ESMA AND THE RIGHT TO STRIKE: Conflict between public welfare and Workers’ rights
Abstract
The right to strike has long been a cornerstone of collective bargaining, allowing workers to negotiate for better conditions and fair treatment. However, in India, this right is not absolute and often finds itself in direct opposition to the state’s duty to maintain public order and essential services. The Essential Services Maintenance act (ESMA),1981, serves as primary legislative tool this tension. This article examines the legal framework of ESMA, the constitutional standing of the right to strike, and the judicial philosophy that prioritizes public welfare over individual industrial action in critical sectors.
Introduction
In any democratic society, the balance between individuals liberties and the collective good is a delicate one. For the labour force, the “strike” is the ultimate weapons of protest-a manifestation of the freedom of associations. Conversely, the state is mandated to ensure that the ‘normal life of the community’ is not paralyzed by such protests. ESMA was enacted by the parliament of India to prevent disruptions in services like healthcare, transport, and energy, which are vital to the nation’s survival. The core of the debate lies in whether the state’s power to prohibit strikes under ESMA constitutes a reasonable restriction or an infringement on democratic freedom.
The legal framework
The Essential Services Maintenance Act (ESMA), 1968, is a central legislation (Act No. 59 of 1968) that empowers the government to maintain national uniformity in the delivery of essential services.
Key provisions
• Definition of Strike: Under the Act, a strike is defined as the cessation of work by a body of persons employed in any essential service acting in combination, or a concerted refusal to work under a common understanding.
• Power to Prohibit: If the Central or State Government is satisfied that it is necessary for public interest, it may issue an Order prohibiting strikes in any specified essential service.
• Legal Consequences: Once an Order is issued, any person who commences or participates in a strike is committing an illegal act.
Penalties: Participation in an illegal strike can lead to imprisonment for up to six months, a fine, or both. Those who instigate or fund such strikes face harsher penalties, including up to one year of imprisonment.
• Power of Arrest: One of the most stringent features of ESMA is that it allows the police to arrest violators without a warrant.
The Right to strike: constitutional and legal standing
While workers often view the right to strike as a fundamental necessity, the Indian judiciary and Constitution offer a more nuanced interpretation
Is it a fundamental right?
The Supreme Court of India has consistently held that there is no fundamental right to strike. While Article 19(1)(c) guarantees the right to “form associations or unions,” the courts have clarified that this does not automatically extend to a fundamental right to strike. In the landmark case of T.K. Rangarajan v. Government of Tamil Nadu, the Court reiterated that:
1. There is no fundamental right to go on strike.
2. There is no legal or statutory right to go on strike for government employees.
3. There is no moral or equitable justification for a strike that disrupts public life.
The Industrial Disputes. Act,1947
Outside of ESMA, the Industrial Disputes Act recognizes the right to strike as a “legal right” rather than a “fundamental” one. It provides a regulated framework where strikes are permitted only if specific conditions and notice periods are met, ensuring they remain a last resort.
Conflict: Public welfare and worker’s rights
The friction between ESMA and workers’ rights usually ignites during strikes in the healthcare and transport sectors.
Public Welfare Argument
The state argues that certain services are so critical that their interruption threatens the Right to Life (Article 21) of the general public. For instance, a doctors’ strike in a public hospital directly impacts the survival of patients. In such cases, the “public interest” outweighs the collective bargaining rights of the employees.
Worker’s rights Argument
Labor unions argue that ESMA is often used as a “draconian” tool to suppress legitimate grievances. By banning strikes, the government removes the only leverage workers have to demand safety, fair wages, or better working conditions. Critics point out that ESMA addresses the symptom (the strike) rather than the cause (the grievance).
Judicial Perspectives and Case Studies
The judiciary often acts as the arbiter in these conflicts.
• Bank Employees’ Case (1962): The Supreme Court ruled that even if a strike is a result of a union’s activities, it is not protected as a fundamental right under Article 19.
• Odisha Healthcare Strike (2024): More recently, the invocation of ESMA against nursing officers and paramedics sparked debate about whether the act was being used to stifle dissent rather than just maintain services.
• Delhi Doctors’ Strike: In several instances, the Delhi government has used ESMA to end strikes by resident doctors, with the courts often supporting the government to ensure that medical services are not paralyzed.
Conclusions
The conflict between ESMA and the right to strike is a clash of two essential values: the welfare of the community and the dignity of the laborer. While ESMA is a necessary tool to prevent anarchy and ensure the continuity of life-saving services, its application must be judicious. A balance can only be achieved when the government uses its power under ESMA not just to prohibit strikes, but also to proactively address the underlying labor disputes through effective conciliation and grievance redressal mechanisms.
References
1. The Essential Services Maintenance Act, 1968 (India Code).
2. T.K. Rangarajan v. Government of Tamil Nadu, (2003) 6 SCC 581.
3. The Constitution of India, Articles 19 and 21.
4. Industrial Disputes Act, 1947.
5. Vajirao & Reddy Institute, “What is ESMA (Essential Services Maintenance Act) 1968?” (2026).
6. Quest Journals, “Whether workers Right to Strike in India is Fundamental” (2025).
