Rape Is Violation Of Victim’s Fundamental Right Under Article 21: Gauhati HC

It is remarkable, refreshing and reassuring to learn that just recently on 31 August 2020, the Gauhati High Court in a latest and laudable judgment titled Nasiruddin Ali vs The State of Assam and Anr. Represented by P.P.  in Case No. Crl.A. 227/2016 has laid down in no uncertain terms that rape is a violation of victim’s fundamental right under Article 21 of the Constitution. Mrs Justice Rumi Kumari Phukan of Gauhati High Court who authored this noteworthy judgment minced no words to say in simple, straight and strict language that rape tantamount to a serious blow to the supreme honour of a woman and is a crime against the entire society as well! Very rightly so!

To start with, the ball is set rolling in para 2 of this notable judgment wherein it is observed that, “Present appeal is directed against the judgment and order dated 12.07.2016, passed by the learned Assistant Sessions Judge, Tinsukia, in Sessions Case No. 64(M)/2011, whereby the accused/appellant has been convicted under Section 376 of the IPC and sentenced to undergo rigorous imprisonment for a period of 9 (nine) years and to pay fine of Rs. 1,000/-, in default further imprisonment for three month.”

While dwelling on the facts of the case, it is then stated in para 3 that, “The prosecution case in nutshell is that on the night of 26.11.09 at about 10:00 P.M., while the victim was on her way to home on foot from Digboi Chariali market and arrived near Digboi club, one Muslim man having beard forcefully took her to the bathroom of nearby swimming pool and committed rape upon her. On receiving the verbal information from the victim on the following day i.e. on 27.11.2009, at 11.45 A.M., the Digboi Police Station GD Entry No. 1014, dated 27.11.2009 was made and the victim was sent to the hospital for medical examination. ASI Sashi Thakuli, who was entrusted with the investigation of the case by the Officer-in-charge, Digboi P.S., visited the place of occurrence and prepared the sketch map and also recorded the statement of the witnesses. On 27.11.09 itself, as shown by the victim, the accused was apprehended and brought to the police station. The formal ejahar was lodged by the victim on the same day at about 5.30 P.M. and accordingly Digboi P.S. Case No. 264/09, under Section 376 of the IPC was registered. The statement of the victim was recorded under Section 164 of the CrPC and the accused was arrested and forwarded to Court. The medical report of the victim was collected and after completion of the investigation, the charge sheet was filed against the accused/appellant under Section 376 of the IPC.”

To put things in perspective, it is then pointed out in para 28 that, “In his statement under Section 313 CrPC, the accused appellant has given the same statement as he has given in his evidence as DW-1. Thus, the plea of the accused appellant is relevant in the present case, inasmuch, as he has admitted his presence at the time of occurrence at such odd hours of night. In Answer to the Question No. 4 under Section 313 CrPC, he stated as follows:-

“At the time of occurrence, I was doing night duty at Digboi club. At night, security personnel came on patrolling duty twice. I saw one Sanjay Upadhyay entered into the tennis Court along with a girl. I ran to the place along with chowkidar of the garden, Basu ray and one Gogoi and said Sanjay Upadhyay and the girl was caught hold. Sanjay Upadhyay worked in the Digboi Club and I asked Sanjay as to why he had brought girl to the Club and as I rebuked them, both the girl and Sanjay went away. On the very next day, said girl came to my house and asked for my identity card and otherwise, she will lodge case against me. I will examine Vasu Ray as defence witness.””

While punching holes in the accused’s version, it is then pointed out in para 29 that, “Since the accused person has taken a specific plea as stated above, the burden shifts to him to prove such plea. But as discussed above, prosecution has been able to prove that on the fateful day, the accused has committed the offence of rape upon the victim in the said vicinity whereas, the accused has totally failed to prove his plea taken during the course of the trial. He did not produce the other chowkidar, Basu Ray in support of his plea, whereas, evidence of PW-2, who also happened to be present at the time of occurrence has belied the story projected by the accused. Further, his statement also supported the contention of the victim girl that she went to the house of the accused to complain to his wife and thus, the testimony of the victim is found to be an authentic one.”

Be it noted, para 30 then illustrates the nitty-gritty of this leading case by stating that, “Although the victim has reported the matter to so many other persons of the Digboi Club, but those were not examined by the IO, but same cannot be a ground to discard the prosecution case, as evidence of the prosecutrix is supported by other evidence and facts and the circumstances of the case. On closer scrutiny of the entirety of the matter, there appears nothing on the part of the prosecutrix for false indication of the accused person, there being no earlier acquaintance nor any enmity between the duo. Each and every aspect, she narrated, has been supported by the witnesses, but yes, there is no eye-witness to the occurrence and having regard to the isolated place of occurrence, odd hours of night and having no immediate residence nearby, non-having of eye witness/independent witness is natural. The victim has withstand the lengthy cross-examination without any vital contradiction to raise suspicion. Only the fact remains that the victim girl in her statement under Section 164 CrPC after raising all the allegations, has also said one line that for the interest of the family of the accused, she is not interested to proceed with the case. The victim, in course of trial, has also admitted about saying so, but he also boldly denied that because of falsity of allegation, she did not want to proceed with the case. She might have made such statement under pressure being a young girl of 20 years. However it cannot lose sight that the victim pursued the case till conclusion of the trial and her statement remained consistent all through. Some minor omission regarding the time of occurrence 09:30/10:00 pm and that she did not mention in the FIR about working on wages in IOC Hospital, that the FIR did not disclose all details above, are of little consequence and not destructive of genesis of the case. The evidence of prosecutrix in the given facts and circumstances give no room for any doubt and her evidence is akin to the “sterling witness” as she has qualified the test of “sterling witness” as has been held in the decisions referred above. The victim, herein is a poor girl and earns her livelihood as a daily wage earner and there appears no any occasion for false implication of the accused person. Non-seizure of wearing apparels of the victim for tending to FSL, is a lapse on the part of the Investigating Officer. On the other hand, the victim was examined after 2 years of the occurrence and some omission in her testimony that Police took her cloth is not found fatal.”

Interestingly enough, it is then pointed out in para 31 that, “So far as regards the non-finding of injury upon the victim, as per the medical evidence, it is to be noted that injury is not a sine qua non for deciding whether rape has been committed or not. It has to be decided on the factual matrix of each case. The Hon’ble Apex Court in (2013) 11 SCC 688, Radhakrishna Nagesh Vs State of Andhra Pradesh, it has been held that penetration itself proves offence of rape, but contrary is not true, i.e., even if there is no penetration, it does not necessarily mean that there is no rape. The Hon’ble Apex Court further held that absence of injuries would justify any adverse inference against prosecution. In (2014) 13 SCC 574; Krishan Vs State of Haryana, it was also held by the Hon’ble Apex Court that it is not expected that every rape victim should have injuries on her body to prove her case.”

More significantly, it is then envisaged in para 32 that, “In the present case, the conduct of victim is noteworthy, who immediately after the occurrence, reported the matter to the nearby people, to the Police, to the authority of the Digboi Club and the GD Entry and FIR was made on the next day of the occurrence without any delay and there is no material variation in her version. As the FIR was written by some other person, not by the prosecutrix herself, different mentioning of time etc. is not fatal as it does not go to the root of the case. There being no any other adverse circumstances, solitary version of the prosecutrix can be accepted as a true version of the occurrence, which is fully supported by the other evidence on record, coupled with the defence version. The prosecutrix has been able to prove the charge under Section 376 of the IPC, beyond the reasonable doubt and the learned trial Court has appreciated all relevant aspects.”

Most significantly, it is then remarkably and rightly held in para 33 that, “The chastity of a woman ruined as soon as such offence is committed, while in a civilized society, respect or reputation is a basic right. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. Youthful excitement and an attempt for momentary pleasure on the part of a person upon a woman, had a devastating effect in the entire body and mind of the victim. It is to be kept in mind that such offence lowers the dignity of a woman and mars her reputation. The Courts are sensitized that rape is a violation of victim’s fundamental right under Article 21 of the Constitution and rape victim is placed on a higher pedestal than an injured witness. Being the most hatred crime, rape tantamount to a serious blow to the supreme honour of a woman and is a crime against the entire society as well.”

    Finally, it is then held in the last relevant para 34 that, “For the reasons and the discussions above, this Court is of considered view that the order of conviction is liable to be sustained and calls for no interference. However considering the fact that the accused person have family with five children and behind the bar since the date of conviction, when maintaining the conviction he is sentenced to statutory minimum period of conviction of seven years and the sentence remains the same. The period of detention already undergone shall be set off.”

To sum up, the crux of this ruling is that rape is the most heinous crime and it really tantamount to a serious blow to the supreme honour of a woman and is a crime against the entire society as well. How can any civilized society justify it on any pretext whatsoever? Rape cannot be justified under any circumstances and those who commit it must be prepared to face the music of law as it cannot be condoned under any circumstances!

Needless to say that, “A rape is a rape”! There should be certainly no minimum punishment for it as those who commit it deserve no mercy under any circumstances! Under no circumstances should a rapist be allowed to somehow escape the strictest punishment as laid down under our law! There can be certainly no denying it!

Sanjeev Sirohi

Bandhs/Road/Rail Blockades Illegal And Unconstitutional; Organizers Must Be Prosecuted: Gauhati High Court

 It has to be said in all fairness that in a latest, landmark and extremely laudable judgment delivered by the Gauhati High Court on March 19, 2019 in Lower Assam Inter District Stage Carriage Bus Owners Association Goalpara, Assam, Rep. By Its General Secretary, Sri Aniruddha Das Vs The State Of Assam And 11 Ors. Rep. By The Chief Secretary To The Govt. Of Assam, Dispur in Case No. : WP(C) 7570/2013, it has very rightly held that bandhs/road/rail blockades are illegal and unconstitutional and organizers must be prosecuted. The Gauhati High Court has explicitly and elegantly held that road and rail blockades are variants of bandh, and thus illegal and unconstitutional. Justice Ujjal Bhuyan who authored this extremely laudable and praiseworthy judgment also observed that the organizer or organizers of such bandh or blockade, at least the principal office bearers of such organizer(s), would be liable to be prosecuted under various provisions of the Indian Penal Code, 1860, National Highways Act, 1956 and the Railways Act, 1989. Very rightly so!

                                        To start with, the ball is set rolling by Justice Ujjal Bhuyan of Gauhati High Court first and foremost in para 2 wherein it is pointed out that, “By filing this petition under Article 226 of the Constitution of India, petitioner seeks imposition of exemplary damages upon respondent Nos. 4 to 12 for having called and organized illegal and unconstitutional bandhs for a total of 51 days from 28.08.2012 to 31.08.2013 in the districts of Goalpara, Bongaigaon and Kamrup, or, alternatively, for a direction to the State of Assam for payment of such compensation. Further prayer made is for a direction to the State of Assam to set up a Bandh Loss Compensation Fund from which fund compensation can be paid to persons who suffer loss and injury to their person or property including the petitioner due to such illegal and unconstitutional bandhs. In addition, certain incidental reliefs have also been claimed.”

                              Be it noted, para 3 then reveals that, “Petitioner is the Lower Assam Inter-District Stage Carriage Bus Owners’ Association, Goalpara, represented by its Secretary. Petitioner is a society registered under the Societies Registration Act, 1860, vide certificate of registration dated 29.06.1991, having its registered office at Pancharatna Road, Goalpara.”

                                             Furthermore, para 4 then also reveals that, “It is stated that there are 51 members of the petitioner, who are bus owners having permits for plying their buses on all the routes including on national highways. The members have 26 numbers of big buses and 25 numbers of canters which they had purchased by obtaining loans from different banks and financial institutions. Only source of income of the members is earning from purchase of bus tickets by the passengers. From such earning, the members have not only to repay the loan amounts but have also to pay salary to the employees of the buses, i.e., driver, handman etc., besides earning for the members themselves.”

                                   To be sure, it is then underscored in para 5 that, “Therefore, plying of the buses is most essential for the livelihood of the members as well as for the dependant staff.” Absolutely right! There can be no denying or disputing it!

                                       Elaborating further, para 6 then brings out that, “Respondent Nos. 4 to 12 had called bandhs on various dates during the period from 28.08.2012 to 31.08.2013, totaling 51 days during which the members could not ply their buses. As per calculation of the petitioner, the loss was about Rs 2,000 for each canter and Rs 2,500 against each big bus per day of bandh. Thus, as per the calculation of the petitioner the collective loss was about Rs 56,16,365.00.”

                                   What’s more, it is then illustrated in para 7 that, “Contention of the petitioner is that calling of such bandh is illegal and unconstitutional in view of law laid down by Supreme Court which is binding on all authorities. State and its machinery had failed to prevent such illegal and unconstitutional bandhs. Therefore, State is bound to compensate the petitioner, besides, State has to prosecute the office bearers of the organizations which had called for such illegal and unconstitutional bandhs. It is with such grievance that the present writ petition has been filed seeking the reliefs as indicated above.”

                               While pooh-poohing the repeated calls for bandhs, para 13 then minces no words in making it absolutely clear that, “The phenomenon called bandhs has become an endemic problem in the State. As a matter of fact, such bandhs were called and enforced in different parts of the country causing severe inconvenience to the public besides loss of life and property. At one point of time, it appeared that there was decrease in the call for bandhs in the State, but again it has become a regular phenomena. Bandhs along with its variants such as, road-blockades and rail-blockades have paralysed the State on numerous occasions having a deleterious effect on the people, besides causing immense loss to the economy.”

                                       Truth be told, it is then stipulated in para 14 that, “In Bharat Kumar Vs State of Kerala : AIR 1977 Kerala 291, a Full Bench of the Kerala High Court was considering a bunch of petitions seeking a declaration that calling for and holding of what had come to be known as bandh was unconstitutional and was hence illegal. In that context, Full Bench of the Kerala High Court was examining the meaning of the expression bandh. According to this judgment, bandh is a Hindi word meaning “closed” or “locked”. The expression, therefore, conveys an idea that everything is to be blocked or closed. In Assamese, it is referred to as “bandha”; Assam bandha or Assam bandh or bandhs called locally, i.e., at the district level or town level or area wise have become so frequent so much so that Assam bandh has become a part of the local popular vocabulary. To this may be added different variants of bandhs like road-blockades and rail-blockades, which are nothing but bandhs, inasmuch as, it closes the roads including national highways and railway tracks thus blocking movement of vehicles and trains. In Bharat Kumar (supra), it was observed that when organizers of a bandh call for such bandh they clearly express their intention of bringing all activities to a stand-still on the day of the bandh. The intention of the callers of bandh is to ensure that no activity either public or private is carried out on that day. Though nobody openly threatens violence against those not observing the bandh but threats and intimidation is implicit in such call for bandh. After an elaborate examination of the issue from a constitutional perspective, Full Bench of Kerala High Court in Bharat Kumar (supra), declared that no political party or organization has the right to call for a bandh. They cannot prevent citizens not in sympathy with their view point from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State. It was held that those organizations and political parties calling for and holding bandhs trample upon the rights of the citizens of the country protected by the Constitution. While declaring or calling for bandh by any association, organization or political party and the enforcing of that call is illegal and unconstitutional, Kerala High Court held that such associations, organizations or political parties are liable to compensate the government, public and the private citizens for the loss suffered by them on account of such bandh. It was further held that the State cannot shirk its responsibility of taking steps to recoup the loss from the sponsors and organizers of such bandhs. Accordingly, direction was issued to the State and its officials to give effect to the said declaration.”

                                       While continuing in the same vein, it is then pointed out in para 15 that, “This judgment of the Full Bench of Kerala High Court was assailed by the Communist Party of India (Marxist) before the Supreme Court. In Communist Party of India (Marxist) Vs Bharat Kumar (1998) 1 SCC 201, Supreme Court while rejecting the challenge held that the Kerala High Court judgment did not call for any interference. It was held that there cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people. It was further held that the High Court had rightly concluded that there cannot be any right to call or enforce a bandh, which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways. Supreme Court while observing that Kerala High Court had drawn a very appropriate distinction between a bandh on the one hand and call for general strike or hartal on the other hand, declared that it was in agreement with the view taken by the High Court.”

                                      Not stopping here, it is then pointed out in para 16 that, “In James Martin Vs State of Kerala : (2004) 2 SCC 203, appellant resisted a bandh call when his mill was attacked. Appellant fired at the bandh activists who were inside the mill compound trying to enforce the bandh following which two of the bandh activists died, whereafter, bandh supporters set afire the residential building and mill of the appellant. Appellant was investigated by the police and charge-sheeted. He was convicted in the trial court which was affirmed by the Kerala High Court. Supreme Court acknowledged exercise of the right of self defence of the appellant while allowing the appeal. In that context, 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 or to cause in any manner a threat or apprehension of risk to life, liberty and property of any citizen or destruction of life and property of any government or public. Paragraph-24 of the aforesaid judgment is quoted hereunder:-

           “Before we part with the case it needs to be noted that in the name of hartal or bandh or strike no person has any right to cause inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty and property of any citizen or destruction of life and property, and the least to any government or public property. It is high time that the authorities concerned take serious note of this requirement while dealing with those who destroy public property in the name of strike, hartal or bandh. Those who at times may have even genuine demands to maker should not lose sight of the overall situation eluding control and reaching unmanageable bounds endangering life, liberty and property of citizens and public, enabling anti-social forces to gain control resulting in all around destruction with counter productive results at the expense of public order and public peace. No person has any right to destroy another’s property in the guise of bandh or hartal or strike, irrespective of the proclaimed reasonableness of the cause or the question whether there is or was any legal sanction for the same. The case at hand is one which led to the destruction of property and loss of lives, because of irresponsible and illegal acts of some in the name of bandh or hartal or strike. Unless those who organize can be confident of enforcing effective control over any possible turn of events, they should think twice to hazard themselves into such risk-prone ventures endangering public peace and public order. The question whether bandh or hartal or strike has any legal sanctity is of little consequence in such matters. All the more so when the days are such where even law-enforcing authorities/those in power also precipitate to gain political advantage at the risk and cost of their opponents. Unless such acts are controlled with an iron hand, innocent citizens are bound to suffer and they shall be the victims of the high-handed acts of some fanatics with queer notions of democracy and freedom of speech or association. That provides for no license to take law into their own hands. Any soft or lenient approach for such offenders would be an affront to rule of law and challenge to public order and peace”.” Para 16.1 then states that, “Thus, Supreme Court observed that such illegal and unconstitutional acts should be controlled with an iron hand; any soft or lenient approach may compromise the rule of law, challenging public order and peace.”

                                       Interestingly enough, para 17 then points out that, “Bombay High Court in Writ Petition (PIL) No. 2827 of 2003 (G. Deshmukh Vs State of Maharashtra) examined a prayer made by a group of citizens of Mumbai seeking direction to two political parties to pay damages/compensation to them and other citizens of Mumbai through a bandh loss compensation fund for having called a bandh of Mumbai city on 30.07.2003. Bombay High Court referred to the decision of Kerala High Court in Bharat Kumar (supra) and also noted enforcement of the bandh by forcibly stopping road and rail traffic. It was 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 by calling and enforcing Mumbai bandh on 30.07.2003. It was further held that it was not open to the State and its authorities to avoid taking stern action against those involved in rasta-rokos (road-blockades) or rail-rokos (rail-blockades) and stoning of public and private vehicles in the guise of tactful handling of the situation thereby allowing organizations calling bandh to bring all activities to a stand-still. Bombay High Court further held that various acts of rail-rokos, rasta-rokos and stoning of public and private vehicles are undoubtedly punishable offences under various sections of the penal code but these statutory provisions are inadequate to repair the wrong done to the citizens. In the said case, Bombay High Court had directed the two political parties to deposit by way of exemplary damages a sum of Rs 20 lacs each with the State Government to be credited in a fund called “30th July, 2003 Bandh Loss Compensation Fund”. In addition, a series of declarations and directions were issued.”

                                      What’s more, it is then observed in para 18 that, “Taking a serious note of various instances where there was large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like, suo moto proceedings were initiated by the Supreme Court in (2009) 5 SCC 212; (In Re: Destruction of Public and Private Properties Vs State of AP). Supreme Court had appointed two committees – one headed by a retired judge of the Supreme Court, Justice KP Thomas and the other headed by Mr FS Nariman, a senior member of the legal profession to look into the issue and to suggest remedial measures. Supreme Court considered the reports and recommendations of both the committees. In so far the report and recommendations submitted by Justice KT Thomas Committee, Supreme Court declared that those were wholesome and the report and recommendations of the Nariman committee was also approved. In the absence of legislation, Supreme Court while declaring that the recommendations of the two committees had its approval, issued a series of guidelines with the direction that those guidelines would become operative immediately.”

                             Furthermore, it is then observed in para 18.1 that, “To assess damages caused due to bandhs or protests, Supreme Court directed that in the absence of legislation, the guidelines mentioned therein were required to be adopted which included initiating suo motu action by the High Court and setting up a 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. It was further directed that in each case the High Court or the Supreme Court, as the case may be, appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to estimate the damages and investigate liability. Thus, from the above it is evident how seriously the matter has been viewed by the Supreme Court.” Also, it is then held in para 19 that, “This issue again cropped up before the Supreme Court in AIADMK Vs Chief Secretary, Government of Tamil Nadu, (2009) 5 SCC 452, wherein it was made clear that neither can anybody give a call for bandh nor can the same be enforced.”

                                     Moving on, para 19.1 then states that, “In Hispreachering Son Shylla Vs State of Meghalaya; (2010) 4 GLR 395, a Division Bench of this Court referred to the decision of the Supreme Court in the case of Communist Party of India (Marxist) (supra) and allowed the writ petitions by directing the respondents to strictly implement the law declared by the Supreme Court in Communist Party of India (Marxist) (supra) by taking all necessary steps for preventing infringement of the various fundamental rights of the citizens on account of calls for bandhs etc. given from time to time by various political or other organizations.”

                                   It would be pertinent to now mention that it is then enunciated in para 20 that, “A Full Bench of the Meghalaya High Court in Registrar General, High Court of Meghalaya Vs State of Meghalaya; 2015 (4) GLT (ML) 480, suo motu registered a writ petition considering the adverse impact of bandh called by an unlawful association on the community life including hospitals and courts in the State of Meghalaya. Full Bench of Meghalaya High Court summed up the legal position as under:-

1) calls for bandh are unconstitutional and illegal;

2) since calls for bandh infringe fundamental rights of the citizens under Articles 19 and 21 of the Constitution, the organizers and sponsors of such bandh shall be held liable under the law to recoup and make good the loss and damages;

3) even the State Government would be held responsible and can be asked to pay damages if it fails to stop bandh.

Thereafter, the Full Bench of the Meghalaya High Court issued a series of directions.”

                                         As a consequence, it is then held in para 21 that, “Thus from the above, it is evidently clear that bandh is illegal and unconstitutional. This is the law declared by the Supreme Court of India. Not only that, Supreme Court has declared that no organization has any right to call for and enforce bandh. If a person comes forward and claims to have suffered 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 loss, the damages can be recouped from the State.”

                                As it turned out, it is then envisaged in para 22 that, “Under Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts within the territory of India. As per Article 144, all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. In the light of the above, a Division Bench of this Court in Hispreachering Son Shylla (supra) directed the State to strictly implement the law declared by the Supreme Court by taking all necessary steps.”

                                     While leaving no room for doubt, it is then made absolutely clear in para 23 that, “Therefore, it is the bounden duty of all authorities, be it civil or judicial, to ensure that the law declared by the Supreme Court is obeyed and enforced in letter and spirit. If there is any violation of the law declared by the Supreme Court by anybody and the State Government along with its functionaries remain mute spectators to such violation they would also be held responsible for permitting such violation.” But, in the same breath, it is then conceded in para 23.1 that, “However, till date no legislative or executive measures appear to have been taken to give effect to the law declared by the Supreme Court as directed by this Court.” Why have no such measures been taken? The needful in this direction must be done immediately!

                   More to the point, the Court then underscores in para 24 that, “It is well settled that in the absence of legislation or when there is a vacuum in law and the State has failed to fill up the same, constitutional courts have the jurisdiction, rather a constitutional obligation, to issue directions/guidelines for enforcement of fundamental rights. In the absence of legislation, guidelines were issued by the Supreme Court in DK Basu Vs State of West Bengal, (1997) 1 SCC 416; Vishaka Vs State of Rajasthan, (1997) 6 SCC 241; and Vinit Narayan Vs Union of India, (1998) 1 SCC 226, to mention only a few. Already reference has been made to the suo motu directions issued by the Supreme Court after considering the reports of Justice KT Thomas and Mr FS Nariman committees in Re: Destruction of Public and Private Properties (supra).”

                                              To put things in perspective, the Court then notes in para 26 that, “A public interest litigation was filed before this Court when two back to back bandhs were called in the State of Assam on 27.08.2012 and 28.08.2012 by two different organizations, which was registered as PIL No. 54/2012. Prayer was made to impose exemplary damages on the two organizations for organizing and enforcing such unconstitutional bandhs and to initiate criminal proceedings against such organizations through the criminal investigation department (CID), Assam, besides initiating contempt proceedings against the organizers. Further prayer made was for a direction to set up a bandh loss compensation fund from where affected persons suffering loss and injury to person and property due to such bandhs could be compensated. A Division Bench of this Court vide order dated 10.01.2013 observed as under:-

    “The issue raised in these PILs is a problem frequently faced by the citizens on account of ‘Bandh’ calls which not only endangers public property but also obstructs normal life of the community. The State is expected to have a mechanism for ensuring protection of normal community life and liberty of citizens. This is an inalienable function of a State”.”

                                         As things stand, it is then revealed in para 27 that, “Though the period of one month expired nothing tangible materialized. However, an affidavit was filed by the Home and Political Department, Government of Assam on 09.04.2015, wherein it was stated that a draft legislation called Assam Prevention of Unconstitutional Bandh Act 2014 was being proposed under the chairmanship of Justice (Retd) KN Saikia, a former Judge of the Supreme Court of India. It was stated that the said draft legislation was under active consideration of the Government. Six months time was sought for to complete the process of legislation.” It is then revealed in para 28 that, “On 18.05.2015, a Division Bench of this Court directed the Government to compile the number of bandh calls given during the year 2014 and to prepare estimate of loss incurred – state-wise, district-wise etc. on account of bandh.”

                                     What follows next can be read in para 29 which says that, “By an affidavit filed on 07.10.2015, Home and Political Department, Government of Assam placed on record the number of bandh calls given by different organizations in the State of Assam in the year 2014. From the statement annexed to the affidavit it could be gathered that a total of 68 Assam bandhs were called in 2014; total number of part Assam bandhs in the said year was 9; district bandhs was 32, and local bandhs was 21. It is further seen that certain organizations had called bandh in the same year, i.e. in 2014 itself more than once. Another statement was annexed to the said affidavit wherein the Government assessed the loss suffered by the State of Assam due to bandh calls during the year 2014 at Rs 2,94,325.896 lacs. Loss on account of district bandhs for the said year was assessed at Rs 1,48,406 lacs. That apart, it was also mentioned in the affidavit that the draft legislation being prepared by the drafting committee headed by Justice (Retd) KN Saikia was being re-drafted with necessary modifications to make it more concise and effective.” It is then observed in para 29.1 that, “Without commenting upon the methodology adopted by the State while making the assessment of loss as above, what is however unmissable is the extent or magnitude of loss suffered on account of such bandhs.”

                                        To say the least, para 30 then brings out that, “On 14.08.2017, learned Advocate General, Assam submitted before the Division Bench that the State Government was about to introduce the Assam Prohibition and Prevention of Bandh Bill, 2017 in the Legislative Assembly. However, in the subsequent hearing on 05.01.2018, the Division Bench was informed that an improved draft of the said bill was likely to be examined by the Cabinet in the first week of February, 2018. Finally, PIL No. 54 of 2012 was closed by the Division Bench vide the judgment and order dated 05.03.2018, taking note of the submission made by the state counsel that an improved draft of the said bill had been prepared and was in the process of being enacted as law governing/regulating the menace and expressing the hope and expectation that expeditious steps would be taken by the state while observing that the purpose of the PIL had been achieved.”

                                        What is, however, most unsettling to note is that para 31 then reveals that, “Though more than a year has gone by since then, the required legislation is nowhere in place.” As anticipated, para 32 then further states the obvious envisaging that, “Thus, it is evident that the State Government is in no hurry to enact a law or to bring in a legislation to give effect to the law laid down by the Supreme Court though submission was made before this Court that an improved draft of the Assam Prohibition and Prevention of Bandh Bill, 2017, had been prepared and was in the process of being enacted into a legislation. In the meanwhile, the general public continue to suffer the depredations of the bandh organizers so much so that even doctors attending to their duties have not been spared. Without expressing any opinion on the raison d’ etre for calling bandhs, it has to be mentioned that the State of Assam has witnessed a spurt in such bandhs and blockades in recent times causing enormous loss to the citizens and the government alike if the assessment of loss on account of bandhs made by the government for the year 2014 is taken as the yardstick. State cannot remain a mute spectator to such blatant violation of the law laid down by the Supreme Court.”

                                        More importantly, it is then made absolutely clear in para 33 that, “Enforcing a bandh besides being unconstitutional would also attract various provisions of the penal code. Since calling or enforcing bandh is illegal, it may amount to criminal conspiracy as defined under Section 120A of the Indian Penal Code, 1860, punishable at least under Section 120B(2). If there is an assembly of five or more persons the common object of the persons composing that assembly being to enforce a bandh or blockade (be it of road or rail), certainly it will be an unlawful assembly under Section 141 of the penal code and each member of the unlawful assembly liable to face punishment under Section 143 thereof. If a member or members of the unlawful assembly are armed or resorts to violence, then other provisions would be attracted. That apart, whoever obstructs a public servant from discharging his duty or holds out any threat, implicit or explicit, may be booked under Sections 186 and 189 of the penal code besides attracting Section 188. Restraining or confining any person from proceeding in any direction whether on vehicle or otherwise may attract Sections 339 to 342. It may also amount to using criminal force under Section 350 and punishable accordingly. Calling for or enforcing bandh may further attract Section 503 of the penal code (criminal intimidation) punishable under Section 506 thereof. In addition, if there is violence leading to injury to person or damage to property in the course of such bandh or blockade relevant provisions of the penal code would be attracted besides the provisions of the Prevention of Damage to Public Property Act, 1984 in the case of damage to public property.”

                                As a corollary, para 33.1 then mentions that, “Similarly, blocking a national highway would be an offence under the National Highways Act, 1956. Enforcing a bandh or blockade may attract Section 8B of the said Act.” Also, para 33.2 then states that, “Likewise, enforcing a railway blockade would attract provisions of the Railways Act, 1989. Obstructing or preventing any railway servant from attending to his duties would attract Section 146; trespassing into railway property would be an offence under Section 147. In addition, in case of violence or even anticipated violence where there is an attempt to wreck a train or damage/destroy railway property. Sections 150 and 151 would become applicable. In case of any attempt to cause hurt to railway passengers or which endangers safety of railway passengers, Sections 152 and 153 may be attracted. That apart, in the event of any railway blockade or bandh obstructing or attempt to obstruct running of train etc., Section 174 would be attracted.”

                                        Needless to say, it then follows in para 33.3 that, “Therefore, the organizer or organizers of such bandh or blockade, at least the principal office bearers of such organizer(s) would be liable to be prosecuted under various provisions of the Indian Penal Code, 1860, National Highways Act, 1956 and the Railways Act, 1989. In addition, those indulging in violence and intimidation including preventing people from attending to their duties would also have to be booked under the relevant penal provisions.”

                                        In essence, it is then eloquently and elegantly pointed out in para 34 that, “The Assam Police Act, 2007 (Police Act, for short) has been enacted to provide for an impartial and efficient police service safeguarding the interests of the people, making the police force professionally organized, service oriented and accountable to the law. It has repealed the Police Act, 1861 in its application to the State of Assam. Section 47 of the Police Act mentions the role and functions of the police which includes upholding and enforcing the law, promoting and preserving public order, such as roads, railways etc., to register and investigate all cognizable offences coming to their notice, to facilitate orderly movement of people and vehicles etc. Thus, it is the solemn duty of the police to uphold and enforce the law. Police Act also provides for accountability of police officers and personnel amongst others through the Assam Police Accountability Commission constituted under Section 70. As per Section 78, the Commission has the mandate to enquire into allegations of serious misconduct against police personnel either suo motu or on complaint; serious misconduct would include non-registration of FIR. The Commission also has the mandate to monitor departmental action or inquires against police officers of certain rank on complaints of misconduct which would mean any willful breach or neglect by a police officer of any law applicable to the police that adversely affects the rights of any member of the public which may also amount to dereliction of duty under Section 98. Therefore, from an overall perspective, not only the police personnel but the Assam Police Accountability Commission also has an important role to play in curbing the menace of illegal bandhs and blockades.”

                          Most importantly, it is then very rightly concluded after analyzing each and every aspect in para 35 that, “Therefore, Court is of the view that this is a fit case where suitable guidelines in the form of directions are required to be issued. Accordingly, the following directions are issued:-

1) Road blockades and rail blockades are nothing but variants of bandh; therefore, those are also illegal and unconstitutional.

2) If any organization calls for an Assam bandh or statewide road blockade/rail blockade and enforces the same, first information shall be lodged by the Commissioner of Police, Guwahati city or by any of his subordinate officer whom he may authorize before the Panbazar Police Station within 24 hours of such bandh/blockade, whereafter written information shall be furnished by the Commissioner of Police, Guwahati city to the Commissioner and Secretary to the Government of Assam, Home and Political Department within 3 to 7 days of lodging of first information with case details.

3) In case of a district bandh or a bandh covering more than one district or a local bandh or a blockade of either road or rail of similar nature, the jurisdictional Superintendent of Police shall lodge first information before the competent police station within 24 hours of such bandh or blockade, whereafter the said Superintendent of Police shall inform the Commissioner and Secretary to the Government of Assam, Home and Political Department about lodging of first information with case details within 3 to 7 days of lodging of first information.

4) Investigating Officers in all such cases shall carry out investigation expeditiously and file charge-sheets before the competent criminal court promptly so that the offenders can be tried in a fast track mode.

5) Assam Police Accountability Commission shall monitor filing of first information and registration of cases as per direction Nos. 2, 3 and 4 above. In case of any default or non-seriousness in complying with the above directions, appropriate action may be taken by the Assam Police Accountability Commission in accordance with law.

5.1)    In addition, Assam Police Accountability Commission shall submit monitoring report to the Registrar (Judicial), Gauhati High Court, Guwahati once every three months.

6) Commissioner and Secretary to the Government of Assam in the Home and Political Department within 7 days of receipt of information as per direction Nos. 2 and 3 above, shall file contempt petition(s) against the organizers and the main officer bearers of such organizations calling bandhs and blockades before this Court, wherein particulars of criminal cases registered against the organizers shall be furnished.

7) If there is any default in carrying out direction Nos. 2, 3, 4 and 6 above, that would be treated as dereliction of duty by the concerned authority, who would, thereafter, be liable to face departmental action, besides exposing themselves to committing contempt of court.

8) Registrar (Judicial), Gauhati High Court, Guwahati shall maintain a record of monitoring reports submitted by Assam Police Accountability Commission. On receipt of each report, he shall examine whether any related contempt petition has been filed in terms of direction No. 6 above, if the occasion had so arisen. If no such contempt petition has been filed, he shall register a contempt case against the organizers and persons concerned which may include the Commissioner and Secretary to the Government of Assam in the Home and Political Department for failure to take steps in terms of direction No. 6.

9)  Government of Assam in the Home and Political Department shall make an assessment of loss caused to the State on account of bandh or blockade, be it state-wise or district-wise or locality wise, which shall be recoverable from the organizers and main office bearers of such bandh or blockade as arrears of land revenue.

10)                  Government of Assam in the Home and Political Department shall constitute a Bandh Loss Compensation Fund within a period of 3 (three) months from today, which will be managed by an authority headed by a retired District and Sessions Judge which may include one Administrative Officer, retired or serving. The authority may take assistance of an assessor or a valuer while examining or assessing claim for compensation.

11)                  The quantum of loss recovered under direction No. 9 shall be deposited by the Government of Assam in the Home and Political Department into the Bandh Loss Compensation Fund.

12)                  All claims for compensation for loss to person or property because of bandh and blockade shall be decided by the authority of the Bandh Loss Compensation Fund by evolving its own procedure, which should however ensure quick settlement of such claims. Claims can be lodged by private individuals, both private and public bodies, juristic persons etc.

13)                  Claim of the petitioner shall be placed before the Bandh Loss Compensation Fund immediately on its constitution, whereafter the same shall be decided by the authority of the fund in accordance with law.

                                  It cannot be lost on us that it is then clarified in para 36 that, “Since the above directions have been issued in the nature of guidelines and would hold the field till enactment of appropriate legislation by the State, it would be open to the State of Assam in the Home and Political Department to seek clarification, if the occasion so arises.”

                             To conclude, the Gauhati High Court has in this latest, landmark and laudable judgment very rightly termed bandhs, road and rail blockades as illegal and also unconstitutional. It has also rightly held that organizers must be prosecuted for they are liable fully as everything happens under their supervision! They cannot escape liability by blaming others or outsiders for it! The organizers must be prosecuted, punished and held accountable for all the damage that results because of the bandh and strike calls given by them! It is beyond a straw of doubt that the Gauhati High Court has very rightly held that the organizers must compensate the people who claim to have suffered losses because of such bandh and strike calls given by them! The guidelines issued by the Gauhati High Court as illustrated above are quite remarkable and needs to be implemented in totality! There can be no denying or disputing it! Those who dare to indulge in wanton violence and cause damage to public and private property must be liable to not only pay damages for it but also must be jailed for taking law in their own hands! There has to be zero tolerance for such wanton acts of vandalism and violence! If they are swiftly and sternly prosecuted and punished, only then will a right, loud and strong message go to all such lumpen and anti-social elements that they cannot escape punishment by resorting to violence and vandalism under the garb of bandh and hartal!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.