Demande directe (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the following matters raised in its previous direct request.

The Committee would be grateful if the Government would supply, with its next report, copies of the legislation in force governing the press and assemblies, meetings and demonstrations, political parties and associations; a copy of the Public Servants Act, as well as a copy of an updated text of the Merchant Shipping Act and any other provisions governing labour discipline in merchant shipping. The Committee also requests the Government to provide, in its next report, additional information on the following points.

Article 1(a) of the Convention. The Committee has noted the following Penal Code provisions, under which penalties of imprisonment (which involves compulsory prison labour, if an offender is sentenced to rigorous imprisonment at the discretion of the court exercised under section 60 of the Penal Code) may be imposed in circumstances falling within the scope of the Convention:

(i)  section 124-A (sedition, i.e. bringing or attempting to bring into hatred or contempt or exciting disaffection towards the Government by words, either spoken or written, or by signs, or by visible representation, or otherwise);

(ii)  section 153-A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony by words, either spoken or written, or by signs, or by visible representation, or otherwise);

(iii)  section 153-B (imputations, assertions prejudicial to national integration, made by words, either spoken or written, or by signs, or by visible representation, or otherwise);

(iv)  sections 295-A and 298 (deliberate and malicious acts intended to outrage religious feelings by words, either spoken or written, or by signs, or by visible representation, or otherwise; or uttering words, etc., with deliberate intent to wound religious feelings).

The Convention prohibits the use of sanctions involving an obligation to work as a means of political coercion or education or as a punishment for the peaceful expression of non-violent political views or views ideologically opposed to the established political system. In order to enable the Committee to ascertain that the above provisions are applied in a manner compatible with the Convention, the Committee would appreciate it if the Government would supply information on their application in practice, including any court decisions defining or illustrating their scope.

Please also communicate copies of the Official Secrets Act and the Newspapers Incitements to Offences Act (which, according to the Committee’s knowledge, remains in effect in Jammu and Kashmir), so as the Committee could examine their conformity with the Convention.

Article 1(d). The Committee has noted the provisions prohibiting strikes in essential services enforceable with sanctions of imprisonment (which may involve compulsory prison labour) (sections 3 and 5 of the Essential Services Maintenance Act, 1981; sections 3 and 4 of the Kerala Essential Services Maintenance Act, 1994). The Committee refers in this connection to paragraph 123 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that the imposition of penalties (even involving compulsory labour) for participation in strikes in essential services is not incompatible with the Convention, provided it is confined to essential services in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population), and provided that appropriate alternative dispute settlement procedures are available. However, the prohibition laid down in the above legislative provisions goes well beyond the concept of essential services in the strict sense of the term. The definition of essential services contained in section 2 of the 1981 Act covers a much wider range of services, including some whose interruption would not necessarily endanger the life, personal safety or health of the population (such as postal services, railway or transport service generally, aircraft repairs, petroleum sector and ports (loading and unloading), banking and the Mint, etc.). Further, the Kerala Act of 1994, though it does not contain a list of essential services, gives the Government wide discretionary powers to declare any service under the Government to be essential for the purposes of the Act, or if 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 on the community (section 2(a)).

The Committee hopes that, in the light of the above considerations, the Government will re-examine the above provisions with a view to the adoption of appropriate measures to ensure the observance of the Convention on this point. Pending the adoption of such measures, the Government is requested to provide information on the application of the above provisions in practice, including copies of any relevant court decisions and indicating the penalties imposed. Please also supply copies of any other texts concerning maintenance of essential services adopted at the state level.