Sk Jahangir Ali,Asst.Prof,Balurghat Law College
“Bandh” is a Hindi word which means “closed.” In India it has become a norm for political parties and organizations to call for ‘Bandh’s (shutdown) when they want to be heard.( Is ‘Bandh’ Constitutional or Unconstitutional in India? available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2212917).More than a decade after the Kerala high court ruled against the enforcement of hartals in 2000, Calcutta high court on Thursday directed the state administration to ensure normal life against forcible shut down on February 20 and 21 when 12 trade unions have called a strike. The administration has been asked to keep all essential services, including courts, running during these two days. While upholding the right to work that has taken a back seat in Bengal where trade unions have been flaunting the right to protest only, a division bench of Chief Justice Arun Mishra and Justice Joymalya Bagchi directed the director general of police to deploy adequate force at all points in the state – roads, railway tracks, railway stations, schools, colleges, market places – to remove blockades. Taking a step ahead, the bench wanted the administration to see to it that no one, willing to work on these two days, is prevented from joining duty. Allaying fears of disruption and damage to property, the division bench held those who called the strike liable for the disruption or damage, and observed that organizations calling the strike will have to compensate for the loss. The bench also directed all police control rooms to remain active on those days to avert “unlawful and illegal” activities. While passing the order, the division bench took note of the Supreme Court order, the order of the Kerala high court, and the preceding orders of the Calcutta high court and other high courts that had ruled that calling bandhs is unconstitutional. (Ensure normal life on bandh: Court,available at http://timesofindia.indiatimes.com/city/kolkata/Ensure-normal-life-on-bandh-Court/articleshow/18508995.cms).No force can be applied to observe the bandh, it was held.( No force can be applied to observe bandh: High Court, available at http://www.thestatesman.net/index.php?option=com_content&view=article&id=443636&catid=35).On 6th January, 2010 Gauhati High Court declared that “Bandh” is illegal and unconstitutional. It violates citizen’s fundamental rights. Chief Justice Jasti Chelameswar and Justice Arun Chandra Upadhyay in the light of a 1997 Supreme Court order upholding a Kerala High Court’s judgment declared bandhs are illegal. Gauhati High Court gave the Judgment after hearing two separate public interest litigations (PILs) which were filed by two citizens in 2005, seeking declaration of “bandh”s as illegal and unconstitutional in Assam and Meghalaya. The petitioners told that frequent “bandh”s affect the economy and education.(The Telegraph ,7th Jan 2010) In 2004, the Bombay High Court fined the Shiv Sena and BJP Rs 20 lakh for organising a bandh in Mumbai to protest bomb blasts. The court permits general strikes which protest against a specific establishment. But, they do not support total strike.(Open Magazine, 14th Aug 2010).In a landmark decision in Bharat Kumar , a full bench of the Kerala High Court has declared “Bandhs” organized by political parties from time to time as unconstitutional being violative of the fundamental rights of the people. The court refused to accept it as an exercise of the freedom of speech and expression by the concerned party calling for the bandh. When a bandh is called, people are expected not to travel, not to carry on their trade, not to attend to their work. A Threat is held out either expressly or impliedly that any attempt to go against the call for bandh may result in physical injury. A call for Bandh is clearly different from a call for general strike or hartal. There is destruction of public property during bandh.The High Court has directed that a call for bandh by any association, organization or political party and enforcing of that call by it, is illegal and unconstitutional. The High Court has also directed the sate and all its law enforcement agencies to do all that may be necessary to give effect to the court order. The Supreme Court has accepted the decision of The Kerala High Court. The Supreme Court refused to interfere with the High Court decision. The Court has accepted the distinction drawn by the High Court between a ‘bandh’ and a strike. A bandh interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing loss in many ways. (Bharat Kumar K. Palicha v State Of Kerala, AIR 1997 Ker 291).In Ranchi Bar Association v. State Of Bihar , following the Apex court decision mention above, the Patna High Court has ruled that no party has a right to organize a “Bandh” causing the people by force to stop them from exercising their lawful activities. The Government is duty bound to prevent unlawful activities like bandh which invades people’s life, liberty and property. The Government is bound to pay compensation to those who suffer loss of life, liberty or property as a result of a bandh because of the failure of the government to discharge its public duty to protect them. (AIR 1999 Pat 169).In appropriate cases, even the organizers of the bandh may be directed to pay compensation. Any organization interfering with the functioning of the courts commits contempt of court and can be punished accordingly. A peaceful strike which does not interfere with the rights and properties of the people is however not illegal. In the instant case, the High Court did award compensation against the State Government for loss of property and death of a person during the bandh for failure of the authorities to take appropriate action and provide adequate protection to the people’s life, liberty and property. The Government failed to discharge its public duty to protect the people during the bandh. (Ibid) .Supreme Court’s judgment in T.K. Rangarajan vs. State of Tamil Nadu (2003), declaring the right to strike is illegal, and ‘bandh’ is unlawful.
Taking a serious note of various instances of large-scale destruction of public and private properties in the name of agitation, bandhs, hartals and the like, suo motu proceedings were initiated by the Supreme Court in Destruction of Public & private properties , In re case ,[ (2007)4 SCC474.] After perusing various reports filed two committees were appointed ;one headed by a retired Supreme Court Judge, Justice K.T.Thomas(K.T.Thomas Committee), and other headed by Mr. F.S.Nariman, a senior member of the legal profession(Nariman Committee).Both the Committees submitted their reports separately. After considering the reports of the two Committees and hearing the matter, the Supreme Court held the recommendations of the Thomas Committee are wholesome and need to be accepted. To effectuate the reports of the two Committees and adding teeth to the enquiry, the following guidelines are to be observed as soon as there is a demonstration organized:
1. The organizer should meet the police to review and revise the route to be taken and to lay down conditions for a peaceful march of protest;
2. All weapons, including knives , lathis and the like should be prohibited;
3. All undertaking should be provided by the organizers to ensure a peaceful march with marshals at each relevant jurisdiction;
4. The police and the State Government should ensure videography of such protests to the maximum extent possible;
5. The person-in-charge to supervise the demonstration should be SP(if the situation is confined to the district) and the highest police officer in the State, where the situation stretches beyond one district;
6. In the event the demonstrations turn violent , the officer-in-charge should ensure that the events are videographed through private operators and also request such further information from the media and others on the incidents in question;
7. The police should immediately inform the State Government with reports on the events , including damage , if any , caused by the police; and
8. The State Government should prepare a report on the police reports and other information that may be available to it and should file a petition including its report in the High Court in question to take suo motu action.