PUCL Bulletin Oct., 1981

Strike-Ban Ordinance:

A Lawless Law
By Suresh Sharma

Strike, according to the Union Minister of Labour, is a "luxury" in which a poor country like India may indulge only at its peril. Barely twenty three days before the session of Parliament, the Government thought it necessary to issue an ordinance (July 27, 1981) prohibiting strikes. The Prime Minister has assured us that it is a 'temporary measure' and the need to extend it beyond the initially stipulated period of three years would not arise.

The sheer sweep of the coercive powers which the ordinance confers upon the Executive has far reaching implications. It would entail a virtual freezing of the conditions under which hundreds of million are condemned to toil on the brink of survival. Such extreme concentration of power, without check or reasonable possibility of redress, tends inevitably to vitiate the democratic process and is certain to erode the basic structure of our Constitution.

The Government has sought to justify the arbitrary sweep of the Ordinance by invoking the potential threat of an economic collapse and administrative breakdown. 'Industrial unrest', it is argued, threatens to disrupt the vitals of industrial growth and economic development. Hence the imperative of imposing an iron discipline on virtually every wage earning citizen.

Industrial relations in the recent past as outlined in the statistics and statements issued by the Government offer not the faintest clue to the supposed danger of an imminent collapse. On 31 March 1981 the Government released statistics which put the total number of man-days lost due to 'strikes and lockouts' in the year 1980 at 12.9 million. This figure was projected as an instructive contrast to the loss of 43.9 million man-days in the preceding year. The unflattering figure for 1979 was attributed to the incompetence and willful neglect of the Janata-Lokdal governments. The sharp fall in the man-days lost in 1980 was flaunted as evidence of a 'government that works'.

By August, however, the Government's sense of facts began to change. Statistics released on the eve of the Labour Ministers' conference in early August pushed the number of man-days lost in the year 1980 to 20.8 million-an increase of 61 per cent over the earlier projection. Yet even this figure was lower than the figure for man-days lost in 1975, the year of the Emergency. But the dynamic sense of facts has compelled the Government to shift to yet another fresh certainty. And the latest figure, as always categorical and final, has pushed the number of man-days lost due to strikes and lockouts in the year 1980 to 28.8 million.

Industrial production during 1980, according to Government projections, has surpassed its most hopeful expectation. Index of industrial production for 1 980-81 has in fact been revised in an upward direction. Law and order, we have been repeatedly assured, has been firmly restored after the chaotic anarchy of the Janata days. What could possibly have happened to shatter the Government's earlier sense of optimistic certainty? What could have compelled such a swift shift from an apparently untroubled certainty about the future to the vehement rhetoric of impending disaster?

Soon after the promulgation of the Ordinance, the Prime Minister explained that it was necessary to curb inflation. But only a few days earlier, on July 10 at the press conference specially convened to share her thoughts on the state of the nation, she had been categorical that the monster of inflation had been tamed and 'brought under control'. The Government had succeeded, we were told in reducing inflation in the preceding fiscal year by more than 10%.

Speaking from the ramparts of the Red Fort on 15th August the Prime Minister characterised the Ordinance as the 'stern duty of a mother'. As a mother, Mrs. Gandhi reminded her listeners she had known what it was to suffer. But for her the entire nation was like a "family all Indians are my children". To be a mother is "never easy and painless". All kinds of "visible and not so visible forces" threatened the survival of India as a nation. And in times of such grave danger, a mother had occasionally to be firm and harsh. The nation's survival was dependent on disciplined effort. No one, she warned, should be led astray by the "false propaganda" against the Ordinance. Ample care had been taken, the Prime Minister assured, to safeguard interests of the workers. No one would be victimised, It was "not a measure directed against the workers". Increased production would benefit everyone. The Ordinance had a limited purpose. It was meant to ensure the smooth functioning of certain specified "essential services" vital for the health of the national economy.

What then is the truth? What is the actual scope of the Ordinance? Against whom is it directed? What are the safeguards against possible victimisation and arbitrary misuse of coercive powers conferred by the Ordinance? What are its probable implications for our democratic polity and sharply stratified social structure?

Which Services are 'Essential'
An 'essential service' is defined in the Ordinance at two levels. Certain services, which may be characterised as the vital core, indispensable to the orderly functioning of the national economy and administration, are specified in considerable detail: Any service connected with post-telegraph-telephones, railways, airports, shipping, customs, aimed forces, hospitals public conservancy sanitation, banking, oil-fields, mint security press, elections to the parliament and state legislatures. (Section 2 : Clauses I to VI, and Clauses IX to XIII).

But this 'vital core', the promulgators of the Ordinance know, is sustained by a widely dispersed and difficult to specify diffused periphery. Hence the compulsion to discipline the periphery in order to protect the vital core.

Clause VII (Section 2) extends the reach of the Ordinance to virtually the entire industrial sector : "Any service in any section of any industrial undertaking pertaining to a scheduled industry..."

Clause VIII (Section 2) takes care of the agricultural sector : "Any service in, or in connection with the working of any undertaking owned or controlled by the central government being an undertaking engaged in the purchase, procurement, storage, supply and distribution of food grains."

But evidently that is not enough. A diverse range of activities in what is designated as the 'unorganised sector' could still threaten the well-being of the 'vital core'. The relentless logic of 'discipline and development' obviously cannot stop halfway. All that sustains the vital core has also to be disciplined. Clause XV (Section 2) brings virtually all individual and group activities in the country within the ambit of the Ordinance: "Any other service connected with matters with respect to which the Parliament has powers to make laws. .

What Constitutes a Strike
In common usage, strike is understood as 'cessation of work one has contracted to undertake'. But the grim logic of 'disciplined national effort' demands unqualified positive cooperation with the government. Hence the need to define 'strike' in a manner that would completely foreclose the possibility of non-cooperation and disobedience.

Section 2(B) defines a strike to mean, "cessation of work", refusal to "continue to work", or refusal to "accept employment", Clause I (2B) takes care to specify that "refusal to work overtime" would also constitute an act of strike. And since the promulgators of the Ordinance know, that strikes are invariably preceded by intermittent airing of perceived grievances, critical comments on working conditions and occasional resentful behaviour, Clause II (Section 2B) extends the meaning of strike to include: "Any other conduct which is likely to result in cessation or substantial retardation of work in any essential service".

But even that is not enough. Forces of disruption, forever on the look out for an opportunity to incite the workers to strike have also to be disciplined. Clearly such 'anti-social elements' should not be allowed the freedom to wreck the country's progress and development.

Section 4(b) attempts to take care of that very difficult problem. Any one who "instigates or incites other persons to commence, or go, or remain on, or otherwise take part" in a strike should be deemed guilty of committing a cognisable penal offence. Any doubts that may still linger as to the meaning of a strike are clinched by sections 6 and 7 of the Ordinance. Instigation and incitement to strike would include any expenditure of "supplies and money in furtherance or support of a strike" (Section 7); and any other "acts in furtherance of a strike" (Section 6).

Legal Justice under the Ordinance
Offences as defined by the Ordinance would be treated at par with cognisable criminal offences like rape, theft and murder. Section 8 of the Ordinance empowers any police officer to "arrest without warrant any person who is reasonably suspected of having committed any offence under this Ordinance".

'Suspects' under the Ordinance would be tried in a "summary way by any metropolitan magistrate, or any judicial magistrate of the first class specially empowered" by the Government (Section 9). They would be liable to be punished with a term of imprisonment that "may extend to one year, or with a fine that may extend to Rs. 2,000, or with both".

Conviction by a Summary Court would be final. No appeal challenging a conviction under the Ordinance would be admissible. Unwilling to take any chances, promulgators of the Ordinance have taken care to specify that orders issued under the Ordinance 'would be effective even if they are contrary to the provisions of "Code of Criminal Procedure, 1 973" (Section 8), or the "Industrial Disputes Act. 1947", or "any other law" (Section 10.)

The Ordinance is rooted, it seems, in the devastatingly simple conviction: 'For a poor country the supreme imperative is to increase production.' The logic of this simple assertion is grim and total. Any talk of social justice, or even legal justice and democratic norms begins to appear subversive. It assumes in fact an "anti-social" complexion a pathological disguise to disrupt and wreck the wheels of production. The only way out of this dreadful predicament is to systematically create a powerful state apparatus that would be capable of firmly imposing a harsh discipline on all recalcitrant elements. And thus the 'imperative of economic growth' is transformed into the 'imperative of total state power'.

Implications of the Ordinance
That is precisely what the Ordinance seeks to accomplish. The two key terms, 'essential service' and 'strike', conceal the near total scope of the Ordinance. At the level of definition the 'sovereignty of the Parliament' is the only limiting factor. 'Strike' and 'essential service' as defined in the Ordinance would subject almost every conceivable individual or collective act to Executive control. And, so confident is our Government of the infallibility of its own judgement that even the right to appeal has been dispensed with.

The reach of the Ordinance is truly demonic. Even the inalienable 'natural right' of silent withdrawal has been rendered null and void. Refusal to accept any task assigned by the Government has been made a cognizable criminal offence. The cumulative consequence of the operation of the Ordinance, for what is designated as the unorganised sector--and that still constituted the overwhelming majority are almost certain to be most brutal.

To comprehend what the Ordinance would mean in terms of determining the conditions under which the overwhelming majority is condemned to struggle for a livelihood and bare survival, just consider a few of the likely possibilities.

A farmer in Bengal or Tamil Nado refuses to sell paddy at what he regards as un-remunerative prices. Consequence. He at once attracts the proviso of the Ordinance which prohibits any act that is likely to disrupt the procurement and distribution of food grains.

A labourer working on an Asiad construction site in Delhi refuses to work unless he is paid the minimum wage prescribed by law. Consequence. He is guilty of disrupting a service connected with the affairs of the Union Government and is liable to be punished.

A tribal in Chattisgarh refuses to fell timber on a wage of Rs. 2 a day. Consequence. He is guilty of disrupting the smooth flow of raw materials to industry vital for the health of the economy.

A farmer in Punjab decides not to cultivate wheat because he feels it would be unprofitable. Consequence. By refusing to carry out a task essential for the procurement of food grains he makes himself liable to legal punish meat.

The foregoing examples by no means exhaust the limits of what this law could be made to accomplish. And if the logic of this law were ever to overpower our entire political system, possibilities that appear absurd at the moment would become all too real. Consider the following:

A teacher in a college refuses to accept employment as a police informer. Consequence, He is guilty of a criminal offence for refusing to carry out a task essential for the well-being of the community.

A journalist is asked to write Government handouts. He refuses. Consequence. He is guilty of a criminal offence for refusing to cooperate with the Government in its efforts to promote the national well-being.

A poet is asked to compose a prashasti for the Prime Minister, or for an Antulay. He refuses. Consequence. He is guilty of refusing to cooperate with the Government in its efforts to promote national unity: a 'criminal offence for which he is liable to be arrested without warrant and sent to jail'.

Brazenly Inhuman
The Ordinance is a law that strikes at the very root of legality. It legalises forced and bonded labour.
Under this law even to be an inactive, silent witness could attract legal punishment. Even the Rowlatt Acts, against which Gandhiji summoned the might of the silent millions, did not contain provisions so brazenly inhuman. It violates not only the very notion of fundamental rights guaranteed by our Constitution but also the natural right of every individual to refuse to participate in what he understands as an unjust, evil act.

The fierce quest for ever greater power for the State Apparatus is being pursued at a time when its ability to be effective in any positive sense is actually diminishing. In practice this would mean greater brutality and arbitrariness against the weakest and the most vulnerable. At the local level this would mean a complete convergence and fusion of bureaucratic power with local vested interests. It is the first step so favoured by the IMF and other passionate partisans of 'progress at all costs' in the West towards the disastrous path of a 'Hard State' like Chile and Arya Mehr's Iran.

The Ordinance is a 'lawless law'. It is an outrage against the basic sense of human decency. For all those who believe in civil liberties as the minimal precondition for a humane existence, there is no choice but to offer the utmost resistance against such an assertion of demonic power.

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