The Calcutta High Court judgement on Bandh vis a vis Darjeeling Bandh

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W. P. 23617 (W) OF 2013
07.08.13 (Rama Prasad Sarkar -vs- The State of West Bengal & Ors.) ag/skc
Sl.No.42
Mr. Rama Prasad Sarkar - Petitioner in person
Mr. Ashok Banerjee, Ld. G.P. - for the State
The writ petition has been filed as against the Bandh, which is
being organised by Gorkha Janamukti Morcha.
It is submitted that agitation is going on for separate State in
the name of 'Gorkhaland' in the hill area of West Bengal, for which the
Darjeeling Gorkha Hill Council was formed in the year 1988. Other
matters pertaining to history have been given. Now Gorkhaland
Territorial Administration has been formed for which election was
announced on 29.7.2012. Thereafter Gorkhaland Territorial
Administration was formed and has taken over the charge of the
administration. There is a tripartite agreement. Now by the indefinite
Bandh which is being organised, the same is causing panic in the hill
area and most of the activities have come into halt. There is
obstruction to traffic and movement of essential food materials which
are not available in the open market and the right to life of the
common people is endangered. Local administration is totally inactive
in taking steps to restore the essential services and to restore
normalcy. Hence, the petition has been preferred.
The petitioner has filed affidavit of service, which is taken on
record. However, it appears that though notice has been sent to the
respondent no.7, Gorkha Janamukti Morcha, but whether service has
been effected or not is not clear from the documents annexed to the
affidavit of service. Let requisite documents indicating that service
has been effected upon the respondent no.7 be filed within a period of
three days by the petitioner.
Mr. Ashok Banerjee, learned Government Pleader, appearing on
behalf of the State, has stated that they are opposing the Bandh. 2
Such Bandh is uncalled for and essential services have to be
maintained and efforts are being made in that regard.
Considering the affected circumstances the matter is no more
res integra. In the case of Communist Party of India (M) -vs-
Bharat Kumar & Ors. -vs- Bharat Kumar & Ors., (1998)1 SCC 201,
which originated from Kerala High Court decision, the Kerala High
Court has laid down thus:
"7. Before proceeding to consider the constitutional issues sought to be projected before us, we think that it is necessary to understand what is a 'bandh'. 'Bandh' is a Hindi word meaning 'closed' or 'locked'. The expression therefore convey an idea that everything is to be blocked or closed. Therefore, which the organiser of a bandh, call for a bandh, they clearly express their intention that they expect all activities to come to a standstill on the day of the bandh. A call for a bandh is obviously distinct and different from the call for a general strike or the call for a hartal. The intention of the callers of the bandh is to ensure that no activity either public or private if carried on that date, is also clear from their further statement sometime made that the newspapers, hospitals and milk supply is excluded from the bandh. This clarification obviously implies that otherwise the intention is that those services are also to be effected. If the intention is to prevent the milk supply, prevent the distribution of newspapers, prevent people going to the hospital for treatment, prevent the people from travelling and to generally prevent them from attending to their work either in services of the State or in their own state, that obviously means that it amounts to a negation or the right of the citizen to enjoy their natural right. Their fundamental freedom and the exercise of their fundamental rights. It is no doubt true that while calling for a bandh it is not also announced that any citizen not participating in the bandh will be physically prevented or attacked. But experience has shown that when any attempt is made either to ply vehicle on the date of the bandh or to amend to one's own work, or to open one's shop to carry on trade it has resulted in the concerned person being threatened with consequences if he look out his vehicle, if he went for his work or if he kept his shop open. The leaders of the political party who call for the bandh cannot escape by saying that they are not telling the citizens not to do these things under threat but if some of the participants in the bandh indulged in such activities, they cannot be held responsible. Obviously, they can with reasonable intelligence foresee the consequences of their action in calling for the bandh. Nor can they pretend that the consequences that arise out of the calling for a bandh, is too remote or does not have reasonable proximity to the call they have made. Learned Counsel appearing for the political parities contended that this Court cannot take note of what actually happen when a bandh is called, but this Court can only go by the call for the bandh itself which does not involve the call for violence or forceful prevention of people from going about their avocation. We do not think that we would be 3
justified in adopting such an ostrich like policy. We cannot ignore the reality of what is involved when a bandh is called.
12.It is true that here is no legislative definition of the expression 'bundh' and such a definition could not be tested in the crucible of constitutionality. But does the absence of a definition deprive the citizen of a right to approach this Court to seek relief against the bund if he is able to establsh beore the Court that his fundamental rights are curtained to estroyed by the calling of and the holding of a bundh ? When Article3 19(1) of the Constitution guarantees to a citizen the fundamental rights referred to therein and when Article 21 confers a right on any person - not necessarily a citizen- not to be deprived of his life or personal liberty except according to procedure established by law, would it be proper for the Court to throw up its hands in despair on the ground that in the absence of any law curtailing such rights, it cannot test the constitutionality of the action ? We think not. When properly understood, the calling of a bandh entails the restriction of the free movement of the citizen and his right to carry on his avocation and if the legislature does not make any law either prohibiting it or curtailing it or regulating it. We think that it is the duty of the Court to step into protect the rights of the citizen so as to ensure that the freedoms available to him are not curtailed any person or any political organization. The way in this respect to the Courts has been shown by the Supreme Court in Bandhua Mukti Morcha Vs. Union of India, A.I.R., 1984 SC 802.
13. It is argued on behalf of the respondents that a bundh could be peaceful or violent and even if the Court were to act, it could act only to curtail violent bundhs and not peaceful bundhs. It is contended that the Court cannot presume or generalize that the calling of a bundh always entails actual violence or the threat of violence in not participating in or acquiesing in the bundh. The decision in Kameshwar Prasad Vs. Bihar, A.I.R. 1962 SC 1166 is referred to in that context. This theoretical aspect expounded by counsel for the respondents does not appeal to us especially since as understood in our country and certainly in our State, the calling for a bundh is clearly different from a call for a general strike or a hartal. We have already noticed that a call for bundh holds out a warning to the citizen that if he were to go out for his work or to open his shop, he would be prevented and his attempt to take his vehicle on to the road will also be dealt with. It is true that theoretically it is for the State to control any possible violence or to ensure that a bundh is not accompanied by violence. But our present set up, the reluctance and sometimes the political subservience of the law-enforcing agencies and the absence of political will exhibited by those in power at the relevant time, has really led to a situation where there is no effective attempt made by the law enforcing agencies either to prevent violence or to ensure that those citizens who do not want to participate in the bundh are given the opportunity to exercise their right to work, their right to trade or their right to study. We cannot also ignore the increasing frequency in the calling, holding and enforcing of the bundhs in the State and the destruction of public and private property. In the face of this reality, we think when we consider the impact 4
of a bundh on the freedom of a citizen, we are not merely theorizing but are only taking note of what happens around us when a bumdh is called and a citizen attempts either to defy it or seeks to ignore it. We are not in a position to agree with the counsels for the respondents that there are no sufficient allegations either in O.P.7551 of 1994 or in O.P.12469 of 1995 which would enable us to come to such a conclusion. In fact, the uncontroverted allegation in O.P.12469 of 1995 are specific and are also supported by some newspapers clippings which though could not be relied on as primary material, could be taken note of as supporting material for the allegation in the original petition.
14. It is argued that the Court cannot restrict the freedom of the political parties to call for a general protest and any restriction placed thereon would be violative of the fundamental rights of those who compose the political party, their freedom of expression, speech and to assemble peacefully. It may be true that the political parties and organisers may have a right to call for non-co-operation or to call for a general strike as a form of protest against what they believe to be either an erroneous policy or exploitation. But when exercise of such a right infracts the fundamental right of another citizen who is equally entitled to exercise his rights, the question is whether the right of the political party extends to right of violating the right of another citizen. In Railway Board, New Delhi V. Niranjan Singh, A.I.R. 1969 SC 966, the Supreme Court observed (Para 13) :-
'The fact that the citizens of this Country have freedom of speech , freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the right of someone else to hold his property intervenes. Such limitation is inherent in the exercise of those rights. The validity of that limitation is not to be judged in the tests prescribed by sub-Articles (2) and (3) of Article 19. In other words, the contents of the freedom guaranteed under clauses (a) (b) and (c), the only freedoms with which we are concerned in this appeal, do not include the right to exercise them in the properties belonging to others.'
If this be the position and if the call for the bundh and holding of it entails restriction on the fundamental freedoms of the citizen, it has to be held that no political party has the right to call for bundh on the plea that it is part of its fundamental right of freedom of speech and expression. Moreover, nothing stands in the way of the political parties calling for a general strike or hartal unaccompanied by express or implied threat of violence to enforce it. It is not possible to accept that the calling of a bundh alone to demonstrate the protest of a political party to a given decision or in a given situation.
17. No political party or organization can claim that it is entitled to paralysed the industry and commerce in the entire State 5
or Nation and is entitled to prevent the citizens not in sympathy with its view point, from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the Nation. Such a claim would be unreasonable and could not be accepted as a legitimate exercise of a fundamental right by a political party or those comprising it. The claim for relief by the petitioners in this Original Petitions will have to be considered in this background.
18. The contention that no relief can be granted against the political parties in these proceedings under Art. 226 of the Constitution cannot be accepted in its entirety. As indicated already this Court has ample jurisdiction to grant a declaratory relief to the petitioners in the presence of the political party respondent. This is all the more so since the case of the petitioner is based on their fundamental rights guaranteed by the Constitution. The State has not taken any steps to control or regulate the bundhs. The stand adopted by the Advocate General is that the Court can not compel the State or the Legislature to issue orders to make law in that regard. As we find that organized bodies or Association or registered political parties by their act of calling and holding bundhs, trample upon the rights of the citizens of the country protected by the Constitution, we are of the view that this Court has sufficient jurisdiction to declare that the calling of a bundh and holding of it is unconstitutional especially since it is understood, that the holding of bundhs are not in the interests of the Nation, but tend to retard the progress of the nation by leading to national loss of production. We cannot also ignore the destruction of public and private property when a bundh is enforced by the political parities or other organizations. We are inclined to the view that the political parties and the organizations which calls for such bundh and enforce them are really liable to compensate the Government, the public and the private citizen for the loss suffered by them for such destruction. The State cannot shark its responsibility of taking steps to recoup and of recouping the loss from the sponsors and organizers of such bundhs. We think , that this aspect justify our intervention under Article 226 of the Constitution.
In view of our discussions above, we allow these Original Petitions to the extent of declaring that the calling for bundh by any association or organisation or political party and the enforcing of that call by it is illegal and unconstitutional. We direct the State and its officials including the law enforcement agencies to do all that is necessary to give effect to this declaration.
The original petitions are allowed to the above extent. We make no order as to costs."
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In the case of Communist Party of India (M) -vs- Bharat
Kumar & Ors. (Supra) the Hon'ble Supreme Court has laid down
thus:
3. On a perusal of the impugned judgment of the High Court, referring to which learned Counsel for the appellant pointed out certain portions, particularly in paras 13 and 18 including the operative part in support of their submissions, we find that the judgment does not call for interference. We are satisfied that the distinction drawn by the High Court between a 'Bandh' and a call for general strike or 'Hartal' is well made out with reference to the effect of a Bundh on the fundamental rights of other citizen. There cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people. It is on the basis of this distinction that the High Court has rightly concluded that there cannot be any right to call or enforce a bundh which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways. We may also add that the reasoning given by the High Court particularly those in paragraphs 12, 13 and 17 for the ultimate conclusion and directions in paragraph 18 is correct with which are in agreement. We may also observe that the High Court has drawn a very appropriate distinction between a Bundh on the one hand and a call for general strike or Hartal on the other. We are in agreement with the view taken by the High Court. "
It is apparent that such Bandhs cannot be organised which affect the day to day activities of various institutions including essential ones. Such calls are clearly illegal and unconstitutional. In the circumstances, considering the aforesaid decisions and without commenting on any alleged democratic demands as we are concerned in the instant case only with respect to the adverse impact on the functioning of essential services and on the lives of common people due to illegal and disruptive measures adopted, we issue the following directions:
1) State Government must ensure that while organising Bandh no use of force or intimidation is made, no interference with road and rail traffic or free movement of the citizens and/or goods is made.
2) State Government to ensure that all public transports including the State vehicles run smoothly in the District of Darjeeling during Bandh.
3) State Government to take appropriate action against the person/persons concerned indulging in stoppage or obstruction 7
to the road, rail and air traffic or free movement of the citizens and/or goods in the area in question.
4) Essential services like telephone, tele communication, water supply, milk distribution, power supply, fire services, newspapers, hospitals and other government offices are kept open and function effectively and adequate protection be given to such institutions so as to ensure that they run smoothly. No violence or vandalism be permitted in public places and/or government institutions.
5) Adequate protection to vital installations of importance be provided. It should be ensured that no damage to public properties is caused and those indulging in damage to public properties, be dealt with in accordance with law. 6) Let adequate police arrangement be made at the public places, main roads, main junctions, hospitals, courts, schools, colleges etc. and it be ensured that they function normally. Let compliance report of the directions be filed by the State. Copy of this order be served upon respondent no.7 by Superintendent of Police, Darjeeling.
Let the matter appear on 14th August, 2013.
Let a photostat copy of this order duly countersigned by Assistant Registrar (Court) be furnished to Mr. Banerjee, learned Government Pleader, who is directed to serve this order along with notice upon the Superintendent of Police as well as the respondent no.7.
(Joymalya Bagchi, J.) (Arun Mishra, Chief Justice)