Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Abolition of Forced Labour Convention, 1957 (No. 105) - India (Ratification: 2000)

Article 1(d) of the Convention. Sanctions for participating in strikes. In its previous comments, the Committee noted the following provisions prohibiting strikes in essential services, enforceable with sanctions of imprisonment, which may involve compulsory labour:

• -sections 3 and 5 of the Essential Services Maintenance Act, 1981; and
• -sections 3 and 4 of the Kerala Essential Services Maintenance Act, 1994.

It noted that the prohibitions of strikes laid down in these provisions go well beyond the concept of essential services in the strict sense of the term (that is, those services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population). Noting the Government’s indication that after consultations with the state governments and the central ministries/departments, it was decided not to extend the validity of the Essential Services Maintenance Act (1981) which lapsed in September 1990, the Committee requested the Government to communicate a copy of the decision taken to that effect.

The Committee notes that the Government does not provide information on the above issue. As regards the Kerala Essential Services Maintenance Act (KESMA), 1994, referred to above, the Committee takes note of the report from the State of Kerala, as well as of the judgment handed down by the High Court of Kerala on 17 July 2002 which struck down section 6 of the KESMA for being unconstitutional, both forwarded by the Government. The Committee notes that section 2(1) of the Act gives the state government wide discretionary powers to declare any service under the Government to be essential for the purposes of the Act, or any other service for which the Government is of the opinion that strikes therein would prejudicially affect the maintenance of any public utility service or would result in the infliction of grave hardship in the community. The Committee further notes that section 3 of the Act empowers the state government, by general or special order, to prohibit strikes in any essential service specified in the order. Participation and instigation to participate in such strikes considered as illegal is punished by sanctions of imprisonment for up to six months, which may involve compulsory labour, and/or a fine (sections 4 and 5 of the KESMA).

The Committee observes that the provisions of the KESMA are worded in broad terms and penalize with sanctions involving compulsory labour the peaceful participation in strikes. The Committee recalls the importance it attaches to the general principle that, in all cases and regardless of the legality of the strike action in question, any sanctions imposed should not be disproportionate to the seriousness of the violations committed, and that the authorities should not have recourse to measures of imprisonment against persons peacefully organizing or participating in a strike (see General Survey of 2012 on the fundamental Conventions, paragraph 315). The Committee therefore expresses the firm hope that the Government will indicate the measures taken or envisaged to ensure, both in law and in practice, that no sanction involving compulsory labour can be imposed for the mere fact of peacefully participating in strikes. Pending the adoption of such measures, the Committee requests the Government to provide information on the application in practice of sections 2(1), 4 and 5 of the KESMA, including copies of state governments’ orders prohibiting strikes, as well as of relevant court decisions, specifying the penalties applied. The Committee again requests the Government to provide a copy of the decision taken not to extend the validity the Essential Services Maintenance Act (1981) after September 1990.