The Essential Services Maintenance Act and COVID-19

A Brief Description of the Essential Services Maintenance Act and its Salient Features.

The fortieth Act of 1981 is a relatively shorter one consisting of just 14 sections. As the name suggests, the Act postulates certain ‘essential services’ and aims at the maintenance of the same along with the ‘normal life of the community’.

There is a comprehensive list of services included in the text ranging from communication services like the post and telegraph to transport facilities in particular the railways and airports. Pursuant to this, the key employees of these facilities are prohibited from going on strike. Furthermore, the Act permits the states to independently decide what they deem ‘essential’ so as to enforce the Essential Services Maintenance Act. Incidentally, the state of Jammu and Kashmir is exempt from this Act altogether.

The employees’ ‘prohibition to strike’ essentially means that they are disallowed from resorting to an industrial walkout. Additionally, bandhs or curfews cannot be valid excuses for absenteeism. The Essential Services Maintenance Act also gives the police the positive authority to arrest, without a warrant, anybody violating the provisions of the Act. The penalty for the same is imprisonment up to a term of six months and/or a monetary forfeiture.

The Essential Services Maintenance Act is an act of Parliament of India which was set up to ensure the distribution of certain facilities, which if obstructed would have an impact, more detrimental than not, on the normal, daily comings and goings of the people. This includes amenities like public transport and health services among others.

The Essential Services Maintenance Act is one formulated under List No. 33 under the Concurrent List of the 7th Schedule of Constitution of India. Hence, it maintains national homogeneity by providing a certain minimum circumstance of essential services across the nation. For any violations in specific regions, State governments alone or in partnership with other governments of states in the country can enforce their respective Act. Each state has a separate state Essential Services Maintenance Act with slight variations from the central law in its provisions. Hence, in case the nature of strike disrupts only a state or only a certain cluster of states, then they themselves can invoke it. In case of disruption on a national scale, especially railways, the Essential Services Maintenance Act, 1968 may be invoked by the concerned appropriate government, in this case, the central government.

Although it is a very powerful law, which holds within it the potential to suppress sincere demands of employees, its execution rests entirely on the discretion of the state governments in ordinary settings.

The law has seen little use in India, with many strikes by public transport operators or providers, medics or government staff, being continued for not days but weeks without the 9invocation of the Act by either the Union or State Governments. There have also been occurrences of citizens approaching the courts appealing for the implementation of the Essential Services Maintenance Act, with the executive being compelled by the court orders to invoke the same and consequently call off the strike.  

States and ESMA

Several states have enacted their own Essential Services Maintenance Act. Some of them have been mentioned below.

Andhra Pradesh: The law in effect is the Andhra Pradesh Essential Services Maintenance Act of 1971.

Kerala: Prior to the Kerala Essential Services Maintenance Act, 1994, which involves minor variations from that if the centre’s Act, the state had the Kerala Essential Services Maintenance Ordinance of 1993 in force.

Rajasthan: The Act in Rajasthan is known as RESMA, i.e., the Rajasthan Essential Services Maintenance Act of 1970.

Karnataka: The Government of Karnataka enacted Karnataka Essential Services Maintenance Act in 1994 which was in force since the 16th of April, 1994. According to section 1 clause 3, the Act lapsed on 15th April, 2004, i.e., ten years. The Government of Karnataka reintroduced the Essential Services Maintenance Act along with the Karnataka Essential Services Maintenance Bill, 2013 which will be tabled in the winter session of the legislature.

The current take with regards to this this particular Act is that is has been reintroduced in Karnataka effective from June, 2015 as per the gazette notification and the term for the same now extends to one year from commencement of the Act.

The nation in the wake of COVID-19

The Coronavirus is a global threat that has triggered a health alarm worldwide. It has taken the globe by storm with numerous cases detected worldwide. The calamity which begun in China’s Wuhan in late 2019 is now a global health emergency. 

The current situation, to put it bluntly, is abysmal. There is a global pandemic due to a virus outbreak causing whole countries and governments to completely shut down. It is caused by a new strain of the coronavirus known as COVID-19 which has an extraordinarily high contagion rate. Since there is no vaccine available due to the novelty of the disease, and due to the contagion rate being dreadfully high, the only solution or method that has been come up with is social distancing. Since the grim mortality rate among those who are immunocompromised, and the sustained organ damage among those who are cured or don’t have severe symptoms, the only way of controlling and saving the population as of yet is to stop the spread. If this is taken lightly, the medical services will be overburdened and the pre-existing lack of ventilators will lead to more casualties, casualties that can be prevented. Another aspect to take into consideration is that the symptoms don’t begin to surface until an average of a week in, and anyone who has it during this period of dormancy spreads it to more people, and the domino effect just goes on and on.

Taking into consideration the appalling nature of the situation, and the duty of the government to protect the general public’s health and morality, the measures taken by imposing lockdowns and curfews are not only constitutional, but much needed.

Several states, including but not limited to Madhya Pradesh and Andhra Pradesh, have invoked their respective Acts listing out several services they will consider essential, thereby prohibiting those employees from going on strike among other provisions of the Act. Transporting passengers in the subway or local trains has been shut down, and understandably so. Doctors and other medical services are among those that can be found in all of these enactments. This is indubitably an essential requirement in the wake of the virus outbreak as any professional personnel in the medical arena is indispensable in containing the spread of disease while simultaneously administering medicine to those affected.

However, this is proving to be problematic. Thousands of medical personnel along with other essential staff including but not limited to ambulance drivers, pharmacists, etc. are not being provided with adequate safety gear to properly adjudicate their responsibilities. Instances of this can be seen in a lot of, if not all the, states. For instance, as March came to a close, around 86 ambulance drivers associated with #102, #108 and EMT, i.e., Emergency Medical Technician, staff on strike alleging that they were not provided mask, gloves and sanitizers while performing their duties in Prayagraj. Furthermore, earlier the same month, a lab technician at the Mahatma Gandhi Institute of Medical Sciences (MGIMS) in the western state of Maharashtra contracted the disease that still couldn’t find its place on the important half of the government’s agenda. The shortage of protective health gear in India is no longer something that can be brushed away under the rug. In Uttar Pradesh which is India’s most populous state, drivers of around 4,700 ambulances that mainly serve government hospitals went on strike demanding proper safety gear and health insurance.

Doctors and nurses, among others, are being overtly forced by the circumstances to use raincoats and motorbike helmets while fighting the disease, exposing the weak state of the public health system ahead of an anticipated surge in Covid-19 cases.

There is a palpable sense of alarm among the healthcare professionals across the country as it lays in wait for the incubation period to end, only to be met with a tsunami of the diseased. Without proper gear and adequate protective personal equipment, there is a great risk of the doctors becoming carriers themselves, and continuing the domino effect. Furthermore, the medical officials, unsurprisingly, are not willing to provide their services at the cost of their own lives. What the major problem with this entire charade is that these employees are unable to make their demands heard in wake of the invocation of the Essential Services Maintenance Act. Without their demands being met not only is the infrastructure continuing to exist in a helpless manner, but the risk of contagion is going off the charts, essentially making all efforts to contain it, futile. Personnel cannot refuse to show up for work as there persists government pressure along with the moral obligation they took upon themselves on being sworn in to help the people.

India faces another structural issue with a serious lack of medical personnel to begin with. The World Health Organisation recommends a ratio of one doctor for every thousand people. However, India has a ratio of 1:1,445 or roughly a total of 11,59,000 doctors. If the health and well being of these precious few is compromised during trying times like these, then there is nowhere to go but downhill.

Conclusion

It is extremely clear that the current situation is in dire need of some structural changes. The Essential Services Maintenance Act is undoubtedly important to ensure the attendance of the indispensable healthcare professionals in the given circumstances. However, an equal amount of importance should be placed on actively paying attention to their essential needs while simultaneously attempting to find and apply a solution. Only then will India become well-equipped to effectively combat unforeseen complications.


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