Definitive Report - Report No 4, 1953

Case No 5 (India) - Complaint date: 01-JAN-50 - Closed

1. 18. At its first session in January 1952, the Committee had before it two complaints against the Indian Government, one made by the Hind Mazdoor Sabha and the other by the World Federation of Trade Unions. As the two complaints contained different allegations, the Committee deemed it advisable to examine them separately.

A. Complaint presented by the Hind Mazdoor Sabha

1. Analysis of the Complaint
2. 19. The complainants requested an on-the-spot investigation by the Fact-Finding and Conciliation Commission into the violation of fundamental trade union rights. Their complaint contained the four following allegations which, in their view, constituted infringements of the exercise of trade union rights:
3. (a) In many States the employees of the State and local Governments have been denied the right to constitute or register trade unions.
4. (b) The continuous enforcement of S. 144 of the Indian Criminal Procedure Code has rendered it impossible for trade unions to function normally and effectively.
5. (c) Whenever industrial disputes arise or are apprehended, the Government, under the plea of maintaining law and order, frequently resorts to arrests, externments and detention of militant workers and trade unionists.
6. (d) The right to strike is virtually abolished and the Indian Government, under the plea of maintaining law and order, has denied in practice the right to picket peacefully strikebound factories.
7. Analysis of the Reply
8. 20. In its reply the Government made no reference to the first allegation.
9. 21. With regard to the second and third allegations, the Government, while not referring specifically to S. 144 of the Code of Criminal Procedure, denied that it resorted to arrests, externment or detention of trade unionists whenever industrial disputes arose or were apprehended. It declared there had been no departure from the provisions of the Central Industrial Disputes Act, 1947 or of similar State Acts which provide for the establishment of machinery for the prevention and settlement of such disputes, so long as the activities of the organisations concerned were confined to settlement by peaceful methods.
10. 22. As regards the fourth allegation, the Government stated that, with the same proviso, the provisions of the above Acts governing strikes and lockouts had been adhered to.
11. 23. Regarding the suggestion of an investigation by the Commission, the Government stated that it would present its observations after the Governing Body had taken a decision on the question of the referral of this complaint and that made by the World Federation of Trade Unions to the Commission.
12. Conclusions
13. 24. At its first session the Committee reached the following conclusions in regard to these allegations.
14. 25. With regard to the first allegation, the Committee, while attaching importance to the right of State and local government employees to constitute and register trade unions under appropriate conditions, considers, having regard to the fact that the complainants did not specify in which States and by which laws or under what practice these employees have been denied the right to constitute unions and that the Government made no reference to the point in its reply, that the information supplied by the complainants is not sufficiently precise to enable it to recommend to the Governing Body that this part of the case calls for further examination.
15. 26. With regard to the allegation that the law of the land, namely, the Public Security Acts, is applied to all classes of industrial disputes, to which the Government replies that the legislation governing public order is applied only where it is made necessary because the workers' organisations abandon peaceful methods of settling disputes in accordance with the legislation governing industrial disputes, the Committee, while recognising that the general application of public security legislation to all disputes, as alleged, might involve an infringement of the exercise of trade union rights, nevertheless considers, in view of the fact that neither party forwarded texts of the Public Security Acts and that the complainants offered no specific evidence whether the Acts had been applied to workers in the exercise of legitimate trade union rights, that the information supplied by the complainants is not sufficiently precise to enable it to recommend to the Governing Body that this part of the case calls for further examination.
16. 27. With regard to the allegation that the right to strike is virtually abolished, to which the Government replies that the provisions concerning strikes in legislation governing industrial disputes have been adhered to so long as the peace has not been disturbed, the Committee, while thinking it appropriate to point out that in most countries strikes are recognised as a legitimate weapon of trade unions in furtherance of their members' interests so long as they are exercised peacefully and with due regard to temporary restrictions placed thereon (for example, cessation of strikes during conciliation and arbitration procedures, refraining from strikes in breach of collective agreements), considers, having regard to the fact that no reference is made in the complaint to specific cases of the prohibition of the right to strike, that the information supplied by the complainants is not sufficiently precise to enable it to recommend to the Governing Body that this part of the case calls for further examination.
17. B. Complaint presented by the World Federation of Trade Unions
18. Analysis of the Complaint
19. 28. The allegations in this complaint, which, in the view of the complainants, constitute infringements of trade union rights, fall under eight heads.
20. (a) The Government was trying by every means to hand over the offices of the All-India Trade Union Congress to the Indian National Trade Union Congress. In April 1949 the head offices of the Union of Railway Workers of Southern India were seized and handed over, with all the printing materials therein, to the Indian National Trade Union Congress.
21. (b) Nineteen trade unions and peasants' organisations were suppressed in Madras in September 1949 and all the offices of trade unions affiliated to the All-India Trade Union Congress in Madras were closed down.
22. (c) The Public Security Acts in India have been used to repress the trade union movement. These Acts provide that any person disturbing or likely to disturb public order may be detained and arrested without trial and this for a practically unlimited period. Thousands of trade unionists have been arrested and held without trial under those Acts.
23. (d) Thousands of workers have been arrested and numerous unions have been forced to cease their activities and had their offices closed and their archives confiscated.
24. (e) More particularly, in Madura, in August 1949, following protests by workers after the authorities rejected their demands for wage increases, over 1,000 workers were arrested. Most were tortured in prison and, by this means, militant workers were forced to give allegiance to the government-sponsored Indian National Trade Union Congress (I.N.T.U.C). Trade union offices were invaded by the police, furniture destroyed and archives removed. Over 1,400 workers were arrested in the Coimbatore region, 300 to 400 in the Tinnevelley region, over 200 in the North Arcot district. During August 1949, alone, over 4,000 workers in all were arrested and held in prisons in which horrible conditions existed and in which torture was regularly applied.
25. (f) The Government forced the workers on the South Indian Railways to inform the administration of the union to which they belong, hoping to make A.I.T.U.C members transfer to I.N.T.U.C. Many unions affiliated to A.I.T.U.C cannot hold meetings because of Government prohibition.
26. (g) The Mettur Textile Workers' Union Conference in 1949 was prohibited, as were those of the Salem Hand Weavers' Union in July 1949 and of the Central Executive Committee of Trade Unions in the district of Trichy in August 1949.
27. (h) Most of the time trade union newspapers are prohibited and their circulation prevented.
28. Analysis of the Reply and Supplementary Reply
29. 29. With regard to the allegation concerning the handing over of the offices of the All-India Trade Union Congress, the Government denied that the offices were handed over and stated that, in fact, the Government prevented the offices of the South Indian Railway Labour Union from being taken over by a rival union.
30. 30. With regard to the allegation that 19 trade union organisations were suppressed in Madras, the Government stated that the organisations concerned were declared unlawful because they were controlled by the communist party, which was itself an unlawful organisation. Action was only taken after the State Government had satisfied itself that the 19 organisations indulged in activities detrimental to public safety and order. The ban, however, had since been lifted. The offices of trade unions affiliated to the All-India Trade Union Congress in Madras were not closed down. Certain premises housing the offices of unions controlled by communists were searched for objectionable material and later handed back to the unions concerned.
31. 31. With regard to the remaining allegations, the Government, in its reply, stated that measures taken in 1949 to maintain law and order were not designed to suppress the unions. The complaint that thousands were arrested is untrue. There were communist disturbances, together, in some cases, with sabotage, arson and murder, in several Madras districts in the latter half of 1949. The accused were prosecuted for specific acts of criminal violence and no arrests were made with the intention of depriving any worker of any trade union right. No attempt has been made to smother trade unions or trade union rights and there is no law placing any restraint on the exercise of " any of the recognised rights of trade unions " and no person has been proceeded against for exercising these rights. All detentions have been ordered under the Public Safety Acts enacted solely to prevent attempts at violent disruption of organised Government. A.I.T.U.C and its constituent units are functioning in full freedom and will not be restrained unless there is open incitement to violence or to the commission of crimes.
32. 32. At its first session (January 1952), the Committee reached the conclusions, with regard to the first two allegations, which are set forth in paragraphs 40 and 41 below. Having examined the Government's observations concerning the remaining allegations, the Committee decided to request the Indian Government for further information regarding the points made in those allegations before it made its recommendations to the Governing Body. The Director-General wrote accordingly to the Indian Government on 22 January 1952. The Indian Government having replied on 6 March 1952, stating that the assembling of the information required had not yet been completed and requesting the Committee to postpone consideration of the case until its third session, the Committee, at its second session in March 1952, agreed to defer the case until the present session.
33. 33. On 25 April 1952 the Indian Government forwarded the further information requested.
34. Allegation relating to the Application of the Public Security Acts
35. 34. The Government stated that the provisions contained in the State Security Acts in force during 1949 did not infringe the principles enunciated in Article 9 of the Universal Declaration of Human Rights. (This Article provides that no one shall be subjected to arbitrary arrest, detention or exile.) They were temporary measures to protect the country against chaos and violence. Most of them contained provisions for a review of the case of detenus by an Advisory Board. For example, the Government refers to the provisions in the Madras legislation to the effect that the Government should communicate the grounds of detention to the person concerned as soon as possible after the issue of the detention order to enable him to make representations against his detention ; such representations should be referred to an Advisory Council, presided over by a high court judge, for consideration, and no person should be detained for more than six months without a review of his case by the Council. The maximum period for which a person could be detained after a review was six months from the date of confirmation of the detention order by the Government on the recommendation of the Advisory Council. The (Central) Preventive Detention Act, 1950 came into force on 26 February 1950, since which date detentions can now be effected only under that Act-its life continues at present only until 30 September 1952. Under this Act the Government must refer the case of a detenu, within six weeks of the date of the detention order, to an Advisory Board consisting of three members who are, or have been, or are qualified to be appointed as high court judges. If the Board considers there is insufficient cause for detention the person concerned must be released forthwith. The Government considers that these provisions prevent Government officials abusing their powers. It also claims that the fact that many State Governments, especially Madras, have recently released a large number of detenus on parole shows that State Governments are moved solely by considerations of public security in deciding on preventive detention.
36. Allegation relating to Mass Arrests and Closing of Union Premises
37. 35. The Government claims that the complainant makes only a general statement. Some arrests were made in 1949, but purely on public security grounds and not in connection with trade union activities as such. The position must be considered in the light of conditions in India in 1948 and 1949, when there were several outbreaks of violence and sabotage instigated by the communist party. The Government cites a number of violent occurrences in Madras. It became necessary to order some preventive detentions and to place local and temporary limitations on the holding of meetings. Without so doing the tide of violence and sabotage could not have been stemmed and would have resulted in loss of life, complete dislocation of food distribution and other serious consequences. The Government states further that these restrictions conform to Clause 4 of Article 19 of the Indian Constitution, which empowers the Central and State Governments to impose restrictions on freedom of association in the interests of public order or morality, and refers to Article 29 of the Universal Declaration of Human Rights, which permits the placing of limitations on human rights for " meeting the just requirements of morality, public order and general welfare in a democratic society ".
38. Allegation relating to Incidents in Madura and Other Localities
39. 36. The Government declares it is untrue that over 1,000 workers were arrested in Madura and militant workers forced to join the Indian National Trade Union Congress. During serious communist disturbances in the latter half of 1949, 36 workers in all were arrested preventively to protect life and property and to check violence. The violent policy of the communists caused many workers to disassociate voluntarily from the unions under their control. Some of these may have joined the Indian National Trade Union Congress but the Government had nothing to do with this. The Government refers to cases of sabotage, arson and murder in Coimbatore, in connection with which-and not in order to interfere with the right to organise-some 105 persons in all were arrested in 1949. Only seven of them were detained under the preventive detention law ; 305 and 219 workers were arrested in Tinnevelley and North Arcot respectively. These arrests were not made in order to suppress trade union rights. Only 17 and seven respectively of those arrested were detained. It is untrue to say that there is torture in the prisons. In Madras security prisoners do no labour and are kept apart from ordinary prisoners and enjoy greater privileges and amenities. No trade union property was destroyed by Government officials. With respect to this series of allegations the Government concludes by referring to a report from the Madras Government, which gives details of a considerable number of acts of violence, including murder, perpetrated in the State in 1949 and 1950, in consequence of which many top-ranking communists, including some trade unions leaders, were detained, and claims that only the public safety measures enabled the Government to maintain law and order ; finally, in September 1949, the unabated violence forced the Government to declare the communist party in the State illegal together with 23 unions under its control.
40. Allegations relating to the Issue of a Circular by the South Indian Railway, the Prohibition of Certain Meetings and the Banning of Trade Union Newspapers
41. 37. In September 1948 the South Indian Railway issued a circular letter calling on employees to give a declaration regarding their union membership. In October it issued a further circular stating that the only reason for this was to have statistics readily available. To avoid misunderstanding the railways administration subsequently discontinued the practice. The purpose of compiling the statistics was never to increase the strength of the Indian National Trade Union Congress at the expense of the All-India Trade Union Congress.
42. 38. With regard to union meetings alleged to have been prohibited the Government states that the complaint is misleading. Owing to political unrest and imminent danger of a breach of the peace, the holding of meetings and demonstrations had to be partially restricted. The Mettur Textile Workers' Union in fact celebrated its anniversary on 20 June 1949 under an appropriate licence. The Handloom Weavers' Conference in Salem in July 1949 was not prohibited as alleged. As regards Trichy, the Government, in July 1949, was forced to impose, in the interest of maintenance of law and order, a general ban on all public meetings and processions within the limits of the Golden Rock area. The unions held their meetings outside that area and they were not prohibited by the Government.
43. 39. No trade union newspapers were banned in Madras in 1949. The only action taken by the Government was to prohibit the printers, publishers, editors and manager of the South Indian Railway Labour Union Press from putting out handbills inciting workers to violence.
44. Conclusions
45. Allegation relating to the Handing Over of the Offices of the All-India Trade Union Congress
46. 40. The Committee considers that the information furnished by the complainant is not sufficient to enable it to recommend the Governing Body to decide that this part of the case calls for further examination.
47. Allegation regarding the Suppression of Nineteen Trade Unions in Madras
48. 41. The Committee noted that the Government pleaded legal justification for the banning of the organisations concerned but that neither side indicated whether or not the suspension was brought about by administrative authority and that there was no information as to whether the organisations concerned were accorded the right to appeal against the decision to the courts. In view, however, of the fact that the ban has since been lifted, the Committee recommends the Governing Body to decide that this part of the complaint has now become purposeless and does not call for further examination, while wishing, at the same time, to draw attention to the importance of the principle that organisations should not be liable to be dissolved or suspended by administrative authority.
49. Allegation relating to the Application of the Public Security Acts
50. 42. It is alleged that the State public security laws allow detention and arrest without trial for a practically unlimited period and that thousands of trade unionists have been arrested. The Government points out that the State Acts were only temporary measures enacted solely to maintain public order and that now detentions can be made only under the (Central) Preventive Detention Act of 1950, with a tightening up of the procedure for reviewing cases of detention. It is claimed that the fact that detentions must be reviewed within six weeks by an Advisory Board of persons who are or have been or are qualified to act as high court judges prevents the powers of detention from being abused. Finally, it is pointed out, the life of this Act, at present, is due to end on 30 September 1952.
51. 43. In view of the fact that the Government has cited the provisions of the Preventive Detention Act, 1950, it may be of assistance to reproduce the relevant sections of this Act, which are as follows
52. 3. Power to Make Orders Detaining Certain Persons.
53. (1) The Central Government or the State Government may:
54. (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to:
55. (i) the defence of India, the relations of India with foreign powers, or the security of India, or
56. (ii) the security of the State or the maintenance of public order, or
57. (iii) the maintenance of supplies and services essential to the community, or
58. (b) if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946 (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India,
59. it is necessary so to do, make an order directing that such person be detained.
60. ......................................................................................................................................................
61. 9. Reference to Advisory Boards
62. In every case where a detention order has been made under subclause (iii) of clause (a), or clause (b) of subsection (1) of section 3, the Government making the order, or if the order has been made by the officer specified in subsection (2) of section 3, the State Government to which such officer is subordinate, shall, within six weeks from the date of detention under the order, place before an Advisory Board constituted by it under section 8 the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer, also the report made by such officer under subsection (3) of section 3.
63. 10. Procedure of Advisory Boards
64. (1) The Advisory Board shall, after considering the materials placed before it and, if necessary, after calling for such further information from the Central Government or the State Government or from the person concerned, as it may deem necessary, submit its report to the Central Government or the State Government, as the case may be, within ten weeks from the date of detention under the detention order.
65. (2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.
66. (3) Nothing in this section shall entitle any person against whom a detention order has been made to attend in person or to appear by any legal representative in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.
67. ......................................................................................................................................................
68. 12. Duration of Detention in Certain Cases
69. (1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to:
70. (a) the defence of India, relations of India with foreign powers or the security of India; or
71. (b) the security of a State or the maintenance of public order.
72. (2) The case of every person detained under a detention order to which the provisions of subsection (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State Government, by such Government, and where the order was made by any officer specified in subsection (2) of section 3, by the State Government to which such officer is subordinate, in consultation with a person who is, or has been, or is qualified to be appointed as, a judge of a high court nominated in that behalf by the Central Government or the State Government, as the case may be.
73. 44. It would appear from these provisions that a detention must be reviewed within six weeks by an Advisory Board in the case of detention to prevent a person from acting in a manner prejudicial to the "maintenance of supplies and services essential to the community " ; if the reason for detention is to prevent a person from acting in a manner prejudicial to "the security of a State or the maintenance of public order ", a period of 12 months after his detention may elapse before his case comes before an Advisory Board. It is to be noted that, in its further reply, the Government states that "in deciding on preventive detention Governments in the country are moved solely by considerations of public security ".
74. 45. In these circumstances the Committee places on record its view that measures of preventive detention may involve a serious interference with trade union activities which it would seem necessary to justify by the existence of a serious emergency and which would be open to criticism unless accompanied by adequate judicial safeguards applied within a reasonable period. It noted, however, the improvement in the situation during the last five years, and, in particular, the fact that the Preventive Detention Act is due to come to an end on 30 September 1952. In these circumstances, the Committee, being confident that these considerations will be taken fully into account by the Government of India if any further legislation on the subject should be contemplated, recommends the Governing Body to decide that it is unnecessary to pursue the matter further at the moment.
75. Allegation relating to Mass Arrests and Closing of Union Premises
76. 46. No specific cases of arrests or cases in which unions have been forced to close down are alleged. The Government admits some arrests were made in 1949 under the Public Security Acts, but purely on public security grounds. The Committee, while making the same reservations on the question of preventive detention as are expressed in paragraph 45 above, considers that it is unable to judge whether there have been any infringements of trade union rights in view of the fact that these allegations are too vague to permit a consideration of the case on its merits and accordingly recommends the Governing Body to decide that this part of the complaint does not call for further examination.
77. Allegation relating to Incidents in Madura and Other Localities
78. 47. The Government, in its reply, gives details indicating that the number of persons arrested in Madura and other localities were far less than the numbers alleged and that, of these, a relatively small number were detained. The Government cites a large number of incidents of violence and crime in consequence of which arrests were made and denies that there was any interference with the exercise of trade union rights. The complainants do not give the names of any prisoners alleged to have been tortured and the Government, on the other hand, states that security prisoners enjoy preferential treatment. It is also denied that any trade union property was destroyed. In view of the state of tension and outbreaks of violence during the period under review and having regard to the fact that the arrests would appear to have been in consequence of acts already committed, the Committee considers that the complainant has not offered sufficient evidence to show that the exercise of trade union rights has been infringed and, accordingly, recommends the Governing Body to decide that this part of the case does not call for further examination.
79. Allegation relating to the Issue of a Circular by the South Indian Railway
80. 48. The Government states that the Railways Administration did issue a circular of the kind alleged but denies that the authorities had any intention of influencing trade union affiliation. It is admitted, however, that the issue of the circular gave rise to misunderstandings and that the practice of issuing such circulars was terminated. The Committee considers that the issue of circulars of the type issued by the Railways Administration, even though not intended to interfere with the exercise of trade union rights, may not unnaturally be regarded as such an interference and was in fact so regarded in the present case, but, as the practice of issuing such circulars has been terminated, the Committee recommends the Governing Body to decide that this part of the case does not call for further examination.
81. Allegation relating to the Prohibition of Certain Meetings
82. 49. With regard to the alleged prohibition of meetings the Government points out that owing to political unrest and danger of breaches of the peace some restrictions were placed on the general holding of all meetings and demonstrations. It would appear that these restrictions did not prevent any of the trade union meetings mentioned from being held. Under these circumstances, the Committee considers, in view of the Government's information, that the complainant has not offered sufficient evidence to show that the exercise of trade union rights has been infringed, and, therefore, recommends the Governing Body to decide that this part of the case does not call for further examination.
83. Allegation relating to the Banning of the Trade Union Press
84. 50. The Government denies that trade union newspapers were banned and states that the only action taken was to prohibit the publication by the South Indian Railway Labour Union Press of handbills inciting workers to violence. In view of this explanation the Committee considers that it is not proved that the facts would constitute an infringement of the exercise of trade union rights and, therefore, recommends the Governing Body to decide that this part of the case does not call for further examination.

The Committee's recommendations

1. 51. Under all these circumstances and having regard, in particular, to the extremely disturbed situation which existed at the time in question in certain regions, including the State of Madras, and to the acts of violence in consequence of which the measures were taken, the Committee, while emphasising the fact that it should be the policy of every Government to take care to ensure observance of the rights of man and, especially, of the right of all detained persons to receive a fair trial at the earliest possible moment, recommends the Governing Body to decide that, subject to the observations contained in paragraph 45 above, the case as a whole does not call for further examination.