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Constitutionality Of Bandh, Hartals And Chakka Jams

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 fundamental right?

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 expression.[1]

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,[2] but a strike is not included within the ambit of freedom of speech.[3]

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[4] 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 [5] 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.[6]

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.[7] The full bench decision of Kerala High Court was affirmed by the Supreme Court in Communist Party of India (M) v. Bharat Kumar and other.[8]' 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[9] 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. & ors.[10] 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 protest.

The Court welcomed both the committee reports and came up with a list of guidelines.
Some of them are:
  1. Coordinators to meet police before the dissent and give an endeavor for support of harmony.
  2. Deny utilization of blades, lathis and weapons.
  3. The senior most cop in the area or city to oversee the dissent.
  4. 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.
  5. High Court may issue suo motu activity and set up a hardware to examine the harm caused and to grant remuneration.
  6. 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.
  7. Absolute Liability will be forced once the connection between the occasion and harm is clear.
  8. 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.
  9. Exemplary damages not exceeding twice the amount of damages liable to be paid may be imposed.
  10. The Claims Commissioner will answer to the High Court or Supreme Court as the case perhaps.

Recent Developments And Conclusion
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 Committee.

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 the requests.

End-Notes:
  1. Constitution of India, (1950) Art. 19
  2. Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166: 1962 Supp (3) SCR 369.
  3. 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.
  4. Kameshwar Prasad v. State of Bihar AIR 1962 SC 1166.
  5. T. K. Rangarajan v Government of Tamilnadu AIR 2003 SC 3032.
  6. B.R. Singh and others V. Union of India (1989) 4 SCC 710.
  7. AIR 1997 Kerala 291.
  8. 1998(1) SCC 202.
  9. (2004) 2 SCC 203.
  10. In Re: Destruction of public & private properties v. State of A.P. & ors,( 2009) 5 SCC 212.

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