Reminiscence Of Colonial Past: The Essential Defence Services Bill, 2021

To give a brief overview of the bill, the Central Government can notify prohibition on strike, lock-out and layoff for a period of 6 months which can be extended for another 6 months if the government feels it is necessary to do so in name of public interest, interest of sovereignty and integrity of India, security, public order and morality. The other provision is a violation of the prohibition order, which can lead to punishment for up to 1 year and a fine. The punishment for workmen is quite strict as they can lead to disciplinary action including dismissal, this whole exercise can be done without holding any enquiry. Apart from disciplinary action, the workmen are liable for criminal action in which they can be arrested without a warrant. The other main provision is the punishment of up to 2 years for those who instigate, incite any workmen to go on strike or provide any fund for any strike.

Let us now evaluate different provisions of the bill.

1. Definition of "Essential Defence Services" (EDS) – Section 2(1)(a) defines EDS. The definition is further divided into four sub-parts. The sub-part (ii) & (iv) give power to the central government to include any service which is connected to armed forces. This can be problematic as any private sector industry can fall in this category for example any private industry supplying steel to any ordnance factory may be brought under this provision. Through this bill, the government has effectively created a third type of service, the other two being Public-Utility Services and Non- Public-Utility Services which are covered under Industrial Disputes Act, 1947.
2. Blanket Ban on Strikes- Although our constitution does not provide for the fundamental right to strike, it has been recognized as statuary right by the Supreme Court in various decisions. The right to strike has notions of the right to form a union which is a recognized fundamental right. By this Act, the government can impose a blanket ban on strike for a period of 1 year. The problem with this provision is how workmen can raise their grievances or collectively bargain with their employer if there is an order prohibiting a strike. The blanket ban is harsh considering the fact that Public-Utility Services which can be equated with Essential Defence Services has the provision of strike under the Industrial Disputes Act,1947.
3. Dismissal without enquiry- Section 5(2) of the bill provides for the dismissal of any workmen without any enquiry if he/she is taking part in a strike. This provision is prima facie in violation of the principle of natural justice that says "no person shall be condemned unheard". Article 311 of the constitution provides for enquiry and an opportunity of being heard before any dismissal of a person employed under Central Government. The supreme court in the case of D.K Yadav^[1] held the principle of natural justice to be applicable even in the case of a private employer. This provision can certainly be used as a weapon by the employer against any workmen who do not work according to his wishes or does not fall in line.
4. Criminal Action - As if the dismissal of any workmen without holding enquiry is not enough, this bill seeks to penalize any workmen who commence or participate in a strike. The relationship between an employer and employee is generally regarded as a civil contract for which civil remedies can be claimed by either party. But after the introduction of this bill, the scenario will change for both employer and employee as the government has brought criminality to any act. It is pertinent to note that an employer can also be imprisoned if he violates the order of lockout or lay-offs.

The Essential Defence Services Bill shows the upper hand of central government in determining all facets of Defence Public Sector Undertaking and their connected undertaking. This whole exercise is being done in the name of the public interest, sovereignty and integrity of India. The other minute detail which can be noted is the obsession with the word "Public Interest" which has been used seven times in the bill but importantly no definition is given in the bill. The term "Public Interest" is such a wide term that it can include anything and everything, the term is also subjective in nature.

The genesis of Indian Labour Laws can be traced back to 1860, when Employer and Workmen Disputes Act, 1860 was enacted by the Britishers. Interestingly, Essential Defence Services Bill and Employer and Workmen Disputes Act, 1860 have one thing in common as they both provide for imprisonment in case workmen resort to strike. The Employer and Workmen Disputes Act, 1860 was repealed in 1929 owing to its strict provisions. The Act was replaced with Indian Trade Disputes Act, 1929 which provided for strike after serving 15 days-notice periods in public utility concerns. However, Essential Defence Services Bill is a clear reminiscence of Rule 81A of Defence India Rules, 1942 which was inserted during World War II. By this rule, the government can put a blanket ban on strikes and lockouts in any industrial undertaking all over India.

In the end, one may note the real reason behind enactment of this bill that is protesting of workers in Ordnance Factory Board. But bringing in such a harsh act (normally enacted during war times) may be counter-intuitive and harmful in the long run as employer and employee cannot properly function under the sword of this act.

The author is an advocate practicing in Punjab and Haryana High Court. Views are personal.

[1] D.K Yadav v. J.M.A. Industries Ltd. (1993) 3 SCC 259