CALL FOR BANDHS & COURTS
In the case of Communist Party of India (M) v. Bharat Kumar, (1998) 1 SCC 201 the Hon’ble Supreme Court was called upon to decide the validity of judgement passed by the Hon’ble High Court of Kerala in case of Bharat Kumar & Anr. vs. Communist Party of India (M) AIR 1997 Ker 291.
The Hon’ble Supreme Court upheld the judgement of the Hon’ble High Court of Kerala which held that call for bundhs and their enforcement is illegal and unconstitutional. In para 18 of its judgement the Hon’ble High Court held that:
“In view of our discussion above, we allow these Original Petitions to the extent of declaring that the calling for a bundh by any association, organisation or political party and the enforcing of that call by it, is illegal and unconstitutional. We direct the State and its officials, including the law enforcement agencies, to do all that is necessary to give effect to this declaration.”
(emphasis supplied)
The case pleaded before the Hon’ble High Court was that calling for a bundh is calling for violence and physically restraining citizens of the country and hence an illegal activity and cannot be supported as a fundamental right of freedom of speech and expression or of assembling peaceably and without arms, protected by Article 19(1)(a) and (b) of the Constitution. It was further submitted that by the calling of the bundh and the holding of it, citizens are prevented from attending to their avocations and the traders are prevented from carrying on their business activities, workers are prevented from attending to their work which leads to economic loss to the nation. It is was also pleaded that to spread terror and enforce bundh the organisers indulge in wanton acts of vandalism against the government and private properties. These illegal acts cannot be recognised as part of the right of any person protected by Article 19(1) of the Constitution. Lastly, it was pleaded that right to hold a demonstration or to show protest, cannot extend to preventing the citizens of the country from exercising their fundamental rights of attending to their business, their studies and their avocations. The right to go to the railway station, the aerodrome and to the bus terminal could not be prevented in the guise of a protest.
The main contention raised in favour of Bundh was that to call for a bundh is the fundamental right of every organiser and every citizen comprising of that organiser and any curtailment of Bundh would mean the curtailment of the fundamental right under Article 19(1)(a) and (b) of the Constitution. It was further contended that every citizen has a right to protest and even a right to civil disobedience has come to be recognised as a right of a citizen. This was countered by pleading that the fundamental right of freedom of speech and expression or of assembly peaceably cannot take within its purview the right to prevent another citizen from exercising his freedom or his fundamental right equally guaranteed by the Constitution. In other words, it is sought to contend that the freedom of citizen A stops at the tip of the nose of citizen B.
In favour of Bundh, it was further contended that there can be no assumption as to call for violence under the garb of Bundh but it was countered by the fact that Bundhs are enforced through violence and fear of violence. Psychological restrictions are equal to physical restrictions. On the argument that there is no law which regulates Bundhs, the High Court held that the calling of a bundh entails the restriction on the fundamental rights of the citizens and it is the duty of the Courts to step up and protect the rights of the citizens so as to ensure that the freedoms available to them are not curtailed by any person or any political organisation.
In favour of Bundhs, it was further pleaded that the Court cannot restrict the freedom of the organisers to call for a general protest and any restriction placed thereon would be violative of the fundamental rights of those who compose the organiser, their freedom of expression, speech and to assemble peaceably but against this contention, the court differentiated between the call for general strike/ hartal and Bundhs and held that the organisers may have a right to call for non-co-operation or to call for a general strike as a form of protest but such rights and freedoms will come to an end as soon as they violate someone else’s right and such a limitation is inherent in the exercise of those rights.
Ultimately, the Hon’ble High Court held that no organisation is entitled to paralyse the industry and commerce or is entitled to prevent the citizens not in sympathy with its viewpoint from exercising their fundamental rights.
The Hon’ble Supreme Court while upholding the ban on Bundhs reasoned that the distinction drawn by the High Court between a “Bundh” and a call for a general strike or “Hartal” is well made out. The court further reasoned that there cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of the fundamental right of a certain section of the people.
In the case of James Martin v. the State of Kerala, (2004) 2 SCC 203, the Hon’ble Supreme Court held that the person who used force to resist a bandh call and as a result caused the death of two bandh activists can claim the right of self-defence. Hon’ble Supreme Court noted that in the name of hartal or bandh or strike no person has any right to cause inconvenience to any other person. Hon’ble apex court called for controlling of such bandhs activist having queer notions of democracy and freedom of speech or association with an iron hand to protect innocent citizens.
In the Hon’ble Bombay High Court, a case (G. Deshmukh v. State of Maharashtra filed Writ Petition (PIL) No. 2827 of 2003) in the form of Public Interest Litigation (PIL) was filed for directions to two political parties for paying compensation for calling Mumbai Bandh. Hon’ble High Court held that the said two political parties had violated constitutionally guaranteed rights of the citizens of Mumbai under articles 19 and 21 of the Constitution of India and directed the two political parties to deposit Rs. 20 lakhs each with the State Government.
Hon’ble Supreme Court in In re. : Destruction of Public & Private Properties v. State of A.P. (2009) 5 SCC 212 while taking a suo motu cognizance of various instances of destruction of private and public properties in the name of agitations, bandhs, hartals and the like noted the absence of legislation and issued guidelines and directions. These included initiating suo motu action by the concerned High Court and setting up machinery to investigate the damage caused and to award compensation; where more than one State is involved, such action may be taken up by the Supreme Court. Guidelines on the appointment of a Claims Commissioner to estimate the damages and investigate liability was also issued.
The issue again came up before the Hon’ble Supreme Court in AIADMK v. Chief Secretary, Government of Tamil Nadu, (2009) 5 SCC 452 and in it was again reiterated that nobody can give a call for Bandh and neither it can be enforced.
Constitutional courts in Hispreachering Son Shylla v. State of Meghalaya, (2010) 4 GLR 395, Registrar General, High Court of Meghalaya v. State of Meghalaya, 2015 (4) GLT (ML) 480 and numerous other cases have come to the same conclusion.
Recently the Hon'ble Gauhati High Court in the case of Lower Assam Inter, District Carriage Stage Bus Owner's Association v. State of Assam, 2019 SCC OnLine Gau 1482 : (2019) 5 Gau LR 642 was forced to issue directions and guidelines to deal with calls for Bandhs as the State government repeatedly failed to enact a law for the same.
Above discussion leads to only one conclusion that bandhs are illegal and unconstitutional. Moreover, no organization has any right to call for and enforce the bandh. Calling and enforcing the Bandh may amount to criminal conspiracy under section 120A punishable u/s 120B(2) of Indian Penal Code, 1860. If there is an assembly of five or more persons then it could be unlawful assembly u/s 141 and punishable u/s 143. Other provisions like obstructing public servant punishable u/s 186 and 189, restraining any person from proceeding in any direction may attract sections 339 to 342, using criminal force u/s 350, criminal intimidation u/s 506 of IPC. Offences under Prevention of Damage to Public Property Act, 1984, NHAI Act, Railways Act etc. will also be attracted, depending upon the facts and circumstances of the case.
If a person comes forward and claims to have suffered a loss to life and property, the organizers of the bandh would be held responsible and they would be liable to pay compensation. If the State fails to prevent such bandh because of which a person suffers a loss, the damages can be recovered from the State too.
Shubham Gupta
Advocate