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Is Bandh Constitutional or Unconstitutional in India?

By Sk Jahangir Ali (Asst.Prof, BLC) and Mr. Santanu Sen (B.A, LL.B, Final Year Student) 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. Political parties consider that it is their fundamental right to call public shutdown to exploit a political or a sensitive issue and to gain attention.1 It is a form of protest which is used by political parties in India. Bandh are powerful means for civil disobedience. In Bandh the affected are the general people. It disrupts the normal life of the general people. It causes loss to private property and injury to the health of general people. The main affected parties are the shopkeepers. The transport systems are also disturbed. It affects general peoples normal life. They cant move freely as they wish. 2 'Bandh' is unconstitutional as they interfere with our fundamental rights 3. Political parties and organizations forcibly close shops and halt public transport. People observe these protests on account of fear. Therefore, the success of any such protests cannot be attributed to public opinion as it may not have been observed voluntarily. The opinion of general people is not taken into the account.4 In 2006, Trinamool leader Mamata Banerjee had called five bandhs along with her 48-hour bandh in the state, the Trinamool chief has demanded chief ministers resignation after the charred body of one Tapasi Malik, a teenage girl, was unearthed on Monday in Singur where the state government has acquired vast tracts of farmland for a high stakes Tata Motors venture. At that year many businesses were affected.5 Birla group of companies chairman B K Birla warned, Its very unfortunate to have strikes and lockouts. It doesnt help anyone in the long run. On the contrary, it will have an impact on the states economy.6 Affected by the bandh the IIMC Dean said, People are getting fed up now, which is why many are braving these bandhs and going to work. Besides, the ruling party has now called for a

Bandh - Undemocratic and Unconstitutional, available at: http://sarvajan.com/discuss/34-opinion/76bandh-shutdown-undemocratic-and-unconstitutional(Visited on Feb 06, 2013). 2 Bandh, available at : http://www.wikipedia.com- ( Visited on Aug 16,2011) 3 Art. 19 and21 of the Indian Constitution 4 Supra note 1 5 The Times Of India ,18th Dec 2006 6 Ibid

Electronic copy available at: http://ssrn.com/abstract=2212917

dialogue, and even third-party intervention. Theres no point in such frequent attempts to shut down the city. The atmosphere is just not conducive for work. People cant go on functioning like this.7 On 6th Dec 2009, the 48-hour Telangana bandh affected the normal life of general public and public transport system in Hyderabad and Telangana region with several incidents of violence being reported. The Bandh was called by Telangana Rashtra Samiti (TRS) demanding separate statehood. The train services including AP Express, Kerala Express and some goods trains was affected by TRS activists by stopping them at Uppal. In Mahabubnagar town, TRS supporters damaged the statue of Telugu Talli (portrayed as symbol of Telugu people), and they were taken into custody by police. Some TRS supporetrs damaged the office of INTUC at Godavarikhani town in Karimnagar. The protesters blocked train movements by squatting on tracks and even removed clips and plates of tracks at different places in Karimnagar district, but our engineers carried out repairs and restored the train services, the official said, adding that police intervened and pulled away the agitators from the tracks.8 On 5th July 2010 public transportation was affected in many states. Further, flights and trains were also affected. Metro services were affected in Delhi. Public property was damaged in many states. The educational institutions like schools and colleges were closed across the country. The supporters of Bandh attacked buses, trains, blocked roads and carried out demonstrations in many states. 155 public buses were damaged and 10 people were injured in stone throwing in Bihar, Orissa, Punjab and Karnataka, Maharashtra and Bangalore, Several IT companies were shut down for precautionary measure. In Lucknow, many people were injured for the clash between the police and the supporter of Bandh.9 Normal life was affected by the Bharat Bandh which was called by NDA, and 13-Non UPA Govt. on 5th July, 2010. Rail, air and bus services were disrupted during a bandh called against fuel price hike while stray incidents of violence occurred in Maharashtra and Karnataka where BJP workers pelted stones at buses. In West Bengal and Kerala, air, rail and road services were also affected. In Bihar, Punjab and Karnataka, life was affected by stopping trains and buses by sthe supporters of Bandh.10 ECONOMIC LOSS DUE TO BANDH The Bharat Bandh caused a GDP loss of about Rs 3,000-13,000 crore.11MLA Joy is a legislative member of Manipur State Legislative body said that the total number of bandhs and blockades

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Ibid th The Hindu 6 Dec 2009 9 th LIG reporter 6 Jul 2010 10 Bharat Bandh Affects Normal Life Across The Country, Indian Express, 5th Jul 2010
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Open Magazine, 14th Aug 2010

Electronic copy available at: http://ssrn.com/abstract=2212917

called by different organisations during the last 15 years is 628 .The daily loss suffered for bandh is between Rs 5 and 6 crore. Blockade causes a loss of Rs 2 to 3 crores daily. He further said that Manipur is a state which depends on the essential commodities brought from other states. The state has become addicted to bandhs and blockades. It is time for the legislators to ban Bandh. He added that it violates a citizen's fundamental right to move freely as he wishes. He cited the judgment ordered by Kerala High Court in 1997 that bandhs and blockades are illegal and unconstitutional.12 India legal news reports that a total loss of Rs.2, 735 crores was suffered due to the bandh that was called across the country on 5th July, 2010.13 S.K. Khullar, president, HRAEI (Hotel & Restaurant Association of Eastern India) said, There have already so many bandhs in a row: one total and two partial recently, and things really cant go on this way. For one, the hotel and restaurant industry suffers great losses, anything between Rs 30-40 crore for a total bandh. And even for the partial ones, sales are only half of a regular days. Whats more, its not just restaurants which suffer, but also the little street side stalls, which are deprived of a days earnings.14 JUDICIAL RESPONSE On 6th January, 2010 Gauhati High Court declared that Bandh is illegal and unconstitutional. It violates citizens fundamental rights. Chief Justice Jasti Chelameswar and Justice Arun Chandra Upadhyay in the light of a 1997 Supreme Court order upholding a Kerala High Cou rts 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 bandhs as illegal and unconstitutional in Assam and Meghalaya. The petitioners told that frequent bandhs affect the economy and education.15 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.16 In a landmark decision in Bharat Kumar17, 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
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MPPs Private resolution on banning Bandh/Blockade, Epao 23rd July 2010 LIG reporter 6th Jul 2010 14 Supra note 5 15 The Telegraph ,7th Jan 2010 16 Supra note 11 17 Bharat Kumar K. Palicha v State Of Kerala, AIR 1997 Ker 291

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 Court18 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. In Ranchi Bar Association v. State Of Bihar19, 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 peoples 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.20 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 peoples life, liberty and property. The Government failed to discharge its public duty to protect the people during the bandh.21 Supreme Courts judgment in T.K. Rangarajan vs. State of Tamil Nadu (2003), declaring the right to strike is illegal, and bandh is unlawful. The anti-strike judgment, according to the author, seeks to distance the state from the goal of socialism, while the anti-bandh verdict smacks of generalizations, not supported by factual evidence. By defining a bandh, and by seeking to punish the participants in the bandh, the court has only trespassed into the legislative function.22 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 case23,. After perusing various reports filed two committees were appointed ;one headed by a retired Supreme
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Communist Party Of India v. Bharat Kumar, AIR 1998 SC 184 AIR 1999 Pat 169 20 Ibid 21 Ibid 22 Frontline Magazine volume 25 issue 25, Dec 6-19, 2008 23 (2007)4 SCC474

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.24 CONCLUSION So, from the above case we come to know that demonstrations like bandh, hartal etc can be organized if it will be held peacefully. But, if we look at the previous incidents of bandh in India we will find that most of the incidents have caused bodily harm to the normal public, destruction

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Ibid

of private property etc. We find that Bandh affects the normal life of the general people; it disturbs the peaceful environment of a society. It restricts a person to move freely. It violates the fundamental rights of person. It causes damages to the individuals and it causes violence and inhuman activities. Political parties call Bandh for their own benefit. They never take the opinion of the public. If they find that public is not happy with any issue then they call bandh for their own publicity. At that time they want to show the people that they care for general public. We dont think that Bandh is any solution for any problem. In any problems political parties should discuss with each other how they can solve the problem, how they can help the public. But, they dont do so and call for Bandh. This Bandh has huge impact on economy. Bandh is weakening the Indian Economy. If the political parties would care for us then they could never call Bandh and they would discuss with each other to solve the problem of the general public. Our Indian Constitution is OF THE PEOPLE, BY THE PEOPLE, and FOR THE PEOPLE. Our constitution is created for the welfare of all general people but Bandh is disturbing the peaceful, normal life of the people, so, Bandh is unconstitutional and side by side it is illegal and undemocratic also.

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