[Strikes in defence services] Delhi High Court notice to Centre in challenge to Essential Defence Services Act, 2021

The Delhi High Court on Thursday issued notice to the Central government on a plea by 'All India Defence Employees Federation (AIDEF)' challenging the Constitutional validity of Essential Defence Services Act, 2021 which empowers the government to declare an establishment as 'essential defence service' and prohibit strikes in such establishments (All India Defence Employees Federation Vs. Union of India).A Division Bench of Chief Justice DN Patel and Justice Amit Bansal while issuing notice, however, made some stern observations stating that the law under challenge is the "will of the people" and questioned whether the petitioners can go against the same."Law is nothing but the desire of the people. The parliament represents the will of the people. If the people and the parliament want your services, then who are you to say that you will go on strike in an essential service? You are changing the entire concept of labour law," Justice Patel remarked..The petition specifically challenged the vires of Sections 1, 2 (1) (a) and 2 (1) (b), 3, 4, 5, 6, 7, 8, 11, 12, 13, 15, 16 and 17 of the Act contending that they are in violation of Articles 14,19,21 and 311 of the Constitution and in contravention with the various international covenants ratified by India."What the Act has now done is to amend the definition of 'public utility services' in the Industrial Disputes Act (ID Act) to include "essential defence services" within that definition, even though Defence Establishments are already included in the definition of 'public utility services' and the ID Act already provides for prohibitions and safeguards against strikes in the public utility services," the petition said.The Act gives unbridled power to declare any establishment as "essential defence services", prohibiting any kind of participation or support of strikes in such establishments with stringent criminal consequences and jail terms without the generally available constitutional safeguards."If a strike is a form of demonstration and the strike is peaceful, even though it is a part of a legal right, it forms an inalienable Fundamental Right of Freedom of Speech and Expression under Article 19(1) (a) of the Constitution. Only those forms of strikes which have a clear and proximate nexus with the prohibition contained in Article 19 (2) of the Constitution can be prohibited. Complete prohibition on strikes is violative of the Constitution," the petition stated."The term 'strike' is broad in nature and includes all kinds of peaceful strikes like 'sit-ins', 'token strikes' and 'mass casual leaves'," the petition further said.Senior Advocate Sanjay Parikh, who appeared on behalf of AIDEF submitted that international covenants and treaties along with Articles 14, 19 (1) (a) and 19 (1) (c), 21 and 311 of the Indian Constitution had been violated by several provisions of the Act. "Strike is a weapon in the hands of workers. The federation (AIDEF) had called for strike across 41 Ordinance factories throughout the country with approximately 76,000 employees," Parikh argued.He relied upon the Supreme Court's decision in AK Roy's case and further explained the definition of the word 'strike' as per Section 2(1) (b) of the Industrial Disputes Act. To this the Court responded by saying,"You are in the essential defence services. As an ordinary petitioner, you may be right. However, in your case people will draw inferences." The Court eventually issued notice and posted the matter for hearing next on November 16."We are issuing notice upon the respondents. Counsel seeks time to take instructions and file the counter affidavit, if required. The same stands returnable on November 16," the order said.Advocate Ajay Digpaul and Additional Solicitor General Chetan Sharma appeared for the Central government.