ESMA: Importance During Pandemic

The Covid-19 pandemic which broke out in the early March 2020 in India has turned the life of masses into topsy turvy. Social distancing, Masking and using hand Sanitizers has become the new norm. By invoking Section 6(2)(i) of The Disaster Management Act,2005 a Nationwide 21 days lockdown was announced by the Prime Minister on 24^th March 2020 in order to control the hiking covid positive cases and to prevent further spread of the disease. Along with this, all the State governments invoked The Epidemic Diseases Act,1897 and issued Covid-19 guidelines and regulations.

In order for the strict implementation of the guidelines issued by the Ministry of Home Affairs, most of the State governments have invoked the Essential Services Maintenance Act,1968 popularly known as ESMA. It is an Act of Parliament enacted in the year 1968 in order to maintain certain ‘Essential Services’. The objective of the Act is not to interrupt the ordinary life of masses by the obstruction in procuring any important services required to run their normal lives. This article is an attempt to understand the meaning of essential services, salient features of the Act and its importance during pandemic.

WHAT IS ESMA?

ESMA or Essential Services Maintenance Act,1968 is an Act of Parliament which contains provision which prohibits the employees in certain industrial undertaking and services from going on for a strike, lay off or lockout. It prescribes punishment for those indulging in illegal strike or instigation of strike. It gives power to a police officer to arrest without any warrant any person committing an offence mentioned under the Act. The provisions under ESMA have an overriding effect as against the Industrial Dispute Act,1947 or any other Act for the time being in force. Some of the States have their own Essential Services Maintenance Act, for example the Kerala Essential Services Maintenance Act,1994.

MEANING OF ESSENTIAL SERVICES

Essential Services are those services without which the smooth functioning of the lives of people are impossible. These services include the transportation, water facility, sanitation and other necessary facilities significant to carry out ordinary living.

The definition of Essential Services according to Section 2(a)[1] of ESMA,1968 can be summed up as follows:

Postal, Telegraph or Telephone service
Railway service or any Transport service (land, water or air)
Operation, Repair or Maintenance of Aircraft, Aerodromes or any service in the International Airports Authority of India
Major port service (loading, unloading, movement or storage of goods)
Customs, Defence and Banking service
Central Government undertaking engaged in the Purchase, Procurement, Storage, Supply or Distribution of Food grains
Public Conservancy, Sanitation or Water supply, Hospitals or Dispensary services
Establishment or Undertaking dealing with the Production, Supply or Distribution of Coal, Power, Steel, Fertilizers or Petroleum and Petroleum products
Any service in any Mint or Security Press; Elections to Parliament or to the Legislatures of the States.

Strikes in any service controlled by the Central Government which would drastically affect the public utility service, the public safety or the maintenance of supplies and services necessary for the life of the community, in the absence of which would cause grave inconvenience to the community could be termed as an essential service.

SALIENT FEATURES OF THE ACT

Prohibition of Strike

Any strike commenced after the invocation of ESMA shall be declared illegal and the individuals indulging in such a strike shall be punished[2].

Disciplinary Action

Any person or group which involves or instigates such a strike shall face disciplinary action including dismissal from the service according to the service rules applicable to that particular employment[3].

Penalty

Any person who

commences,
incites or instigates, or provides financial aid

to a strike which is illegal under the Act shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both in case (a) and imprisonment for a term of one year or fine of two thousand rupees, or with both in case (b)[4].

Prohibition of lock-out

No employer shall declare lock-out in any establishment carrying out essential services and if declared such a lock-out shall be considered illegal and the employer shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both[5].

Prohibition of lay-off

Lay-off by workmen (except badli or casual workmen) for reasons other than shortage of power or natural calamity shall be declared illegal and any employer who lays-off shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both[6].

Cognizable offence

A police officer can arrest without warrant any person committing any offence under this Act[7].

Summary Trial

Any offence committed under this Act shall be tried summarily by Metropolitan Magistrate or any Judicial Magistrate empowered by the State Government[8].

It is pertinent to note that the basic features of the Act remain the same. The specific State Acts contain provisions which may vary.

IS ESMA A TOOL OF SUPPRESSION?

Right to strike is a weapon in the hands of workers/employees in order to pressurize upon those who control them for their upliftment and well-being whereas lock-out is a weapon in the hands of employer to exert pressure on workers to bring them under control.

Section 22 of the Industrial Dispute Act,1947 deals with the prohibition of strikes and lock-outs in industries carrying out ‘public utility services”. It mentions certain conditions to be fulfilled before going on for a strike so that inconvenience is not caused to the general public and society.

There is no fundamental right to strike in the Constitution of India[9].Demonstrations and picketing are a form of expressing one’s idea or view and can be included within the ambit of freedom of speech and expression under Article 19(1)(a) of the Constitution. But the Supreme Court has held that right to strike is not included within the ambit of freedom of speech[10].

Imposing ESMA cannot be considered as a tool of suppression as it can be seen as one of the methods of imposing emergency powers. The intention of the legislature is very clear so as not to cause any obstructions to the people’s well-being during tough times especially in situations of pandemic.

IMPORTANCE DURING PANDEMIC

With the rise in the number of covid positive cases in the country many States have imposed ESMA to tackle the situation. Each State has invoked the Act uniquely for the benefit of general public. An important thing to be noted is that the order for imposing ESMA shall be in force only for six months and the Central Government may extend if it is satisfied that it is necessary to do so in the public interest.

The importance of the Act comes into picture when the workers in the public utility services stop their production and supply of the necessary services. Recently, the Madhya Pradesh government invoked the Act after a covid positive patient died due to the rejection by eight hospitals in Indore. By this it implied that physician, health workers, nurses, sanitation workers, paramedical staffs and employees shall not prohibit themselves from going to work[11]. Tripura was the second State to invoke ESMA and this result was after a purported complaint made by nurses who reported shortage of masks and other protective gear at the state-run hospital in Agartala[12]. On April 16^th 2021 the Chhattisgarh Government issued order which prohibited the refusal by workers to work in essential services[13].The Karnataka State Government has moved to the Labour Court against the Karnataka State Road Transport Employees League which called for an indefinite strike and the Hon’ble Court observed that it was the ‘worst time to take recourse to the strike’ and also said that the services be resumed so that public who is already under huge stress does not suffer further[14].The State Government of Odisha has invoked the Act to procure the smooth supply of liquid medical oxygen thereby prohibiting strike in services in connection with manufacturing, transportation and distribution of oxygen[15].

CONCLUSION

Considering the present pandemic situation and the increase in the number of covid casualties, the step taken by the State governments by bringing forth ESMA in order to ensure the maintenance of certain essential services has been of great help for the common man. This Act even though enacted during the year 1968 has become an important tool to fight the fast- spreading modern disease. At this juncture, both the Central government as well as all the State governments have huge responsibility to fight against this contagious disease and ensure that the people are not put to another difficulty in procuring necessary public facilities. Through ESMA, all the essential services like transport, water supply, sanitation, hospital services etc. would be available without any obstruction in order to maintain the well-being of the people.

[1] The Essential Services Maintenance Act,1968, §2, cl. a.

[2] The Essential Services Maintenance Act,1968, §3

[3] The Essential Services Maintenance Act,1968, §4

[4] The Essential Services Maintenance Act,1968, §5, §6 & §7

[5] The Essential Services Maintenance Act,1968, §8

[6] The Essential Services Maintenance Act,1968, §9

[7] The Essential Services Maintenance Act,1968, §10

[8] The Essential Services Maintenance Act,1968, §11

[9] Kameshwar v. State of Bihar, 1962 SCR 369

[10] O.K Ghose v. E.X Joseph, AIR 1963 SC 812; Radhey Shyam v. P.M.G. Nagpur, AIR 1965 SC 311

[11] News 18 India, https://www.news18.com/news/india/mp-govt-invokes-esma-act-to-tackle-covid-19-spread-as-infections-continue-to-rise-unabated-3595868.html (last visited May 16,2021).

[12] The Indian Express, https://indianexpress.com/article/north-east-india/tripura/tripura-essential-services-management-act-coronavirus-6356153/ (last visited May 16,2021).