- An estimated 19 lakh government and semi government employees, including those in schools, colleges, zilla parishads, and government hospitals, to name a few, have been on strike demanding that the government return to the Old Pension Scheme (OPS); they have been on the National Pension Scheme since 2005.
- In several States such as Rajasthan, Chhattisgarh, Himachal Pradesh and Punjab, there has been a return to the OPS.
- Employees in Maharashtra desire that their State does the same.
- The government’s response has been predictable.
- It constituted a panel to study the implications of a return to the OPS, which is to submit a report in three months. The absence of union
leaders in this panel is striking.
- But, most importantly, the Maharashtra Assembly has passed the
Maharashtra Essential Services Maintenance and Normal Life of community Act (MESMA).
- Negotiations took place and the government made the assurance in writing that, in principle, it accepts the OPS.
- Based on this, the unions called off the strike on March 20, 2023.
- What is of interest now is the principal and typical method by which the State seeks to handle the strike by its employees.
An unchanged response
- Since 1960, the government’s approach, be it central or State government, to strikes by their employees has been to invoke ESMA, or the Essential Services Maintenance Act.
- It was historically a colonial instrument, though clothed differently under the Defence of India Rules. And, since 1950, several States, on numerous occasions, have promulgated ESMA.
Therefore, the question is this: is this the right response on the part of the government?
- ESMAs empower the government to define any economic activity as essential, which is an example of a dangerous weaponisation of the government (which tilts the balance in industrial relations in the government sector dangerously towards the government).
- The International Labour Organization is the global organisation universally regarded to be the authoritative and legitimate body that can answer issues in connection with labour.
- The ILO’s supervisory institution, the Committee on Freedom of Association (the Committee), among others, constructed the principles on the right to strike; this is worth noting as they serve as the guidepost to assess the government’s actions.
- The basic principle is that workers enjoy the right to strike, which is one of the principal means to legitimately promote and defend their economic and social interests.
- Essential services are those where “the interruption of which would endanger the life, personal safety or health of the whole or part of the population”.
- The question of essentiality will, of course, depend on the peculiarities prevalent in countries.
- Some examples are- the hospital sector, and services such as electricity, water supply, telephone, and air traffic control.
- Strikes in these may even be prohibited or strictly regulated.
- What is important is that where the right to strike is prohibited or strictly regulated, alternate dispute resolution mechanisms must be put in place.
- In fact, it has mentioned a negative list of industries which are not essential which includes the transportation and education sectors.
- The urgency with which governments promulgate ESMA, the “regulatory itch”, betrays their colonial mindset.
- Social dialogue rather than authoritarian measures will promote amicable and long lasting solutions.
