What is ESMA law ?

 

Essential Services Maintenance Act is a law which was passed by the parliament in the year 1968 to ensure the supply of essential/necessary/vital goods and services to the general public. If supply of these goods/services are hampered, then it will harm the daily lives of people. Essential services get defined as any service for which the Parliament has the authority to enact laws or for which the government thinks that discontinuing it would endanger the maintenance of supplies and services necessary for maintaining life. Essential Services ordinarily includes services relating to public conservation, sanitation, water supply, hospitals, or national defence.

 ESMA was passed under the concurrent list of the 7th schedule in the year 2016. The main objective of this act is to provide smooth transportation of essential goods to the citizens of India without any unnecessary interruption. This act also prohibits the strikes of government employees who works in railway, post and telegraph, airport and port operations or any other important departments. When people working in important department refuse to work or provide goods and services, it is known as a situation of strike. After the issuance of order, no person can go or remain on strike who is working in any essential services. If any employee refused to end the strike, despite the warning given by the government, then action can be taken against the person under the ESMA provisions.

The government can impose the ESMA provisions but only for the period of six months. But under certain circumstances, for the interest of public, the Central government may extend the time period for not more than six months. Each state has its own Essential Services Maintenance Act, provisions slightly differing from state to state; like, Rajasthan has RESMA (Rajasthan Essential Services Maintenance Act, 1970) and Karnataka has Karnataka Essential Services Maintenance Act 1994. Many states have imposed the provisions of ESMA on various occasions to the end the strikes. For eg., Tamil Nadu implemented the ESMA to end up the strike in 1979 and in 2003, Maharashtra in 1981 and in 2017. The government also implemented ESMA in 1992 as there were protests against the new economy policy. Delhi government has also imposed ESMA when doctors went on strike due to the incidents of attack on the doctors.

According to the provisions of ESMA going on strike after the implementation of its provisions will be considered as illegal and will be punishable. On the imposition of ESMA, the police gets the right to arrest anyone without a warrant if found violating the provisions of the Act under the Section 5 of the CrPC. Also the employee cannot deny to work overtime if that is required to maintain any of the essential services. If any person incites other to participate in the strike or provide any kind of finanacial support, then that person shall be held liable under the act and shall also be punished.

Recently, on 30^th August, 2023, the Punjab government invoked the East Punjab Essential Maintenance Act till 31^st October to end the strikes by the revenue officials and staff (patwaris and kanungos) at deputy commissioner’s office after warning them of the strict action. The order stated that if any person violates the provisions, then strict action will be taken against the person for planning a strike at a time when various parts of the state is suffering from flood.

It is argued that ESMA law violates the right of citizens to peaceful protest. ESMA is an effective tool used by the government to supress the strikes and protests of public sector workers. In India, fundamental rights are regarded as an essential part of the basic structure of the constitution, which cannot be violated in any situation or case. These fundamental rights protects and safeguards the rights of the citizens and provide for remedies in case of any breach of these rights.

All the rights given to the citizens are very important and play different roles, but among them, the right provided under the Article 19 of the Constitution is considered to be as a very important right which guarantees different freedoms for citizens. Article 19 offers the right to protest which is a one if the most important fundamental right of the citizens in a democratic country. Although the word ‘protest’ is not explicitly or specifically mentioned in the Article 19 of the Constitution, it is implicitly derived from the in-depth reading of Article 19. According to Article 19(1)(b) of the Constitution, the right to assemble peacefully without weapons is a fundamental right of every citizen. Article 19(1)(a), Article 19(1)(b) and Article 19(1)(c) protects the right to protest, which gives citizens the right to freedom of expression, the right to meet peacefully without weapons and the right to form associations or trade unions. This article gives the citizens the right to hold a protest against any issue of national or social interest.

However it is important to keep in mind that protests or demonstrations are legal only if they are peaceful and are carried out with proper permits or authorizations. These fundamental rights are not absolute and certain reasonable restrictions are imposed on them, because if people were given complete freedom without having control or restriction, then that could affect society as a whole. If people working in essential services or important department refuses to work and go on strike, then that would cause a lot of problem among the general public. It is important to keep running the critical services for the ordinary people. ESMA gives the government the authority to prohibit or ban any strike if it is conducted in some “important” businesses and to solve the issue through conciliation or arbitration. However, the definition of “essential services” varies from state to state because each state has different requirements based on its geographical conditions and other factors. In the event of a dispute, ESMA provides for a legal means for disputing a judgement.

Essential Services Maintenance Act of 1968 is one of the most important laws of the country to protect the public interest. The central government has a broad range of powers as provided by the Essential Services Maintenance Act to maintain the services that are essential for the ordinarily living of common citizens. The Essential Services Maintenance Act (ESMA) is applied in order to prevent unnecessary attacks or strikes. If the employees of any significant or important department takes part in the strike, and the government refuses its demands for a halt to the strike, but the workers do not stop their strike, then the government acts against them under ESMA provisions.

 

SNEHA

3^rd year B.A.LLB, Army Institute of Law