Delhi High Court Issues Notice On Plea Challenging Essential Defence Services Act, 2021 For Curbing Right To Strike

The Delhi High Court has issued notices to the Centre and the Defence Ministry on a plea challenging vires of certain the Essential Defence Services Act 2021, insofar as it prohibits personnel participation in strikes.

A Division Bench of Chief Justice D.N. Patel and Justice Amit Bansal heard the matter today, posting it for further hearing on November 16.

During the hearing, the Chief Justice expressed disinclination over declaring that the personnel involved in essential defence services have a right to go on strike.

"Are you saying going on strike is your Fundamental Right? Read any judgment which says it is the right of a workman to go on strike and to stop the work of its employer," he said.

The Chief Justice also posed a question as to what will happen if the personnel go on strike during a war.

Senior Advocate Sanjay Parikh stated that the ID Act contains a provision regarding 15 days' notice before going on strike.

Dissatisfied with the reply, the CJ said,

"Will the Government tell you in advance that there's going to be a war? People are very smart, they will draw inferences."

He added,

"The Parliament has made the legislation in its own  wisdom. It reflects the desire of the people of this country, and if people desire that you don't go on strike, who is the petitioner to go against this mandate?"

The petition filed by the All India Defence Employees Federation challenges the constitutional validity of Sections 1, 2(1)(a) and 2(1)(b), 3, 4, 5, 6, 7, 8, 11, 12,13,15, 16 and 17 of the Act as violative of Articles 14, 19(1)(a), 19(1)(c), 21 and 311 of the Constitution of India and other International Covenants.

Filed through Advocates Surabhi Agarwal, Ritwik Parikh, and Satwik Parikh, the petitioner submits that the impugned Act has amended the definition of 'public utility service' in the Industrial Disputes Act to include 'essential defence services' giving unbridled powers to declare any establishment as 'essential defence service.'

It further prohibits any kind of participation or support of strikes with severe criminal consequences and jail terms without the generally available constitutional safeguards, making the offences cognizable and non-bailable, mandating a summary trial.

It challenges the impugned Act on various counts.

Firstly, it submits that Section 16, a non-obstante clause, attempts to override the ID Act, which is special legislation and is unsustainable under the doctrine generalis specialibus non derogant.

Secondly, it argues that criminalizing peaceful strikes such as 'sit-ins,' 'pin downs, 'token strikes,' protests, and innocent acts such as mass casual leave and refusal to do overtime infringes upon the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India.

Thirdly, it also brings to notice international obligations and constitutionally guaranteed fundamental rights protecting the right to strike. The blanket authority given to Police to remote workers by using force takes away their right to dignity and personal liberty guaranteed under Article 21 of the Constitution of India, the plea avers.

Fourthly, it challenges Section 15 at the strength of natural justice principle of Audi alteram partem, as it permits the dismissal of workers without inquiry.

Case Title: All India Defence Employees Federation & Anr v. Union of India

(Inputs by Shrutika Pandey)