Contitution
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
♥ ♠ 1
IG of Police (Internal Security), Kerala. Author of many renowned books. 2003 INDLAW SC 588, 2003 (6) SCC 581.
1
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
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
♥ ♠ 1
IG of Police (Internal Security), Kerala. Author of many renowned books. 2003 INDLAW SC 588, 2003 (6) SCC 581.
1
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