Bandhs, Hartals, agitations and civil disobedience are frequent in India as
they are considered as a famous method of expressing dissent, attracting the
government's interest to certain demands of an organization or community and at
times force the authorities to yield to the needs placed forward. India
witnessed Bharat Bandh for the entire day and Chakka jam till 3 P.M. on
8th December 2020 called by the farmer's union protesting against the recent
farm sector laws on the ground that even after several rounds of talks with the
Central Government, did not yield any outcome.
Bharat Bandh influenced the ordinary existence of individuals life as
significant participation was seen in large parts of northern India especially
Punjab as well as Odisha and Southern States of Telangana and Andhra Pradesh. Be
that as it may, what constitutionality Bandhs, Hartals and Chakka jam hold is an
issue of pertinence here? Whether it's a legal right, constitutional right or
Is Conducting A Bandh, Hartal Or Similar Protests A Fundamental Right?
Considering right to strike as a fundamental right exudes from Article 19 (1)
(c) of the Indian Constitution, which gives the citizens the fundamental right
to form associations or unions. Article, 19 incorporate the principle of
restriction on the power of the state vis-a-vis the right of its citizens.
Article 19(1) (a) secures to every citizen the right to freedom of speech and
Freedom of Speech and expression has a well-recognised connotation or a
perceived implication which implies liberty to express one's view, opinions,
beliefs, suppositions and convictions. It implies the option to express one's
convictions and opinions freely by word of mouth, writing, printing, pictures or
any other mode.
Demonstrations being visible representations of ideas would be protected as a
form of speech provided they are not violent and disorderly, but a strike is
not included within the ambit of freedom of speech.
Article 19 of the constitution doesn't explicitly give any fundamental right on
a resident or citizins to organise Hartal, Bandhs or Chakkajam. The inquiry is
being discussed, regardless of whether non-violent Strikes, demonstrations,
dharnas, bandhs and chakkajams can be allowed as a fundamental right of citizen
and as part of their guaranteed fundamental freedom of ‘speech and expression' ,
‘assemble peaceably and without arms' and ‘forming associations or unions'.
In 1961, the Supreme Court of India in Kameshwar Prasad v State of Bihar held
that even a very liberal interpretation of Article 19 (1) (c) would lead to a
conclusion that Trade Unions have a guaranteed fundamental right to 'strike'.
Later in All India Bank Employees Association case, the Supreme Court rejected
the contention that right to 'form associations' guaranteed by Article 19(1)(c)
carried with it a concomitant right to strike.
It is now firmly settled by later decisions of the Supreme Court that the right
to strike is not a fundamental right. In the case of T. K. Rangarajan v
Government of Tamilnadu
 the two-judge bench of the Supreme Court, while
pronouncing on legality of the mass strike and said that 'there is no legal,
moral or equitable right with the government employees to go on strike'.
In another case, i.e. B.R. Singh and others V. Union of India the Supreme Court
observed that the right to strike was not a fundamental right. Thus, it is clear
that right to strike is not a fundamental right. The right to association may be
extended to the right to protest through demonstrations provided it does not
disturb public order.
Constitutionality Of Bandh
The first milestone decision on "strikes" and "bandhs" was that a peaceful
strike is held to be legitimate and not unconstitutional, where's bandh is held
to be unconstitutional, being a gross infringement of human and fundamental
rights of others:
is of full bench of Kerala High Court in the case of Bharat Kumar K. Palicha
v. State of Kerala
. The full bench decision of Kerala High Court was
affirmed by the Supreme Court in Communist Party of India (M) v. Bharat Kumar
.' The full bench judgment of the Kerala High Court as certified
by the Supreme Court draws a qualification or distinction between a "bandh" and
'a call for general strike' or "hartal". The calling for bandh is clearly
different from a call for a general strike or hartal.
Current Legal Framework And Judicial Rulings Containing Guidelines
The State was reminded of its obligation to proscribe bandhs with an iron hand
by the Supreme Court of India in the case James Martin v. State of Kerala in
the year 2003.
The most significant ruling pertaining to regulation of bandh and hartals was in
the case of In Re: Destruction of public & private properties v. State of A.P.
 The Court set up two boards of trustees to think of rules to
manage the issue. One council was going by Justice K.T. Thomas, a resigned judge
of the Supreme Court and the other advisory group was going by Mr. Fali S
Nariman, Senior Advocate, SC of India.
The critical proposals of the Justice Thomas panel incorporate correction to the
Prevention of Damage to Public Property Act, 1984 to make a rebuttable
assumption of blame against wrongdoers, altering the Act to make heads of the
gathering who call for direct activity, blameworthy of reduction, videography of
exhibits and exercises harming public property, allowing of bail just in cases
in which the Court has reasonable grounds to presume that the accused isn't
guilty for the offence.
The significant recommendations of the Nariman committee include imposition of
strict liability on persons who caused damage, who were part of the protest or
bandh during which the damage was rendered and the organizers of such a bandh or
The Court welcomed both the committee reports and came up with a list of
Some of them are:
Recent Developments And Conclusion
- Coordinators to meet police before the dissent and give an endeavor for
support of harmony.
- Deny utilization of blades, lathis and weapons.
- The senior most cop in the area or city to oversee the dissent.
- The police will present a report of occasion and harms caused to the
State Government which will at that point record a report under the steady
gaze of the High Court or Supreme Court all things considered.
- High Court may issue suo motu activity and set up a hardware to examine
the harm caused and to grant remuneration.
- A resigned or sitting High Court or Supreme Court judge might be named
as Claims Commissioner gauge harms and explore burden of risk. An Assessor
might be delegated to help the Claims Commissioner. They will have capacity
to bring video film and other proof to release their obligations.
- Absolute Liability will be forced once the connection between the
occasion and harm is clear.
- Harms will be surveyed for harm to public property, private property,
harm because of causing of hurt or passing of people and cost of activities
taken by police and the leader to make preventive strides.
- Exemplary damages not exceeding twice the amount of damages liable to be
paid may be imposed.
- The Claims Commissioner will answer to the High Court or Supreme Court
as the case perhaps.
The Kerala Government has come up with a draft bill called the Kerala Regulation
of Hartal Bill, 2015. It criminalises enforcement of hartals by force, threat of
injury, etc. Organizers are required to obtain permission from the authorities
and inform the public three days in advance. Organisers are required to deposit
an amount as security for payment of compensation for damage caused to property
and injuries sustained.
Bail can be obtained by the accused only after depositing an amount equal to the
value of damaged property as assessed temporarily. If the police fails to help
the public in exercising their legal rights during such hartals, it would be
treated as dereliction of duty and can also be punished with fine extending upto
Rupees Ten Thousand. The Government is also empowered to make rules for
effective implementation of the provisions.
The Central Government has concocted the draft Prevention of Damage Public
Property( Amendment) Bill, 2015. It fuses the rules recommended by the Justice
Thomas Committee Report and the Nariman Committe Report. Huge highlights
incorporate rebuttable assumption against the blamed, compulsory videographing
of fights and bandh and furthermore arrangement for booking office carriers of
associations leading bandh and Hartal for reduction of underhandedness. Fines
can stretch out up to the market estimation of the properties harmed.
It is a positive sign that the Central Government has chosen to find a way to
actualize the measures proposed by the Justice Thomas Committee and Nariman
The State lawmaking bodies need to concoct enactments to handle peace issues
brought about by bandh and hartals in the states. Aside from enactments, the
need of great importance is for the police and different specialists to check
out keeping up peace and forestalling loss of motion of typical life during
bandh and hartals. Changes in the police and modernisation is needed to assist
the police with reestablishing ordinary life in the event of brutality.
This included better correspondence offices, satisfactory assurance for faculty
in type of mob gear, vehicles for watching and so forth The coordination between
the police and arraignment office is likewise imperative to make sure about
conviction. Satisfactory assets should be given to the police office to
documenting of charge sheets as ahead of schedule as could reasonably be
expected and the quantity of investigators should be expanded to forestall
shortcoming because of remaining burden.
The public authority should not embrace a tolerant position on wrongdoers
because of political reasons. Finally at no time should assessments be canceled,
transport administrations halted, and so on simply as a result of hartals and
bandh. This corrupts the resolve of the general population and furthermore
supports such techniques for fights to force the public authority to yield to
- Constitution of India, (1950) Art. 19
- Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166: 1962 Supp (3) SCR
- Radhey Shyam Sharma v. Post Master General, AIR 1965 SC 311: (1964) 7
SCR 403. Harish Uppal (Ex-Capt) v. Union of India, (2003) 2 SCC 45: AIR 2003
739; T.K. Rangarajan v. Govt. of T.N., (2003) 6 SCC 581: AIR 2003 SC 3032.
- Kameshwar Prasad v. State of Bihar AIR 1962 SC 1166.
- T. K. Rangarajan v Government of Tamilnadu AIR 2003 SC 3032.
- B.R. Singh and others V. Union of India (1989) 4 SCC 710.
- AIR 1997 Kerala 291.
- 1998(1) SCC 202.
- (2004) 2 SCC 203.
- In Re: Destruction of public & private properties v. State of A.P. &
ors,( 2009) 5 SCC 212.