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Kaveri Row and the legality of Bandhs

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Kaveri Row and the legality of Bandhs

Kaveri Row and the legality of Bandhs

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“Your right to swing your arms ends just where the other man’s nose begins.”

 

General Overview of Fundamental Rights in the Country

Several freedoms have been enshrined under the Indian Constitution. As argued, most of these freedoms have been provided for under Part III of the constitution, as Fundamental Rights in the country. The legal sanctity afforded to these rights is done to further and promote the rights of citizens, democratic values, and oneness and unity of the country. In a general overview of the rights, these freedoms have been made available only to the citizens (natural persons) in the country, however, these freedoms under Article 19 are subjected to reasonable restrictions imposed by the State, and by the law.

Kaveri Row – Bandhs

In the recent Kaveri Row, Bandhs, or a means of protest to paralyse the industry and commerce of a region, have crippled the state of Karnataka, and have caused losses, to the tune of Rs. 22,000 Crores in just a matter of days.[1]

A Hindi word meaning “closed”, Bandhs have become a norm for political parties and organizations to often call for such shut-downs, when they want to be heard. However, there have been a lot of questions about the legal validity of such protests, which have gained wide currency in the recent past, thanks to the efficacy demonstrated by these.

The Question of Legality

In the 1997 case of Bharat Kumar v. State of Kerala, the apex court of the country had the first opportunity to deal with the question of the legal validity of Bandhs in the country.[2] The apex court stated that no political party or an organization can claim that it is entitled to paralyze the industry and commerce in the entire State of Nation, and is entitled to prevent the citizens not in sympathy with its view point from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the Nation. It further went on to state that such a claim would be unreasonable, and could not be accepted as a legitimate exercise of a fundamental right by a political party or those comprising it.

Opining on the nature of Bandh’s in Bharat Kumar, the apex court stated that “The Government is duty bound to prevent unlawful activities like bandh which invades people’s life, liberty and property.” Further, the court opined that the Government was bound to pay compensation to those people who suffer “loss of life, liberty or property as a result of a bandh”, citing the same as a failure of the government to discharge its “public duty” to protect them.

In appropriate cases, even the organizers of the bandh may be directed to pay compensation.[3] Judicial opinion has even seen bandhs as a means of interference with the normal functionality of the courts, with opinions stating as far as “organizations interfering with the functioning of the courts commit contempt of court”, and are liable for punishment.

 

The legal distinction between Bandhs and protests

The distinction between Bandhs and protests has been one of the most complicated ones. In the general context, peaceful strikes are often referred to in the cases of protests by labour unions. However, years of judicial interpretation and reference to the two in common parlance require us to look at the legal distinction created between the two.

In one of the landmark judgments by the Patna High Court dealing with the issue of strike by Jharkhand Mukti Morcha, the court defined a peaceful strike as one “which does not interfere with the rights and properties of the people”.[4] In the instant case, the High Court awarded 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 court was of the opinion that the government had failed to discharge “its public duty to protect the people during the bandh”.[5]

In an ancillary question addressed by the court, the High Court stated that the activities of the Morcha prevented the lawyers from accessing the premises of the court, thus obstructing with the smooth functioning of the court. Therefore, an action for contempt of court lied against the Morcha for the same.

 

Guidelines laid down by the Supreme Court

In the landmark judgement of T.K. Rangarajan,[6] while declaring ‘bandhs’ as unlawful, the apex court laid down the following guidelines for a peaceful protest.

 

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;

  1. All weapons, including knives, lathis and the like should be prohibited;
  2. All undertaking should be provided by the organizers to ensure a peaceful march with marshals at each relevant jurisdiction;
  3. The police and the State Government should ensure videography of such protests to the maximum extent possible;
  4. 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;
  5. In the event the demonstrations turn violent , the officer-in-charge should ensure that the events are video graphed through private operators and also request such further information from the media and others on the incidents in question;
  6. The police should immediately inform the State Government with reports on the events , including damage, if any, caused by the police; and
  7. 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.

Judicial Evolution and Interpretation

The Supreme Court in the landmark judgment of Communist Party of India v. Bharat Kumar affirmed the distinction drawn by the High Court between a “Bandh” and a call for “general strike” or “Hartal“. In doing the same, the court appreciated the nuanced distinction created between the two, in terms of the fundamental rights of the other citizens being affected in the former case. The court went on to sat 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 a particular section of people in the country.[7] Subsequently, this decision of the apex court was affirmed in the 2002 case of Indian National Congress v. Institute of Social Welfare and Ors.[8]

 

James Martin vs State Of Kerala:[9] 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, property of any citizen or destruction of life and property, and the least 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 make should not loose 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 iron hands, innocent citizens are bound to suffer and they shall be the victims of the highhanded 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.

 

The claim for compensation

With respect to the damages caused to the private persons and their properties, the apex court in George Kurian v. State Of Kerala,[10] held that the government should “adequately compensate (them) immediately as Government had failed to fulfil its constitutional obligation to protect lives and properties of the citizens” (emphasis supplied). Further, the court held that criminal cases should be taken against the offenders as well as the abettors to the offence.

Shiv Sena Party vs B.C. Deshmukh And Ors: By impugned order, the petitioners were directed to deposit by way of exemplary damages a sum of Rs. Twenty Lakhs each with the state Government in a separate fund to be named “30th July 2003 Bandh Loss Compensation Fund”. The said amount shall be deposited by the petitioners within a period of one week. In case the deposit is not made, the petitions shall stand dismissed without further reference to the court. In case the deposit is made and copies of receipts have been filed, the petitions shall then be listed for hearing.

 

 

[1] Rachel Chitral, Kaveri protests in Karnataka cost over Rs. 22000 crore loss, Assocham says Times of India 16th September, 2016 available at http://timesofindia.indiatimes.com/business/india-business/Cauvery-protests-in-Karnataka-cause-over-Rs-22000-crore-loss-Assocham-says/articleshow/54312863.cms

[2] Bharat Kumar v. State of Kerala.

[3] AIR 1999 Pat 169.

[4] Ranchi Bar Association v. State of Bihar

[5] Id.

[6] T.K. Rangarajan vs. State of Tamil Nadu 2003

[7] CPI v. Bharat Kumar

[8] Indian National Congress v. Institute of Social Welfare and Ors, (2002) 5 SCC 685.

[9] James Martin v. State of Kerala

[10] George Kurian vs State Of Kerala, 2004 (2) KLT 758.

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