By
Jithin George Jackson K
Asst Prof of Law, Soundarya College of Law,
Research Scholar, Kirit P Mehta School of Law, NMIMS
jithingeorge@soundaryainstitutions.in
The Essential Services Maintenance Act 1981 is a legislation intended to maintain normal life in the community assuring there is no choking of public utility. This statute extends to the whole of India. Section 2(a) of the Act defines the phrase ‘essential service’. Essential service non-exhaustively includes, postal, railway, aerodrome, port, goods, industrial, food grains, sanitation, banking, power, mint, election, related services to be fully engaged. Totally there are seventeen services that are essentially safeguarded or maintained by the Act. This statute is less academically lectured and more practically understood as a normative legislation. The definition clause of the Act further defines ‘strike’ as a cessation of work from essential services.
This piece of legislation could be thus used both as a shield and a sword at the same time. This legislation also draws potential from the Industrial Disputes Act 1947 to make it more exhaustive in its practical application. Section 3 of the Act prohibits strikes in any essential service those according to the satisfaction of the Central Government involve public interest expediency. Section 4 prepares and subjects any person to be liable for disciplinary action if found involved in illegal strikes. Section 5,6, and 7 of the Act are all penal provisions. Section 5 of the statutes further engages penalty. A person involving in illegal strikes shall be punishable with imprisonment for a maximum of one year or fine for a maximum of two thousand rupees or with both. Section 6 followed by Section 5 presents penalty for instigation. This is the same punishment as given under Section 5. However, Section 7 provides for penalty to those who provide financial aid. Which is again the same as provided in Section 5. Section 8 of the Act provide for power to the Central Government to prohibit lock-outs in public interest. The Central Government may by virtue of Section 8 prohibit an establishment from lock-outs if so to its satisfaction such establishment renders an essential service in public interest. Such Order may be maximum for 6 months to an employer. Any lock-outs declared in lieu of the Order of the Central Government shall be deemed illegal and the employer shall be liable for a penalty of maximum six months imprisonment or maximum one thousand rupees fine or with both. Section 9 of the Act comprehends powers of the Central Government to prevent any layoff in establishments that are rendering essential service. The Central Government more like in Section 8 issue an Order not to layoff anyone in the muster rolls for six months. Any such layoff in pursuance of any Order from the Central Government shall be deemed illegal and the employer could be punishable with the same penalty as provided Section 8. Thus Section 3-7 of the Act is largely providing a caution to the employees while Section 8 and 9 provides a warning for employers. This is an equating legislation wherein the rights, liabilities, powers, disabilities of both employer and employees seem balanced. Section 10 through a non-obstante clause empowers the police to arrest without a warrant making it a cognizable and non-bailable offence upon reasonable suspicion or credible information. Section 11 enjoins and states that, the offences under this Act shall be tried summarily by a Metropolitan Magistrate or Judicial Magistrate (first class). Section 12 upholds primacy of this Act or any orders passed under this Act over its parent legislation the Industrial Disputes Act 1947. Primacy is given to any action that may prejudice the public utility services, public safety, maintenance of supplies and necessary services resulting in inflation or hardship amongst the people of India.
It is straining to understand that there is no update on this Act in the 21st century while there have been significant transactions in labour law jurisprudence. Especially since the world had witnessed a path breaking pandemic that required the commanding usage of this legislation.
The work from home culture or the maintenance of essential services three days a week during the co-vid period where all substantially limited to policies and guidelines limiting the power of the government and shelfing such a critical legislation. Post such a pandemic this legislation seeks a massive revamp at the Central level, significantly since there are various States in the country promoting to engage local State wide amendments to this piece of legislation. The country has learned a lesson on the availability of ‘oxygen’ during co-vid pandemic era. The Country further also went through the traumatic experience of vaccine shortage during the second wave of co-vid pandemic. This still continues to echo a substantial upgrade for this legislation while the world is at a standstill for cooking fuel and LPG for daily affairs. The question of maintaining essential services at its normal is crossing roads with International Law today. There is a great emphasis on State responsibility considering the fact that war has started to impact normal life and continue to effect normal life of communities across the world mostly the global south countries.
The new world posts a life-threatening pandemic; a war is not what the world is ready to account. The state actors of the world are aware of this. However, are at a question of taking intervening responsibility to negotiate and put a full stop for war. The international commitments to maintain essential services and the potentially ineffective municipal legislations of a global south nation-state is critical here. This research discourse would discuss patently about the enjoining factors that effect a global south country’s capability to maintain its essential service in the advent of a continuing war like situation that chocks the world’s essential supply lines. From a globalization perspective the aspect of essential service maintenance though viewed municipally, has a more international economics edge to it. The Indian Essential Maintenance Service Act 1981 is fairly an old legislation that is invoked in the country at a juncture of crises on public utility services. The concept of public utility is functionally a very important aspect of international economics. It is vital for public utilities to function without any hick-ups. Any chocking in public utility services can essentially bring the daily life into a standstill. Therefore, nation-states prefer to borrow from different sources to support their system or try to become more independent and self-reliant. Essential maintenance service is a point of law and economics internationally. There is key intersection between maintaining essential services and public utility.