ESMA empowers the government to define any economic activity as essential, which is an example of dangerous arming of the government. , Photo Credit: Mohd Yusuf
An estimated 19 lakh government and semi-government employees, including those in schools, colleges, zilla parishads and government hospitals, are on strike demanding that the government withdraw the Old Pension Scheme (OPS); He is on National Pension Scheme since 2005. In many states like Rajasthan, Chhattisgarh, Himachal Pradesh and Punjab, return to ops, employees in Maharashtra Wants his state to do the same.
Read this also |Is there a middle ground between the old pension scheme and the new pension scheme? , in focus podcast
The government’s response has been predictable. It set up a panel to study the implications of withdrawal to OPS, which is to submit a report in three months. The absence of union leaders in this panel is striking. But, most importantly, the Maharashtra Legislative Assembly has passed the Maharashtra Essential Services Maintenance and Normal Life of Community Act (MESMA). Negotiations took place and the Government gave an assurance in writing that it accepts the OPS in principle. Based on this, the unions called off the strike on March 20, 2023. What is of interest now is the dominant and specific manner in which the state intends to handle the strike by its employees.
an unchanged response
Since 1960, the approach of the government, whether central or state, has been to invoke ESMA, or the Essential Services Maintenance Act, to strike by its employees. It was historically a colonial instrument, though worn differently under the rules of the Defense of India. And, since 1950, many states have invoked ESMA on several occasions.
So, the question is, is this the right response from the government? In fact, private sector employers argue, not without reason, that the government, which is supposed to be a model employer, often uses its wide legislative and police powers, while on the contrary, they have, except in the face of strikes. There is no option. spirit of industrial relations and attempt to negotiate with the striking workers.
Second, who defines what is necessary? What are the criteria for defining essential services? For how long can an industry be termed as an essential service, barring strikes or protests? ESMA gives the government the right to define any economic activity as essential, which is an example of dangerous arming of the government (which dangerously tilts the balance in industrial relations in the public sector towards the government).
International Status, Essential Services
How is the global picture? The International Labor Organization is the global organization that is universally recognized as the authoritative and legitimate body that can answer issues regarding labor. The ILO’s supervisory body, the Committee on Freedom of Association (the Committee), formulates principles on the right to strike, among others; This is worth noting as they serve as a guide to assess the actions of the government.
The basic principle is that workers have the right to strike, which is one of the principal means of legitimately promoting and protecting their economic and social interests. Purely political strikes are rare as are purely economic strikes. However, labeling a strike as political or otherwise can prove difficult. Who can go on strike? The committee recognizes a “general right to strike” while allowing restrictions on strikes by public servants and certain categories of workers in essential services. Strike action may be prohibited during acute national emergencies. Public servants who exercise “rights in the name of the State” cannot enjoy the right to strike – an example being public servants employed in public sector enterprises (central or state), oil, banking and metropolitan transport undertakings, And those who are working in education sector.
point of alternative dispute mechanism
According to the committee, employees of essential services do not have the right to strike. Essential services are those where “the interruption of which would endanger the life, personal safety or health of the whole or part of the population” (ILO). The question of compulsion will of course depend on the particularities prevailing in the countries. It has identified essential services such as the hospital sector and services such as electricity, water supply, telephone and air traffic control. Strikes can also be banned or strictly regulated in these. Importantly, where the right to strike is prohibited or strictly regulated, alternative dispute-resolution mechanisms should be established. In fact, it mentions a negative list of industries that are not essential which includes the transportation and education sectors.
The urgency with which governments promote ESMA, the “regulatory itch”, betrays their colonial mindset. Governments have clothed themselves with sweeping powers to essentially contain any economic activity, which is “irresponsible, unwise and undemocratic”. Democracy means equal distribution of power and ESMA monopolizes power suppressing the democratic rights of the stakeholders. India is a pluralistic democracy where protests hold an important place and their sanctity needs to be respected by the government
KR Shyam Sundar is Assistant Professor at Management Development Institute (MDI), Gurgaon