CHAPTERV

EMERGENCIES

The normal application of international labour Conventions may be affected either

in a greater or in a lesser extent by external circumstances. Member States may not be
able to comply with the obligations contained in the Conventions due to changed
circumstances. So, as exceptional measures certain Conventions allow for the suspension
of all or some of the provisions in the case of emergency. This may include national
1
emergency in the event of war or other events endangering national safety. The
provisions dealing with such cases can sometimes be regarded as national security
exceptions also. Besides, some Conventions authorise certain derogations by Member
2
States from their provisions in the cases offorce majeure. It is hence important to see
how far these flexible emergency measures will help Member States, particularly India,
in ratifying and implementing relevant Conventions within the domestic sphere.

V.l. Suspension under Force Majeure Clauses

In order to understand the flexibility in terms of force majeure clauses, it is

essential to explore the relevant provisions of concerned Conventions. Such clauses may
lead to a situation of non-application of Conventions by Member States but without its
violation in terms of international treaty norms. That is, the legality of the non-
application of concerned Convention in force majeure situations is within the permissible
(in-built flexible) limits of such Convention itself.

V.l.l. Hours of Work (Industry) Convention, 1919 (No.1) 3

An example containing force majeure clause along with other exceptional

instances can be seen in Article 3 of the Convention No.1. Article 3 provides that, "The

1
J.f. McMahon, "The Legislative Techniques of the International Labour Organization", British Year Book
ofInternational Law, vol.41, 1965-66, p.59.
2
C. Wilfred Jenks, Flexibility in International Labour Conventions (Geneva: International Labour Offic:e:
1960), p.ll4.
3
The Convention No.1 stipulates the working hours of persons at eight in the day and forty-eight in the
week in any public or private undertakings. It has been ratified by 47 Member States including India as on
01 March 2008.

182
 4
limit of hours of work prescribed in Article 2 may be exceeded in case of accident,
actual or threatened, or in case of urgent work to be done to machinery or plant, or in case
of "force majeure", but only so far as may be necessary to avoid serious interference with
the ordinary working of the undertaking". Similar clause can be found in Article 7(2Xa)
of the Hours of Work (Commerce and Offices) Convention, 1930 (No.30) 5 , according to
which regulations made by public authority shall determine the temporary exceptions
which may be granted in the case of accident, actual or threatened, force majeure, or
urgent work to machinery or plant, but only so far as may be necessary to avoid serious
interference with the ordinary working of the establishment.

It is essential to observe that both the Conventions do not define the term "force
majeure". 6 According to the Committee of Experts, during the preparatory work as
indicated in the Explanatory Report to the Convention No.1, the French term ''force
majeure" was used in the English version, untranslated, in order to retain its exact sense,
which was not accurately rendered by the much more general expression "emergency"
used in the English version of the draft submitted to the Conference by the Organising
Committee. Based on these considerations, it may be understood that any case of force

4
Article 2 of the Convention No.I states that, "The working hours of persons employed in any public or
private industrial undertaking or in any branch thereof, other than an undertaking in which only members of
the same family are employed, shall not exceed eight in the day and forty-eight in the week, with the
exceptions hereinafter provided for: (a) the provisions of this Convention shall not apply to persons holding
positions of supervision or management, nor to persons employed in a confidential capacity; (b) where by
law, custom, or agreement between employers' and workers' organisations, or, where no such organisations
exist, between employers' and workers' representatives, the hours of work on one or more days of the week
are less than eight, the limit of eight hours may be exceeded on the remaining days of the week by the
sanction of the competent public authority, or by agreement between such organisations or representatives;
provided, however, that in no case under the provisions of this paragraph shall the daily limit of eight hours
be exceeded by more than one hour; (c) where persons are employed in shifts it shall be permissible to
employ persons in excess of eight hours in any one day and forty-eight hours in any one week, if the
average number of hours over a period of three weeks or less does not exceed eight per day and forty-eight
per week".
5
The Convention No.30 mandates working hours of forty eight in a week and eight in a day like that of the
Convention No.1. Covering persons employed in commercial undertakings, it is applicable to both public
and private establishments.
6
According to draft Article 31 on "State Responsibility" of the International Law Commission, force
majeure is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State,
making it materially impossible in the circumstances to perform the obligation; see International La~
Commission Summary Records of the Fifty-First Session, 3 May to 23 July 1999, 2605th Meeting,
Yearbook of the International L(Ilv Commission, Vol.I, 1999, p.276; see also James Crawford, "Revising
the Draft Articles on State Responsibility", European Journal of International Law, vol.lO, no.2, 1999,
p.457.

183
majeure can be regarded as an "emergency", but not all cases of"emergency" amount to
the level ofjorce majeure. 1

Even though the exceptions allowed in the case of accident, force majeure and
urgent work are circumscribed in both the Conventions in very similar terms, there still
lies a significant difference bet\veen them. Since an exception for accident, force majeure
and urgent work under the Convention No.1 is not listed among temporary exceptions,
unlike under the Convention No.30, 8 there is no obligation under the Convention No.1 for
this exception to be determined in accordance with the regulations made by public
authority after consultations with the organisations of employers and workers concerned. 9

The reading of the text of Article 3 of the Convention No.1 leads to an inference
that exceeding the limits of hours of work contained in the provisions of Article 2, as an
exception, in the cases of accident, urgent work and force majeure indicates that Article 3
not only works as an exception to Article 2 but also overrides the exceptions to the limits
of hours of work contained in Article 2. This inference may be reinforced from the views
of the Committee of Experts that usually there is a single statutory limit applicable in the
cases of both permanent and temporary exceptions, although in many cases this excludes
cases of accident, urgent work and force majeure, which may be subject to special
arrangements outside the framework of the regulation of exceptions to normal working
hours. 10

India ratified the Convention No.1 on 14 July 1921. Its domestic legislations
relating to hours of work have incorporated force majeure clauses. Section 13(2) of the

7
General Survey on Hours of Work by the Committee of Experts on the Application of Conventions and
Recommendations, Report III, Part IB, International Labour Conference, 93'd Session, 2005, para.l38,
p.58.
8
It may be noted that force majeure clause along with other exceptional clauses can also be seen in Article
5(1) of the Hours of Work (Commerce and Offices) Convention, 1930 (No.30), which provides that, "In
case of a general interruption of work due to (a) local holidays, or (b) accidents or force majeure (accidents
to plant, interruption of power, light, heating or water, or occurrences causing serious material damage to
the establishments), hours of work in the day may be increased for the purpose of making up the hours of
work which have been lost, provided that the following conditions are complied with: (a) hours of work
which have been lost shall not be allowed to be made up on more than thirty days in the year and shall be
made up within a reasonable lapse of time; (b) the increase in hours of work in the day shall not exceed one
hour; (c) hours of work in the day shall not exceed ten". However, this exceptional clause does not fall
within the purview of the temporary exceptions.
9
General Survey on Hours of Work, n.7, para.l37, p.58.
10
Ibid., para.146, p.61.

184
 Minimum Wages Act, 1948 contains aforce majeure clause which runs as follows, "The
provisions of sub-section (1) 11 shaH in relation to the following classes of employees
apply only to such extent and subject to such conditions as may be prescribed:- (a)
employees engaged on urgent work, or in any emergency which could not have been
foreseen or prevented"Y Section 64(2) of the Factories Act, 1948, may be cited, which,
among other things, provides that, "The State Government may make rules in respect of
adult workers in factories providing for the exemption, to such extent and subject to such
conditions as may be prescribed: (g) of workers engaged in a manufacturing process
which cannot be carried on except at times dependent on the irregular action of natural
forces, from the provisions of sections 52 and 55". 13

A Force majeure clause can be found inserted in Article 132(4) of the Railways
Act, 1989 as an exemption from the stipulated normal working hours for railway workers
in India, which provides that, "Subject to such rules as may be prescribed temporary
exemptions of railway servants from the provisions of sub-sections (1) or sub-section
(2) or sub-section (3) may be made by the prescribed authority if it is of opinion that
such temporary exemptions are necessary to avoid serious interference with the ordinary
working ofthe railway or in cases of accident, actual or threatened, or when urgent work
is required to be done to the railway or to rolling stock or in any emergency which· could
not have been foreseen or prevented, or in other cases of exceptional pressure of work.
Provided that where such exception results in the increase of hours of employment of a

11
Section 13(1) of the Minimum Wages Act, I948 provides that, "In regard to any scheduled employment
minimum rates of wages in respect of which have been fixed under this Act the appropriate government
may- (a) fix the number of hours of work which shall constitute a normal working day inclusive of one or
more specified intervals; (b) provide for a day ofrest in every period of seven days which shall be allowed
to all employees or to any specified class of employees and for the payment of remuneration in respect of
such days ofrest; c) provide for payment for work on a day ofrest at a rate not less than the overtime rate";
see the Minimum Wages Act, I948 (Act No. II of I948), http://nrcw.nic.inlshared/sublinkimages/16.htm,
5 November 2006.
12
Ibid.
13
The Factories Act, I948 (Act No.63 of 1948), Directorate General, Factory Advice Service and Labour
Institutes, Ministry of Labour, Government of India, Mumbai, http://dgfasli.nic.inlstatutesl.htm, 21
October 2006.

185
railway servant referred to in any of the sub-sections, he shall be paid,over time at not
less than two times his ordinary rate of pay for the excess hours ofwork". 14

The above elucidation shows how the force majeure clause is embedded in the
Convention No.I, besides its being compared with the Convention No.30. It further
provides with corresponding provisions under relevant Indian legislations, which may
lead to an inference that India has very much incorporated in its concerned domestic
legislations the spirit of flexibility in terms of force majeure clause appeared in the
Convention No.1.

V.1.2. Forced Labour Convention, 1930 (No.29) 15

A clause containingforce majeure provision can be found in Article 2(2)(d) of the

Convention No.29, under which the term "forced or compulsory labour" shall not
include, "any work or service exacted in cases of emergency, that is to say, in the event of
war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake,
violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and

14
Section 132 of the Railways Act, 1989 provides that, "(1) A railway servant whose employment is
essentially intermittent shall not be employed for more than seventy-five hours in any week. (2) A railway
servant whose employment for more than-fifty hours a week on an average in a two-weekly period of
fourteen days. (3) A railway servant whose employment is intensive shall not be employed for more than
forty-five hours a week on an average in a two-weekly period of fourteen days"; see the Railways Act,
1989, http://www.icf.gov.inlrpf/railwaysact.htm, 5 November 2006. Similarly, another elaborate provision
containing force majeure exemption from working hours can also be seen in Section 38(1) of the Mines
Act, 1952, which states that, "In case of an emergency involving serious risk to the safety of the mine or of
persons employed therein or in case of an accident, where actual or apprehended, or in case of any act of
God or in case of any urgent work to be done to machinery, plant or equipment of the mine as the result of
break-down of such machinery, plant or equipment, the manager may, subject to the provisions of section
22 and section 22A and in accordance with the rules under section 39, permit persons to be employed in
contravention of section 28, section 30, section 31, section 34 or sub-section(5) of section 36, work as may
be necessary to protect the safety of the mine or of the persons employed therein: Provided that in case of
any urgent work to be done to machinery, plant or equipment under this section, the manager may take the
action permitted by this section, although the production of mineral would thereby be incidentally affected,
but any action so taken shall not exceed the limits necessary for the purpose of avoiding serious
interference with the ordinary working of the mine"; see the Mines Act, 1952 (Act No.35 of 1952),
http://www.dgms.in/ma_1952.pdf, 15 May 2007.
15
The Convention No.29 lays down the basic obligations under which a ratifying State is bound "to
suppress the use of forced or compulsory labour in all its forms within the shortest possible period". It has
been ratified by 172 Member States including India as on 01 March 2008.

186
in general any circumstance that would endanger the existence or the well-being of the
whole or part of the population". 16

The exception provided under Article 2(2)(d) containing the concept of

emergency applies in restricted circumstances where a calamity or threatened calamity
endangers the existence or well-being of the whole or part of the population. The
enumeration of examples in the Article 2(2)(d) is "an indication of a restrictive character
as to the nature of cases of emergency". The provision thereby helps to clarify the
concept of emergency for the purposes of the Convention, which includes cases of force
.majeure, that is, a sudden, unforeseen happening calling for instant countermeasures. 17 In
order to respect the limits of the exception provided for in the Convention, the power to
call up labour should be confined to genuine cases of emergency, or force majeure.
Moreover, the duration and extent of compulsory service, as well as the purpose for
which it is used, should be limited to what is strictly required by the exigencies of the
situation. 18 Article 2(2)(d) concerning emergencies is no blanket licence for imposing, on
the occasion of war, fire or earthquake, any kind of compulsory service, but can only be
invoked for service that is strictly required to counter an imminent danger to the
population. 19 In other words, the exception of force majeure (emergency) clause under
Article 2(2)(d) also conveys that the right of a government to exact forced labour in times
of emergency is recognised under the forced labour Conventions?0

16
It may be noticed that initially the text of present Article 2(2)( d) on emergencies was inserted in Article
4(a) of the Draft Convention No.29 separately in the following words, "an work or service exacted in cases
of emergency, that is to say, in the event of war or any occurrence or threatened occurrence which would
endanger the existence or the well-being of the whole or a part of the population, such as fire, flood,
famine, earthquake, internal disorder, violent epidemic or epizootic diseases, and invasion by animal, insect
or vegetable pests". It may further be noted that the changes in sub-paragraph (d) are mainly matters of
drafting, with the exception of addition, proposed by the Portuguese Government delegate, of the words
"and in general any circumstance", the effect of which was to cover unforeseen cases, and the deletion of
the words "internal disorder'' on the motion of the Indian Employers' delegate; see Final Record of the
International Labour Conference, Appendix V-Forced Labour, Voi.I, 14th Session, 1930, p.694.
17
General Survey on Eradication of Forced Labour by the Committee of Experts on the Application of
Conventions and Recommendations, Report III, Part IB, International Labour Conference, 96th Session,
2007, para.62, p.32.
18
Ibid.
19
M. Kern and C. Sottas, "Freedom of Workers: The Abolition of Forced or Compulsory Labour", ILO,
International Labour Standards: A Global Approach (Geneva: International Labour Office, 2001), pp.52-
53.
20
Anti-Slavery and ICFTU, Forced Labour in the 2ls1 Century, http://www.antislavery.org/homepage/
resources/forcedlabour.pdf, 18 May 2007.

187
 India has ratified the Convention No.29 and has been implementing it through the
Constitutional provision under Article 23(1), and the Bonded Labour System (Abolition)
Act, 1976. While the 1976 Act does not provide for any exception, Article 23(2) of the
Constitution of India makes an exception stating that, "nothing in this Article shall
prevent the State from imposing compulsory service for public purposes, and in imposing
such service the state shall not make any distinction on grounds only of religion, race,
caste or class or any of them". It leads to an inference that cases afforce majeure can be
dealt with under the exceptional provision of Article 23(2) of the Constitution of India, as
the use of "compulsory service for public purposes" by the State may not direct to
bonded or forced labour situations.

21
V.1.3. Night Work (Women) Convention (Revised), 1948 (No.89)

Slightly different from the above, an independent force majeure clause can be
22
seen in Article 4(a) of the Convention No.89, in which Article 3 shall not apply, "in
cases of force majeure, when in any undertaking there occurs an interruption of work
which it was impossible to foresee, and which is not of a recurring character". It may be
observed that the term ''force majeure" includes two elements: (i) the impossibility to
foresee it; and (ii) nonrecurring character. Independent force majeure provision contained
in Article 4(a) of the Convention No.89 was earlier inserted in the Night Work (Women)
Convention, 1919 (No.4), and the Night Work (Women) Convention (Revised), 1934
(No.41) as common Article 4(a). Further, Force majeure clause appeared in the
Convention No.89 can be seen in the legislations of many Member Sates dealing with
night work ofwomen. 23 In the case of India it comes to know that in respect of the night

21
The Convention No.89 prohibits night employment of women in any public or private industrial
undertakings. It signifies the term "night" as a period of 11 consecutive hours including an interval period
of at least 7 consecutive hours falling between 10 P.M. to 7 A.M. It has been ratified by 45 Member States
including India as on 01 March 2008.
22
Article 3 of the Convention No.89 provides that, "Women without distinction of age shall not be
employed during the night in any public or private industrial undertaking, or in any branch thereof, other
than an undertaking in which only members of the same family are employed".
23
It may be noted that in some Member States like Austria, Cyprus, Gabon, Guinea-Bissau, Kenya, Mali,
Slovakia, Slovenia, Swaziland, Tunisia, United Arab Emirates and Venezuela, the prohibition of night
work does not apply in any case of force majeure, or, in the terms of common Article 4(a) of Conventions
Nos. 4, 41 and 89, when in an industrial undertaking there occurs an interruption of work which it was
impossible to foresee, and which is not of a recurring character. In Mauritania and the Philippines, the
prohibition does not apply in cases of actual or impending emergencies caused by serious accident, fire,

188
 working hours of women, the Factories Act, 1948 has not dealt with force majeure
24
situations as such, other than a case of emergency under section 66(2).

The above analysis, while illustrating to what extent force majeure clauses have
been inserted in the Conventions concerning hours work in industry, forced labour, and
night work of women, has pointed out the conditions under which they have to be
invoked by the Member States. Then, it has identified the corresponding provisions under
the relevant Indian legislations. It may be noted that the above clauses, barring the
Convention No.30, do not explicitly prescribe the consultations with social partners by
the Member States. However, a variation in force majeure clause requiring the
consultation by Member States with the employers' and workers' organisations can be
found in Article 8 of the Labour Clauses (Public Contracts) Convention, 1949 (No.94), 25
which states that, "The operation of the provisions of this Convention may be temporarily
suspended by the competent authority, after consultation with the organisations of
employers and workers concerned, where such exist, in cases of force majeure or in the
event of emergency endangering the national welfare or safety". So, suspension of the
operation of the Convention is made conditional to consultation with the organisation of

flood, typhoon, earthquake, epidemic or other disasters or calamity. It does not apply either whenever it is
necessary to prevent loss of life or property, or in cases of force majeure or imminent danger to public
safety. Finally, in Saudi Arabia, national legislation provides that by decision of the Minister of Labour
exceptions may be introduced to the prohibition of night work in respect of non-industrial occupations and
in cases offorce majeure. In some countries, workers may be required to work overtime, and thus possibly
during night hours, in case of force majeure. This is the case, for instance, in Costa Rica, where workers
may not be required to work more than 12 hours a day except in the case of a natural disaster or imminent
risk to humans, installations, machinery, plantations or crops. Similarly, in Nicaragua and Paraguay,
workers may not be forced to work extra hours except in case of force majeure in order to prevent or
eliminate the consequences of natural disasters or accidents. Among the States not bound by any of the
Conventions on night work of women, Barbados, Dominica and the United Kingdom (Falkland Islands,
Gibraltar, Guernsey) provide for an exception to the general ban on night work in case of force mqjeure
that could not be foreseen and is not of a recurring nature. See General Survey on Night Work of Women in
Industry by the Committee of Experts on the Application of Conventions and Recommendations, Report
III, Part 1B, International Labour Conference, 89th Session, 2001, paras.l26-128, pp.96-98.
24
Section 66(2) of the Factories Act, 1948 provides that, "The State Government may make rules providing
for the exemption from the restrictions set out in sub-section (I), to such extent and subject to such
conditions as it may prescribe, of women working in fish curing or fish-canning factories, where the
employment of women beyond the hours specified in the said restrictions is necessary to prevent damage
to, or deterioration in, any raw material". However, according to section 66(3) "the rules made under sub-
section (2) shall remain in force for not more than three years at a time"; see the Factories Act, 1948, n.l3.
25
The Convention No.94 aims at ensuring for the workers employed by public contractors conditions not
less favourable than those established for other workers. It has been ratified by 59 Member States as on 01
March 2008. India has not ratified the Convention No.94.

189
 employers and workers. This conditional clause is not seen in the other force majeure
provisions discussed above.

V.2. Suspension under Emergency Clauses

Besides force majeure clauses, reasonable flexibility in Conventions can be

achieved by introducing emergency clauses in order to deal with urgent situations. These
clauses suspend the operation of the provisions of the Conventions during the period of
emergencies. Some Conventions may deal with independent emergency clauses while
some other may deal with the cases of force majeure and national emergencies together
as combined clauses like that one discussed above in the Convention No.94. Emergency
clauses chiefly include cases of war and other cases of national security exceptions.

V.2.1. Hours of Work (Industry) ConYention, 1919 (No.1)

An independent emergency clause can be found in Article 14 of the Convention

No.1 ,26 which provides that, "The operation of the provisions of this Convention may be
suspended in any country by the Government in the event of war or other emergency
endangering the national safety". 27 Since the provision concerns particularly with the
cases of war and events endangering national safety it may also be called national
security exception. It is evident that the provision does not defme what the emergency is;
instead, it refers to the instances of war and those endangering national safety as cases of
emergencies. As regards the application of Article 14 by ratifying Member States, the
Committee of Experts, in its 2005 General Survey on Hours of Work, has observed that
as pointed out in the conclusions of the London Conference ( 1926), use can only be made
of this provision in case of a crisis that affects the national economy to such an extent that
it threatens the existence of the life of the people. On the other hand, an economic or
commercial crisis, which concerns only special branches of industry, cannot be regarded

26
The Convention No.1 stipulates the working hours of persons at eight in the day and forty-eight in the
week in any public or private undertakings.
27
Similar provision can be seen in Article 9 of the Hours of Work (Commerce and Offices) Convention,
1930 (No.30), which states that, "The operation of the provisions of this Convention may be suspended in
any country by the Government in the event of war or other emergency endangering national safety".

190
 as endangering the national safety within the meaning of this provision, and the
28
suspension of the Convention in such a case would not therefore be justified.

In the case of India, apart from the Constitutional provision applicable to national
emergency situations, similar emergency provision can be found in the Factories Act,
1948. Section 5 provides that, "In any case of public emergency the State Government
may, by notification in the Official Gazette, exempt any factory or class or description of
factories from all or any of the provisions of this Act [except Section 67] 29 for such
period and subject to such conditions as it may think fit: Provided that no such
notification shall be made for a period exceeding three months at a time. Explanation-
For the purposes of this Section "public emergency" means a grave emergency whereby
the security of India or of any part of the territory thereof is threatened, whether by war or
external aggression or internal disturbance".

V.2.2. Forced Labour Convention, 1930 (No.29)

The Convention No.29 30 provides for two provisions which can be invoked for
the exclusion of the Convention under emergency situations. Firstly, it contains a
provision providing for cases of emergency but is combined with the cases of force
majeure under Article 2(2)(d), according to which the term "forced or compulsory
labour" shall not include, "any work or service exacted in cases of emergency, that is to
say, in the event of war or of a calamity or threatened calamity, such as fire, flood,
famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or
vegetable pests, and in general any circumstance that would endanger the existence or the
well-being of the whole or part of the population". Secondly, a provision leading to the
application of national security exceptions for suspending the operation of the
Convention No.29 can be seen in Article 2(2)(a), under which the term "forced or
compulsory labour" shall not include, "any work or service exacted in virtue of
compulsory military service laws for work of a purely military character".

'8 .
- General Survey on Hours of Work by the Committee of Experts, n. 7, para.141, p.59.
29
Section 67 of the Factories Act, 1948 prohibiting the employment of young children states that, "No
child who has not completed his fourteenth year shall be required or allowed to work in any factory"; see
the Factories Act, 1948, n.13.
30
The Convention No.29 lays down the basic obligations under which a ratifying Member State is bound
"to suppress the use of forced or compulsory labour in all its forms within the shortest possible period".

191
 V.2.2.1. Compulsory Military Service of a Purely Military Character

The Committee of Experts in its 2007 General Survey on Eradication of Forced

Labour observed that when the draft Convention No.29 was under consideration by the
Conference, there was general agreement that compulsory military service as such should
remain beyond the purview of the Convention. Particularly, it was discussed to know
whether, in the systems existing at the time in various territories, persons liable to
military service but not in fact incorporated in the armed forces might be called up for
public works. It was indicated that the reason and justification for compulsory military
service was the necessity for national defence, but that no such reason or justification
existed for imposing compulsory service obligations for the execution of public works,
and therefore, to simply exclude compulsory military service from the scope of the
Convention would without any further condition mean to allow compulsory public works
implicitly, which would be contrary to the main purpose of the Convention, that is,
namely the abolition of forced or compulsory labour in all its forms. Accordingly, the
Conference decided that compulsory military service should be excluded from the scope
of the Convention only if used "for work of a purely military character". 31

However, there are specific circumstances in which a nonmilitary activity

performed within the framework of compulsory military service or as an alternative to
such service remains outside the scope of Convention No.29. Firstly, conscripts, like any
other citizens, may be called to work in cases of emergency, as defined in the
Convention, and their use in such circumstances for non-military purposes would then be
covered by the other exception in , respect of work or service exacted in cases of
emergency. Secondly, conscripts performing their service in engineering or similar units
may be made to join in the building of roads and bridges as a part of their military
training. Lastly, while the Convention does not mention specifically the case of
conscientious objectors, the Committee has considered that in such cases conscientious
objectors are in a more favourable position than in countries where their status is not
recognised and where refusal to serve is punishable with imprisonment. The exemption
of conscientious objectors from compulsory military service, coupled with an obligation

31
General Survey on Eradication of Forced Labour by the Committee of Experts, n.l7, para.43, p.22.

192
to perform an alternative service, is therefore a privilege granted to individuals on
32
request, in acknowledgement of freedom of conscience.

However, it may be noted that the provisions of the Convention relating to

compulsory military service do not apply to career military personnel. The Convention
therefore does not deal with the use of persons serving in the armed forces on a voluntary
basis and consequently is not opposed to the performance of non-military work by these
persons. It shows that career military personnel can be used in cases of emergencies, and
not merely in cases of national security or defence. At the same time, for the .above
reason, the provisions of the Convention relating to compulsory military service cannot
be invoked to deprive career military personnel of the right to leave the service in
peacetime within a reasonable period, for example, by means of notice of reasonable
length. 33

V.2.2.2. Any Work or Service Exacted in the Event of War

According to Article 2(2)(d) 34 of the Convention No.29 the expression "any work
or service exacted in cases of emergency, that is to say, in the event of war" is outside the
purview ofthe term "forced or compulsory labour". It shows that the Convention can not
be applied in the event of war being an emergency situation, as which "would endanger
the existence or the well-being of the whole or part of the population". While the
provision does not define the term "event of war", it at the same time provides for force
majeure cases as described and analysed above in the section V.l. So, this is not an
independent emergency provision unlike Article 14 of the Convention No.1. It appears
that in Article 2(2)(d) the term "in the event of war" indicates that the provision is
applicable to situations of national emergency in a Member State enabling it to exclude
the operation of the Convention No.29. Besides, the exception of emergencies under
Article 2(2)(d) should not be understood as allowing the exaction of any kind of

32
Ibid., para.44, pp.22-23.
33
Ibid., para.46, p.23.
34
Article 2(2)(d) of the Convention No.29 states that the term "forced or compulsory labour" shall not
include "any work or service exacted in cases of emergency, that is to say, in the event of war or of a
calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic
diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would
endanger the existence or the well-being of the whole or part of the population".

193
compulsory service in case of war; yet, it can be invoked only for work or service that is
35
strictly required to counter an imminent danger to the population. However, recourse to
such exceptional powers must be limited to what is necessary to meet circumstances that
36
would endanger the life, personal safety or health ofthe whole or part of the population.

As far as India is concerned, it prohibits all forms of forced or compulsory labour

under Article 23(Ii 7 of the Constitution oflndia. However, only exception can be found
for the imposition of compulsory labour but in the form of compulsory service for public
purposes in Article 23(2) of the Constitution, which provides that, "Nothing in this article
shall prevent the State from _imposing compulsory service for public purposes, and in
imposing such service the State shall not make any discrimination on grounds only of
religion, race, caste or class or any of them". It is clear that the compulsory service for
public purposes is conditional one which is devoid of any discrimination mentioned in
the provision. It is also evident that Article 23(2) of the Constitution is a corresponding
provision applicable to the exceptional cases falling within the purview of Article 2(2)(a)
as well as Article 2(2)(d) ofthe Convention No.29.

It is important to note that the only legislation enacted by the Government of India
under the Constitutional provision is the National Service Act, 1972, which envisages
requisitioning of the services of doctors, engineers or technologists for a specific period
in national emergencies. Though this legislation was enacted in 1972 to meet an
emergency no such occasion has so far arisen to invoke it. 38 From this, it is clear that
persons liable to military service but not in fact incorporated in the armed forces might be
called up for public works, which as non-military service performed within the

35
General Survey on Eradication of Forced Labour by the Committee of Experts, n.l7.
36
Kern, n.l9, pp.57-58.
37
Article 23(1) of the Constitution of India states that, "Traffic in human beings and begar and other
similar forms of forced labour are prohibited and any contravention of this provision shall be an offence
punishable in accordance with law".
38
Governing Body Review of Annual Reports under the Follow-up to the ILO Declaration on Fundamental
Principles and Rights at Work (Geneva: International Labour Office, 2000), p.200. It may be noted that the
Government of India in its 2006 Report to the ILO on forced labour has stated that India has not adopted
the practice of compulsory military service. Indian citizens join the Armed Forces voluntarily, provided
they satisfy the requisite qualifying standards. Once a citizen joins the Army, Navy or Air Force, he/she is
subject to the Army Act, 1950, the Navy Act, 1957, and the Air Force Act, 1950 and the rules and
regulations framed thereunder. Work or service is not exacted in cases of emergency, as provided in the
Convention. See Report of the Government of India under Article 22 of the ILO Constitution on
Convention No.29 concerning Forced Labour, 1930 for the period- 1 June 2004 to 31 May 2006, p.2.

194
 framework of compulsory military service or as an alternative to such service remain
outside the scope of Convention No.29 in accordance with Article 2(2)(a) read with
Article 2(2)(d). So, it may be concluded that the National Service Act, 1972 may be
invoked in exceptional cases of compulsory military service and emergencies in the event
of war as required for national security.

V.2.3. Freedom of Association and Protection of the Right to Organise Convention,

1948 (No.87)

Article 9(1) of the Convention No.87 39 provides that, "The extent to which the
guarantees provided for in this Convention shall apply to the armed forces and the police
shall be determined by national laws or regulations". Exactly same provision has also
appeared in Article 5(1) of the Right to Organise and Collective Bargaining Convention,
1949 (No.98). 40 It may be noted that Article 9(1) ofthe Convention No.87 was analysed
in Chapter III as discretionary clause. Yet, it gives rise to an analysis on matters of
national security exception and suspension of the Convention in cases of emergency.
Article 9( 1) runs as an exceptional provision to Article 2; the latter provision states that,
"Workers and employers, without distinction whatsoever, shall have the right to establish
and, subject only to the rules of the organisation concerned, to join organisations of their
own choosing without previous authorisation", (emphasis added). So, Article 9(1) must
be seen in the light of the expression "without distinction whatsoever" contained in
Article 2. In tum, the expression "without distinction whatsoever" in Article 2 has the
direct bearing on Article 9( 1). The insertion of the expression "without distinction
whatsoever" indicating the principle of non-discrimination as formula was preferred by
the majority of governments to one that enumerated the different types of discrimination,
which always entailed a risk of omitting some. So, the provision was to be interpreted in
the widest sense as meaning that freedom of association should be recognised without
distinction whatsoever as to occupation, sex, colour, race, creed, nationality, political

39
The Convention No.87 seeks to ensure to all workers and employers "without distinct whatsoever, the
right to establish and, subject only to rules of the organisation concerned, to join organisations of their own
choosing, without previous authorisation". It has been ratified by 148 Member States as on 0 1· March 2008.
40
The Convention No.98 aims at protecting workers and their organisations against anti-uinon
discrimination and interference by employers and to promote voluntary collective bargaining. It has been
ratified by 158 Member States as on 01 March 2008.

195
opinion, and so on, not only for workers and employers in private industry, but also for
officials or employees of the public service.41 It was emphasised during the preparatory
work on the Convention No.87 that freedom of association was to be guaranteed not only
to employers and workers in private industry, but also to public employees. The
Committee of Experts has always considered that the exclusion of public servants from
this fundamental right (of association) is contrary to the Convention No.87. 42 The only
exception stipulated to Article 2 can be seen in Article 9 of the Convention No.87, which
permits Member States to determine the extent to which the guarantees provided for in
the Convention apply to the armed forces and the police, as such exceptions are justified
43
on the basis of their responsibility for the external and internal security of the State.
From this point of view Article 9(1) can be considered as a provision providing for
national security exception also. As regards members of the police and security forces, it
is often the case that Member States which deny this right to members of the armed
forces include the police under the same heading and generally apply the same legal
provisions in both cases. Although Article 9(1) of the Convention No.87 is quite explicit,
it is not always easy in practice to determine whether workers belong to the military or to
the police or are simply civilians working in military installations or in the service of the
army and who should, as such, have the right to form trade unions. The Committee of
Experts views that since Article 9(1) of the Convention provides only for exceptions to
the general principle, workers should be considered as civilians in case of doubt...:-4 Added
to this, the Committee on Freedom of Association reinforced the above view that while
Article 9(1) authorises exceptions to the scope of its provisions for the police and the
41
Jane Hodges-Aeberhard, "The Right to Organise in Article 2 of Convention No.87: What is meant by
workers "without distinction whatsoever"?", International Labour Review, vo1.128, no.2, 1989, pp.l79-
180.
42
General Survey on Freedom of Association and Collective Bargaining by the Committee of Experts on
the Application of Conventions and Recommendations, Report III, Part 4B, International Labour
Conference, 81'1 Session, 1994, para.48, p.24. It may be noted that during the discussion of the Office text
at the Conference Committee on Freedom of Association and Industrial Relations two amendments were
proposed, one by the Indian and one by the United Kingdom Government, seeking to exclude the armed
forces and the police from the scope of the Convention. The proposal was modified to take account of the
fact that in several countries members ofthe police and, sometimes, even members of the armed forces had
the right to organise. (The Indian Government member's proposal to exclude the armed forces and the
police was rejected). After several attempts the current Article 9 was submitted and adopted; see Hodges-
Aeberhard, n.41, pp.180, 179.
43
General Survey on Freedom of Association and Collective Bargaining by the Committee of Experts,
Ibid., para.55, p.27.
44
Ibid.

196
armed forces, the members of the armed forces who can be excluded should be defined in
a restrictive manner. 45

Added to the exceptional aspects of Article 9(1), a question of larger importance

arises as to whether the provisions of the Convention No.87 can be suspended during the
emergency situations by Member States. Though the Convention does not speak, there
has been considerable number of observations made by the supervisory bodies of the ILO
in this regard. According to the Committee of Experts the freedom of association
Conventions (Nos. 87 and 98) do not contain provisions permitting the invocation of a
state of emergency to justify exemption from the obligations arising under the
Conventions or any suspension of their application. 46 In this regard, the Committee on
Freedom of Association has emphasised the views of the Committee of Experts that the
freedom of association Conventions do not contain any provision permitting derogation
from the obligations arising under the Convention, or any suspension of their application,
based on a plea that an emergency exists. 47 Importantly, the Committee of Experts has
felt that a cause of emergency cannot be used to justify restrictions on the civil liberties
that are essential to the proper exercise of trade union rights, except in circumstances of
extreme gravity, such as, acts of God, serious disruption of civil order, and so on.
However, it goes with the condition that any measures affecting the application of the
Conventions are limited in scope and duration to what is strictly essential to deal with the
situation in question. While it is conceivable that the exercise of some civil liberties, such
as the right to public assembly or the right to hold street demonstrations, might be
limited, suspended and even prohibited, it is not permissible that, in the field of trade
union activities, the guarantees relating to the security of the person should be limited,
suspended or abolished. 48

45
ILO, Freedom of Association: Digest of Decisions and Principles of the Freedom of Association
Committee of the Governing Body of the fLO (Geneva: International Labour Office, 1996), para.222, pp.48-
49 (Hereinafter it is cited as Digest).
46
General Survey on Freedom of Association and Collective Bargaining by the Committee of Experts,
n.42, para.41, p.20.
47
Digest, n.45, para.l86, p.40.
48
General Survey on Freedom of Association and Collective Bargaining by the Committee of Experts,
n.42, para.41, pp.20-21.

197
 The Committee on Freedom of Association has observed that where a state of
em~rgency exists, it is desirable that the government in its relations with occupational
organisations and their representatives should rely as far as possible on the ordinary law
rather than on emergency measures which are likely by their very nature to involve
certain restrictions on fundamental rights. 49 In tum, it shows for instance that in case
where emergency measures had been extended over many years, the martial law was
incompatible with the full exercise of trade union rights. 5° The enactment of emergency
regulations which authorise the government to replace restrictions on the organisation of
public meetings and which are applicable not only to public trade unions meetings, but
also to all meetings, and which are occasioned by events which the government
considered so serious as to call for the declaration of a state of emergency, does not in
itself constitute a violation of trade union rights. 5 1 However, emergency legislation aimed
at anti-social disruptive elements should not be applied against workers for exercising
their legitimate trade union rights. 52 It is therefore advisable that any measures of
suspension or dissolution by administrative authority taken during an emergency situation
should be accompanied by norma,l judicial safeguards, including the right of appeal to the
courts against such dissolution or suspension. 53

An important aspect of the freedom of association and ri~ht to organise is the

right to strike. Particularly, the right to strike is the logical corollary of the effective
realisation of the right to collective bargaining. 54 Though the Convention No.87 does not
expressly provide for the right to strike, it is understood that the recognition of the right
to strike is based on Article 3 of Convention No.87, which grants workers' organisations
the right to organise their activities and to formulate their programmes. 55 It is hence

49
Digest, n.45, para.188, p.40.
50
Ibid., para.l94, p.41.
51
Ibid., para.l90, p.40.
52
Ibid., para.l96, p.41.
53
Ibid., para.l93, p.41.
54
Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at
Work, Your Voice at Work, Report lB, International Labour Conference, 88th Session, 2000, para.lOl, p.37.
It may be noted that right to collective bargaining is the subject of the Convention No.98; yet, it does not
contain provision on the right to strike.
55
In its second report, in 1952, the Committee on Freedom of Association considered the right of workers
and their organisations to strike as an essential and legitimate means of promoting and defending their
economic and social interests; see Eric Gravel, and others, The Committee on Freedom of Association: Its

198
necessary to know the scope of the right to strike during the emergency situation. which
is exercisable in accordance with the provisions of the Convention No.87. According to
the Committee on Freedom of Association a general prohibition of strikes can only be
justified in the event of an acute national emergency and for a limited period of time. 56
For instance, restrictions on the right to strike and on freedom of expression imposed
against the backdrop of an attempted coup d'etat against the constitutional government,
which gave rise to a state of emergency called in accordance with the national
constitution, do not violate freedom of association since such restrictions are justified in
the event of an acute national emergency. 57 The Committee of Experts has observed that
in Member States a general prohibition of·strikes may arise from specific provisions in
the law. It may also result from provisions adopted under emergency or exceptional
powers, the government invoking a crisis situation to justify its intervention. Inasmuch as
general prohibitions of this kind are a major restriction of one of the essential means
available to workers and to their organisations for furthering and defending their
interests, such measures cannot be justified except in a situation of acute national crisis
and then, only for a limited period and to the extent necessary to meet the requirements of
the situation. This means genuine crisis situations, such as those arising as a result of a
serious conflict, insurrection or natural disaster in which the normal conditions for the
functioning of society are absent. 58

From the above analysis it becomes evident that a general prohibition of strike is
not acceptable except under acute national emergency. It may however be noted ·that a
prohibition of strike can be acceptable in respect of certain category of workers: (1)
public servants 59 , and (2) workers in essential services. The supervisory bodies have

impact over 50 years (Geneva: International Labour Office, 2001), p.44. See also Digest, n.45, paras.474-
475, p.IOI. Precisely, while paragraph (I) of Article 3 ofthe Convention No.87 provides that, "Workers'
and employers' organisations shall have the right to draw up their constitutions and rules, to elect their
representatives in full freedom, to organise their administration and activities and to formulate their
programmes", paragraph (2) of Article 3 states that, "The public authorities shall refrain from any
interference which would restrict this right or impede the lawful exercise thereof'.
56
Digest, ibid., para.527, p.l09.
57
Ibid., para.529, p.llO.
58
General Survey on Freedom of Association and Collective Bargaining by the Committee of Experts,
n.42, para. I 52, p.67.
59
It may be noted that Convention No.98 has kept public servants outside its scope, and therefore
according to which not only the right to organise and collective bargaining but the right to strike also can be

199
interpreted public service and essential services in a restrictive way as concerns strikes. 60
The right to strike may be restricted or even prohibited in the public service only for
public servants exercising authority in the name of the State or in essential services in the
strict sense of the term. 61 It may be noted that though the armed forces and the police are
public servants, yet they can be governed by Article 9(1) of the Convention No.87
thereby having been prohibited or restricted in their right to strike. Both the supervisory
bodies have restrictively defined the term "essential services" as those "services the
interruption of which would endanger the life, personal safety or health of the whole or
part of the population". 62 In other words, in order to prohibit the strike in essential
services the criterion which has to be established· is the existence of a clear and imminent
threat to the life, personal safety or health of the whole or part of the population. 63
Precisely, what is meant by essential services in the strict sense of the term depends to a
large extent on the particular circumstances prevailing in a country. Moreover, this
concept is not absolute in the sense that a non-essential service may become essential if a
strike lasts beyond a certain time or extends beyond a certain scope endangering life,
personal safety or health of the whole or part of the population. 64 The Committee on
Freedom of Association has pointed out that the services, such as, the hospital sector,
electricity services, water supply services, telephone services, air traffic control may be
considered as essential services. 65 However, the restrictions on the right to strike in these
categories go with the condition that the interests of the workers involved are safeguarded
by appropriate compensatory conciliation and arbitration procedures which are actually
used. 66

prohibited for public servants. Article 6 of the Convention No.98 states that, "This Convention does not
deal with the position of public servants engaged in the administration ofthe State, nor shall it be construed
as prejudicing their rights or status in any way".
60
Lee Swepston, "Human Rights Law and Freedom of Association: Development through ILO
Supervision", International Labour Review, vol.l37, no.2, 1998, p.188.
61
Digest, n.45, para.526, p.l09; see Global Report, n.54, para.l02, p.37.
62
General Survey on Freedom of Association and Collective Bargaining by the Committee of Experts,
n.42, para.159, p.70; see Digest, ibid., paras.526, 542, pp.l09, 112.
63
Digest, ibid., para.540, p.1ll.
64
Ibid., para.541, pp.111-112.
65
Ibid., para.544, p.112.
66
Ibid., para.547, p.113; see A.J. Pouyat, The ILO's Freedom of Association Standards and Machinery: A
Summing Up", International Labour Review, vol.l21, no.3, 1982, p.297.

200
 It may be noted that the voluntary negotiation of collective agreements is a
67
fundamental aspect of the principles of freedom of association. As the freedom of
association is essential for collective bargaining, if it is restricted collective bargaining is
also restricted. Similarly, the right of workers to strike and the right of employers to lock
workers out are generally considered, subject to certain restrictions, as essential
safeguards for freedom of collective bargaining. 68 Strike by the workers also indicates the
breakdown of collective bargaining. However, from the point of view of collective
bargaining, in wartime strikes and lockouts may be made illegal, as all sections of the
community including workers' and employers' organisations consider stoppages of work
due to industrial disputes, otherwise accepted in ordinary times, to be intolerable in
periods of grave national crisis. In fact, the right to strike and lockout is often suspended
in time of war by agreement between the workers, the employers, and the government. 69
This precisely leads to a question as to whether the course of collective bargaining can be
intervened by the governments in cases of emergency. It may hence be noted that in
respect of legislation extending collective agreements including government's other
interventions in collective bargaining, the Committee on Freedom of Association has
observed that such action constitutes undue intervention in the collective bargaining
process, and it should only be taken in cases of emergency and for brief periods of time. 70

Therefore, it is possible to state that the right to strike for public servants, and
workers in essential services can be suspended or restricted even in non-emergency
situations. It may be inferred that by virtue of Article 9(1) the right to strike in case of the
armed forces and the police can be prohibited or restricted in the non-emergency
situations also. It may be argued that strike in those services "the interruption of which
would endanger the life, personal safety or health of the whole or part of the population"

~ Digest, ibid., para.844, p.l70.

7

68
ILO, Collective Bargaining: A Workers' Education Manual (Geneva: International Labour Office, 1960),
p.92. Collective Bargaining may be regarded as negotiations about working conditions and terms of
employment between an employer, a group of employers or one or more employers' organisations, on the
one hand, and one or more representative workers' organisations on the other, with a view to reaching
agreement. In other words, collective bargaining is the procedure by which the wages and conditions of
employment of workers are regulated by agreements between their representatives and employers; ibid.,
pp.l-3.
69
Ibid., p.92.
~ Digest, n.45, para.SSI, p.l78; Gravel, n.55, p.57.
0

201
may lead to a situation of national crisis. So, it may be contended that if the right to strike
in essential services under non-emergency situations continues beyond a certain period it
may lead to a national crisis inviting a general prohibition.

India has not ratified both the fundamental Conventions on freedom of

Association (Nos. 87 and 98) discussed above. However, in India the Constitution and
legislation provide for the freedom of associations including trade unions. Under Article
19( 1)(c) of the Constitution freedom of associations has been made a fundamental right,
however with the exception contained in Article 19(4), whereby the State may by law
impose reasonable restrictions on this right in the interest of public order or morality or
the sovereignty and integrity of India. Similarly, while section 2(h) of the Trade Unions
Act, 1926 defines the trade union, section 4 of the said Act lays down the mode of its
registration. Likewise, the right to collective bargaining is recognised by section 18(1)
read with section 2(p) of the Industrial Disputes Act, 1947. 71 The right to collective
bargaining however is not a fundamental right under the Constitution. It is here
significant to know what reasons particularly from the perspective of emergencies are
standing in the way of ratification of the Conventions Nos. 87 and 98. According to the
Government of India all persons employed in the armed forces, paramilitary forces,
police serVice or prison, cannot exercise the principle of freedom of association and right
to collective bargaining; they cannot strike as long as they are deployed for the security
of the country. 72 In this regard, the Constitution under Article 33 73 empowers the
Parliament to impose restrictions on the fundamental rights of the armed forces, and
forces charged with the maintenance of public order. So, Article 33 of the Constitution
virtually runs as an exception to Article 19(1 )(c) in respect of the freedom of association

71
Governing Body Review of Annual Reports, n.38, pp.58-59.
72
Governing Body Review of Annual Reports under the Follow-up to the ILO Declaration on Fundamental
Principles and Rights at Work (Geneva: International Labour Office, 2005), p.Sl.
73
Article 33 of the Constitution of India provides that, "Parliament may, by law, determine to what extent
any of the rights conferred by this Part shall, in their application to,- (a) the members of the Armed Forces;
or (b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in
any bureau or other organisation established by the State for purposes of intelligence or counter
intelligence; or (d) persons employed in, or in connection with, the telecommunication systems set up for
the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated
so as to ensure the proper discharge of their duties and the maintenance of discipline among them"; see
Ministry of Law and Justice-Legislative Department (Government of India), Constitution of India,
http://lawmin.nic.in/coi.htm, 08 August 2007.

202
of the police forces. However, no State government can restrict by legislation or
executive action the application of the fundamental rights to the police personnel; nor can
they be restricted by executive action ofthe Central government. 74 By virtue of Article 35
of the Constitution, only the Parliament can make laws with respect to the matters under
Article 33. In order to restrict the rights of the police, the Parliament enacted the Police-
Forces (Restriction of Rights) Act, 1966. 75 The Act under section 3(1) denies to the
police personnel charged with the maintenance of public order the right to form or join a
trade union or any other organisation, in any way, without the express sanction of the
Central government. 76 However, the police personnel can join a purely social,
recreational or religious organisation but whether a particular association is purely social,
recreational or religious will be decided by the Central government, and its decision will
be final. 77 Besides, the 1966 Act under section 3(2) prohibits the police personnel from
participating in or addressing any meeting or taking part in any demonstration organised
by any body of persons for any political purposes or for such other purposes as may be
prescribed. Section 3(2) thus indicates that the right to strike for the police personnel is
hereby prohibited. The violation of section 3 not only leads to disciplinary action but is
also liable to be punished with imprisonment for two years or fine to the extent of two
thousand rupees or both. 78

In accordance with Article 33 of the Constitution the Parliament by law can

restrict the right of the members of the armed forces to form any associations or trade
unions and the right to participate in strikes. This finds reinforced in section 21 of the
Army Act, 1950, which allows the Central Government to make rules restricting the
persons belonging to the Army Act, 1950 from associating with any trade union or labour

74
Arjun P. Aggarwal, "Freedom of Association in Public Employment", Journal of the Indian Law
Institute, vol.l4, no.1, 1972, p.1 0.
75
Ibid., p.11.
76
Section 3(1) ofthe Police-Forces (Restriction ofRights) Act, 1966 states that, "No member of a police-
force shall without the express sanction of the Central Government or of the prescribed authority- (a) be a
member of, or be associated in any way with, any trade union, labour union, political association or with
any clas.s of trade unions, labour unions or political associations"; see CommonLII, "Indian Legislation,
Police-Forces (Restriction of Rights) Act, 1966", http://www.common1ii.org/in/1egis/num_actl
pora1966368/, 01 July 2007.
77
Section 3(l)(b) with Explanation ofthe Police-Forces (Restriction of Rights) Act, 1966, ibid.
78
Section 4, ibid., see Aggarwal, n.74, p.ll.

203
union, and consequently, from participating in strikes also. 79 In O.K.A. Nair vs. Union of
India 80 an important question arose whether "civilian" employees, designated as "non-
combatants" such as cooks, chowkidars, !askers, barbers, mechanics, boot-makers,
tailors, etc., attached to the Defence Establishments have a right to form associations or
unions. The Supreme Court held that the civilian employees of the Defence
Establishments answer the description of the members of the armed forces within the
meaning of Article 33 and therefore were not entitled to form trade unions. It is their duty
to follow or accompany the armed personnel on active service or in camp or on march.
Although they are non-combatants and in some matters governed by the Civil Service
Rules, yet they are integral to Armed Forces. Conseq\lently, under the Army Act the
Central Government is competent to make rules restricting or curtailing their fundamental
right under Article 19(l)(c). 81

In Delhi Police Non-Gazetted Karmchari Sangh vs. Union of India 82 the Supreme
Court held that the statutory rules regarding recognition and revocation of association
were not violative of Article 19(1 )(c) and they impose reasonable restriction on the right
to form association under Articles 33 and 19(4) as the Sangh and its members come
within the ambit of Article 33 and thus they stand on a different footing. It was held that
the right to form association is fundamental right but recognition of association is not a
fundamental right and Parliament can therefore by law impose restrictions on such
right. 83

From the above analysis of the various Constitutional and statutory provisions and
the decisions of the Supreme Court, it emerges that the restrictions imposed on the

79
Section 21 ofthe Army Act, 1950 states that, "Subject to the provisions of any law for the time being in
force relating to the regular Army or to any branch thereof, the Central Government may, by notification,
make rules restricting to such extent and in such manner as may be necessary the right of any person
subject to this Act- (a) to be a member of, or to be associated in any way with, any trade union or labour
union, or any class of trade or labour unions or any society, institution or association, or any class of
societies, institutions or associations; (b) to attend or address any meeting or to take part .in any
demonstration organised by any body of persons for any political or other purposes"; see CommonLII,
"Indian Legislation, the Army Act, 1950", http://www.commonlii.org/inllegis/num_act/aal95074/, 01 July
2007.
80
AIR 1976 SC 1179.
81
J.N. Pandey, Constitutional Law of India (Allahabad: Central Law Agency, 2005), p.l91.
82
(1987) 1 sec 115.
83
Pandey, n.81.

204
 members of the armed forces, and the police forces charged with the maintenance of
public order, in respect of their right to form association and the right to strike, are highly
essential for safeguarding the external and internal security of the country. It also
becomes evident that these laws are by and large in conformity with the provision
contained in Article 9( l) of the Convention No.87 as well as Article 5(1) of the
Convention No.98. Therefore, both of these provisions can operate as national security
exceptions when and if India ratifies these Conventions thereby having a certain flexible
implementation.

It is further necessary to know whether the right of the public servants to

association and of the workers in essential services to association and strike can be
suspended or restricted in the events of emergency. This in tum helps to understand
whether the Convention No.87 can be flexible in terms of its implementation thereby
allowing its suspension in emergency situations. It may be noticed that in the case of
public servants there is no fundamental or statutory right to strike. 84 There are restrictions
for them in the Central Civil Services (Conduct) Rules, 1964. Under Rule 6 no
government servant shall join or continue to be a member of an association for the
objects or activities of which are prejudicial to the interests of the sovereignty and
integrity of India or public order or morality. Unless the activities of an association are
considered to be prejudicial to the interests of the country, a government servant is rree to
join any association he likes. 85 Further, while Rule 7(ii) directly restrains them from
going to strike saying that no government servant shall "resort to or in any way abet any
form of strike or coercion or physical duress in connection with any matter pertaining to
his service or the service of any other Government servant", Rule 7(i) prohibits them
from any sort of demonstration stating that no Government servant shall "engage himself

84
In Kameswar Prasad vs. State of Bihar (AIR 1962 SC 1166) the Supreme Court held that rule 4-A of the
Central Civil Services (Conduct) Rules, 1955 in the form in which it stands prohibiting any form of
demonstration is violative of government servants' rights under Article 19(l){a), (b) and should therefore
be struck down. The rule insofar as it prohibitc; a strike cannot be struck down and therefore is not violative
of Article 19{l)(a) or (b) of the Constitution. See Arjun P. Aggarwal, "Strike by Government Employees:
Law and Public Policy", Journal of Indian Lmv Institute, vol.l4, 1972, pp.358-382. In T. N. Rangarajan vs.
State of Tamil Nadu (AIR 2003 SC 3032) the Supreme Court held that government servant has no right to
go on strike, neither moral nor statutory.
85
International Labour Standards Report of National Tripartite Seminar (NOIDA: National Labour
Institute, 1993), pp.94-95.

205
 or participate in any demonstration which is prejudicial to the interests of the sovereignty
and integrity of India, the security of the state, friendly relations with foreign States,
public order, decency or morality, or which involves contempt of court, defamation or
incitement to an offence". 86 Besides, the Central Civil Services (Recognition of Service
Association) Rules, 1993 restricts the freedom of association of public servants and
provides overly detailed regulations. It limits the free election of representatives of
associations, makes their constitutions subject to prior government approval, and bans
associations from publishing a magazine or periodical without government approval. 87

Though these rules are not emergency provisions as such, they are significant in
the maintenance of national security and public order. Therefore, they can mainly be
considered as national security exceptions, and which may however lead to their
application even in the cases of national emergencies. On the whole, it is manifest that
the relevant provisions of the Central Civil Services (Conduct)· Rules, 1964, and the
Central Civil Services (Recognition of Service Association) Rules, 1993 particularly
stand in the way of ratification ofthe Convention No.87.

Further, the right to strike of workers in the essential services is restricted by

·section 22 of the Industrial Disputes Act, 1947. Under section 22(1) no person employed
in a public utility service shall go on strike in breach of contract without fulfilling certain
conditions. 88 Public utility service being essential service is defined in section 2(n)(vi) of
the 194 7 Act, which provides that, "any industry specified in the First Schedule which the
appropriate Government may, if satisfied that public emergency or public interest so
requires, by notification in the Official Gazette, declare to be a public utility service for
the purposes of this Act, for such period as may be specified in the notification: Provided

86
The Central Civil Services (Conduct) Rules, 1964, http://persmin.nic.in/estt/CCSRules_1964/ccs_
conduct_rules_1964_details.htm#OO-FOREWORD, 07 July 2007.
87
Governing Body Review of Annual Reports under the Follow-up to the ILO Declaration on Fundamental
Principles and Rights at Work (Geneva: International Labour Office, 2003), p.54.
88
Section 22(1) of the Industrial Disputes Act, 1947 states that, "No person employed in a public utility
service shall go on strike in breach of contract- (a) without giving to the employer notice of strike, as
hereinafter provided, within six weeks before striking; or (b) within fourteen days of giving such notice; or
(c) before the expiry of the date of strike specified in any such notice as aforesaid; or (d) during the
pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion
of such proceedings". See the Industrial Disputes Act, 1947, http://labour.delhigovt.nic.in/actlhtml_idal
chapterS/page_l.html#22, 15 July 2007.

206
 that the period so specified shall not, in the first instance, exceed six months but may, by
a like notification, be extended from time to time, by any period not exceeding six
months, at any one time, if in the opinion of the appropriate Government, public
emergency or public interest requires such extension".

Apart from the above, whenever the threat of strike by the government employees
was faced by the Government, in order to prevent it the Government had promulgated the
Essential Services Maintenance Ordinance, under Article 123(1) of the Constitution,
declaring the proposed strike illegal, and providing for the punishment in case of
violation. 89 Later, the Essential Services Maintenance Act, 1981 (ESMA) has been
enacted in the Parliament, which empowers the Government to declare certain categories
of industries/services to be essential services, based on the public utility of the
industries/services in the State. The disputes/demands of workmen engaged in such
industries/services are first taken up to be resolved by the negotiation mechanism under
the Industrial Disputes Act, 1947 and even after that process, if they go on strike, only as
the last option, the Government resorts to invoking the ESMA in order to prevent a loss
in production and maintain the barest minimum public utility services for ordinary
citizens and civil society. 90 In other words, a service may not be called essential for the
purpose of applying the ESMA at the initial stage of an agitation in a particular
industry/sector, but if it prolongs and starts adversely affecting the public life, thus
inconveniencing the innocent public, the State government can declare the services of the
sector/industry as "essential" and can apply the ESMA. It is up to the State governments
to decide the definition of "essential services" in a particular area and context. 91 A large
number of public services are included within the definition of "essential", such as those
relating to the supply of water and electricity, passenger and goods transport, firefighting

89
It may be noted that initially (pre-independent) India had promulgated the Essential Services
Maintenance Ordinance, 1941, under which no person engaged in any employment declared as essential
services could leave the area of employment. The guilty under the Ordinance was subject to its penal
provisions. This law was essentially a war time emergency measure of the Second World War, and could
be extended every six months in some of the selected or notified industries like oil, petroleum, and so on;
see Ali Amjad, Labour Legislation and Trade Unions in India and Pakistan (Karachi: Oxford University
Press, 2001), p.54. See also, Chamanlal Revri, The Indian Trade Union Movement: An Outline History
1880-1947 (New Delhi: Orient Longman, 1972), p.248.
90
Governing Body Review of Annual Reports, n.38, p.55.
91
Governing Body Review of Annual Reports, n.87, p.56.

207
and public health. 92 The State governments can also apply the ESMA whenever they find
it very difficult to prevent the striking employees. This indicates that right to strike of
employees in essential services as being the public utility services can be prohibited by
the Government in order to prevent a likely situation of emergency of similar kind
affecting the life of general public.

The above analysis shows that the principles of freedom of association and
collective bargaining, and the right to strike, can be suspended, restricted or even
prohibited in the case of government servants and workers in essential services during
situations of emergency under the Constitutional and statutory provisions in India. Thus,
the abovementioned provisions act as either national security exceptions or emergency
exemptions at the domestic level in India. On the whole, it may be said that those
concerned provisions are more or less in consonance with the spirit behind the two
freedom of association Conventions Nos. 87 and 98 and their various interpretations
made by the supervisory bodies. In tum, it may be suggested that these national security
exceptions and interpretative emergency exemptions can well lie in tune with the Indian
corresponding laws, in case India wishes to ratify the above two Conventions.

V.2.4. Night Work (Women) Convention (Revised), 1948 (No.89)

The Convention No.89 93 is another instrument containing an emergency clause,

and thereby allowing the suspension of the operation of the provisions of the Convention
on the prohibition of women's night work during "serious emergency". Article 5(1) of the
Convention No.89 provides that, "The prohibition of night work for women may be
suspended by the government, after consultation with the employers' and workers'
organisations concerned, when in case of serious emergency the national interest
demands it". It is essential to note that a serious emergency can only be invoked in
exceptional circumstances, such as in time of war, and that it must not in any case allow

92
Governing Body Review of Annual Reports under the Follow-up to the ILO Declaration on Fundamental
Principles and Rights at Work (Geneva: International Labour Office, 2006), p.58.
93
Article 2 of the Convention No.89 states that, "For the purpose of this Convention the term night
signifies a period of at least eleven consecutive hours, including an interval prescribed by the competent
authority of at least seven consecutive hours falling between ten o'clock in the evening and seven o'clock
in the morning; the competent authority may prescribe different intervals for different areas, industries,
undertakings or branches of industries or undertakings, but shall consult the employers' and workers'
organisations concerned before prescribing an interval beginning after eleven o'clock in the evening".

208
 for an export drive. The rationale for the suspension clause was found in the experience
during the Second World War when prohibitions as regards the night work of women
were relaxed in several belligerent and neutral countries. 94 In other words, by "serious
emergency" the intention was to refer to a war situation based on the experience of the
two world wars. However, there has been a clear tendency in subsequent practice to
interpret this proviso far more extensively. 95 Article 5(1) while providing for the
possibility of temporarily suspending the application of the prohibition of night work for
women in case of serious emergency, makes it clear that such suspension must be
resorted to only after consultation with the employers' and workers' organisations
concerned. Article 5(2) of the Convention No.89 further provides that "such suspension
shall be notified by the government concerned to the Director-General of the
International Labour Office in its annual report on the application of the Convention".

In the case of India, though the Factories Act, 1948 does not contain an exclusive
emergency exemption provision from the prohibition of night work of women, still it
provides for general exemption from the prohibition of night work under section 5, and
also an exemption in the case of female adolescent in section 70(1A). Section 5 of the
Factories Act, 1948 states that, "In any case of public emergency the State Government
may, by notification in the Official Gazette, exempt any factory or class or description of
factories from all or any of the provisions of this Act [except section 67] 96 for such period
and subject to such conditions as it may think fit: Provided that no such notification shall
be made for a period exceeding three months at a time. [Explanation: For the purposes of
this section "public emergency" means a grave emergency whereby the security of India
or of any part of the territory thereof is threatened, whether by war or external aggression
or internal disturbance.]". It may be noted that the term used in section 5 is "public
emergency", which has the character of "national emergency" embodied under the
Constitution of India. It shows that section 5 is applicable to both men and women

94
General Survey on Night Work of Women in Industry by the Committee of Experts, n.23, para.55, p.35.
It may be noted that earlier two Conventions on night work (Nos. 4 of 1919, and 41 of 1934) do not contain
similar flexible exemption provision on "serious emergency".
95
Ibid., para.79, p.49.
96
Section 67 of the Factories Act, 1948 states that, "No child who has not completed his fourteenth year
shall be required or allowed to work in any factory"; see the Factories Act, 1948, n.13.

209
workers. It therefore indicates that section 5 is in line with Article 5(1) of the Convention
No.89.

Section 70(IA) ofthe Factories Act, 1948 provides that, "No female adolescent or
a male adolescent who has not attained the age of seventeen years but who has been
granted a certificate of fitness to work in a factory as an adult, shall be required or
allowed to work in any factory except between 6 A.M. and 7 P.M.: Provided that the
State Government may, by notification in the Official Gazette, in respect of any factory
or group or class or description of factories- (i) vary the limits laid down in this sub-
section so, however, that no such section shall authorise the employment of any female
adolescent between 10 P.M. and 5 A.M.; (ii) grant exemption from the provisions ofthis
sub-section in case of serious emergency where national interest is involved". Thus,
proviso (ii) to section 70(1A) acts as an exemption provision for female adolescent
workers during "serious emergency", which can also be said to have been in line with
Article 5(1) of the Convention No.89.

V.2.5. Discrimination (Employment and Occupation) Convention, 1958 (No.lll)

A provision providing for national security exception can be found in the

Convention No.ll1. 97 Article 4 provides that, "Any measures affecting an individual who
is justifiably suspected of, or engaged in, activities prejudicial to the security of the State
shall not be deemed to be discrimination, provided that the individual concerned shall
have the right to appeal to a competent body established in accordance with national
practice". This clause is intended to prevent the protection of a policy of non-
discrimination from being invoked by individuals who are in fact engaged in activities
prejudicial to the security of the State. So, measures not to be considered discriminatory

97
The Convention No.111 aims at the elimination in the field of employment and occupation of
discrimination based on race, colour, sex, religion, political opinion, national extraction, social origin, and
all other causes determined by a ratifying Member State. It has been ratified by 166 Member States
including India as on 01 March 2008. Article 1(1) of the Convention No.l11 states that, "For the purpose of
this Convention the term discrimination includes- (a) any distinction, exclusion or preference made on the
basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the
effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; (b) such
other distinction, exclusion or preference which has the effect of nullifying or impairing equality of
opportunity or treatment in employment or occupation as may be determined by the Member concerned
after consultation with representative employers' and workers' organisations, where such exist, and with
other appropriate bodies".

210
under Article 4 must be measures affecting an individual due to activities he or she is
justifiably suspected or proven to have undertaken. Such measures however must not be
taken simply by reason of membership of a particular group or community, otherwise
they are discriminatory. 98

The exception provided for in Article 4 refers only to activities qualifiable as

prejudicial to the security of the State, whether such activities are proved or whether
consistent and precise presumptions justify suspecting such activities. Therefore, the
expression of opinions or religious, philosophical or political beliefs is not a sufficient
base for the application of the exception. If an individual propagates doctrines aimed at
fundamental changes in the State's institutions, and, in so doing, does not resort to violent
methods, he or she is not thereby excluded from the protection of the Convention. The
clause is also designed to ensure that measures taken to protect the security of the State
do not indeed run counter to the policy of non-discrimination, by setting the conditions
and safeguards that must accompany such protective measures. 99

Measures aimed at safeguarding the security of the State within the ambit of
Article 4 must be sufficiently well defined and delimited to ensure that they do not
become discrimination based on political opinion or religion, which would defeat the
Convention's primary objective of promoting equality of opportunity and treatment.
Irrespective of whether the measures are based on "lack of loyalty", ''the public interest"
or "anti-democratic behaviour", among others, the application of such measures must be
examined in the light of the bearing which the activities concerned may have on the
actual performance of the job, tasks or occupation of the person concerned. Otherwise,
there is a danger, and even likelihood, that such measures entail distinctions and
exclusions based on political opinion or religion, which would be contrary to the
Convention. 100

98
General Survey on Equality in Employment and Occupation by the Committee of Experts on the
Application of Conventions and Recommendations, Report III, Part 4B, International Labour Conference.
83'd Session, 1996, para.l24, pp.40-41.
99
Ibid., para.l25, p.41.
100
Ibid., para.l26, p.41.

211
 It may be noted that in order to maintain the security of the State, measures exist
in almost all countries. They may refer to situations such as martial law or a state of
emergency, which are governed by provisions directly affecting employment or
occupational issues. For instance, convictions for acts undermining State security are
frequently accompanied by a ban on work in certain sectors of activity, on the holding of
public or elected office or on the exercise of certain occupations. 101 However, there is
also a procedural condition to be respected by a government intending to invoke the
exception under Article 4, that is, the right of the person affected by the measures "to
appeal to a competent body established in accordance with nationai practice~-. The
existence of this procedural guarantee constitutes a prerequisite for the legitimate
application of Article 4, but is not sufficient in itself. Therefore, it is important to keep
the appeals body separated from the administrative or governmental authority and offer a
guarantee of objectivity and independence. 102

India has ratified the Convention No.111. In India a provision making security of
the State an exception to the principle of natural justice in the case of dismissal or
removal of civil servants can be found in Article 311 (2) of the Constitution. Under
Article 311 (2) no person who is a member of a civil service of the Union or an all-India
service or a civil service of a State or holds a civil post under the Union or a State shall be
dismissed or removed or reduced in rank except after an inquiry in which he has been
informed of the charges against him and given a reasonable opportunity of being heard in
respect of those charges; however under sub-proviso (c) of the second proviso to Article
311 (2) this clause (clause 2 of Article 311) shall not apply where the President or the
Governor, as the case may be, is satisfied that in the interest of the security of the State it
is not expedient to hold such inquiry. 103 It indicates that in the interest of the security of
the State a civil servant can be dismissed or removed or reduced in rank without having
faced an inquiry in which he has been informed of the charges against him and given a
reasonable opportunity of being heard in respect of those charges. In other words, in the
interest of the security of the State the principle of natural justice need not be followed in

101
Ibid., para.l27, p.41.
102
Ibid., paras.l28-129, p.41.
103
Ministry of Law and Justice-Legislative Department, n.73.

212
 the case of dismissal or removal of civil servants. When the principle of natural justice
has been expressly excluded by the second proviso to Article 311 (2), it can not be
imported by resorting to Article 14 (right to equality) of the Constitution. 104 Therefore,
sub-proviso (c) of the second proviso to Article 311 (2) can be termed as national security
exception.

Further, section 10(1)(aa) ofthe Central Civil Services (Classification, Control &
Appeal) Rules, 1965 allows the suspension of a Government servant by the appointing
authority or any authority to which it is subordinate or the disciplinary authority or any
other authority empowered in that behalf by the President, by general or special order,
where in the opinion of the authority he has engaged himself in activities prejudicial to
the interest of the security of the State. 105 Though this provision does not act as an
exception, certainly it is a national security provision employable as a ground for the
suspension of a government servant from the service. 106 The security of the State
provision can further be found in Rule 7(i) of the Central Civil Services (Conduct) Rules,
1964. According to Rule 7(i) no Government servant shall "engage himself or participate
in any demonstration which is prejudicial to the interests of the sovereignty and integrity
of India, the security of the state, friendly relations with foreign States, public order,
. decency or morality, or which involves contempt of court, defamation or incitement to an
offence". 107 It may also be noted that if a person is found to have engaged in subversive
activities or is reasonably suspected of being connected with activities prejudicial to the

104
See Union of India vs. Tulshiram Patel, AIR 1965 SC 2045.
105
Ministry of Personnel, Public Grievances and Pensions, Government of India, http://persmin.nic.in/
ccs/ccstotall.htm#OO, 08 August 2007.
106
Likewise, under Rule 5(1 )(b) of the Railway Servants (Discipline and Appeal) Rules, 1968 a railway
servant may be placed under suspension, "where, in the opinion of the authority competent to place a
railway servant under suspension, he has engaged himself in activities prejudicial to the interest of the
security of the state"; see the Railway Servants (Discipline and Appeal) Rules,· 1968
http://www.geocities.com/irpsindialrsdar68.htrnl, 10 August 2007.
107
The Central Civil Services (Conduct) Rules, 1964, n.86. In addition, the said provision can be reinforced
by section 3(1) of the National Security Act, 1980, which can generally be applied for detaining a person
involved against the defence and security of the country. Section 3(1) provides that, "The Central
Government or the State Government may-- (a) if satisfied with respect to any person that with a view to
preventing him from acting in any manner prejudicial to the defence of India, the relations of India with
foreign powers, or the security of India, or (b) if satisfied with respect to any foreigner that with a view to
regulating his continued presence in India or with a view to making arrangements for his expulsion from
India, it is necessary so to do, make an order directing that such person be detained"; see The National
Security Act, 1980 (65 of 1980) http://www.mha.gov.in/acts-rules/National_Security_Act 1980.pdf, 08
August 2007.

213
security of the country, he is considered unsuitable for appointment to government
108
service. The analysis indicates that the above laws governing the conditions of
employment of government servants in India are more or less in consonance with Article
4 of the Convention No.lll in respect of national security exceptions. Though they are
applicable in case of non-emergency national security, yet they may be made applicable
to prevent the situations of emergency also. That means that the inaction on the part of
the government in the cases prejudicial to the security of the State may lead to a threat to
the security of the country rendering to some situations of emergency.

V.3. General Emergency Provisions under Indian Law

In order to better appreciate the above analysis on emergency and national

security, it is necessary to have at least a brief account of Indian laws in general. Apart
from the above mentioned provisions of relevant legislations in respect of concerned
Conventions, there exist in the Constitution of India specific provisions to deal with the
situations of national emergencies, either of internal or of external security of the country.
Article 352 109 of the Constitution empowers the President of India to proclaim national
emergency in respect of whole or any part of India, if he is satisfied that, either by war or
external aggression or armed rebellion, 110 there exists a grave emergency threatening the
security of India. Upon proclaiming an emergency, the fundamental rights under article

108
P.M. Menon, "Towards Equality of Opportunity in India", International Labour Review, vol.94, no.4,
1966, p.359.
109
Article 352(1) of the Constitution provides that, "If the President is satisfied that a grave emergency
exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or
external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in
respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.
Explanation-- A Proclamation of Emergency declaring that the security of India or any part of the territory
thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual
occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent
danger thereof'; see Ministry of Law and Justice-Legislative Department, n.73. .
110
Prior to the 44th amendment one of the grounds on which emergency could be declared under Article
352(1) was "internal disturbance". These words "internal disturbance" were vague and gave wide
discretion to the Executive to declare emergency even on flimsy grounds. In 1975 the emergency was
declared on the ground of internal disturbance by the then Prime Minister Indira Gandhi because the
opposition parties had given a call to launch a movement with a view to compelling the Prime Minister to
resign from her post as her election to the Lok Sabha was declared void by the Allahabad High Court. The
44th amendment has substituted the words "armed rebellion" for the words "internal disturbance" which
will exclude the possibility of a situation which arose in 1975. See Pandey, n.81, p.676.

214
 19 of the Constitution, by virtue of Article 358, 111 get automatically suspended. Article
359(1) empowers the President to suspend the right to judicially enforce the fundamental
rights, except articles 20 and 21, guaranteed under Part III ofthe Constitution. It provides
that, "Where a Proclamation of Emergency is in operation, the President may by order
declare that the right to move any court for the enforcement of such of the rights
conferred by Part III (except articles 20 and 21) 112 as may be mentioned in the order and
all proceedings pending in any court for the enforcement of the rights so mentioned shall
remain suspended for the period during which the Proclamation is in force or for such
shorter period as may be specified in the order". In accordance with Article 353 during
national emergency, the Union Parliament is empowered to legislate on subjects in the
State List under the Constitution. The Central Government declared a formal state of
emergency in 1962. when Chinese and Indian armed forces clashed along India's northern
border, and in 1971 when war broke out between India and Pakistan. Each of the two
wartime proclamations of emergency was followed by parliamentary action conferring
sweeping powers upon the Executive. For instance, rules promulgated under the Defence
of India Act, 1962 authorised the Central and State Governments to engage in preventive
detention extending well beyond the length of time permitted under ordinary preventive
detention Iaws. 113 India had again experienced a state of emergency declared by Indira
Gandhi in 1975 in response to threats allegedly posed by "internal disturbance", which
lasted till March 1977. It is essential to observe from the above that as the major
consequence of the proclamation of emergency is the automatic suspension of Article 19

111
Article 358(1) of the Constitution provides that, "While a Proclamation of Emergency declaring that the
security of India or any part of the territory thereof is threatened by war or by external aggression is in
operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or
to take any executive action which the State would but for the provisions contained in that Part be
competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have
effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done
before the law so ceases to have effect: Provided that where such Proclamation of Emergency is in
operation only in any part of the territory oflndia, any such law may be made, or any such executive action
may be taken, under this article in relation to or in any State or Union territory in which or in any part of
which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part
of the territory thereof is threatened by activities in or in relation to the part of the territory of India in
which the Proclamation of Emergency is in operation"; see Ministry of Law and Justice-Legislative
Department, n.73.
112
Inserted by 441h (Constitution) Amendment Act, 1978.
113
Anil Kalhan, and others, Antiterrorism and Security Laws in India: A Report to the Association of the
Bar of the City of New York on a Research Project for the Committee on International Human Rights,
pp.32-33; see http://www.abcny.org/pdf/ABCNY_India_Report.pdf, 16 August 2007.

215
dealing with six freedoms, the exercise of freedom of association, particularly of trade
unions, under Article 19(1Xc) gets affected.

Apart from the Constitutional provisions, several security laws were enacted in
Parliament in order to empower the Central/State Governments to deal with situations of
national security. The Preventive Detention Act (PDA) was enacted in the Parliament in
1950, which authorised detention for up to 12 months by both the central and state
governments if necessary to prevent an individual from acting in a manner prejudicial to
the defence or security of India, relations of India with foreign powers, security of the
state or maintenance of public order, or maintenance of essential supplies and services.
As it finally lapsed in 1969, the Maintenance oflntemal Security Act, 1971 (MISA) was
enacted which largely restored the provisions of the PDA. 114 The MISA was replaced by
the National Security Act of 1980, which, remains in effect today, restored many of the
provisions found in the PDA and the pre-emergency version of the MISA. The Central
Government later on enacted Terrorist and Disruptive Activities (Prevention) Act of
1985, which was replaced by the Prevention ofTerrorism Act of2002 (POTA). The 2002
Act was repealed in 2004, and to fill the gap the Unlawful Activities (Prevention) Act,
1967 was amended in 2004. 115

Owing to emergency situation the exercise of labour rights particularly freedom

of association and right to strike also gets affected. Upon the proclamation of emergency,
the provisions dealing with the fundamental rights become unenforceable in the court of
law. That means during normal period for the violations of labour laws, the workers and
employers (citizens) can approach the courts under Part III (fundamental rights) of the
Constitution as a basic remedy; however, the provisions of Part III, barring Articles 20
and 21, become redundant during national emergency. The emergency situation
empowers the Central government to legislate on subjects in any of the three Lists under
the Constitution. This further enables the Central government to bring the (amending)
ordinance or legislation, if needed, even in the field of labour and industrial laws, thereby

114
Ibid., pp.35-36. The Maintenance of Internal Security Act, 1971 and other preventive detention laws
were amended during the Emergency to permit much longer periods of detention, which had made it easier
for the government to exercise detention authority without Advisory Board scrutiny while eliminating other
procedural protections that otherwise applied; see Ibid., p.38.
115
Ibid., pp.53-54.

216
amending various existing provisions to meet the situation of emergency. Therefore, the
above analysis signifies that as the domestic implementing legislations can not be .
enforced during the period of national emergency, the ratified ILO Conventions can also
become ineffective during that period.

V.4. Summing-up

The chapter has examined the aspects of flexibility in the Conventions through
emergency clauses. Initially, the study has focused on the flexibility in terms of force
majeure clauses, which authorise certain derogations by Member States from rhe normai
implementation of the Conventions. In this respect, the study has concentrated on the
Conventions relation to Hours of work in industry, forced labour, night work of women.
While the Convention concerning hours of work in industry does not define the term
''force majeure", the forced labour Convention specifies the instances of ''force majeure"
through the wordings "in the event of war or of a calamity or threatened calamity, such as
fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by
animal, insect or vegetable pests". Both these Conventions have identified the
corresponding provisions under the Indian legislations leading to illustrate how the Indian
law responds to the international labour Conventions in terms of implementation with the
help of flexible force majure clauses.

The study next focused on the aspects of suspension of the Conventions under
emergency clauses, other than the force majeure. Emergency clauses are introduced in
the Conventions in order to permit Member States to deal with urgent situations: They
can also be employed as national security exception clauses. The study has examined the
Conventions concerning hours of work in industry, forced labour, freedom of association
and collective bargaining, night work of women, and discrimination in employment and
occupation. While certain Conventions may contain an independent emergency clause
like that of the Convention relating to hours of work in industry, certain other may have
combined clauses, like that of Article 2(2)(d) of the Convention concerning forced
labour, which may be used to deal with both the situations offorce majeure and national
emergencies. However, the forced labour Convention also contains an independent
national security exception clause leading to compulsory military service of a purely

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military character, and the same clause can even be utilised m the cases of other
emergency situations.

Both the Convention concerning the freedom of association and right to organise,
and the Convention concerning right to organise and collective bargaining contain a
discretionary exceptional clause permitting the Member States to determine the extent to
which the Convention to be applied to the armed forces and the police; consequently,
under this clause the armed forces and the police can be kept outside the ambit of both
the Conventions also. These clauses can therefore be termed as national security
exception clauses. Besides, they can even be employed to deal with situation of other
emergencies. In this respect, both the freedom of association Conventions have been
analysed in detail by the study with help ofthe observations ofthe supervisory bodies of
the ILO in order to examine whether they can be suspended during the emergency
situations. It is found that they can be suspended or restricted in cases of· acute
emergency, but for brief periods of time. Different facets of freedom of association
including the right to strike and collective bargaining of the government servants, and of
the workers particularly in essential services are examined in order to understand the
extent to which both the Conventions can be suspended during emergencies. Further,
while dealing with India's corresponding domestic laws, the study has found that though
certain service laws particularly come in the way of ratification of these Conventions,
India has been implementing them at least in spirit, which in turn appears to be in
consonance with the contained flexibilities.

Further, an independent emergency clause is dealt with under the Convention

concerning night work of women, which specifically provides for the prior consultation
with the employers' and workers' organisations for its invocation by the Member States.
In this regard, for India relevant domestic provisions are identified. The study has
examined a national security clause in the Convention concerning discrimination in
employment and occupation, under which any measures taken against an individual by
the Member State are not considered discriminatory. Corresponding domestic laws of
India have also been looked at.

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 The study has finally examined the general emergency provisions embedded in
the Constitution of India and relevant domestic legislations in order to understand more
effectively the flexibility aspects of emergencies contained in the relevant Conventions in
the light of the Indian laws.

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