Essential Services Maintenance Act

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Essential Services Maintenance Act [ESMA]

We all are living in a time where maybe we all have gone through the word essential services because of the Covid situation. When we all were in lockdown only some services were allowed to function i.e. Hospitals, medicals, police, some important government offices, banks, etc. These all are important and basic services and without these services, we cannot function properly. But whenever doctors, policemen, or other government officers go on strike it affects the life of normal people, and to avoid this situation Indian parliament has enacted the Act called Essential Services Maintenance Act 1968.

India is a democratic country and the Indian constitution has given all of us equal rights without any discrimination. The right to peaceful protest is also important. But whenever someone's demand doesn't get fulfilled they choose to go on strike and it affects the life of the normal people. The government has the power to stop there strike. There are some laws under which the government can try to reduce the problems of the general people, And the Essential Services Maintenance Act [ESMA] is one of them.

Meaning of the Essential Services Maintenance Act [ESMA]:-

The Essential Services Maintenance Act, 1968 was enacted by the parliament in 1968 replacing the ordinance of 1968. It extends to the whole of India , it also includes newly declared union territory of Jammu and Kashmir after the revocation of Article 370 in August 2019.

All the essential services that are included in the Essential Services Maintenance Act, 1968 are defined in section 2(1)(a) of this Act. Some of these essential services are any postal, telegraph or telephone service; any railway service or any other transport service for the carriage of passengers or goods by land, water or air; any service connected with the operation or maintenance of aerodromes or aircraft; any services connected with any port; any services connected with the clearance of passengers and goods through the custom; any services regarding with defense establishment of government. It means it includes all that services about which government has the power to make laws and the government thinks that discontinuation in these services would affect the public because discontinuation in these services affects the maintenance of supplies and services that are essential for the normal life. Essential Services Maintenance Act [ESMA] prevents employees from going on strike (employees providing the essential services). This Act also states that employees cannot refuse to work overtime if their work is important for the maintenance of the essential service.

Under this Act, the state government has the right to choose their essential services as per their need. The interpretation of essential services hence varies from state to state. Hence every state has separate Essential Services Maintenance Act. For example- Maharashtra Essential Services Maintenance Act,

                      Karnataka Essential Services Maintenance Act, 
                      Andhra Pradesh Essential Services Maintenance Act.

As per section 3(3) OF Essential Services Maintenance Act, ESMA can be imposed for a maximum period of six months but a central government by order may extend it for any period, not more than 6 months if it is satisfied that in the public interest it is necessary or expedient so to do. Before implementing ESMA concern government must warn employees about the invocation of ESMA through a newspaper or any other medium.

Punishment under ESMA

1. As per section 4 of the Essential Services Maintenance Act, any person organizes the strike which is illegal under this Act, or goes on or takes part in any such strike shall be punished with imprisonment for a term which may extend to 6 months or with fine. 2. Section 4 talks about instigation, if any person instigates another person to take part in the strike which is illegal under this Act shall be punishable for the term which may extend to one year, or with the fine which may extend to one thousand rupees, or with the both. 3. Section 6 talks about the penalty for giving financial aid to illegal strikes, any person who expands or supplies any money in support of the strike which is illegal under the Act shall be punishable with the term which may extend to one year, or with the fine which may extend to one thousand rupees or with the both. 4. After the enforcement of ESMA, police have the right to arrest anyone who found violating the provisions of ESMA under the Criminal Procedure, 1998.[1]

Silent features of ESMA

• Power to prohibit strikes in certain essential employees. • Penalty for commencing, instigating, providing financial aid to an illegal strike. • Allows state governments to have their own Act. • Right to arrest without warrant. • The Act has provisions to override other laws.

Examples of invocation of ESMA

There are many examples of evocation of ESMA because whenever the government finds that strike of employees affecting the life of the general public and it is creating problems in the maintenance of essential services, the government applies the Essential Services Maintenance Act. Delhi government had imposed ESMA several times, in December 2007 the Delhi government had imposed ESMA because doctors were on strike, In January 2019 Delhi government had imposed ESMA to prevent power employees from the strike, In February 2019 UP government had imposed ESMA because over 20 Lakh government employees were on strike, In July 2019 Goa government had imposed ESMA because the Association of Tourist Taxi Owners of Goa was to go on strike, Currently, in April 2020 Madhya Pradesh government has imposed ESMA to tackle with COVID situation, The government of Maharashtra had imposed ESMA in 2018 against Anganwadi workers.