Author: Gopika Khatri, UNIVERSITY OF PETROLEUM AND ENERGY STUDIES.

Edited By: Pooja, Rayat College Of Law, Railmajra(affiliated to Panjab University, Chandigarh).

ABSTRACT / HEADNOTE :

In the landmark case of the Communist Party of India (Marxist) vs. Bharat Kumar & Ors (1997), the Supreme Court of India addressed the constitutional validity of organizing and enforcing “bandhs” (general strikes). The core issue revolved around whether such actions infringed upon the fundamental rights of citizens, particularly the right to freedom and livelihood. 

The Court held that bandhs, which forcibly prevent citizens from engaging in their daily activities, violate fundamental rights enshrined in Articles 19(1)(a) and 21 of the Constitution, which guarantee freedom of speech and expression and protection of life and personal liberty, respectively. The judgment emphasized that while peaceful protests are permissible, the coercive nature of bandhs, causing widespread disruption and economic loss, cannot be justified under any circumstances. Consequently, the Court affirmed that state governments have the authority to impose reasonable restrictions to prevent such disruptions and protect public order. 

This decision marked a significant step in balancing the right to protest with the need to maintain public order and protect individual rights, setting a precedent for the regulation of political activities in India. 

Keywords: – BANDH, FREEDOM OF SPEECH EXPRESSION, PUBLIC ORDER, RIGHT TO LIFE AND PERSONAL LIBERTY, FREEDOM OF MOVEMENT 

CASE DETAILS  

 INTRODUCTION AND BACKGROUND OF JUDGEMENT 

Civil disobedience hartals and bandhs are common in India because they are recognized as well well-known method of expressing attention of gov on specific demands made by the community and compelling the government to give in to the demands. According to this case asking for and enforcing a bandh is illegal, as striking or hartal. 

FACTS OF THE CASE 

     Procedural Background of the Case 

• Initiation of the case: – The legal proceedings were initiated by Bharat Kumar and others who filed a public interest litigation. 

• High court proceedings: – The legality of the bandh called by political parties in the context of their impact on public life and public property, was before the Kerala High Court. 

• Judgement by Kerala High Court: – They ruled that bandhs are unconstitutional as they infringe on the fundamental rights of citizens, particularly the right of freedom of movement, and conduct business. 

• Appeal to the Hon’ble Supreme Court: – CPM and others knocked on the doors of the Supreme Court and challenged the order of Kerala High Court proceedings in the Supreme Court. 

     Factual Background of the Case

• In this case, the Petitioners were two private individuals and the Chambers of Commerce in the State of Kerala. The State of Kerala, Director General of Police and five registered All India political parties were made respondents. This was on the ground that bandhs should be held unconstitutional as they violate Articles 19 and 21 of the Constitution and also because they are inconsistent with the Directive Principles of State Policy and the Fundamental Duties laid down in the Constitution. The petitioners also prayed that the calling and enforcing of bandhs should be declared a crime under the Indian Penal Code. 

• The Kerala High Court held that the calling for a bandh by any association, organisation or political party and its enforcement, is illegal and unconstitutional. The court also held that the groups that organize and carry out these bandhs are accountable for paying back the government, the general public, and private citizens for any losses they incur as a result of the destruction of both public and private property. In a decision that was upheld on appeal, the Supreme Court simply stated that the High Court’s reasoning was sound and that their intervention was not required. 

LEGAL ISSUES RAISED :

• Whether call for a bandh is distinctive from the call for a strike or a hartal? 

• Whether there exists a fundamental right of political parties to call or enforce a Bandh under Article 19(1)(a) and (b) of the Constitution? 

• Whether calling or enforcement of a bandh infringes Articles 19(1)(g), 19(1)(d) and 21 of the citizens? 

 PETITIONER/ APPELLANT’S ARGUMENTS: 

• Counsel for the petitioners argued that the calling of a bandh by the political parties must necessarily result in a blanket imposition of various restrictions upon the rights of the citizens under Articles 19(1)(a), 19(1)(d) and 21 of the Constitution. Citizens are equally circumscribed in their right to pursue their avocations. 

• Bandhs, if observed are a loss of a day of production and hence the economy of the country. They further argued that the political parties cannot assert their right to call bandhs and strikes to protest whatever they want to as their fundamental right under Article 19(1) since it impinges on the fundamental rights of the other citizens on the whole. They further argued that the political parties cannot also seek their right to strike and bandhs under Article 19(1) as fundamental rights while ignoring the fundamental rights of other citizens. However, this right does not give a freeway to political parties to exercise the same in any way, in as much as which renders the fundamental rights of others violated. 

• Further, they argued that political parties cannot exercise their “right to bandhs and strikes as part of their fundamental rights under Article 19(1) at the expense of the fundamental rights of the other citizens. Related to this there is a corollary: This does not mean the political parties have a freeway to do so, in as much as they do this their fundamental rights are violated consequently. A bandh call curtails the freedom of movement for the general population and thus should be made illegal, they argued. They further submitted that when a bandh is called, it necessarily means that there would be destruction to property, safety of human lives and other things done either impliedly and/or expressly can ensue on the streets which thereby impairs the citizen in the free enjoyment of their Fundamental rights under Article 19(1)(a), (d), and (g) and Article 21. 

 RESPONDENT’S ARGUMENTS :

• The counsel on behalf of the appellant in this case contended that the right to call for or holding of a bandh is a fundamental right protected under Article 19(1)(a) and (b) of the Constitution and any restriction on the same would amount to a violation of the fundamental rights of the political parties or of every citizen comprising that party, in this case. 

• Moreover, they also disputed and denied the respondent/petitioner’s assumption that all bandhs expressly call for violence as such assumption is general and lacks logical basis. 

• They contended that the mere calling of a bandh for peaceful purposes cannot be declared unconstitutional or illegal. 

•  Furthermore, they argued that only the State had the authority to restrict the freedoms granted under Article 19 via the imposition of reasonable restrictions. Therefore, the Court has no authority to do the same. 

• The appellants further contended that Article 19(1)(a) grants to every citizen a fundamental right to strike, protest and the right to civil disobedience.

RELATED LEGAL PROVISIONS :

• “Article 19(1)(a): All citizens shall have the right to freedom of speech and expression; 

• Article19(1)(b): All citizens shall have the right to assemble peaceably and without arms; 

• Article19(1)(c): to form associations or unions or co-operative societies; 

• Article19(3): Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests ofthe sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. 

• Article19(1)(d) :to move freely throughout the territory of India; 

• Article 19(4): Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests ofthe sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. 

•  Article21: No person shall be deprived of his life or personal liberty except according to procedure established by law.” 

JUDGEMENT: 

 RATIO DECIDENDI 

• The court authorizes the case to proceed and the arguments presented by Mr Harish Soli J. Sorabjee representing the appellant and Mr. Mathai M. Paideday who is the legal counsel for the respondents. 

• By keeping in view, The Public Order and Governance, Right to Life, Reasonable Restrictions and Natural Justice. The High Court held that bandhs are unconstitutional because they violate the fundamental rights of the citizens.

OBITER DICTA (IF ANY)  

• The primary focus of the case was on the legality of bandhs that they are unconstitutional as they violate the fundamental rights of citizens, such as the right to freedom and the right to carry on any trade or business.  

CONCLUSION & COMMENTS  

The Supreme Court of India’s ruling in the case of the Communist Party of India (Marxist) vs. Bharat Kumar & Others (1997) marked a significant judicial stance on the issue of bandh calls and their impact on public life. The Court concluded that bandhs, which involve the coercion of citizens to stop their activities and result in the shutdown of services, violate fundamental rights, particularly the right to freedom of movement and the right to carry on trade and business. The judgment emphasized that while the right to protest is essential in a democracy, it must not infringe upon the rights of others. The ruling reinforced the need for balancing political expression with public order and individual freedoms. It also highlighted the judiciary’s role in safeguarding constitutional rights against actions that disrupt the societal order and infringe upon personal liberties. This landmark decision has since served as a precedent in addressing similar issues of public disruption caused by political activities in India. 

 REFERENCES 

     Important Cases Referred 

• Railway Board v. Niranjan Singh 1969 AIR 9667 

• Bandhua Mukti Morcha v. Union of India 1984 AIR 8028 

• A.K. Gopalan v. State AIR 1950 SC 279 

• Saghir Ahamad v. State AIR 1961 ALL 507 10 

• Maneka Gandhi v. Union of India AIR 1978 SC 59711 

     Important Statutes Referred 

• CONSTITUTION OF INDIA: -Article 19(1)(a), (b), (c), (d), Article 21, Article 32, Article 226