The legal side of Bengal doctors’ strike

Reading time: 4-5 minutes.

A Pandora’s box was struck open when a junior doctor was beaten up by the family members
of a patient at NRS Hospital, Kolkata. This incident highlighted the issue of doctors’ safety
which has been a cause of constant worry for the whole medical fraternity.

Therefore, it led to a great hue and cry which resulted in strikes by junior doctors across state
boundaries. Finally, the strikes were called off after a meeting with the Chief Minister of
West Bengal.

The settlement was no compromise: The doctors remained adamant on their demands,
compelling the West Bengal government to concede to their quest. Union Health Minister Dr.
Harshvardhan also stated that centre is looking forward to formulate new law regarding
doctors’ security.

However, these events left a few doubts unaddressed. Firstly, the legal status of strikes in
India needs to be discussed. And secondly, the right to strike in occupations like medicine
and police needs to be quantified. These functions are necessary for smooth functioning of
society. We shall now attempt to clarify these issues.

Right to strike is merely a legal right.

Hon’ble Supreme Court has clarified that right to strike is not a fundamental right and
government employees have no legal right to go on strikes. However, right to strike has been
recognised as a mere legal or statutory right under Industrial Disputes Act, 1947.

Fundamental rights are those which are guaranteed by the Constitution. These cannot be
taken away by legislatures by changing the law. On the other hand, statutory or legal rights
are established by ordinary laws and can be changed by changing the law. If legal rights are
violated, a person cannot directly move to the High Courts or Supreme Court. These
violations are addressed by lower courts.

Limitations on right to strike.

The Industrial Disputes Act enunciates some limitations on right to strike. It provides that no
person employed in a public utility service shall go on strike-
  without giving to the employer notice of strike, as hereinafter provided, within six
weeks before striking; or
 within fourteen days of giving such notice; or
 before the expiry of the date of strike specified in any such notice as aforesaid; or
 during the pendency of any conciliation proceedings before a conciliation officer and
seven days after the conclusion of such proceedings.

Right to strike in essential services.

Some services like healthcare, police, army and transportation are essential for smooth
functioning of society. Strikes by people in these services create great imbalance in daily life.
Therefore, the Essential Services Maintenance Act (ESMA) was passed in 1968 to regularize
these services.

Among other things, the ESMA describes the following as essential services:

 any postal, telegraph or telephone service;

 any transport service including railways;
 repair or maintenance work of aircraft;
 customs and anti-smuggling services;
 any service in any mint or security press;
 any service in any defence establishment of the Government of India;
 any other service connected with public utility, safety, maintenance of supplies and
those necessary for life of community.

Any person who takes part a strike which is illegal under this act shall be punishable with
imprisonment for a term which may extend to six months, or with fine which may extend to
two hundred rupees, or with both. Such a person can be arrested by the police without any
warrant.

Is enforcement of ESMA a viable option?

Implementation of ESMA has been a cause of concern for the liberalists as it gives the state
government arbitrary power to make arrest without warrant. Invoking ESMA means taking a
drastic step to curb the strikes using force. It has become an unpopular measure.

Therefore, History is full of instances where state administrations were unwilling to enforce
ESMA. In the recent doctors’ strike also, the West Bengal administration did not invoke
ESMA. They gave preference to diplomacy over hegemony, which is a healthy sign for
democracy.

Conclusion

This incident highlights the growing need for reformation and formulation of some laws. The
objective behind ESMA was to ensure smooth functioning of societal system. However, the
act was made so stringent that enforcing it might create an emergency-like situation.

It has resulted in state governments avoiding to enforce it in order to remain popular.

Therefore, there is a great need of reformation of this law to make it more democracy-
friendly. It is only then that its implementation will become a viable option.

Another aspect of recent events is the issue of doctors’ security which cannot be ignored.
This issue is not limited to any particular State, but is a pan-India predicament. The doctors
are right in demanding more stringent laws for their protection. Currently there are laws like
Medical Protection Act in place but they are not implemented due to mass unawareness.

Doctors are the backbone of India’s healthcare system. Laws for their protection must be
strong and should be linked with Indian Penal Code and Code of Criminal Procedure. Union
government has taken some positive steps as far as revisiting the draft of new Medical
Protection Act is concerned. We hope to see the finalisation of this law soon.