The Essential Defence Services Ordinance, 2021 – Draconian Par Excellence

The Essential Defence Services Ordinance, 2021 – Draconian Par Excellence

Protesting is never a disturbance of peace. Corruption, injustice, war and intimidation are disturbances of the peace.” – Bryant McGill

On 30th June 2021 the President of India in the exercise of his extraordinary legislative powers under Article 123 of the Constitution, promulgated the Essential Defence Services Ordinance, 2021 (“ORDINANCE”). This Ordinance essentially empowers the Central Government to prohibit any form of protest (such as strikes and lock-outs) and lay-offs in “essential defence services” (as defined under Section (“U/S”) 2(1) of the Ordinance), as well as, declare these acts as non-bailable and cognizable offences. 

Purportedly, formulated to deal with the July 26 strike announced by the employees’ federations of the Ordinance factories against the Union government’s decision to corporatize the 41 Ordinance Factory Boards; this temporary law tramples over the rights of workers and those concerned to hold peaceful protest, voice dissent, and form associations/unions. 

In this piece, we shall briefly examine how the Ordinance is excessively vague and expansive in its wording so much so that its effects are not limited to just the government employees in the concerned sector. Further, we will examine the unfettered powers it gives to the authorities significantly impacting the principles of natural justice along with the freedoms of the civil society and free press to comment or report on these strikes.

Rationale Behind the Ordinance

Preamble to the Ordinance simply states that circumstances make it “necessary to take immediate action”, nature of these circumstances have not been specified. However, it may be reasoned that the clashes with China might have alerted the government, prompting it to take such precautions. One may even argue that iron-shield is required to protect entities (be it private or public), to keep the defence supply chain inviolate. But the question would then arise how wide the meaning of such “essential defence services” should be? Why does it coincide with the announcement of strikes by ordinance factory workers? If, the only intention is to deal with such strikes, then, why is the ambit so broad? If not and it really is to deal with the border issues, why were such measures not taken last year when the situation was more heated? Keeping these potential reasons and questions in mind is very important while examining the need of this Ordinance. 

Analysing the Phraseology

Black’s Law dictionary defines vagueness as something which is ‘indefinite’. The Indian Supreme Court has stated that prohibitive laws are said to be vague when prohibitions so prescribed are imprecise, and those who face deprivation of rights should know “the precise extent of such deprivation”. Furthermore, laws should not delegate blank space for subjectiveness to be applied by policeman or judges on ‘ad-hoc bases’, leading to arbitrariness and discrimination.

Vagueness in phraseology and consequent expansiveness of the ambit of relevant legislations or laws has become a trademark for many of the recent laws/rules made by the Union government, be it the recent amendment in the Unlawful Activities (Prevention) Act or the newly issued Information and Technology Rules, 2021 (“IT RULES”).

The Ordinance seems to be another such piece of legislation. It can be said so because u/s 2(a), “essential defence services” are defined as: “(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 defence………(iii) or any establishment connected with defence on the working of which safety of such establishment or employee depends.” In addition, the government may declare any service as an essential defence service if its cessation would affect the: production, operation, maintenance and repair of defence equipment’s or goods.

U/s 2(b) “strike” includes all forms of protest possible such as sit-ins, cessation of work, casual leave and even token strikes etc. Any form of organised action and even the refusal to do overtime can be prohibited u/s 3 by a notification for 6 months, which can be further extended. All these actions are punishable with one year of imprisonment or ten thousand rupees fines u/s 6. Similar punishments for lockouts have also been provided u/s 9(5). 

Therefore, due to the repeated use of ‘any’ and due to the power given to the Central government to declare “any other” service as it sees fit to be an essential service u/s 2(1)(a)(iv) of the Ordinance, no distinction can rightly be drawn between the private companies and their employee on one hand and the government sector undertakings on the other. The definition also does not distinguish between large factories building tanks, and the small, medium size businesses providing goods or services such as boots, raw materials, repair, etc. Thus, allowing the government to not only dictate the of the employee in the public sectors undertakings but by extension also impact the ability of the employees in the MSME sectors to protest against the working conditions, thus, adversely impacting the rights of every employee and workers men involved in the defence sector. Impact on the private sector will be further dealt with in the next section.

Impact on Private Sector

Apart from TATA, Mahindra,  Reliance and other giants that supply equipment to the armed forces regularly, the defence supply chain also involves about 24,000 MSME’s, and these companies employ millions of workers.

As, noted above the ordinance will not only impact government facilities but even private sector employers can put their workers under inhumane working conditions under the guise of keeping the defence supply chain intact. That too with the backing of the State. Hence, the Ordinance is a surgical strike over the rights of all the civil defence workers employed in the private sector.

As mentioned above almost all forms of mass action/pressure tactics are included under the ambit of “strike” and thus, can be prohibited. The Ordinance even allows the management authorities u/s 5(1) to take any disciplinary action (including dismissal) against the workers who may be found to take part in or instigate prohibited strikes. The problem becomes worse as Section 5(2) lays down that “notwithstanding any other law…” the authority concerned may take such action without any proper inquiry, if the authority concerned is satisfied that holding a proper inquiry is not reasonably practicable by just recording this reason in writing. 

Ironically, the Ordinance may even prove to be detrimental to the interest of the employers in the private sector. U/s 10 the government has been empowered to bar the employers in these services from laying-off workman as it sees fit via an issuing notification. The only two exceptions provided are natural calamity and power shortage. As the Ordinance has been promulgated during the Covid-19 crisis, it can be implied that Covid-19 is not included under natural calamity. Furthermore, no declaration by the Central government has been provided in such regard, thus, the economic crisis inflicted due to lockdown cannot be used as a pretext to lay off workers once the notification has been issued by the government. Therefore, we can say that vagueness and the over-intrusive language of the Ordinance has provided the government with powers that can prove to be rather dangerous.

Other Questionable Provisions

Apart from the direct assault over rights, the Ordinance seems to be having a more insidious intent of breaking the back of collective struggle, as well as the power of the press to critically report on the action of the authorities with regards to these services. This understanding roots from the reading of Section 7 which provides for one and half years of jail and/or fifteen thousand rupees as fine, if any person is found “inciting or instigating any other person to take part in the strike prohibited by the government”. Furthermore, those who are found funding such strikes can be imprisoned for 2 years and/or suffer a fine of twenty thousand rupees u/s 8. The use of police force has been authorised u/s 4, the police do not even require an arrest warrant to carry out such detentions as per Section 11 of the Ordinance notwithstanding anything mention in Code of Criminal Procedure, 1973. Further, all the offences are non-bailable and cognizable offences. Surely, the Industrial Disputes Act, 1947 also provided u/s 27, imprisonment for 6 months and/or fine of one thousand rupees but here as noted above the punishment is much worse.

The fact that “instigation and incitement” have not been defined, nor has the ambit been limited to a particular group of people, gives the impression that even publishing content sympathetic to the cause of the employees or justifying their actions can give rise to grounds for application of this penal provision. Further, the workers union all around India share funds and provide moral support to each other, by penalizing sharing of funds the government is targeting the rights of the employees to form unions and provide aid to their brethren. Only procedural safeguards as per Section 18 is that every notification issued has to be tabled in both the Houses of Parliament for approval and modification (if any). However, even this sounds hollow because Parliament not giving its approval will not invalidate any order passed under the notification. Now, let us examine the constitutionality of this move.

An Oppression with Constitutional Backing?

Article 19(1)(b) provides all citizens the fundamental right of freedom to assemble peacefully and Article 19(3) empowers the State to curtail our freedom to assemble peacefully for any purpose (including protest), only “in the interest of the sovereignty and integrity of India or, public order”. No mention of grounds such as “public interest, decency, morality or defence of any state” finds mention in the Article. However, the Ordinance specifies that a notification prohibiting strikes or lock-outs can be issued on the grounds of public interest, decency, morality or defence of any state along with sovereignty and integrity of India or, public order u/s 3 and 9 respectively. Even if we take into account the grounds for restricting freedom of speech and expression [Article 19(1)(a)] provided under Article 19(2) pubic interest finds no mention there also. “Public interest” again has been left completely undefined under the Ordinance, leaving it completely at the satisfaction of the Central government. 

What is even more surprising, however, is that such legislation can hardly be questioned in our constitutional courts on the above-mentioned basis. Since, the Supreme Court has historically as shown below, distinguished the right to assemble from the right to hold a strike against the employers, and because the right to hold a strike recognized under the Industrial Dispute Act, albeit with restrictions, has been overridden by the non-obstante clause u/s 16 of the Ordinance. 

It was while examining a similar prohibitive ordinance called the Essential Services Maintenance Ordinance 1960, which prohibited strikes in services like post and telegraph etc; the Supreme Court in Radhey Shyam Sharma v Post Master General held that such laws are essential and cannot be seen as violative of Fundamental rights or freedoms provided in the Constitution. It also stated in pursuance of All India Bank Employees Association v. National Industrial Tribunal, that there is no such right called Right to strike under our Constitution, and it has no relevance with regards to Article 19(1)(b). The Court in the case of TK Rangarajan v Government of Tamil Nadu went ahead to remark that that “a strike offended the fundamental rights of the masses”. This unsympathetic reading of rights partly to ensure non-disruption of business and commercial interests has left the worker and employees at large with little to no recourse against laws and orders which can prove to be blatantly against their interests. Perhaps, this is a field of constitutional law that requires a more accommodative review, and certainly more discussion amongst the people of civil society at large.

However, as noted above the vagueness in wording of the act would possibly make it liable of infringing Article 14 of the constitution, the SC has also struck down 66-A of the IT act on similar grounds. A contention can also be raised under Article 21 of the Constitution as it effects livelihood of many individuals but that aspect has not been discussed in this piece.

Conclusion

Through the means of this article the author has tried to shed light over the controversial Ordinance related to defence production, for this purpose we have briefly examined the vagueness in phraseology of the said ordinance, its impact on private sector and other relatively oppressive provisions. The aim has been to shed light over the shrinking protest and the need to re-examine the jurisprudence related to strikes in the SC.

There is little to no doubt in the fact that India is going through a significant defence crisis on our Northern borders, and keeping the supply chains intact thus, has become a necessity. However, via this Ordinance, the government has taken the path of confrontation over conciliation. It does not only infringe upon some of the basic rights of the various kinds of labour but also antagonizes the defence community as a whole.


This article has been written by Aditya Kaushik, student at National Law University, Jodhpur.

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