Saturday, 30 May 2020

Bandhs/Road/Rail Blockades Illegal And Unconstitutional; Organizers Must Be Prosecuted: Gauhati High Court

By Sanjeev Sirohi
Updated: July 6, 2019 2:30 pm

It has to be said in all fairness that in a latest, landmark and extremely laudable judgment delivered by the Gauhati High Court on March 19, 2019 in Lower Assam Inter District Stage Carriage Bus Owners Association Goalpara, Assam, Rep. By Its General Secretary, Sri Aniruddha Das Vs The State Of Assam And 11 Ors. Rep. By The Chief Secretary To The Govt. Of Assam, Dispur in Case No. : WP(C) 7570/2013, it has very rightly held that bandhs/road/rail blockades are illegal and unconstitutional and organizers must be prosecuted. The Gauhati High Court has explicitly and elegantly held that road and rail blockades are variants of bandh, and thus illegal and unconstitutional. Justice Ujjal Bhuyan who authored this extremely laudable and praiseworthy judgment also observed that the organizer or organizers of such bandh or blockade, at least the principal office bearers of such organizer(s), would be liable to be prosecuted under various provisions of the Indian Penal Code, 1860, National Highways Act, 1956 and the Railways Act, 1989. Very rightly so!

To start with, the ball is set rolling by Justice Ujjal Bhuyan of Gauhati High Court first and foremost in para 2 wherein it is pointed out that, “By filing this petition under Article 226 of the Constitution of India, petitioner seeks imposition of exemplary damages upon respondent Nos. 4 to 12 for having called and organized illegal and unconstitutional bandhs for a total of 51 days from 28.08.2012 to 31.08.2013 in the districts of Goalpara, Bongaigaon and Kamrup, or, alternatively, for a direction to the State of Assam for payment of such compensation. Further prayer made is for a direction to the State of Assam to set up a Bandh Loss Compensation Fund from which fund compensation can be paid to persons who suffer loss and injury to their person or property including the petitioner due to such illegal and unconstitutional bandhs. In addition, certain incidental reliefs have also been claimed.”

Be it noted, para 3 then reveals that, “Petitioner is the Lower Assam Inter-District Stage Carriage Bus Owners’ Association, Goalpara, represented by its Secretary. Petitioner is a society registered under the Societies Registration Act, 1860, vide certificate of registration dated 29.06.1991, having its registered office at Pancharatna Road, Goalpara.”

Furthermore, para 4 then also reveals that, “It is stated that there are 51 members of the petitioner, who are bus owners having permits for plying their buses on all the routes including on national highways. The members have 26 numbers of big buses and 25 numbers of canters which they had purchased by obtaining loans from different banks and financial institutions. Only source of income of the members is earning from purchase of bus tickets by the passengers. From such earning, the members have not only to repay the loan amounts but have also to pay salary to the employees of the buses, i.e., driver, handman etc., besides earning for the members themselves.”

To be sure, it is then underscored in para 5 that, “Therefore, plying of the buses is most essential for the livelihood of the members as well as for the dependant staff.” Absolutely right! There can be no denying or disputing it!

Elaborating further, para 6 then brings out that, “Respondent Nos. 4 to 12 had called bandhs on various dates during the period from 28.08.2012 to 31.08.2013, totaling 51 days during which the members could not ply their buses. As per calculation of the petitioner, the loss was about Rs 2,000 for each canter and Rs 2,500 against each big bus per day of bandh. Thus, as per the calculation of the petitioner the collective loss was about Rs 56,16,365.00.”

What’s more, it is then illustrated in para 7 that, “Contention of the petitioner is that calling of such bandh is illegal and unconstitutional in view of law laid down by Supreme Court which is binding on all authorities. State and its machinery had failed to prevent such illegal and unconstitutional bandhs. Therefore, State is bound to compensate the petitioner, besides, State has to prosecute the office bearers of the organizations which had called for such illegal and unconstitutional bandhs. It is with such grievance that the present writ petition has been filed seeking the reliefs as indicated above.”

While pooh-poohing the repeated calls for bandhs, para 13 then minces no words in making it absolutely clear that, “The phenomenon called bandhs has become an endemic problem in the State. As a matter of fact, such bandhs were called and enforced in different parts of the country causing severe inconvenience to the public besides loss of life and property. At one point of time, it appeared that there was decrease in the call for bandhs in the State, but again it has become a regular phenomena. Bandhs along with its variants such as, road-blockades and rail-blockades have paralysed the State on numerous occasions having a deleterious effect on the people, besides causing immense loss to the economy.”

Truth be told, it is then stipulated in para 14 that, “In Bharat Kumar Vs State of Kerala : AIR 1977 Kerala 291, a Full Bench of the Kerala High Court was considering a bunch of petitions seeking a declaration that calling for and holding of what had come to be known as bandh was unconstitutional and was hence illegal. In that context, Full Bench of the Kerala High Court was examining the meaning of the expression bandh. According to this judgment, bandh is a Hindi word meaning “closed” or “locked”. The expression, therefore, conveys an idea that everything is to be blocked or closed. In Assamese, it is referred to as “bandha”; Assam bandha or Assam bandh or bandhs called locally, i.e., at the district level or town level or area wise have become so frequent so much so that Assam bandh has become a part of the local popular vocabulary. To this may be added different variants of bandhs like road-blockades and rail-blockades, which are nothing but bandhs, inasmuch as, it closes the roads including national highways and railway tracks thus blocking movement of vehicles and trains. In Bharat Kumar (supra), it was observed that when organizers of a bandh call for such bandh they clearly express their intention of bringing all activities to a stand-still on the day of the bandh. The intention of the callers of bandh is to ensure that no activity either public or private is carried out on that day. Though nobody openly threatens violence against those not observing the bandh but threats and intimidation is implicit in such call for bandh. After an elaborate examination of the issue from a constitutional perspective, Full Bench of Kerala High Court in Bharat Kumar (supra), declared that no political party or organization has the right to call for a bandh. They cannot prevent citizens not in sympathy with their view point from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State. It was held that those organizations and political parties calling for and holding bandhs trample upon the rights of the citizens of the country protected by the Constitution. While declaring or calling for bandh by any association, organization or political party and the enforcing of that call is illegal and unconstitutional, Kerala High Court held that such associations, organizations or political parties are liable to compensate the government, public and the private citizens for the loss suffered by them on account of such bandh. It was further held that the State cannot shirk its responsibility of taking steps to recoup the loss from the sponsors and organizers of such bandhs. Accordingly, direction was issued to the State and its officials to give effect to the said declaration.”

While continuing in the same vein, it is then pointed out in para 15 that, “This judgment of the Full Bench of Kerala High Court was assailed by the Communist Party of India (Marxist) before the Supreme Court. In Communist Party of India (Marxist) Vs Bharat Kumar (1998) 1 SCC 201, Supreme Court while rejecting the challenge held that the Kerala High Court judgment did not call for any interference. It was held that 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 was further held that the High Court had rightly concluded that there cannot be any right to call or enforce a bandh, which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways. Supreme Court while observing that Kerala High Court had drawn a very appropriate distinction between a bandh on the one hand and call for general strike or hartal on the other hand, declared that it was in agreement with the view taken by the High Court.”

Not stopping here, it is then pointed out in para 16 that, “In James Martin Vs State of Kerala : (2004) 2 SCC 203, appellant resisted a bandh call when his mill was attacked. Appellant fired at the bandh activists who were inside the mill compound trying to enforce the bandh following which two of the bandh activists died, whereafter, bandh supporters set afire the residential building and mill of the appellant. Appellant was investigated by the police and charge-sheeted. He was convicted in the trial court which was affirmed by the Kerala High Court. Supreme Court acknowledged exercise of the right of self defence of the appellant while allowing the appeal. In that context, Supreme Court noted that in the name of hartal or bandh or strike no person has any right to cause inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty and property of any citizen or destruction of life and property of any government or public. Paragraph-24 of the aforesaid judgment is quoted hereunder:-

Interestingly enough, para 17 then points out that, “Bombay High Court in Writ Petition (PIL) No. 2827 of 2003 (G. Deshmukh Vs State of Maharashtra) examined a prayer made by a group of citizens of Mumbai seeking direction to two political parties to pay damages/compensation to them and other citizens of Mumbai through a bandh loss compensation fund for having called a bandh of Mumbai city on 30.07.2003. Bombay High Court referred to the decision of Kerala High Court in Bharat Kumar (supra) and also noted enforcement of the bandh by forcibly stopping road and rail traffic. It was held that the said two political parties had violated constitutionally guaranteed rights of the citizens of Mumbai under Articles 19 and 21 of the Constitution of India by calling and enforcing Mumbai bandh on 30.07.2003. It was further held that it was not open to the State and its authorities to avoid taking stern action against those involved in rasta-rokos (road-blockades) or rail-rokos (rail-blockades) and stoning of public and private vehicles in the guise of tactful handling of the situation thereby allowing organizations calling bandh to bring all activities to a stand-still. Bombay High Court further held that various acts of rail-rokos, rasta-rokos and stoning of public and private vehicles are undoubtedly punishable offences under various sections of the penal code but these statutory provisions are inadequate to repair the wrong done to the citizens. In the said case, Bombay High Court had directed the two political parties to deposit by way of exemplary damages a sum of Rs 20 lacs each with the State Government to be credited in a fund called “30th July, 2003 Bandh Loss Compensation Fund”. In addition, a series of declarations and directions were issued.”

To conclude, the Gauhati High Court has in this latest, landmark and laudable judgment very rightly termed bandhs, road and rail blockades as illegal and also unconstitutional. It has also rightly held that organizers must be prosecuted for they are liable fully as everything happens under their supervision! They cannot escape liability by blaming others or outsiders for it! The organizers must be prosecuted, punished and held accountable for all the damage that results because of the bandh and strike calls given by them! It is beyond a straw of doubt that the Gauhati High Court has very rightly held that the organizers must compensate the people who claim to have suffered losses because of such bandh and strike calls given by them! The guidelines issued by the Gauhati High Court as illustrated above are quite remarkable and needs to be implemented in totality! There can be no denying or disputing it! Those who dare to indulge in wanton violence and cause damage to public and private property must be liable to not only pay damages for it but also must be jailed for taking law in their own hands! There has to be zero tolerance for such wanton acts of vandalism and violence! If they are swiftly and sternly prosecuted and punished, only then will a right, loud and strong message go to all such lumpen and anti-social elements that they cannot escape punishment by resorting to violence and vandalism under the garb of bandh and hartal!

By Sanjeev Sirohi

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