85. The complaint of the Centre of Indian Trade Unions (CITU) is contained in two letters dated 26 January and 12 February 1976. The complainant furnished additional information in communications of 26 and 29 March, 17 April, 23 August, 9 September and 10 December 1976. The Government sent its observations on certain allegations by letter of 13 November 1976, stating that it was making efforts to obtain the comments of different states on the other allegations and that it would transmit its observations as soon as possible.
- 85. The complaint of the Centre of Indian Trade Unions (CITU) is contained in two letters dated 26 January and 12 February 1976. The complainant furnished additional information in communications of 26 and 29 March, 17 April, 23 August, 9 September and 10 December 1976. The Government sent its observations on certain allegations by letter of 13 November 1976, stating that it was making efforts to obtain the comments of different states on the other allegations and that it would transmit its observations as soon as possible.
- 86. India has ratified neither the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
A. A. The complainants' allegations
A. A. The complainants' allegations
- Allegations of the complainants
- 87 The complainants, in their first communication, stated that Mr. M.V. Subbaiah, General Secretary of the South Central Railway Employees' Union (an affiliate of CITU), had been suspended and charged with alleged violation of the Railway Servants Service Conduct Rules; continuing the action taken by his predecessor, he was alleged to have denounced the corruption of a railway official and challenged the decision of the competent Minister on the case. After his suspension, he was not allowed to move out of his headquarters, even for union activities. The CITU considered that he had been punished for his trade union activities and that a workers' organisation had the right to take up a question such as the one mentioned or challenge the veracity of the statements of the Minister. More than 6,000 workers were said to have appealed to the Minister against the measure taken. The complainants added in their letter of 26 March 1976 that the authorities had refused Mr. Subbaiah access to the documents necessary for the preparation of his defence in the internal inquiry which had been opened against him. Nor, according to CITU's letter of 10 December 1976, had he been authorised to leave headquarters to lead discussions at the annual conference of his union.
- 88 In their communication of 12 February 1976, the complainants alleged that the Defence of India Rules, the Maintenance of Internal Security Act and other preventive detention laws were being used against trade union officials during industrial disputes. The proclamation of a state of internal emergency, the complainants added, had imposed further restrictions on trade union functions, and organisations critical of the Government, unlike progovernment organisations, had been virtually prevented from carrying out ordinary trade union activities.
- 89 The CITU went on to state that over 2,000 union officials had been arrested without trial, while warrants had been issued against others; this was alleged to be the case with the general secretaries and presidents of four state Committees of the CITU and 20 members of its General Council. The complainants communicated the names of numerous trade unionists affected by these measures and also pointed out that some of them had been obliged to go into hiding. These measures, added the complainants, made it at times practically impossible for the unions to function; workers who had been arrested and released on bail found themselves out of jobs; in one case all the property of the worker concerned and his family had been confiscated; in another, the police had harassed a lawyer who was defending workers in the labour court. The CITU also cited the case of a former trade union leader of Nadga (Madhya Pradesh), Bhairav Bharatiyaa, who died in prison for lack of proper medical treatment. In Rajasthan, the police were said to have resorted to torture, apparently to force workers to leave the CITU and join the Indian National Trade Union Congress (INTUC); in Haryana, after the arrest of union leaders, the police were said to have openly threatened workers with imprisonment if they joined the CITU.
- 90 The complainants also described measures taken with respect to union premises (closing down, confiscation of documents and material); elsewhere workers visiting the union office were harassed by the police. The CITU recalled that it had already drawn attention to the occupation of over 300 union offices in West Bengal by anti-social elements under police protection; many trade union leaders and workers had been evicted from certain areas and further measures taken against the CITU affiliates had made their functioning still more difficult. In Bihar, continued the complainants, there was a reign of terror and gangsters were given full freedom to attack the workers.
- 91 Police action, continued the complainants, had been extensively resorted to by the management of certain undertakings to dismiss or lay off many workers in Uttar Pradesh and Orissa. Furthermore, unions were no longer authorised to hold meetings except in support of the Government, and workers were powerless to protest when employers made dismissals, shut down factories or increased the workload. In the Madhaya Pradesh coalmining area union leaders had even been arrested immediately after submitting a written claim to the authorities. Negotiations, in cases where they were held, took place practically under the threat of arrest if the trade unions refused to follow the line of the authorities. The CITU cited the case of its representative on the bipartite wage negotiation Committee for the steel industry, who could not attend some of the meetings because his house had been repeatedly searched in his absence; and that of its representative on the bipartite coal negotiation Committee, who had not been invited to attend the meetings. In West Bengal, the police, which had given permission for a demonstration on 9 October 1975, withdrew it and prevented the demonstration from taking place. In certain factories, a number of workers who were members of the CITU had been arrested when campaigning for increased bonuses, despite the fact that the campaign was supported by all trade union federations, including INTUC.
- 92 The CITU added that the picture of the situation given was by no means complete, since censorship of press and correspondence made it difficult to give a full description. Other unions had also faced repression, and the complainants mentioned the warrant of arrest issued against George Fernandes, General Secretary of the Hind Mazdoor Panchayat and President of the All-India Railwaymen's Federation.
- 93 The complainants mentioned other arrests of leaders of unions of central government employees and the transfer to remote regions of leading office bearers of unions in the postal and telegraphic services. Finally, the administration was said to be openly encouraging pro-government elements to disrupt the recognised trade unions.
- 94 The CITU also referred to the situation of employees of the state governments. In West Bengal the Government had arrested and dismissed 15 union leaders, including the Secretary of the State Co-ordination Committee of the West Bengal Government Employees' Associations and Unions, under article 311(2)(c) of the Indian Constitution; the Committee, which had already been the victim of earlier measures, was nevertheless, according to the complainants, not a political organisation but was pursuing legitimate trade union activities. The CITU also mentioned the cases of senior union leaders who had been dismissed or arrested in Tripura, Jammu and Kashmir.
- 95 The complainants went on to state that the Government had earlier constituted a tripartite body for consultation on matters concerning labour, in which all Indian trade unions whose verified membership was over 100,000 had been invited to participate. This procedure had now been abandoned. At the request of the Government, the CITU had sent lists of its affiliates for verification in 1970 and 1972; this verification was, however, not made, and the Government was considering the question of recognition on the basis of the 1968 verification in order to prevent the CITU from participating. After the proclamation of the state of emergency the Government had formed a National Apex Body, on which only pro-government organisations were represented. Similar Committees had been constituted for all branches of the industry and for the states, in which representatives of pro-government organisations had found a place. The CITU was excluded from these Committees, although it was the most important union in West Bengal and Kerala. Secret instructions were said to have been given to regional and local authorities to ignore representations from organisations which were critical of government policies.
- 96 In their communication of 29 March 1976 the complainants again referred to the discriminatory measures which, they claimed, were taken against them, particularly as concerns arrest. They cited the following example: in Kerala, their members and those of another union went on a one-day hunger strike in February 1976 for the purpose of obtaining a bonus; many workers of both organisations were arrested, but only the CITU members had been kept imprisoned. The CITU also mentioned the imprisonment of thousands of trade union workers in Tamilnadu in early 1976, including Mr. K. Ramani, Vice-President of CITU, who was in hospital at the time. Many warrants of arrest had also been issued, and these measures had made it difficult for the affiliates of the CITU to operate in Tamilnadu.
- 97 The CITU also mentioned a number of cases in which union leaders, particularly those of affiliates, had been dismissed without apparent cause or without procedures having been correctly followed. The complainants also mentioned numerous cases (in the States of Haryana, Uttar Pradesh, Rajasthan, Orissa, Madhya Pradesh and the railways) in which the authorities had neglected or refused to submit disputes to the courts in the cases of unions which were critical of the Government.
- 98 The complainants dealt at length with the case of the Maya Engineering Workers' Union in Calcutta, the sole union representing the 200 workers employed by the enterprise. Because of the attitude of the management, which refused to apply the decisions of the wage Board, a number of disputes were pending before the industrial tribunal. On 15 January 1976 the management had recruited five "anti-social elements", and on 27 January ten workers had been dismissed and the Labour Commissioner requested to settle the dispute. On 6 February four other workers were suspended, and a protest was lodged against this action. On 8 and 9 February the anti-social elements terrorised the workers, threatened them and prevented one of them from entering the factory. The matter was reported to the police, and both the management and the Government were approached to stop such attacks. On 12 February four other workers were forcibly prevented from going to work. The management and the Government were informed of the situation, but no action was taken. The CITU saw this as proof of collusion between the management, the police and the gangsters under the patronage of the ruling power and the Government. One of the workers who had been prevented from going to work surrendered himself to the authorities, and the four others were dismissed. The complainants gave an example of another enterprise in Calcutta, a branch of the National Rubber Manufacturing Company, where a rival union had been started under the patronage of the Congress Party. When it failed to secure support, it used threats; on 22 March 1976 some anti-social elements under the patronage of the Party began to collect dues from the workers, and those who refused to pay were assaulted.
- 99 The CITU next went on to give examples of arbitrary changes of service conditions, alleging that workers were powerless to protest against these and that no meetings had been permitted. When the Jaya Engineering Workers' Union had held its annual meeting, permission was granted to hold it in a hall provided that no criticisms were voiced against the Government or the state of emergency. Even in circumstances such as those of the Chasnala mine disaster the organisations had not been allowed to hold any meetings. In the opinion of the CITU the right to collective bargaining and freedom of association no longer existed.
- 100 In their telegram of 17 April 1976 the CITU protested against the refusal of the police to allow it to hold a May Day rally in Calcutta. In their telegram of 23 August 1976 the complainants likewise pointed out that the Calcutta Commissioner of Police had refused the CITU West Bengal Committee and other organisations permission to hold a joint meeting on 23 August in the Indian Association Hall in Calcutta on the subject of a workers' demand for a bonus.
- 101 In its letter of 9 September 1976 the CITU enclosed a list of 25 union leaders in West Bengal, in the service of the central or state governments, who had been detained without trial under the Maintenance of Internal Security Act and served with dismissal notice. Sixteen of them had been released on 8 November 1975 but they had not been reinstated in their employment. The remaining nine were still in detention under lamentable conditions and were being treated as criminals; their health had deteriorated in the course of their prolonged detention.
- The Government's reply
- 102 The Government began by describing, in its letter of 13 December 1976, the circumstances which had led to the proclamation of the state of emergency on 25 June 1975 under the provisions of the Indian Constitution. Before this measure had been taken, antisocial elements had, in the name of democracy, sought to deny its very functioning; duly elected governments were not allowed to function and in some cases force had been used to compel their members to resign in order to dissolve lawfully elected assemblies. Agitation had led to violent incidents, and certain persons had even gone to the length of inciting the armed forces to mutiny and the police to rebel. The forces of disintegration, continued the Government, were in full play and passions were being aroused which threatened the unity of the country. The Government added that it had long watched these developments with the utmost patience but definite steps had become imperative when it was known that the opposition parties had launched a country-wide programme of agitation, disruption and incitement to industrial workers, police and defence forces in an attempt wholly to paralyse the Central Government. The threat to internal stability, continued the Government, had affected production and prospects of economic improvement. The programmes envisaged were in no way compatible with democracy and were anti-national, and no government worthy of the name could stand by and allow the country's stability and unity to be imperilled.
- 103 The Government added that political liberty and political rights could exist only as long as there was political order. A state of anarchy could lead only to the rapid erosion of every freedom and political right of the individual. The fact that a person who indulged in anti-social activities happened to be a trade union leader, continued the Government, would in no way absolve him of his duty towards the larger interests of the country or give him a pretext to indulge in anti-social, anti-national and subversive activities threatening the political stability of the country.
- 104 The arrests of some trade union leaders and the dismissals under article 311(2)(c) of the Indian Constitution had, according to the Government, nothing whatsoever to do with the trade union activities of the individuals concerned. Nor was this action limited to any particular trade union or political denomination; it was taken on the basis of the merits of each individual case and affected only those persons who endangered the security of the country. In the Government's view, by lodging complaints of this sort and bringing in the question of freedom of association and trade union rights, the CITU had sought to cloud the real issues, which fell clearly within the domestic competence of the State. It considered that any discussion on these issues would be tantamount to interference in its internal affairs.
B. B. The Committee's conclusions
B. B. The Committee's conclusions
- Conclusions of the Committee
- 105 This case contains a large number of allegations relating fundamentally to the following questions: detention of trade unionists without trial (or the issue of warrants for their arrest); acts of anti-union discrimination (dismissals of workers in the service of the central or state governments; transfer of postal and telegraphic workers to remote areas; suspension or dismissal of workers in the private sector); police abuses (protection of anti-social elements, threats, ill-treatment to induce workers to leave CITU or not to join it); measures against trade union premises (closing down, confiscation of documents and materials); refusal to allow union meetings or admit claims; favouritism in the choice of organisations to be represented on various bodies, or in official decisions regarding the referral of disputes to the courts.
- 106 The Government has transmitted its observations on the arrests and dismissals which took place in virtue of article 311(2)(c) of the Indian Constitution and announces its intention of sending as soon as possible its comments on the other allegations submitted.
- 107 As regards the points on which the Government has communicated its observations, the Committee first of all wishes to point out that in previous cases, where it has considered complaints concerning alleged infringements of trade union rights committed under a state of emergency or a state of siege or under the terms of an internal security Act, it has always expressed the opinion that it was not competent to come to a decision on the need or the advisability of such legislation, which is a question purely political in character, but it has taken the view that it should consider the repercussions which such legislation might have on the free exercise of trade union rights. It has nevertheless considered that it should take account of these exceptional circumstances in its examination of the case.
- 108 According to the Government, the detention of the trade unionists to whom the complainant refers and the dismissals under article 311(2)(c) of the Indian Constitution have nothing whatsoever to do with the trade union activities of the individuals concerned. The Committee nevertheless considers that the question as to whether the measures taken are to be regarded as relating to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned but that it is incumbent upon the Committee to decide this in the light of all the information. As regards the arrest of trade unionists in particular, the Committee wishes to recall, as it has done in a number of previous cases, relating to India and to other countries, the importance which it attaches to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the government considers to have no relation to their trade union functions.
The Committee's recommendations
The Committee's recommendations
- 109. In these circumstances the Committee recommends the Governing Body:
- (a) to draw the attention of the Government to the importance which it attaches to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government considers to have no relation to their trade union functions;
- (b) to request the Government to indicate the present position of the detained trade unionists to whom the complainant refers, to inform it whether legal proceedings have been taken against them and, if so, with what results;
- (c) to request the Government to supply information on the precise reasons for the dismissals of the trade unionists, particularly under article 311(2)(c) of the Indian Constitution;
- (d) to request the Government to communicate as soon as possible its observations on the other allegations made by the complainants and summarised in paragraph 105 above; and
- (e) to take note of the present interim report.
