STRIKES AND BANDHS: THE EXISTING LEGAL POSITION IS INSUFFICIENT AND IMPRACTICAL

Dr. N C. Asthana IPS and Dr. Anjali Nirmal

INTRODUCTION The Parliament is yet to legislate that the forcing of strikes and bandhs upon unwilling citizens would be an offence. The position of the judiciary on the matter of strikes and bandhs has been explained in several judgments of the Supreme Court and the high courts. The purpose of this article is to show that (1) while the courts have given very forceful and laudable expression to the illegality and unconstitutionality of strikes and bandhs, they have yet to insist that forcing someone to join strikes and bandhs against his will must be made into an offence; and (2) that the state governments and administration have genuine practical problems in enforcing the orders of the honorable courts to ensure that complete normalcy is maintained during a strike or bandh.

THE LEGAL POSITION The Supreme Court had clearly held in the case of T. K. Rangarajan vs. Government of Tamil Nadu1 that there exists no fundamental, statutory, equitable and moral right to resort to strike. Earlier, the Supreme Court in Communist Party of India (M) vs. Bharat

IG of Police (Internal Security), Kerala. Author of many renowned books. 2003 INDLAW SC 588, 2003 (6) SCC 581.

Kumar2 had deprecated the call for enforcing a bandh affirming the ratio decidendi of the Kerala High Court in Bharat Kumar K. Palicha vs. State of Kerala3 which had held that calling for and holding a bandh violated the fundamental rights of the citizens and the court may step in to protect such rights. The Kerala High Court in Kerala Vyapari Vavasayi Ekopana Samithi vs. State of Kerala4 had held that the mere calling of a hartal or advocating it as understood in the strict sense may not be held to be objectionable. But the moment it comes out of the concept of hartal, strictly socalled and seeks to impinge on the rights of others, it ceases to be a hartal in the real sense of the term and actually becomes a violent demonstration affecting the rights of others. The other judgments are discussed later.

WHAT IS THE BASIC LEGAL ISSUE INVOLVED AND THE NECESSITY OF DEFINING A SPECIFIC OFFENCE? The basic legal issue involved in the matter of strikes and bandhs is simple and there is no reason that they must not be made into offences. Certain political parties are known to have criticised the courts when they disapproved of strikes and bandhs and called it a curtailment of their democratic rights. They are mistaken. Strikes and bandhs are organised to express protest. Yes, all of us know that in this country everyone has the democratic right to register his protest. He may protest against the government or against individuals; he has a right to protest as long as he feels that he is wronged. The mistake which political parties commit is that they presume that

2 3 4

1997 INDLAW SC 3153, (1998) 1 SCC 201. 1997 INDLAW KER 314, AIR 1997 Ker 291 (FB). 2000 INDLAW KER, 327 AIR 2000 Ker 389.

simply because they have a large number of people with them, it amounts to having the whole society with them. The legal catch is that even if they have hundreds of thousands of people with them, it does not mean that every single member of the society is with them. Even if there is a single individual who does not agree with a man or party registering its protest, his rights are as sacred as the rights of millions. He has as much right not to take part in a strike or bandh as the other person has to take part in them. Hence the strike or bandh supporter does not have the right to encroach upon the rights of others in the exercise of his right to protest. The moment he does so, he commits a crime. Forcing someone to do something against his will or not to do something must be an offence in exactly the same way in which forcing a woman to sexual intercourse against her will is an offence or dispossessing someone of his property against his will is an offence. In fact the fundamental tenet of an offence against an individual is that something must be done to him against his will which deprives him of something, hurts him mentally or physically, or prevents him from the exercise of his legal rights. When one is expressing his protest, not all members of the society are with him. He has a right to not go to work or keep his shop closed. But he has no right to prevent others from going to work or opening their shops. When he forces someone to not open his shop or prevents him from going to work, he deprives him of his livelihood for the day and thus violates his right. We need not describe the untold miseries that affect crores of people on account of strikes and bandhs. Public transport gets attacked, people are not able to get their provisions, sick people are not able to get medical aid, students miss examinations and as the TV channels have

repeatedly shown, people have even died on the roads because they may not reach hospitals. For the supporter of a strike or bandh, doing what he pleases is his right. He does not, however, have a right to violate the rights of others who are not supporting his cause. Thats why forcing others to join strikes or bandhs is illegal and unconstitutional. By the same logic it must be made into a substantive offence. We feel that an academic debate over what is a strike, bandh or hartal is futile. The basic legal issue is that of violation of a non-supporters fundamental rights. There is no need to debate what a strike, bandh or hartal is. We must concern ourselves with the effect of something and not its nomenclature. A semantic exercise prevents us from taking a holistic view of the problem. The point to be noted is that if everything went on as usual during a strike, bandh or hartal, what would be the meaning of it and what would the party gain from it? A party or group gains something from its call of a strike, bandh or hartal only if it disrupts normal life. If normal life were to continue as usual, they might have as well not bothered to give the call in the first place! The reality of life is that the call for a strike, bandh or hartal is essentially a show of strength and the parties would fail in their purpose if normal life were to be affected. Maintenance of normal life during a strike, bandh or hartal would amount to a situation where someone, instead of slapping somebody, merely announces that he has slapped him! Who would call a hartal a hartal unless the markets were to be closed? Incidentally, the Hindi word hartal comes from two Sanskrit words, namely, hatta and talaka. Hatta means shop or market and talaka means a lock. Thus hartal literally and etymologically both means closure of shops or market. Making the act of some people forcing other people to forego their livelihood for a day or more or otherwise force them to stay indoors or do anything against their will into a substantive offence is something which the Parliament must

have done but has not done. On the other hand, while the courts have spoken forcefully on the illegality and unconstitutionality of strikes and bandhs, they have yet to order that forcing someone against his will to join a strike or bandh must be made into a substantive offence. In our considered opinion, unless that is done, the declarations of the courts would remain in the nature of expression of pious wishes. It is not practical for aggrieved citizens to approach the courts for contempt of court every time they are forced against their will to become victims of strikes and bandhs. A genuine relief to the people will be possible only if the organisers of a strike or bandh are made criminally liable for forcing others to participate in them or suffer the consequences of such activities. WHAT ARE THE PRACTICAL DIFFICULTIES IN A STRICT

ENFORCEMENT OF THE ORDERS OF THE COURTS? With due respect to the courts and appreciating their strong sentiments against the violation of the rights of the common people as enunciated in various orders, we must point out that there are several administrative difficulties in implementing their orders in earnest. We will elaborate the difficulties involved and request the courts to kindly appreciate them. This is necessary because unless that is done, the courts might hold the state governments or even the district administrations guilty of not obeying their orders in earnest or even contempt. In the case of George Kurian vs. State of Kerala5 the High Court of Kerala said the following:

(2005) 1 LLN 263 (Ker) (FB).

(1)

whenever a hartal or a general strike is called, the government must take adequate measures to see that normal life of the citizens is not paralysed. That is to be done not by declaring holidays or postponing examinations; but, by giving effective protection to those who are not participating in such hartals or strikes. Government must be able to deal with the situation with strong hands. Considering the past experience, if the government is feeling that they are unable to give adequate protection, it must request the Centre for deputing army or para-military forces so that there must not be any constitutional breakdown and violation of fundamental rights of the citizens;

(2)

the district administration must be given sufficient direction to avail para-military force as provided under the Code of Criminal Procedure, 1973, CH X to maintain public services if law and order problem arises during the hartal or general strike by unlawful assembly of hartal or strike supporters;

(3)

in cases of damage to public property, action must be taken to recover the damages from the persons who actually cause damages and also from the political parties, organisers and persons who give actual call for such hartals or general strikes. In view of the happenings in the past, they may not say that they did not visualise such a situation which was created by anti-social elements and directions issued in this regard in Bharat Kumars c ase, para 18 which is affirmed by the Supreme Court will be followed strictly and if no proper action is taken, it must be realised from the defaulting officers and stern action must be taken against such officers;

(4)

effective action must be taken under the Prevention of Damages to Public Property Act, 1984 and circular dated 17 December 20036 will be implemented strictly.

The High Court of Kerala in I. A. no. 2456 of 20087 delivered on 18 February 2008 stated as follows: (1) we reiterate once over again what the Full Bench of this Court has said in the case of George Kurian vs. State of Kerala8. The Full Bench in the said decision has made two pertinent observations. Firstly, it is the State Government which will take all adequate and effective measure to see that the normal life of the citizens is not paralysed, and secondly, that those who call for hartals or strikes by whatever reason must make it clear in their call that nobody will be compelled to participate in the hartals or strikes, that traffic will not be obstructed and those who are willing may go for work and that fundamental right of others to move about will not be affected. They must also instruct their supporters to see that no coercion or force is used for compelling others to participate in the strike or hartal. (2) the learned Advocate General who is present in Court would assure us that the state government will take all possible adequate and effective measures to see that the normal life of the citizens is not paralysed. The statement of the learned Advocate General is taken on record.

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produced as Ext.R1(d) in W.P. No. 20078 of 2003. W. P. (C) No. 31985 of 2007-S. 2004 (23) KLT 758.

The million-dollar question is what exactly the state governments may do or must do to ensure that there is complete normalcy? Supposing the organisers of the strike are bent upon forcible closure of shops or blocking traffic and they pay no heed to the warnings of the police, what exactly is that the police must do? The police have three means of using non-lethal and lethal force. The mildest is the use of tear gas. This is followed by what we call lathicharge; they may also use the so-called stun grenades and stinger grenades produced by the Tear Smoke Factory, BSF, Government of India. Lethal force is used in the form of firing. Tear gas frequently proves to be ineffective because it is effective only in narrow or confined areas. In large open spaces, it gets dispersed very quickly in the air or even the wind blows it away. It must also be understood clearly that things like lathicharge maybe done effectively only if the police are present in force. A lathicharge by a section of policemen on a crowd of even 200 people is not likely to be effective; on the contrary, it may even provoke the people into doing more violent things. Quite often the police strength on a given location is just not sufficient. Particularly when there is a state-wide activity, the strength of the police falls hopelessly short. In this country the national average is 122 policemen for one lakh people. Even if the police stations are locked, all other police offices closed for the day and each one of them were to be brought out on the streets for the strike or bandh duty to the utter detriment of many other important and constitutionally obligatory tasks of the police, the number of policemen may well be several times less than the number of strike or bandh supporters who might come out on the streets. This has frequently happened in this country and recently in Pakistan also following the death of Benazir Bhutto where the police had no option but to watch helplessly for three days as Pakistan burnt.

That leaves the police with only one optionthat is, to use lethal force. Even if that be legally justified, the fact remains that practically every police firing results in a judicial enquiry. Quite often faults are found with the police for what is described as a disproportionate quantum of force used. Even otherwise, would it be proper for the police to open fire simply because they found a group of say a hundred people making someone close his shops forcibly? To say that the police must use the just amount of force is easy; but no one bothers to explain as to what they must be doing when they are vastly outnumbered or when other means of crowd dispersal may not be used effectively. In fact it may well be argued in a judicial inquiry by the other side that the use of the phrase deal with the situation with strong hands was not meant to be a license to open indiscriminate fire. While it is left to the discretion of the police officer on the spot to use his discretion and judgment to decide whether opening fire is the correct option or not, his judgment is practically always questioned at a later stage. And when such questions are raised, the other party is not prepared to make any allowance for the tension and stress under which such a decision was taken. In other words, administrative decisions taken in the field where stones, brickbats, soda water bottles, acid bulbs, and even shots are flying at the police, public and private property is being damaged, buses and shops are burning, blood is flowing and government offices are under attack by mobs, are questioned in a completely detached atmosphere and it is expected that the police officer must have taken his decision in an equally detached manner befitting Lord Buddha himself. The underlying fear of a judicial inquiry and all the trauma that accompanies it, is actually responsible for the reticence of the police officers in using lethal force to good effect. In countless riots in the country in the past 60 years, many lives and much property may have been saved if the police had used lethal force to good effect at the

right timemore often than not, they vacillate and keep on postponing it till the situation goes out of hands. Next comes the question of seeking the help of the Central Government. The help of the Central Government is sought for anticipated large deployments, such as general elections. Central help is not supposed to be sought for affairs lasting a day. The Central Government would not oblige as a matter of routine to any state government and in any case, there may be situations like a Bharat bandh alsothe Central Government may not give forces to the entire country. This means that the backing of the court order notwithstanding, the state governments may neither seek the help of the Central Government for such purposes nor can it be made available on a short notice. Even in extremely serious situations like the Gujarat riots it took considerable time for the central forces to be airlifted. No state government will admit that it was deficient to start with in dealing with a strike or that its police force was incapable of handling it, for such an admission would amount to admitting that it is incapable of providing one of the basic aspects of governance. They may not pass the lams on to Intelligence either for no intelligence agency can foretell that there would be violence on a very large scale because not only that such decisions are secret, quite often violence spreads spontaneously too. Thus there are many administrative and practical difficulties in seeking central help to cope with a strike or bandh of a day. SUGGESTED SOLUTION In view of the existing legal position with respect to the obligations of the state governments and district administrations, the state governments and administrations find themselves in a fix. If they fail in maintaining complete normalcy, they may be accused of disobeying the court and failing in their constitutional duty; and if they

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start shooting people down and shed blood on a large scale, they will still be accused of using excessive force and being inhuman, and subsequently taken to task for what some people might describe as re-enacting the Jallianwalla Bagh massacre. It is actually the fear of the latter that makes the governments and administration use less force than necessary and which really becomes ineffective force. This dilemma may be resolved only if the courts come forward to press for making the forced imposition of a strike or bandh into an offence and also assure the state governments that their use of force in maintaining normalcy would be viewed with due concessions in mind. Let no one get an impression that this might result in bloodbaths. On the contrary, the fact is that the mere enactment of the legislation making forcing to strike an offence would act as a deterrent to the organisers in the first place and also enable the state governments to act without unnecessary fear of subsequent criticism and political fallout.

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