No Illegality in Bandh

Ever since Kerala Kerala High Court Judgement (1997) forbidding the call to Bandh and upholding of it by a laconic Order by the Supreme Court (1998) (three judges) there has been amongst trade unionists and political activists a wave of disappointing indignation at such a view which forbids the fundamental right of citizens of speech and association.

Frustration was added to it because the court held Bandh illegal even when it conceded that there was no material to suggest that the sponsors of a bandh ever announced that any citizen not participating in it will be physically prevented or abused if he went to work. But surprisingly the court nevertheless went on to hold that even if there is no express or implied threat of physical violence to those not in sympathy with the bandh, there is clearly a psychological fear which will prevent a citizen from enjoying his fundamental freedoms or exercising his undamental rights. So it justified its view on the ground of psychological fear of a citizen which view was against earlier five judges’ decision in Kharak Singh’s case that “in dealing with a fundamental right such as the right to free movement or personal liberty, that only can constitute an infringement which is both direct as well as tangible and it could not be that under these freedoms the Constitution makers intended to protect or protected mere personal sensitiveness†. Fortunately the court did not forbid Hartal (Urdu word) or General Strike (English) but merely Bandh (Hindi). So political parties did not call it Bandh and things went on merrily till the recent call to Bandh in Tamil Nadu, which has again raised the question of jurisdiction of courts in forbidding a call for peaceful Bandh and treating it as illegal.

The Supreme Court in 2003 while holding that lawyers have no right to go on strike or give a call for boycott yet conceded that where the dignity, interest of the bar and independence of the Bar and/or Bench are at a stake the court may ignore (turn a blind eye) to protest abstention from work for not more than one day. It also upheld the right of lawyers to peaceful protest marches outside away from Court premises, going on dharna or relay fast etc.

Now if a peaceful protest were to be called against the delay by Central Government in bringing forth judicial reform by the Bar Council of India and all Bar Associations of the country on a particular day at Delhi, I have no manner of doubt that thousands of lawyers, their friends, family members, clients and public interest litigants will come out on the road to support them. And even though there may not be any obstruction by lawyers it will inevitably result in traffic confusion, by total inefficiency and bad management by police. But surely the lawyers cannot be injucted at this purported indirect consequence, because democratic rights are made of sterner stuff.

AS a matter of fact the English courts have held that the organisers of the protest march would not incur liability merely because some unruly members of the assembly commit a breach of conditions. So how can a ruling political party in the state calling Bandh be held to be acting illegally in support of its demand for immediate implementation of a public project (even though many may be against it)—that is the beauty and excellence of a democratic state? John Stuart Mill put it pithily, “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.†I can understand if the State Government was to call bandh—it could certainly be injuncted because the state cannot stop functioning—if it does, it is like heart stops beating and you are dead.

I can even understand the court insisting and even supervising through a neutral, all-party agency that no force is used to observe bandhs on unwilling citizens—obviously the state cannot shut down by its order bus movement, or compel by law or force the closing of shops, mills and business—forcible work stoppage would be constitutionally impermissible.

Strange that in the year of celebration of birth centenary of Bhagat Singh and his martyrdom, which was the culmination of events pursuant to a call of Bandh throughout India given by Gandhiji against the Simon Commission leading to the martyrdom of Lala Lajpat Rai due to police brutality, the call for Bandh should be a forbidden item.

The latest instance is unfortunately bound to sharpen the cry that the Courts are snatching at power which it does not possess. Stating it in such extreme phraseology is to misappreciate the constitutional power and privileges of all the instrumentalities of state, the executive, legislature and judiciary. There can be no denying that in general it cannot be said that there is any issue outside the purview of the Courts. But equally the Courts must appreciate that matters which are mainly political and which generate understanda-ble concern to large number of citizens and heated controversies, are by their very nature not capable of being studied, much less solved in the cool atmospheres of the courts. Political life is too tenuous and can only be controlled and regulated by the real sovereign in the republic i.e. “We the people†.

I know bandhs many a time will cause grave inconvenience to the public—many would be opposed to it—it may even be that bandhs called by parties and especially if they are ruling parties, can seriously dislocate the life of an average citizen. But then these are the inevitable and acceptable hazards of an open society in a democratic state. If these antics of the political parties start pinching the citizen, he/she will react—in a democratic state like ours, he has the power to show the door to any such irresponsible party. Is it not best for all concerned that any response to (if there is any irresponsible action) by a political party, is left to the anger and reaction of the civil society and the electorate rather than the court getting embroiled in an unnecessary controversy.

There is in this approach no victors or vanquished. Our Supreme Court has recognised it when it said: “While exercise of powers by the legislature and the executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint.â€

Frankfurter, J. of the Supreme Court said with apt irony which courts must ponder over. “All power is, in Madison’s phrase, of an encroaching nature. Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint†.

The author is a former Chief Justice (now retired) of the Delhi High Court.