Rapport définitif - Rapport No. 12, 1954

A. Analysis of the Complaint

1. 233. The complainant alleges that Mr. Om Prakash Gupta, Secretary of the Indian Union of Post and Telegraph Workers, was arrested with many of his colleagues in 1949 and held in prison for many months without trial, because, in the course of his union duties and with the agreement of his union executive, he organised a referendum for or against a strike after the Government had refused to grant a cost-of-living bonus of an amount less than that already approved by a wages committee set up with the co-operation of the State.

B. Analysis of the Reply

1. 234. The Government states that Mr. Gupta was arrested, with some of his colleagues, and was detained from 30 March to 30 September 1949. He was rearrested on 8 December 1949 and detained until 8 April 1950. The arrests were made under the Delhi State Public Safety Act, which provided that a person could be detained if the state government was satisfied that he was acting or likely to act in a manner prejudicial to the public safety, the maintenance of public order or the tranquillity of the state. His activities were of a political and subversive nature and not in furtherance of a bona fide trade dispute. The arrests were not in violation of the right of association guaranteed by article 19 of the Constitution of India.
2. 235. Finally, the Government declares that, while the Freedom of Association and Protection of the Right to Organise Convention, 1948, specifically provides that workers and employers and their respective organisations should respect the law of the land, nothing in the Convention prevents a state from taking necessary steps to protect the public against action prejudicial to public safety, the maintenance of public order or the tranquillity of the state.

C. C. The Committee's conclusions

1. 236. The Committee recalls that it has already, in two cases, had to consider complaints containing allegations of the infringement of trade union rights by the application of security legislation in India.
2. 237. In the earlier of these two cases (Case No. 5) it was alleged that thousands of trade unionists had been arrested under state public security laws, prior to 1950. The Government declared, in connection with that case, that the public security laws of the states were temporary measures and that, with the enactment of the (Central) Preventive Detention Act in 1950, this Act became thenceforth the only measure under which detentions could be made and embodied provisions preventing its abusive application, in particular, the provision that detentions on certain grounds must be reviewed within six weeks by an Advisory Board, although the Committee noted that in cases of detention for the purpose of preventing a person from acting in a manner prejudicial to the security of a state or the maintenance of public order a period of 12 months might elapse before the case came before an Advisory Board. In these circumstances the Committee placed on record its view that measures of preventive detention may involve a serious interference with trade union activities, which it would seem necessary to justify by the existence of a serious emergency and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period. Noting, however, the improvement in the situation subsequently and, in particular, that the Act of 1950 was itself due to expire on 30 September 1952, the Committee, being confident that the above considerations would be taken fully into account by the Government of India if any further legislation on the subject should be contemplated, recommended that it was unnecessary to pursue the matter further at that time.
3. 238. In the later case (Case No. 47) it was alleged that hundreds of trade union workers were detained under the (Central) Preventive Detention Act (referred to above) without trial. The Government declared, in connection with this case, that amendments to the Act of 1950 made in 1951 provided that thenceforth all categories of detention must be reviewed within six weeks by an Advisory Board, while a further amendment in 1952 contained further safeguards against abuse by obliging the authorities, within 30 days of a detention being effected under an Order made pursuant to the Act, to place before an Advisory Board the grounds for the Order being made and any representations made by the person detained, the Board being required to report within ten weeks from the date of the detention. The Act, as amended, was to remain in force until the end of 1954. In these circumstances, the Committee, having regard to the progressive easing of the position, recommended the Governing Body to note with satisfaction the progress made towards providing greater safeguards for persons detained under the Act, to suggest to the Government that it might re-examine the whole question of preventive detention in the light of the Committee's observations made in connection with the previous case relating to India (see paragraph 237 above) and, subject to the foregoing, to decide that the case did not call for further examination.
4. 239. In the present case the complainant alleges that Mr. Gupta and others were arrested under the Delhi State Public Safety Act and claims specifically that the cause of Mr. Gupta's arrest was his organisation of a referendum for or against a strike following the refusal of the Government to grant a cost-of-living bonus of an amount actually less than that already recommended by a competent wages committee. The Government declares that Mr. Gupta's activities were not in furtherance of a bona fide trade dispute but were political and subversive in character. If the questions raised by this complaint had not been previously considered, the Committee, in accordance with its usual practice, would have thought it necessary to secure further information from the Government in order to enable it to formulate its recommendations to the Governing Body. It is, however, clear from the allegation and the reply that this is an individual case, occurring more than three years before the present complaint was made and arising out of facts which have already been fully considered by the Committee in Cases Nos. 5 and 47 and are dealt with in its Fourth and Sixth Reports. Mr. Gupta's detention for six months in 1949 and for four months in 1949 to 1950 took place before the state security legislation had given way to the (Central) Preventive Detention Act and since that time, as the Committee has pointed out in its Fourth and Sixth Reports, legislative amendments in the direction indicated in those reports have so eased the situation that detention for such periods would no longer be possible unless the detention order was confirmed by an Advisory Board.