Essential Defence Services Bill, 2021 and Right to Strike – Explained, pointwise

Introduction

Recently, the Minister of Defence introduced the Essential Defence Services Bill, 2021, in the Lok Sabha. It seeks to empower the government to declare services mentioned in it as “essential defence services” and prohibit strikes and lockouts in any industrial establishment or unit engaged in such services.

The objective behind its introduction is to augment the security of the nation and ensure a continuous supply of defence equipment for the forces. However, it has drawn criticism by the employees of ordnance factories who consider it as a step to curtail their rights and deteriorate their service conditions. 

About the Essential Defence Services Bill, 2021:

The bill seeks to replace the Ordinance promulgated in June 2021. It allows the central government to prohibit strikes, lock-outs, and lay-offs in units engaged in the production of essential defense services.  

Key features of the Bill include:

• Essential defence services: Essential defence services include any service in: 
  • any establishment or undertaking dealing with the production of goods or equipment required for defense-related purposes, or
  • any establishment of the armed forces or connected with them or defense.  
  • These also include services that, if stopped, would affect the safety of the establishment engaged in such services or its employees.  
  • In addition, the government may declare any service as an essential defence service if its cessation would affect the:
    • production of defence equipment or goods, 
    • operation or maintenance of industrial establishments or units engaged in such production, or 
    • repair or maintenance of products connected with defence.
• Public utility service: The Bill amends the Industrial Disputes Act, 1947 to include essential defence services under public utility services. 
  • Under the Act, in the case of public utility services, a six-week notice must be given before: 
    • persons employed in such services go on strike in breach of contract or
    • employers carrying on such services do lock-outs.
• Strikes: Under the Bill, the strike is defined as cessation of work by a body of persons acting together.  It includes: 
  • mass casual leave, 
  • coordinated refusal of any number of persons to continue to work or accept employment, 
  • refusal to work overtime, where such work is necessary for the maintenance of essential defense services, and 
  • any other conduct which results in, or is likely to result in, disruption of work in essential defense services.
• Prohibition on strikes, lock-outs, and lay-offs: Under the bill, the central government may prohibit strikes, lock-outs, and lay-offs in units engaged in essential defense services.  
  • Such an order can be issued in the interest of sovereignty and integrity of India, security of any state, public order, public, decency, or morality.
  • The prohibition order will remain in force for six months and may be extended by another six months.

Present status of the right to strike:

The right to strike is a statutory and a legal right, however, the Supreme Court has reiterated in its various judgements that it cannot be said to be a fundamental right.

There is no fundamental right to strike under Article 19(1) of the Constitution. However, it includes the fundamental right to protest, the right to form associations, and trade unions.

The right to strike has been recognised under the Industrial Disputes Act, 1947, as a legal right. However, the act differentiates between a ‘legal strike’ and an ‘illegal strike’ under section 24. The act defines certain conditions, to go for a legal strike.

Other than that, the Trade Unions Act, 1926 also recognises the right to strike. It confers immunity from civil liabilities upon the trade unions, under sections 18 and 19.

Judgements and provisions related to the right to strike 

• Article 33 of the Indian Constitution states that Parliament, by law, can restrict or abrogate the rights of the members of the armed forces or the forces charged with the maintenance of public order. 
  • The power is given to ensure the proper discharge of their duties and maintenance of discipline among them. Thus, for the armed forces and the police, even the fundamental right to form an association can be restricted under Article 19(4) in the interest of public order and other considerations. 
• The Madhya Pradesh (and Chhattisgarh) Civil Services Rules, 1965, prohibit demonstrations and strikes by government servants. It directs the competent authorities to treat the durations as unauthorised absence.
• The Supreme Court in Delhi Police v. Union of India (1986) upheld the restrictions to form associations by the members of the non-gazetted police force as per the Police Forces (Restriction of Rights) Act, 1966.
  • The court held that while the right to freedom of association is fundamental, recognition of such association is not a fundamental right. 
  • Parliament can by law regulate the working of such associations by imposing conditions and restrictions on their functions
• In T.K. Rangarajan v. Government of Tamil Nadu (2003), the Supreme Court held that the employees have no fundamental right to resort to strike. 
  • Further, there is a prohibition to go on strike under the Tamil Nadu Government Servants’ Conduct Rules, 1973. 
  • The court said that government employees cannot hold society to ransom by going on strike. 

Need of the bill:

• Security of the Nation: It is meant to provide for the maintenance of essential defense services to secure the security of the nation. These restrictions are essential, considering the rise in Chinese assertiveness at the border and fear of Taliban intrusion in the Kashmir region.
• Self-Reliance: The ordnance factories form an integrated base for the indigenous production of defense hardware and equipment. The bill would boost domestic production of defense equipment, as it gives greater powers to the government for ensuring an uninterrupted supply.
• Efficiency and Accountability: With greater powers, the government would be able to enforce its decision of corporatization of ordnance factories, which is needed to improve the efficiency and accountability of ordnance factories.
  • In June the government announced the corporatization of the Ordnance Factory Board. 
  • Under this, the 41 factories providing ammunition and other equipment to the armed forces will become part of seven government-owned corporate entities.
• Procedural Requirement: The President had already promulgated the Essential Defence Services Ordinance, 2021 in June 2021. As per Article 123 of the constitution, the ordinance shall be laid before both Houses of Parliament. 
  • It shall cease to operate at the expiration of six weeks from the reassembly of Parliament, unless passed before it.

Issues with the bill:

• First, the employees of the Ordnance Factory Board (OFB) feel that the bill would adversely affect their service conditions. It would curtail their autonomy and reduce their bargaining power by restraining them from going on strikes.
• Second, it would enhance the trust deficit between the government and 70000 employees of 41 ordnance factories as it has been introduced without due consultation.
• Third, some experts are taking this bill as a step to enable the privatisation of ordnance factories in the future. This fear is inducing more resistance in the employees against the bill.
• Fourth, the bill may suppress the genuine demands of employees as it also allows disciplinary action and subsequent removal of a hard-working employee participating in strikes. 
  • Further, the concerned authority is allowed to dismiss or remove the employee without any inquiry, if it is not reasonably practicable to hold such an inquiry.

Suggestions:

• The government needs to initiate confidence-building measures with the employees of the ordnance factors. This includes conducting more conciliatory talks at the level of the Chief Labour Commissioner.
• They must consult with employees in order to address their concerns over the bill and explain the benefits and need behind its introduction.
• The opposition parties should be given a chance to debate over the bill in parliament. They must raise the concerns of employees and get them rectified before the bill gets officially passed. 

Conclusion 

Right to strike empowers labour against powerful public corporate bodies. However, national security can also not be compromised. Thus, the government should find a way to balance labour rights and national security.

Source: The Indian Express and The Hindu, PRS