Emergency and Essential Services and the Indian Law

A. The Essential Services

(a) The Essential Services: The Essential Services Maintenance Act, 1968 is an Act to provide for the maintenance of certain essential services and the normal life of the community. Essential service as per the aforesaid Act in Section 2(1) (a) means-

1. Any postal, telegraph or telephone service;
2. Any railway service or any other transport service for the carriage of passengers or goods by land, water or air with respect to which Parliament has the power to make laws;
3. Any service connected with the operation or maintenance of aerodromes, or with the operation, repair or maintenance of aircraft;
4. Any service connected with the loading, unloading, movement or storage of goods in any port;
5. Any service connected with the clearance of goods or passengers through the customs or with the prevention of smuggling;
6. Any service in any mint or security press;
7. Any service in any defense establishment of the Government of India;
8. Any service in connection with the affairs of the Union, not being a service specified in any of the foregoing sub- clauses;
9. Any other service connected with matters with respect to which Parliament has the power to make laws and which the Central Government being of opinion that strikes therein would prejudicially affect the maintenance of any public utility service.
10. The public safety or the maintenance of supplies and services necessary for the life of the community or would result in the infliction of grave hardship on the community, may, by notification in the Official Gazette, declare to be an essential service for the purposes of this Act.

(b) “Strike” as defined under the Section 2 (b) aforesaid Act means the cessation of work by a body of persons employed in any essential service acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment, and includes-

• refusal to work overtime where such work is necessary for the maintenance of any essential service;
• any other conduct which is likely to, result in, or results in, cessation or substantial retardation of work in any essential service.

(c) Power to prohibit strikes in certain employments: If the Central Government is satisfied that in the public interest it is necessary or expedient so to do, it may, by general or special Order, prohibit’ strikes in any essential service specified in the Order. An Order so made shall be published in such manner as the Central Government considers best calculated to bring it to, the notice of the persons affected by the Order. An Order made shall be in force for six months only, but the Central Government may, by a like Order, extend it for any period not exceeding six months if it is satisfied that in the public interest it is necessary or expedient so to do. Upon the issue of an Order:

• no person employed in any essential service to which the Order relates shall go or remain on strike;
• any strike declared or commenced, whether before or after the issue of the Order, by persons employed in any such service shall be illegal.

(d) Section 4: Penalty for illegal strikes. Any person who commences a strike which is illegal under this Act or goes or remains on, or otherwise takes part in, any such strike shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two hundred rupees, or with both.

(e) Section 5: Penalty for instigation, etc. Any person who instigates, or incites other persons to take part in, or otherwise acts in furtherance of, a strike which is illegal under this Act shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

(f) Section 6: Penalty for giving financial aid to illegal strikes. Any person who knowingly expends or supplies any money in furtherance or support of a strike which is illegal under this Act shall be punishable with imprisonment for a term which may extend to one- year, or with fine which may extend to one thousand rupees, or with both.

(g)  Section 7: Power to arrest without warrant. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, any police officer may arrest without warrant any person who is reasonably suspected of having committed any offense under this Act. This Act to override other laws. The provisions of this Act and of any Order issued thereunder shall have effect notwithstanding anything inconsistent there with. contained in the Industrial Disputes Act, 1947, or in any other law for the time being in force.

B. Medical and Fire Services

The emergency vehicles include- Police, Fire, Civil and Medical Emergencies.

(a) Penalty invoked for Obstructing Emergency Vehicle in USA: Generally to understand the protection given to emergency vehicle in US, the 2005 Connecticut Code for instance says “Emergency vehicle“, means any ambulance or emergency medical service organization vehicle responding to an emergency call, any vehicle used by a fire department or by any officer of a fire department while on the way to a fire or while responding to an emergency call but not while returning from a fire or emergency call, any state or local police vehicle operated by a police officer or inspector of the Department of Motor Vehicles answering an emergency call or in the pursuit of fleeing law violators or any Department of Correction vehicle operated by a Department of Correction officer while in the course of such officer’s employment and while responding to an emergency call. Any person who wilfully or negligently obstructs or retards any ambulance or emergency medical service organization vehicle while answering any emergency call or taking a patient to a hospital, or any vehicle used by a fire department or any officer or member of a fire department while on the way to a fire, or while responding to an emergency call, or any vehicle used by the state police or any local police department, or any officer of the Division of State Police within the Department of Public Safety or any local police department while on the way to an emergency call or in the pursuit of fleeing law violators, shall be fined not more than two hundred dollars or imprisoned not more than seven days or both.

In the United States it is commonly taught and practised that when you see an emergency vehicle coming from behind you with its lights and/or siren going, you slow down and pull off to the right-hand side of the road to allow the emergency vehicle to pass on the left.

(b) Penalty invoked for Obstructing Emergency Vehicle in the UK: The Emergency Workers (Obstruction) Act, 2006 contains two new offences the act makes it an offense to obstruct or hinder certain emergency workers who are responding to emergency circumstances. Emergency workers are defined as firefighters, ambulance workers and those transporting blood, organs or equipment on behalf of the NHS, coastguards and lifeboat crews. This also covers prison officers by virtue of the Prisons Act 1952, which says that prison officers, whilst acting as such, enjoy the same protections and privileges as a constable. A person guilty of an offense under this Act is liable on summary conviction to a fine not exceeding level 5 on the standard scale (£5000). The offence applies in England and Wales. The Act extends to Northern Ireland in respect of ambulance crews, those transporting blood organs and equipment, coastguards and lifeboat crews.

(c) Penalty invoked for Obstructing Emergency Vehicle in Australia: Citing the law under Queens land Government which states that if an emergency vehicle is coming towards you and is sounding an alarm or showing flashing red or blue lights, you must move out its path as soon as you can do so safely. You should:

• slow down
• move left to give the vehicle a clear run down the middle of the road. If you can’t move left safely, stay where you are and let the emergency vehicle overtake you
• not move your vehicle suddenly
• not drive into the path of the emergency vehicle.

The law allows you to drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so.

(d) Penalty invoked for Obstructing Emergency Vehicle in India

SO439 (E,) dated 12^TH June 1989- Section 118 of the Motors Vehicles Act, 1988 (59 of 1988), says in point 10 that every driver shall on the approach of a fire service vehicle or of an ambulance allow it free passage by drawing to the side of the road. Penalty- Motorists obstructing the way of emergency vehicles will be fined Rs 2,000 apart from facing legal action, according to the Delhi Traffic Police. Also, the extreme right lane, on roads having three or more lanes, will be used by emergency vehicles while they are attending to a call.

C. Right of Way

A right-of-way (ROW) is a right to make a way over a piece of land, usually to and from another piece of land. A right of way is a type of easement granted or reserved over the land for transportation purposes, this can be a highway, public footpath, rail transport, canal, as well as electrical transmission lines, oil and gas pipelines. Emergency services have an important right of a way how far they are granted under Indian law is a matter of study.

Conclusion

Examining the emergency services In India, the laws governing them are split under separate heads and moreover, the penalty for obstructing their movement is quite meager with no stringent penal consequences. Another important deliberation required is whether traffic congestion with bumper to bumper movement can help emergency services with such movement granted under law thus far to match the commitments to such services internationally which includes right of way.