub-cl. (c) of cl. (1) of Art. 19.”

A Full Bench of the Kerala High Court declared in Bharat Kumar v. State of Kerala[19] that “no political party or organisation has the power to call for a bandh.” They cannot hinder people who do not share their point of view from exercising their fundamental rights or performing their duties for their own or the state’s benefit.”

Thus, while residents of India have the freedom to form organisations and unions, the right to strike is not a fundamental right under Article 19(1)(c).

Citizens have the right to organise associations or unions under Article 19(1)(c), but they do not have the right to strike.

The right to strike is not recognised as a fundamental and absolute right in India by either special or common law. Strikes have been used as a tool by workers to achieve their goals, but work halts or stops, whether by employees or employers, are harmful to production, the economy, and society as a whole.[20]

There have been cases where the right to strike has been abused, yet it has also been shown to be effective in protecting workers’ socioeconomic rights. The right to strike is part of the right to collective bargaining, and it will continue to be used by employees, workers, and labourers as a means of expressing or reacting, among other means.[21]

The essential defense services ordinance

The Essential Defense services ordinance, 2021 was promulgated on 30th of June by the President in order to provide the maintenance of essential defense services. The key features of the Ordinance are given below –

  1. Meaning of “Essential defense services”[22]
  2. Any service at any establishment or activity involved in the manufacture of goods or equipment required for any defense-related purpose.
  3. any service in or affiliated with the Union’s armed forces, or any other establishment or installation related to defence.
  4. any service in any area of a defence establishment that depends on its proper operation for the safety of the establishment or the employees who work there.
  5. any other services that the Central Government may declare to be essential defence services by notification in the Official Gazette, and whose discontinuation of activity would effect –
  6. negatively on the production of defence equipment or goods; or,
  7. the operation or maintenance of any industrial establishment or unit engaged in the manufacture of products or equipment essential for defence purposes; or,
  8. the repair or maintenance of defense-related products.
  9. “Strike” refers to a blockage of work, a go-slow, a sit-down, a stay-in, a token strike, a sympathetic strike, or mass casual leave by a group of people working in the essential defence services, acting in concert, or a concerted refusal or a refusal under a common understanding by a group of people who are or have been working in the essential defence services to continue to work or accept employment, and includes refusal to work or any other action that is likely to result in, or does result in, the cessation, delay, or disruption of essential defence services work.[23]
  10. An order made under sub-section(1) must be published in such a way that the Central Government deems appropriate to bring it to the notice of those who are affected by it.
  11. An order made under sub-section (1) shall be in effect for six months, but the Central Government may extend it for any period not exceeding six months by issuing a similar order if it is convinced that doing so is necessary or expedient in the public interest.[24]
  12. The Ordinance gives the Central Government the authority to prohibit strikes in essential defence services when it is in the public interest, India’s sovereignty and integrity, the security of any State, public order, decency, or morality.
  13. The Ordinance provides for the dismissal of employees who start or encourage or urge other people to start, go, stay on, or otherwise participate in an illegal strike.
  14. The Ordinance stipulates that illegal strikes are punishable by imprisonment for a period of up to one year, a fine of up to ten thousand rupees, or both.
  15. In circumstances of public interest, interest in India’s sovereignty and integrity, security of any State, public order, decency, or morality, the Ordinance empowers the Central Government to prohibit lockouts in any industrial establishment or unit involved in essential defence services.
  16. The Ordinance gives the Central Government the authority to prohibit layoffs in any industrial facility or unit that delivers essential defence services.

Consequences of illegal strikes

·       Dismissal of employees participating in

  1. Any person –
    • who starts, continues, or otherwise participates in a strike that is illegal under this Ordinance; or continues, or otherwise participates in any such strike
    • who instigates or incites others to start, go on, or remain on, or otherwise participate in any such strike, shall be subject to disciplinary action(including dismissal) in accordance with the same provisions that apply to disciplinary action(including dismissal) taken on any other basis under the terms and conditions of service applicable to that person in relation to his/her employment.
  • Notwithstanding of any other law now in force or the terms and conditions of service applicable to any person employed in the essential defence services, before dismissing any person under sub-section (1), if the authority with the jurisdiction to dismiss or remove such person is convinced that it is not reasonably possible to hold such inquiry for some reason, the reason must be recorded in writing by that authority.[25]

·       Penalty for illegal strikes

Anyone who begins a strike that is illegal under this Ordinance, or goes on, remains on, or otherwise participates in a strike that is illegal under this Ordinance, will be punished by imprisonment for a term of up to one year, or a fine of up to ten thousand rupees, or both.

·       Penalty for instigation, etc

Any person who instigates or incites others to participate in, or otherwise acts in support of, a strike that is illegal under this Ordinance is punishable by imprisonment for a term of up to two years, or by a fine of up to fifteen thousand rupees, or by both.

·       Penalty for giving financial aid to illegal strikes

Any person who knowingly spends or gives money in furtherance or support of a strike that is illegal under this Ordinance is penalised by imprisonment for a term of up to two years, or by a fine of up to fifteen thousand rupees, or by both.

·       Power to arrest without warrant

Notwithstanding anything contained in the Criminal Procedure code, 1973, any individual who is reasonably suspected of committing an infraction under this Ordinance may be arrested without a warrant by a police officer.

·       Offences to be tried summarily

Notwithstanding anything contained in the Criminal Procedure code, 1973, all offences under this Ordinance shall be tried in a summary way by any Metropolitan Magistrate or Judicial Magistrate of the first class, specially empowered in this behalf by the State Government, and the provisions of sections 262 to 265 (inclusive) of the said Code shall, to the extent possible, apply to such trial:

Provided that the Magistrate is empowered by law to pass a sentence of imprisonment for any term for which such offence is punishable under this Ordinance in the case of conviction for any offence in a summary trial under this section.[26]

CRITICISM OF THE ORDINANCE

The purpose of the ordinance is to put an end to the Defense Production Employees and Workers’ united fight against the plan to privatise the Ordnance Factories network through corporatization.

The government’s action was in “complete contravention” of the Centre’s commitment to the “unified platform of Defence Employees Federations.”The Centre’s ordinance is an attempt to intimidate dissenting defence workers.

Employees in the defence industry have no desire to interrupt defence manufacturing. For the purpose of national security, national defence manufacturing capability should be free of any restrictions posed by profit-seeking corporations.[27]

CONCLUSION

The law provides for the maintenance of critical defence services in order to protect the nation’s security and the lives and property of the general people, as well as matters connected with or incidental thereto.

Because parliament was not in session and the President was satisfied that circumstances exist that necessitate immediate action, the president is pleased to proclaim the ordinance in exercise of the powers provided by clause(1) of Article 123 of the Constitution.

The Essential Defence Services Ordinance 2021 comes as key federations of the Ordnance Factory Board (OFB) have announced that they will go on indefinite strike on July 26, 2021, in protest of the government’s decision to corporatize the Board.

Also Defence Production Employees must be given an equal opportunity to express their dissatisfaction with the Centre’s policy decisions.


[1] The government issues an ordinance prohibiting strikes by persons engaged in essential defense services, available at:https://indianewsrepublic.com/the-government-issues-an-ordinance-prohibiting-strikes-by-persons-engaged-in-essential-defense-services/360325/ (last visited on July 19, 2021)

[2] Ibid.

[3] Strikes And Lockouts: Concept, Explanation and Case Laws, available at:  https://www.legalbites.in/strikes-and-lockouts/ (last visited on July 19, 2021)

[4] Right to strike and constitutional validity, available at: https://www.legalbites.in/right-to-strike/ (last visited on July 19, 2021)

[5] Essential Defence services ordinance, 2021, available at: https://taxguru.in/corporate-law/essential-defence-services-ordinance-2021.html (last visited on July 19, 2021)

[6] India bans defence industrial work strikes, available at:  https://www.janes.com/defence-news/india-bans-defence-industrial-work-strikes/ (last visited on July 19, 2021)

[7]Defence service workers barred from strike, available at: https://www.thehindu.com/news/national/defence-service-workers-barred-from-strike/article35073372.ece (last visited on July 20, 2021)

[8] Supra note 4

[9] AIR 1978 (3) SCC 155

[10] 1990 SCR (3) 214

[11] AIR1995 SC 319

[12] Supra note 4

[13]The Essential Defence services Ordinance, 2021, available at: https://prsindia.org/billtrack/the-essential-defense-services-ordinance-2021 (last visited on July 19, 2021)

[14] Romesh Thapar v. State of Madras, AIR 1950 SCR 594

[15] Anuradha Bhasin v. UOI, [WP(C) 1031/2019]

[16] Ramlila Maidan Incident, In Re v., (2012) 5 SCC 1

[17] Supra note 4

[18] All India Bank Employees’ Association v. National Industrial Tribunal, (1962) 3 SCR 269

[19] AIR 1997 Kerala 291

[20] AIR 1995 SC 319

[21] Supra note 4

[22] The Essential Defence Services Ordinance, 2021 (Act 7 of 2021),s. 2(1)(a)

[23] Id., s.2(1)(b)

[24] Id., s. 3(3)

[25] Supra note 5

[26] Ibid.

[27]Essential Defence services ordinance, 2021, available at:  https://www.iasgyan.in/daily-current-affairs/essential-defence-service-ordinance-2021 (last visited on July 19, 2021)

Author: Manisha, Dr. B.R. Ambedkar National Law University, Sonipat

Editor: Kanishka VaishSenior Editor, LexLife India.

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