Order
1. Leave granted.
2. We have heard Mr Harish Salve and Mr Soli J. Sorabjee, learned counsel for the appellant and Mr Mathai M. Paideday, learned counsel for the respondents.
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 any 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 “Bandh” on the fundamental rights of other citizens. 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 “Bandh” 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 we are in agreement. We may also observe that the High Court has drawn a very appropriate distinction between a “Bandh” 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.
4. The appeals are dismissed accordingly. No costs.
Appendix
(Kerala High Court)
(Before K.G Balakrishnan, P.K Balasubramanyan And J.B Koshy, JJ.)
BHARAT KUMAR K. PALICHA AND ANOTHER . . Petitioners;
Versus
STATE OF KERALA AND OTHERS . . Respondents.
O.Ps Nos. 7551 of 1994 and 12469 of 1995, decided on 28-7-1997
Balasubramanyan, J.— These original petitions essentially seek the relief of a declaration that the calling for and the holding of what has come to be known as “bundh” is unconstitutional and is hence illegal. OP No. 7551 of 1994 is filed by two citizens who are generally carrying on their avocation in Cochin OP No. 12469 of 1995 is by the various Chambers of Commerce in the State. In OP No. 7551 of 1994 it is sought to be declared as especially violative of Articles 19 and 21 of the Constitution and also in contravention of the Directive Principles of State Policy embodied in the Constitution and the Fundamental Duties enumerated in the Constitution. Among the consequential reliefs sought for in the original petitions, a declaration is also sought that the calling for and holding a bundh is also a penal offence under the Indian Penal Code and is liable to be declared as such. In OP No. 7551 of 1994 in addition to the State and the Director General of Police, five registered all-India political parties are also impleaded as respondents. The respondents in OP No. 12469 of 1995 are also the political parties except that the Indian Union Muslim League is also impleaded therein as a respondent. The President of the National Organisation for Consumer Education and Research was subsequently impleaded as an additional respondent in that original petition.
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 “bundh”. “Bundh” is a Hindi word meaning “closed” or “locked”. The expression therefore conveys an idea that everything is to be blocked or closed. Therefore, when the organisers of a bundh call for a bundh, they clearly express their intention that they expect all activities to come to a standstill on the day of the bundh. A call for a bundh 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 bundh is to ensure that no activity either public or private is carried on on that day. It is also clear from their further statements, sometimes made, that the newspapers, hospitals and the milk supply is excluded from the bundh. This clarification obviously implies that otherwise the intention is that those services are also to be affected. If the intention is to prevent the milk supply, prevent the distribution of newspapers, prevent people going to the hospitals for treatment, prevent the people from travelling and to generally prevent them from attending to their work either in service of the State or in their own interest, that obviously means that it amounts to a negation of the rights of the citizens to enjoy their natural rights, their fundamental freedoms and the exercise of their fundamental rights. It is no doubt true that while calling for a bundh it is not also announced that any citizen not participating in the bundh will be physically prevented or attacked. But experience has shown that when any attempt is made either to ply vehicles on the day of the bundh or to attend to one's own work, or to open one's shop to carry on trade, it has resulted in the person concerned being threatened with consequences if he took out his vehicle, if he went for his work or if he kept his shop open. The leaders of the political parties who call for the bundh cannot escape by saying that they are not directly telling the citizens not to do these things under threat but if some of the participants in the bundh indulge in such activities, they cannot be held responsible. Obviously, they can with reasonable intelligence foresee the consequences of their action in calling for the bundh. Nor can they pretend that the consequences that arise out of the calling for a bundh, is too remote or does not have reasonable proximity to the call they have made. Learned counsel appearing for the political parties contended that this Court cannot take note of what actually happens when a bundh is called, but this Court can only go by the call for the bundh 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 justified in adopting such an ostrich like policy. We cannot ignore the reality of what is involved when a bundh is called.
12. It is true that there 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 bundh if he is able to establish before the Court that his fundamental rights are curtailed or destroyed by the calling of and the holding of a bundh? When Article 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 bundh 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 in to protect the rights of the citizen so as to ensure that the freedoms available to him are not curtailed by any person or any political organisation. The way in this respect to the courts has been shown by the Supreme Court in Bandhua Mukti Morcha v. Union of India [(1984) 3 SCC 161 : 1984 SCC (L&S) 389 : AIR 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 generalise that the calling of a bundh always entails actual violence or the threat of violence for not participating in or acquiescing in the bundh. The decision in Kameshwar Prasad v. State of Bihar [AIR 1962 SC 1166 : (1962) 1 LLJ 294] is referred to in that context. This theoretical aspect expounded by the 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 a 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 in 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 that when we consider the impact of a bundh on the freedom of a citizen, we are not merely theorising but are only taking note of what happens around us when a bundh is called and a citizen attempts either to defy it or seeks to ignore it. We are not in a position to agree with counsel for the respondents that there are no sufficient allegations either in OP No. 7551 of 1994 or in OP No. 12469 of 1995 which would enable us to come to such a conclusion. In fact, the uncontroverted allegations in OP No. 12469 of 1995 are specific and are also supported by some newspaper clippings which though could not be relied on as primary material, could be taken note of as supporting material for the allegations in the original petition.
17. No political party or organisation can claim that it is entitled to paralyse the industry and commerce in the entire State or nation and is entitled to prevent the citizens not in sympathy with its viewpoint, 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 these 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 Article 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 respondents. This is all the more so since the case of the petitioners 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 cannot compel the State or the Legislature to issue orders or make law in that regard. As we find that organised bodies or associations 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 the holding of it is unconstitutional especially since it is undoubted 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 parties or other organisations. We are inclined to the view that the political parties and the organisations which call for such bundhs 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 shirk its responsibility of taking steps to recoup and of recouping the loss from the sponsors and organisers of such bundhs. We think that these aspects justify our intervention under Article 226 of the Constitution.