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 ESMA: A Necessary Evil or a Tool of Oppression?

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The Essential Services Maintenance Act (ESMA) is a controversial law that empowers the government to ban strikes and lock-outs in certain sectors that are deemed essential for the public interest. The act was enacted in 1981 by the Parliament of India to ensure the delivery of certain services, which if obstructed would affect the normal life of the people¹. The act covers services such as postal, telegraph, telephone, railway, transport, health, defence, customs, and others.

The act has been invoked by various state governments and the central government in different situations to curb the protests and demands of the employees of these sectors. For instance, the Odisha government has recently decided to take strict action against the Odisha Secretariat Service Cadre officers who have been on strike since February 13, 2024, demanding pay revision and other benefits⁵⁶⁷. The government has threatened to withhold their salaries, initiate departmental proceedings, and terminate their services if they do not resume their duties. Similarly, the West Bengal government had imposed ESMA on its employees in 2012 when they went on a strike demanding dearness allowance and other legal rights of wages. The government had also arrested some of the leaders of the employees’ association under the act.

The supporters of the act argue that it is a necessary evil to maintain the essential services and the normal life of the community. They claim that the act is not meant to suppress the genuine demands of the employees, but to prevent them from resorting to illegal and disruptive methods of protest that affect the public welfare. They also point out that the act has a provision for arbitration and conciliation to resolve the disputes between the employers and the employees.

The critics of the act, on the other hand, contend that it is a tool of oppression that violates the fundamental rights of the employees to form unions, to collective bargaining, and to strike. They allege that the act is used by the government to curb the dissent and the democratic voice of the workers. They also question the definition and the scope of the essential services, which are often arbitrarily decided by the government. They cite examples of how the act has been misused by the government to ban strikes in sectors that are not directly related to the public interest, such as education, banking, and media.

The debate on the ESMA is not new, nor is it likely to end soon. The act has been challenged in various courts and has faced several amendments and extensions. The act has also been opposed by various trade unions, civil society groups, and political parties. The act has also been praised by some sections of the society, especially the consumers and the beneficiaries of the essential services. The act has also been compared and contrasted with similar laws in other countries, such as the Industrial Disputes Act in the UK, the Taft-Hartley Act in the US, and the Essential Services Commission Act in Australia.

The act, therefore, raises several questions and issues that need to be addressed and resolved. What are the criteria and the parameters to define the essential services? Who has the authority and the responsibility to declare and enforce the act? What are the rights and the duties of the employers and the employees under the act? What are the mechanisms and the processes to resolve the disputes and the grievances under the act? What are the alternatives and the options to the act? These are some of the questions that need to be answered and debated in a democratic and transparent manner, keeping in mind the interests and the welfare of all the stakeholders involved.

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