July 25, 2021

Essential Defence Services Ordinance: A Lethal Weapon against Working Class

R Karumalaiyan

TO facilitate its agenda of wholesale privatisation, the Modi government brought in the Essential Defence Services Ordinance, 2021. The President of India promulgated it under the garb of “maintaining the essential defence services”. But its real aim is to throttle any strike and protest by defence civilian employees’ federations amid continued opposition to the government’s move to dismantle the Ordnance Factory Board (OFB) and corporatise the 41 ordnance factories situated across the country into seven companies so as to paveway for their ultimate privatisation. The unconstitutional and dubious ordinance has not only, brazenly, gone beyond the Acts passed by Parliament on the industrial relations such as the Industrial Disputes Act of 1947 and the recently enacted Industrial Relations Code, but also overrides the same or any other law for the time being in force.

The ordinance was promulgated at midnight of June 30, 2021, with immediate effect. When parliament is scheduled to meet from July 19 for its monsoon session, the Modi government’s gazette notification, ironically, states that the President “is satisfied that circumstance exists for the Ordinance as Parliament is not in session”. However, we should recall that the ordinance comes within weeks of the centre announcing a radical overhaul in the form of the dismantling of the OFB. It is also in the anticipation of the defence civilian employees’ proposed strike action on July 26. The ordinance is meant for pre-empting and sabotaging the strike decision of the united platform of defence employees’ federations. It is also aimed at open-endedly empowering the government/administration to extend such bans and restrictions on workers’ right to collectively act and protest. The right to interpretation has been absolutely vested with the central government alone.   

The ordinance empowers the union government to prohibit strikes (not in the conventional sense of the term ‘strike’, but here it has got a different connotation), lock-outs and lay-offs in the establishments or undertakings engaged in the essential defence services. So, the notorious game starts with the definition of ‘strike’ itself. The ordinance innovatively widened the definition of strike and related activities to practically embrace almost all collective activities of the workers and their unions to oppose and protest. It defined strike as cessation of work; go-slow; sit down; stay-in; token strike; sympathetic strike; mass casual leave by a body of persons (say unions) engaged in the so-called essential services, acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons. Here, ‘strike’ includes even the refusal to work overtime and any other conduct, which, according to the understanding of the authority concerned, is likely to result in, or actually results in, cessation or even retardation or disruption of work in the so-called essential services.

Section 2(q) of the Industrial Dispute Act, 1947, has simply defined the term ‘strike’ as “cessation of work”, nothing more. The Industrial Relations Code, 2020 has added, for its part, the “concerted casual leave of more than 51 per cent of workers” in the term ‘strike’. But the present ordinance went much beyond the conventional definition of strike and related activitiesto include everything, including the so-called acts of “instigating and inciting” (read campaigning, agitating, protesting, etc.). It is a prelude to what is in store for the working peopleor in the offing from the project of authoritarianisation of entire governance by the Modi regime in the interests of capitalist exploiters.

What does the ordinance mean by “essential defence services”? The definition of “essential services” and its relation with defence production/services has been widened to empower the government to bring almost all other industries into the net of bans and restrictions on the rights of the workers. Essential defence services include any service in any establishment or undertaking dealing with the production of goods or equipment required for defence-related purposes, or; any establishment of the armed forces or connected with them or defence. These also include services that, if ceased, would affect the safety of the establishment engaged in such services or its employees. In addition, the government has been empowered to declare any service as an essential defence service if its cessation would affect: production of defence equipment or goods; operation or maintenance of industrial establishments or units engaged in such production, or; the repair or maintenance of products connected with defence. Moreover, the ordinance has amended the Industrial Dispute Act so as to include “industrial establishment or unit engaged in essential defence services” in the so-called public utility services.

According to Section 3 of the ordinance, the central government is empowered to issue such an order of prohibiting the strike, if necessary, in the interest of: sovereignty and integrity of India; security of any state; public order; public interest; decency, or; morality. The prohibition order will remain in force for six months, and maybe extended by six months. Never in any legislation could we find such flimsy grounds to disarm the working class from resorting to their weapon of last resort -- the right to strike.

Thus, the central government has been armed with sweeping power to declare any industrial segments, including ancillaries and raw material suppliers to defence production units say for instance, power, steel, minerals, as essential defence services for the purpose of applying the bans and restrictions on workers’ rights and normal trade union activities under this ordinance. Thus, the strike prohibition arms of the government could be more dangerously stretched at any length to any industry. 

Persons commencing or participating in a so-called illegal strike will be punished with up to one-year imprisonment or Rs 10,000 fine or both. Persons instigating, inciting, or taking actions to continue illegal strikes (read as our normal trade union activities connected with strike campaign, etc.), or knowingly supplying money for such purposes, will be punished with up to two years imprisonment or Rs 15,000 fine, or both. Further, such an employee will be liable to disciplinary action including summary dismissal.  All offences punishable under the ordinance would be cognisable and non-bailable.

The working class attained the right to strike after a long battle against the inhuman exploitation of capital. Then the Industrial Disputes Act, 1947 and the Trade Union Act, 1926, recognised the right to strike. The Industrial Disputes Act, only, puts some procedure for going for a strike in the case of public utility services. It never prohibits per se as this ordinance has done. It grossly violates the ILO Core Conventions 87 and 98 dealing with the right to organise and the right to collective bargaining.

Thus, the Essential Defence Services Ordinance exposes the barbarous design of the corporate-servile Modi government to comprehensively demolish all the basic rights of the workers even to collectively defend themselves from the brutality of exploitation under capitalist order. The scope of its application will not be limited to the defenceproduction sector alone as theprovisions of the ordinance, if read between the lines, has empowered the government to extend and impose the bans and restrictions envisaged by them in any other sector almost open-endedly. The government has started acting already in that line and many other industries, in both public and private sectors, are being notified as public utility services. The latest is the notification declaring steel industry a public utility service.

This is not a new phenomenon or experience before the Indian working class. We may very well recall that these types of draconian legislations were brought in on different occasions by all governments in independent India. Sixty-one years ago, in the wake of that glorious countrywide strike of central government employees from July 11-12 in 1960, an ordinance – the Essential Services Maintenance Ordinance (ESMO) -- was promulgated almost with similar provisions. Similar ordinances/enactments were there like the Defence of India Rules (DIR) and the Maintenance of Internal Security Act (MISA) which were used as repressive instruments against democratic and working-class movements. But that could not deter the Indian working-class movement from unitedly asserting themselves through defying struggles. The working class combated similar onslaughts in the past and they will do the same now as well. The working-class movement cannot accept such notoriety of the present government as well as its assault on their hard-earned rights lying down. They must not tolerate the nefarious design of imposition of conditions of slavery on them. Defiance and stout resistance are the way before us not merely on the assault on our rights but also on the desperate anti-national game plan to put the national productive assets on auction and sale. The working class has to prepare themselves in that direction. We shall fight and we shall win.