THE ESSENTIAL DEFENCE SERVICES BILL 2021

Context

Recently, the Minister of Defence introduced the Essential Defence Services Bill, 2021, in the Lok Sabha to provide for the maintenance of essential defence services so as “to secure the security of nation and the life and property of the public at large” and prevent sta of the government-owned ordnance factories from going on strike.

Background

• The Bill seeks to replace the Ordinance promulgated in June 2021. The Bill allows the central government to prohibit strikes, lock-outs, and lay-o s in units engaged in essential defence services.
• The Bill seeks to empower the government to declare services mentioned in it as “essential defence services” and prohibit strikes and lockouts in any industrial establishment or unit engaged in such services.

Constitutional Provision for Armed Forces

• Under Article 33 of the Constitution, Parliament, by law, can restrict or abrogate the rights of the members of the armed forces or the forces charged with the maintenance of public order so as to ensure the proper discharge of their duties and maintenance of discipline among them.
• Thus, for the armed forces and the police, where discipline is the most important prerequisite, even the fundamental right to form an association can be restricted under Article 19(4) in the interest of public order and other considerations.

Supreme Court Ruling

• The Supreme Court in Delhi Police v. Union of India (1986) upheld the restrictions to form association by the members of the non-gazetted police force after the Police Forces (Restriction of Rights) Act, 1966, and the Rules as amended by Amendment Rules, 1970, came into e ect.
• While the right to freedom of association is fundamental, recognition of such association is not a fundamental right.
• Parliament can by law regulate the working of such associations by imposing conditions and restrictions on their functions, the court held.
• In T.K. Rangarajan v. Government of Tamil Nadu (2003), the Supreme Court held that the employees have no fundamental right to resort to strike.
• Further, there is prohibition to go on strike under the Tamil Nadu Government Servants’ Conduct Rules, 1973.
• Also, there is no moral or equitable justification to go on
• The court said that government employees cannot hold the society to ransom by going on strike.
• In this case, about two lakh employees, who had gone on strike, were dismissed by the State government.

Key features of the Bill include:

• Essential defence services: Essential defence services include any service in: (i) any establishment or undertaking dealing with production of goods or equipment required for defence related purposes, or (ii) any establishment of the armed forces or connected with them or defence. T
• These also include services that, if ceased, would a ect the safety of the establishment engaged in such services or its employees.
• In addition, the government may declare any service as an essential defence service if its cessation would a ect the: (i) production of defence equipment or goods, (ii) operation or maintenance of industrial establishments or units engaged in such production, or (iii) repair or maintenance of products connected with defence.
• Public utility service: The Bill amends the Industrial Disputes Act, 1947 to include essential defence services under public utility services. Under the Act, in case of public utility services, a six-week notice must be given before: (i) persons employed in such services go on strike in breach of contract or (ii) employers carrying on such services do lock-outs.
• Strikes: Under the Bill, strike is defined as cessation of work by a body of persons acting together. It includes: (i) mass casual leave, (ii) coordinated refusal of any number of persons to continue to work or accept employment, (iii) refusal to work overtime, where such work is necessary for maintenance of essential defence services, and (iv) any other conduct which results in, or is likely to result in, disruption of work in essential defence services.
• Prohibition on strikes, lock-outs, and lay-offs: Under the Bill, the central government may prohibit strikes, lock-outs, and lay-o s in units engaged in essential defence services. The government may issue such an order if necessary in the interest of: (i) sovereignty and integrity of India, (ii) security of any state, (iii) public order, (iv) public, (v) decency, or (vi) morality. The prohibition order will remain in force for six months, and may be extended by another six months.
• Strikes and lock-outs that are declared after the issue of the prohibition order, or had commenced before the prohibition order was issued will be illegal.
• The prohibition will not apply to lay-offs made due to power shortage or natural calamity, or lay-o s of temporary or casual workmen.
• Punishment for illegal lock-outs and lay-offs: Employers violating the prohibition order through illegal lock-outs or lay-o s will be punished with up to one year imprisonment or fine, or both.
• Punishment for illegal strikes: Persons commencing or participating in illegal strikes will be punished with up to one year imprisonment or fine, or both.
• All offences punishable under the Bill will be cognisable and non-bailable.