In an important case of ‘Bharat Kumar v. State of Kerala (1997)’, the Kerala High Court gave an important ruling on the issue of ‘bandh’ called by Political Parties. The ruling of the High Court was later affirmed by Supreme Court. In the case, the High Court considered the issue of bandh in detail, including the meaning of bandh and its effect on Public.
The Present article is an edited excerpt from the judgment of Bharat Kumar v. State of Kerala.
What is the Meaning of ‘Bundh’?
‘Bundh’ is a Hindi word meaning ‘closed” or ‘locked’. The expression therefore conveys an idea that everything is to be blocked or closed. Therefore, when the organisers of a bundh call for a bundh they clearly express their intention that they expect all activities to come to a standstill on the day of the bundh. A call for a bundh is obviously distinct and different from the call for a general strike or the call for a hurtle.
The intention of the callers of the bundh is to ensure that no activity either public or private is carried on that day is also clear from their further statements sometimes made that the newspapers, hospitals and the milk supply is excluded from the bundh.
This clarification obviously implies that otherwise the intention is that those services are also to be affected- If the intention is to prevent the milk supply, prevent the distribution of newspapers, prevent people going to the hospitals for treatment, prevent the people from traveling and to generally prevent them from attending to their work either in service of the State or in their own interest, that obviously means that it amounts to a negation of the rights of the citizens to enjoy their natural rights, their fundamental freedoms and the exercise of their fundamental rights.
It is no doubt true that while calling for a bundh it is not also announced that any citizen not participating in the bundh will be physically prevented or attacked. But experience has shown that when any attempt is made either to ply vehicles on the day of the bundh or to attend to one’s own work, or to open one’s shop to carry on trade, it has resulted in the concerned person being threatened with consequences if he took out his vehicle, if he went for his work or if he kept his shop open.
The leaders of the political parties who call for the bundh cannot escape by saying that they are not directly telling the citizens not to do these things under threat but if some of the participants in the bundh indulge in such activities, they cannot be held responsible.
Obviously, they can with reasonable intelligence foresee the consequences or action in calling for the bundh. Nor can they pretend that the consequences that arise out of the calling for a bundh is too remote or does not have reasonable proximity to the call they have made.
Moreover, a bundh involves the stopping of all transport systems in the State preventing the common man from even going to the hospital in an emergency so as to bring succor to a citizen who has been taken seriously ill.
Thus, on the materials made available and taking judicial notice of what generally happens in a bundh which has resulted even in the working of the High Court being totally disrupted by counsel not being in a position to attend to the Courts, we are inclined to understand the concept of a bundh as one where people are expected not to attend to their work or to travel for any purpose nor to carry on their trades with a threat held out either express or implied that any attempt to go against the call for the bundh would result in danger to life and property.
Even if there is no express or implied threat of physical violence to those who are not in sympathy with the bundh, there is clearly a’ menacing psychological fear instilled into the citizen by a call for a bundh which precludes him from enjoying his fundamental freedoms or exercising his fundamental rights.
We are inclined to the view that the call for a bundh implies a threat to the citizen that any failure on his part to honor the call, would result in either injury to person or injury to properly and involves preventing a citizen by instilling into him the psychological tear that if he defies the call for the bundh he will he dealt with by those who are allegedly supporters of the bundh.
Gherao and Bandh
We think that whereas gherao is limited to a particular industrial house or its officers and its workers, a bundh in a sense involves the gherao of the citizenry if not by actual physical prevention but by holding out in unmistakable terms a threat of consequences on failure to obey the call for the bundh.
Violation of Fundamental Right when Bundh is in Effect
When a citizen is coerced in to not attending to his work or prevented from going out for his work or from practicing his profession or carrying on his business, there is involved a violation of his fundamental right at the instance of another. From bur understanding of the concept of bundh as set out above, we are of the view that there is such a violation of the rights of the citizen when a bundh is called and held.
The main contention raised on behalf of the political parties is that to call for a bundh and a protest against any action or inaction on the has of the executive is the fundamental right of every political party or of every citizen comprising that party and any curtailment of such a right would involve the curtailment of the fundamental right enjoyed by the citizen of this country guaranteed to them under Article 19(1)(a) and (b) of the Constitution.
It is also contended that under Article 19(2) of the Constitution, only the State could make a law insofar as such law imposes a reasonable restriction on the exercise of right conferred by Article 19(1)(a) and (b) of the Constitution and so long as no law is made, this Court cannot abridge or cut down the fundamental right of the political party or its office hearers to call for a bundh which is only a form of protest.
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 is sought to be met by counsel for the petitioners by contending 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.
When Article 19(1) of the Constitution guarantees to a citizen the fundamental rights referred to therein and when Article 21 confers a right on any person — not necessarily a citizen — not to be deprived of his life or personal liberty except according to procedure established by law would it be proper for the Court to throw up its hands in despair on the ground that in the absence of any law curtailing such rights, it cannot test the constitutionality of the action? We think not.
When properly understood, the culling of a bundh entails the restriction of the free movement of the citizen and his right to carry on his avocation and if the Legislature does not make any law either prohibiting it or curtailing it or regulating it we think that it is the duty of the Court to step into protect the rights of the citizen so as leisure that the freedoms available to him are not curtailed by any person or any political organisation. The way in this respect to the Courts has been shown by the Supreme Court in Bundhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
Peaceful Bundhs or Violent Bundhs
It is argued on behalf of the respondents that a bundh could he peaceful or violent and even if the Court were to act, it could act only to curtail violent bundhs and not peaceful bundhs. It is contended that the Court cannot presume or generalise that the calling of a bundh always entails actual violence or the threat of violence in not participating in or acquiescing in the bundh.
This theoretical aspect expounded by counsel for the respondents does not appeal to us especially since as understood in our country and certainly in our Slate, the calling for a bundh is clearly different from a call for a general strike or a hurtle. We have already noticed that a call for a bundh holds out a warning to the citizen that if he were to go for his work or to open his shop he would be prevented and his attempt to take his vehicle on to the road will also be dealt with. It is true that theoretically it is for the State to control any possible violence or to ensure that a bundh is not accompanied by violence.
But our present set up the reluctance and sometimes the political subservience of the law-enforcing agencies and the absence of political Will exhibited by those in power at the relevant time, has really led to a situation where there is no effective attempt made by the law-enforcing agencies either to prevent violence or to ensure that those citizens who do not want to participate in the bundh are given the opportunity to exercise their right to work, their right to trade or their right to study.
We cannot also ignore the increasing frequency in the calling holding and enforcing of the bundhs in the State and the destruction of public and private property.
Limitation of Political Parties’ right to call bandh
It is argued that the Court cannot restrict the freedom of the political parties to call for a general protest and any restriction placed thereon would be violative of the fundamental rights of those who compose the political party, their freedom of expression, speech and to assemble peaceably. It may be true that the political parties and organisers may have a right to call for non-co-operation or to call for a general strike as a form of protest against what-they believe to be either an erroneous policy or exploitation.
But when exercise of such a right infracts the fundamental right of another citizen who is equally entitled to exercise his rights, the question is whether the right of the political party extends to right of violating the right of another citizen.
If this be the position and if the call for the bundh and the holding of it entails restriction on the fundamental freedoms of the citizen, it has to be held that no political party has the right to call for a bundh on the plea that it is part of its fundamental right of freedom of speech and expression. Moreover, nothing stands in the way of the political parties calling for a general strike or hurtle unaccompanied by express or implied threat of violence to enforce it. It is not possible to accept that the calling of a bundh alone could demonstrate the protest of a political party to a given decision or in a given situation.
No political party or organisation can claim that it is entitled to paralyse the industry and commerce in the entire State or 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. Such a claim would be unreasonable and could not he accepted as a legitimate exercise of a fundamental right by a political party or those comprising it.
We are inclined to the view that the political parties and the organisations which call for such bundhs and enforce them are really liable to compensate the Government, the public and the private citizen for the loss suffered by them for such destruction. The State cannot shirk its responsibility of taking steps to recoup and of recouping the loss from the sponsors and organisers of such bundhs.
We think that these aspects justify our intervention under Article 226 of the Constitution. 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.
Reference
Bharat Kumar v. State of Kerala (1997)