Unveiling Controversy: A Hardhitting Rights Analysis

Unveiling Controversy: A Hardhitting Rights Analysis

A Hardhanded Response That Strikes at The Root of Rights



An estimated 19 lakh government and semi-government employees, including those in schools, colleges, zilla parishads, and government hospitals, to name a few, have gone on strike, demanding that the government return to the Old Pension Scheme (OPS), which they have been on since 2005. The OPS has been reinstated in several states, including Rajasthan, Chhattisgarh, Himachal Pradesh, and Punjab. Employees in Maharashtra want their state to follow suit.

Points to ponder:

  • The government’s response to employee strikes has been to invoke the Essential Services Maintenance Act (ESMA), which gives the government the power to declare certain economic activities as “essential” and prohibit strikes or protests in those sectors. Private sector employers argue that this gives the government an unfair advantage in industrial relations compared to them, as they must negotiate with striking employees without the ability to invoke ESMA.
  • The criteria for defining essential services and the length of time they are deemed essential are not always clear. This empowers the government to wield significant power over certain sectors and can tilt the balance in industrial relations toward the government.
  • The International Labour Organization (ILO) recognizes the right to strike as a legitimate means for workers to promote and defend their economic and social interests. However, the ILO also allows for restrictions on strikes by some categories of public servants and workers in essential services and permits prohibitions on strikes during acute national emergencies.
  • Essential services are those where the interruption of service would endanger the life, personal safety, or health of the whole or part of the population. The definition of essential services can vary depending on the country and its particular circumstances. The ILO has identified essential services such as the hospital sector, and services such as electricity, water supply, telephone, and air traffic control. Strikes in these sectors may be prohibited or strictly regulated.
  • When the right to strike is prohibited or strictly regulated, alternate dispute resolution mechanisms should be put in place. The ILO suggests that social dialogue rather than authoritarian measures, like the promulgation of ESMA, can promote amicable and long-lasting solutions to disputes.
  • The promulgation of ESMA highlights the suppression of the democratic rights of many stakeholders. Governments can use their power to declare certain activities as “essential” to monopolize power and suppress the democratic rights of workers and other stakeholders. This goes against the principles of democracy and social justice.

What is the ESMA act?

The Essential Services Maintenance Act (ESMA) is a law enacted by the Indian government in 1968 to maintain essential services in the country during emergencies or situations that may lead to a disruption of essential services. The Act empowers the government to declare certain services as “essential services,” and prohibits strikes by employees in these services. The Act also provides for severe penalties for those who participate in such strikes, including imprisonment for up to one year and fines.

  • The ESMA comes under list 3 of the concurrent list.
  • Both state and central governments have the power to make laws on these.
  • Every state has its list on ESMA