Informe definitivo - Informe núm. 6, 1953

A. Analysis of the Complaint

1. 704. The complainants make the following allegations:
   • (a) An Ordinance promulgated by the President of the Indian Union banning strikes in certain essential services is an arbitrary and unwarranted measure meant to crush by force the struggle of the railwaymen and other workers for adequate food, wages, dearness allowance, etc., and is therefore an attack on the elementary democratic rights of workers and employees.
   • (b) Under the Railway Services (Safeguarding of National Security) Rules, 1949, hundreds of employees on the Indian Railways have been either dismissed or suspended for an indefinite period.
   • (c) Under the Preventive Detention Act hundreds of trade union workers are detained without trial.
2. 705. The complainants claim that in these ways the Indian Government flagrantly and consistently violates human rights, and demands that effective application be given to the principles set forth by United Nations bodies in connection with trade union rights.

B. Analysis of the Government's Reply

1. 706. The Government, in its reply dated 4 October 1952, advances the following arguments.
   • The Essential Services (Prevention of Strikes) Ordinance, 1951
2. 707. On 6 July 1951 the All-India Railwaymen's Federation decided to start a general strike on 27 August 1951, giving as the reason that the Government had not been responsive to the representations of railway workers and had not consulted their leaders on matters affecting the workers. This reason had no foundation. The Government had corresponded with the Federation with regard to the recommendations of the Central Pay Commission, the Federation having complained, especially, of certain anomalies and difficulties arising from the introduction of uniform scales of pay. To solve these difficulties, the Government, with the agreement of the Federation, appointed a Joint Advisory Committee which sat for nearly 18 months investigating over 1,000 items of complaint and made 591 recommendations of which 557 were accepted and mostly implemented by the Government. Other items were still under consideration in July 1951, and only on 20 minor points had the Government found it difficult to accept the recommendations. The Government had also implemented an Industrial Tribunal's award dealing with hours, leave, etc. The Government was still negotiating with the Federation on outstanding issues but the latter insisted that these should again be referred to adjudication. As the Advisory Committee had already covered the field, the Government would not agree to adjudication unless conditions radically altered and decisions taken in the light of recommendations became untenable. The Federation appeared to be in no mood to negotiate further. The Federation especially wanted the cost-of-living allowance to be raised according to the price index. The Government had already sanctioned two increases, in 1949 and 1951, and could ill afford more. The position of the railway workers did not compare badly with that of other Government servants having regard to the various benefits granted to the former by the implementation of recommendations of the Joint Advisory Committee.
3. 708. The Federation refused to negotiate further. The strike would have seriously affected the life and security of the country, particularly as there was an acute food shortage and distribution of stocks was vital.
4. 709. An Ordinance was issued on 11 July 1951 empowering the Government to declare strikes on railways and in certain other essential services to be illegal. A Bill was introduced in Parliament on 7 August 1951. The Federation postponed the enforcement of its strike decision and resumed negotiations with the Government.
5. 710. The Ordinance and replacing legislation were intended to be temporary and the Government had acted because it was not prepared to be faced by a railway strike when the general position was so serious. When negotiations were resumed the Government left the Bill in abeyance and the Ordinance expired on 17 September 1951. Consequently, the allegation is no more current. The Ordinance was never intended to curtail freedom of association and the Government was not against bargaining for adequate pay and allowances or trying to curb rights guaranteed to the workers. Its action was forced by the temporary unwillingness of the Federation to negotiate. This is proved by the fact that the Government proceeded no further once negotiations were resumed.
6. 711. The Government adds to its reply, with particular reference to this allegation, the text of a talk by the Indian Minister of Transport and Railways, broadcast on 11 July 1951, which explains at greater length the arguments set forth in the foregoing paragraphs.
   • The Railway Services (Safeguarding of National Security) Rules, 1949
7. 712. With regard to the allegation concerning the Railway Services (Safeguarding of National Security) Rules, 1949, based on the Civil Services (Safeguarding of National Security) Rules, 1949, the Government denies that they violate human rights. The object of the Rules was to compulsorily retire or terminate the services of railway employees who, in the opinion of the competent authorities, were or were reasonably suspected of being engaged in subversive activities so as to raise doubts as to their reliability, or where those authorities were satisfied that their retention in public service was prejudicial to national security. The Rules do not permit a worker's service to be terminated without his having reasonable opportunity to disprove the complaint against him ; the worker can insist on a personal hearing. In accordance with the service agreements between railway employees and railway administrations, services may be terminated by due notice or pay in lieu thereof. Similar rules exist in the United Kingdom.
8. 713. A worker cannot be dismissed under the Rules ; his services can " only be dispensed with ". Hence, he is entitled to the same compensation, pension, gratuity or provident fund benefits as he would be if discharged on the date in question through his post being abolished. Dismissal for misconduct, for instance, would involve loss of these rights.
9. 714. The Rules do not allow indefinite suspension. The competent authority may require the employee to proceed on the leave due to him and must take further action during such leave.
10. 715. The reference to action against hundreds of employees is exaggerated. During 1949, 1950 and 1951 the services of only 172 persons were dispensed with under the Rules. Each of these was given details of the allegations against him and asked to reply, and a personal hearing was given where it was demanded. The case was later considered by a Committee of Advisers consisting of senior officers.
11. 716. The allegations are unfounded or exaggerated. The Rules were issued in the interest of national security to check the spread of subversive influences.
    • The Preventive Detention Act
12. 717. With regard to the allegation concerning the Preventive Detention Act, the Government refers to the Committee's recommendations to the Governing Body contained in paragraphs 40-51 of its Fourth Report, when, subject to the observations made in paragraphs 45 and 51 of that report, the Committee recommended and the Governing Body decided that certain allegations by the World Federation of Trade Unions with regard to the application, among other measures, of the Preventive Detention Act did not call for further examination by the Governing Body.
13. 718. The Government notes, first, that the Committee, in paragraph 45 of the aforesaid report, placed on record its view that " measures of preventive detention may involve a serious interferences 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 ".
14. 719. The Government states that the Preventive Detention Act, 1950, which was the Act taken into account by the Committee in its deliberations, was amended by the Preventive Detention (Amendment) Act, 1951, which provided that as from 22 February 1951 all categories of cases of detention under the Act shall be reviewed within six weeks by an Advisory Board, its advice in respect to release of a detenu being binding on the Government. By a further amendment, the chairman of the Board must be a sitting or retired High Court judge. The Government states that the Act, as recently amended, contains in addition to these safeguards against possible abuse of powers of detention further safeguards in the shape of provisions that the appropriate Government must, within 30 days of a person's being detained under an Order made pursuant to the Act, place before the Advisory Board the grounds on which the Order was made and any representations made by the person concerned. The Board must submit its report to the appropriate Government within ten weeks from the date of the detention. Where an Order is confirmed, the maximum period of detention is 12 months.
15. 720. The Government also recalls that, in paragraph 51 of its Fourth Report, the Committee stated that " it should be the policy of every Government to take care to ensure observance of the rights of man and, especially, of the right of all detained persons to receive a fair trial at the earliest possible moment ".
16. 721. In this connection, the Government states that the review procedure by Advisory Boards ensures that no person is detained without fullest justification, but adds that, if " fair trial " means trial in a court of law, " preventive detention precludes trial in a court of law and there can be no question of provision for such trial being made in any legislation providing for preventive detention ".
17. 722. With regard to the demand made by the complainants that the Government should be directed to give effective application to the principles set forth by United Nations bodies in connection with trade unions rights, the Government states that it is fully aware of the need to ensure trade union rights and that freedom of association is guaranteed and enjoyed by all as a fundamental right under the Indian Constitution, subject only to reasonable restrictions imposed in the interest of public order and morality.

C. C. The Committee's conclusions

• Allegation concerning the Essential Services (Prevention of Strikes) Ordinance, 1951
  723. 723 The complainants state that this enactment was an arbitrary measure intended to crush by force the workers' struggle for adequate wages and allowances, while the Government contends that it was a necessary measure dictated by the fact that the railwaymen refused to continue negotiations and threatened a general strike at a time of acute food shortage, and points out that when negotiations were resumed the measure was allowed to lapse.
  724. 724 The right to strike is generally admitted as an integral part of the general right of workers and their organisations to defend their economic interests. However, in the case of essential services such as the railways, due notice of the intention to strike is normally required and strikes may be temporarily restricted until existing means of negotiation, conciliation or arbitration have been exhausted. The Government contends, in effect, not that due notice was not given but that, negotiations on a large number of issues having produced agreement, the workers broke off negotiations on certain outstanding issues although the Government was still willing to negotiate. The Government, alarmed by the food distribution situation, enacted the temporary measure complained against.
  725. 725 The Committee considers, in view of the history of the negotiations given by the Government and the considerable area of agreement reached before the date of the crisis in the negotiations, that there is no evidence that the Government had unduly protracted the negotiations having regard to the economic gravity of the main issues involved and that the issue of the Ordinance in a time of acute difficulty so as to ensure the distribution of food was a measure taken to ensure the maintenance of a service whose breakdown would have brought dangerous hardship to the community and was not intended to infringe trade unions rights. Moreover, the Ordinance was allowed to expire on 17 September 1951 after having been in force for only a few weeks.
  726. 726 The Committee therefore is of opinion, having regard to the fact that the normal position was restored with the expiry of the enactment in question, that it would be purposeless to pursue the matter further, and recommends the Governing Body to decide that this part of the case does not call for further examination.
• Allegation concerning the Railway Services (Safeguarding National Security) Rules.
  727. 727 The complainants allege that hundreds of employees have been either dismissed or suspended for an indefinite period under these Rules. The Government contends that these rules are analogous to the Civil Services Rules and likewise provide for compulsory retirement or termination of services of employees who are engaged or reasonably suspected of being engaged in subversive activities so as to raise doubts as to their reliability, or where the authorities are satisfied that their retention in public service is prejudicial to national security. Such retirement or termination, unlike dismissal for misconduct, etc., does not involve loss of compensation, pension, gratuity or provident fund benefits. The Government further states that indefinite suspension is not possible ; the employee may be required to take the leave due to him and during that time the action to retire him or terminate his service must be taken. In all cases the employee can demand a personal hearing. Finally, the Government states that 172 persons were dispensed with under the Rules in 1949, 1950 and 1951, and not " hundreds " as alleged.
  728. 728 In would appear to be a generally accepted principle that no person should be prejudiced in his employment by reason of his trade union activities. The Committee considers, therefore, that not merely dismissal but also compulsory retirement or termination of services under these Rules would be contrary to this principle if the activities in respect of which action was taken against an employee under the Rules were in fact lawful trade union activities. But, while the Government states that the Rules are intended only to check the spread of subversive influence in the interest of national security, the complainants themselves do not either generally or by citing any specific case allege that any person or persons have been proceeded against on the ground of trade union activities.
  729. 729 Under these circumstances, the Committee is of opinion that the complainants have not produced evidence to show that the alleged facts, so far as this aspect of the case is concerned, would, even if proved, constitute an infringement of trade union rights, and therefore recommends the Governing Body to decide that this part of the case does not call for further examination.
• Allegation concerning the Preventive Detention Act
  730. 730 The complainants allege that under the Preventive Detention Act hundreds of trade union workers are detained without trial. The essence of the Government's reply on this question is that freedom of association in India is a fundamental right under the Constitution subjected only to reasonable restrictions imposed in the interest of public order or morality and that a similar allegation was dealt with by the Committee in its Fourth Report (Case No. 5, paragraphs 18-51), after which the Governing Body accepted the recommendation of the Committee, subject to certain observations, that no further action should be taken.
  731. 731 When the Committee met in May 1952, the Act against the background of which it had to examine the allegations there under review was the Preventive Detention Act, 1950 in its original unamended form. The position then appeared to be that a detention must be reviewed within six weeks by an Advisory Board consisting of persons qualified or who had been qualified to act as High Court judges, in the case of detention ordered to prevent a person from acting in a manner prejudicial to the " maintenance of supplies and services essential to the community " ; if the reason for detention was to prevent a person from acting in a manner prejudicial to " the security of the State or the maintenance of public order ", a period of up to 12 months after his detention could elapse before his case came before an Advisory Board. The Committee noted that the Government had stated that " in deciding on preventive detention " Governments in the country were " moved solely by considerations of public security ". The Committee consequently 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 " ; the Committee also observed that " it should be the policy of every Government to take care to ensure observance of the rights of man and, especially, of the right of all detained persons to receive a fair trial at the earliest possible moment ". As the Act was then due to end on 30 September 1952, the Committee, " being confident that these considerations would be taken fully into account by the Government of India if any further legislation on the subject should be contemplated ", recommended the Governing Body to decide that it was " unnecessary to pursue the matter further at the moment ".
  732. 732 The Government having now forwarded the text of the Preventive Detention Act as amended in 1951 and 1952, it is necessary to consider the changes which have been made in the law affecting preventive detention.
  733. 733 The Act in its present form is in force until 31 December 1954. The main change is made with regard to the time limits within which cases of detention must come before an Advisory Board. In every case of detention, whether ordered to prevent a person from acting in any manner prejudicial to " the maintenance of supplies and services essential to the community " or to " the security of the State or the maintenance of public order ", the appropriate Government shall now, within 30 days from the date of detention, place before an Advisory Board the grounds on which the detention order was made, the representation (if any) made by the person concerned and the report of the officer concerned where the order was made by one of the " officers " scheduled in the Act. The Board must submit its report to the appropriate Government within ten weeks from the date of detention. The chairman of the Board must now be a sitting or retired High Court judge. Where the detention order is confirmed by the Board, a person may be detained for a maximum period of 12 months from the original date of detention, but where fresh facts have arisen a fresh detention order can be made.
  734. 734 The Committee has already stated the need for the procedure of detention to be accompanied by " judicial safeguards to be applied within a reasonable period " and that " it should be the policy " to ensure the right of a detained person " to receive a fair trial at the earliest possible moment ". While a safeguard is provided by the provision for reviews by an Advisory Board, whose members have legal qualifications as judges, the Government points out specifically that if the Committee means by " fair trial " trial in a court of law " preventive detention precludes trial in a court of law and there can be no question of provision for such trial being made in any legislation providing for preventive detention ". The Committee notes, however, that with the new provision that the chairman of the Advisory Board must be a sitting or retired High Court judge a definite move has been made towards making the review procedure more of a quasi-judicial procedure than was previously the case.
  735. 735 Having regard to the progressive easing of the position concerning preventive detention by the amendments which have been made to the original Preventive Detention Act, the Committee recommends the Governing Body:
       • (i) to note with satisfaction the progress made towards providing greater safeguards for persons detained under the Preventive Detention Act ;
       • (ii) to suggest to the Indian Government, having regard to the reservation made by the Committee in its Fourth Report that it would seem necessary to justify measures of preventive detention " by the existence of a serious emergency ", that it may re-examine the whole question of preventive detention in the light of the observations contained in paragraphs 45 and 51 of the Committee's Fourth Report ;
       • (iii) to decide that this part of the case does not call for further examination.