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
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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
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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...
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