Bandh/ hartal (general strike), protests: India
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Contents |
Compensation to persons hurt during bandh
Kerala govt must pay damages for hartal-related injuries: HC, January 17, 2018: The Times of India
The Kerala high court has upheld a single bench ruling that the state government is liable to pay compensation for hartal-related injury for failing to protect its citizens. The ruling by a division bench of the high court came after considering an appeal filed by the state government against the single bench’s judgment of November 11, 2016.
A vehicle driver had lost his eye due to stone pelting by an agitating mob during a hartal called by the Left Democratic Front (LDF) on July 4, 2005 to protest the industrial and labour policies of the central and state governments.
The Kerala high court directed that the state government must pay the compensation and then it must recover the amount from the political party as amount due to the state.
TN HC: Pay Rs 10L to man who lost eye during bandh
The Times of India, August 4, 2016
Pay Rs 10L to man hurt during bandh: HC to TN
Asserting that it was the Tamil Nadu government's duty to maintain law and order and protect its citizens during hartals or bandhs, the Madras high court has directed it to pay Rs 10 lakh compensation with interest to a bank employee, who lost an eye in a stone-pelting incident on the eve of a DMK bandh to protest party chief M Karunanidhi's arrest in 2001. Justice M Satyanarayanan passed the order while disposing of a petition by S Krishnaswamy, seeking a compensation of Rs 25 lakh from the state for the loss of vision and suffering caused to him by the injury inflicted on him on July 1, 2001. The petitioner stated that he underwent a surgery after the eye injuries during stone-pelting, but continued to suffer severe pain and could not continue his job as a computer operator.
Legality
Protest a constitutional right: SC
Dhananjay Mahapatra, Hartal can never be unconstitutional: SC, April 1, 2017: The Times of India
The Supreme Court refused to entertain a PIL that alleged that political organisations were resorting to hartals to hoodwink repeated judicial pronouncements banning strike and bandh calls, which paralysed normal life.
A bench of Chief Justice J S Khehar and Justice D Y Chandrachud said, “Hartals can never be unconstitutional.Right to protest is a valuable constitutional right. How can we say hartals are unconstitutional.“ Having failed to convince the bench to entertain the PIL, the petitioner decided to withdraw the plea.
Courts have ruled on strike, bandh and hartal calls given by political outfits for two decades now. The Kerala high court in Bharat Kumar case in 1997 had said, “When properly understood, the calling of a bandh entails the restriction of free movement of the citizen and his right to carry on his avocation and if the legislature does not make any law either prohibi ting 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 freedom.“
An SC bench headed by then Chief Justice J S Verma had upheld this order.
However, over the years, the courts have not clarified the difference between strike, bandh and hartal.
Right to protest cannot impede right to free movement: SC
Dhananjay Mahapatra, December 18, 2020: The Times of India
The SC observed that the farmers’ constitutional right to protest could not impede citizens’ right to free movement. The suggestion of deferment came towards the end of an hour-long hearing before a bench of Chief Justice S A Bobde and Justices A S Bopanna and V Ramasubramanian, where any forward movement on the vexed issue became a challenge as none of the important protesting farmer unions were represented.
In its comments, the court held up the farm unions’ right to protest but also noted that talks were needed or else the protest could drag on without results. It also noted that the right to protest should not infringe upon the right of other citizens to go about their daily lives and businesses. There was no outcome from the long hearing as only the Bharatiya Kisan Union (Bhanu) was represented by a lawyer. This faction was termed a non-entity by the government. The SC asked the AG to help serve the petitions on important protesting farmers’ unions and move the court for urgent hearing during the winter vacation if the need arose. As breaking the ice between the Centre and the agitating farm unions seemed difficult, the bench did not even give a definite date for the next hearing.
Importantly, the bench said the SC would not interfere with the farm protests. “Indeed, the right to protest is part of a fundamental right and can, as a matter of fact, be exercised subject to public order. We are of the view at this stage that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police,” the CJI-led bench said. “The purpose of the protest can be achieved only by talking and discussing the issues with the government. Otherwise you (farmers) will sit for years and nothing will happen,” the bench said while reiterating its intention to form a committee to break the ice.
Protestors can’t block roads indefinitely: SC
Dhananjay Mahapatra, Oct 22, 2021: The Times of India
The Supreme Court said farmers have a right to protest against the three new farm laws even when their validity is under challenge before the apex court but was firm in its view that no one could be permitted to block roads indefinitely, impeding the right of citizens to commute without hindrance.
Of the 43 farmer unions made parties to a petition seeking removal of farmers staging protests on highways at border points of Delhi with neighbouring states, only four appeared before the court through senior advocate Dushyant Dave and lawyer Prashant Bhushan.
Law very clear on road blockades, says SC
The four who appeared were Rakesh Tikait of Bharatiya Kisan Union, Gurbax Singh of Jaikisan Andolan, Punjab, Balbir Singh of BKU-Rajewal and Hanan Mollah of Kul Hind Kisan Sangharsh Talmel (Coordination) Committee, Delhi. Dave first he cited a January (2021) order of a three-judge bench of the SC, which had stayed enforcement of farm laws and said that farmers had a right to protest as long as it was peaceful. Second, he sought to raise issues of judicial propriety, saying when the matter is pending before a three-judge bench, a twojudge bench should not take it up. “This bench should send these petitions before the three-judge bench,” Dave said.
The third limb of his argument was that the farmers have not blocked the roads. “It is police which has erected barricades to prevent them from reaching Ramlila Maidan in Delhi to stage protests against the farm laws. This has caused the road blockade. Why can’t the authorities allow the farmers to stage protests at Ramlila Maidan?” Dave asked.
The bench of Justices Sanjay Kishan Kaul and C T Ravikumar said that the law has been clearly laid down in the Shaheen Bagh case that protesters cannot block roads and highways indefinitely to deprive the right of commuters to move freely. “We are not dealing with the main issue (the validity of the farm laws). We are on a small point — whether protesters can indefinitely block the roads. According to our judgment, the law is already laid down. There is nothing more to be said on the issue,” it said.
Taking up cudgels with Dave, solicitor general Tushar Mehta said Dave and Bhushan had appeared for farmers’ unions before the same three-judge bench and advanced arguments in January 2020. But when it came to the day of passing orders after hearing parties, the two lawyers along with their colleagues were missing from the court, which was recorded in the order.
Taking a dig at Dave’s argument to allow farmers to protest at Ramlila Maidan in the heart of Delhi, Mehta said, “Some people should be allowed a permanent residence at Ramlila Maidan.” He went on to narrate the violence unleashed on the streets during the tractor rally on Republic Day despite assurances given by Bhushan on behalf of the farmers that the event will be peaceful.
Disallowing the proceedings from getting mired in jibes and counters between Dave and the Mehta, the bench said, “Some solution has to be found. Farmers have a right to protest. But the roads cannot be blocked indefinitely as people have a right to travel on them.”
Right to dissent, protest
Can not infringe upon the rights of others
Dhananjay Mahapatra, February 29, 2020: The Times of India
After a few judges spoke on the cardinality of the right to dissent and protest peacefully, the Supreme Court ruled that one’s right to protest could not infringe upon the rights of others as it upheld the Uttarakhand high court verdict initiating stringent action against lawyers boycotting district court work for years.
Uttarakhand lawyers had moved the SC claiming that the HC verdict violated their fundamental right to free speech by going on strike to protest against issues concerning them. They said it was a mode of peaceful representation to express grievances of the lawyer community.
Rejecting the arguments, a bench of Justices Arun Mishra and M R Shah said, “Such a right to freedom of speech cannot be exercised at the cost of litigants and/or at the cost of the justice delivery system as a whole.”
Advocates had been boycotting work on Saturdays for 35 yrs
To go on strike or boycott courts cannot be justified under the guise of right to freedom of speech and expression under Article 19(1)(a) of the Constitution,” the SC bench said.
Advocates in the districts of Dehradun, Haridwar and Udham Singh Nagar have been boycotting court work on Saturdays for the past more than 35 years. The Law Commission had found that between 2012 and 2016, advocates were on strike for 455 days (average 91 days per year) in Dehradun district and 515 days (average 103 days per year) in Haridwar district.
A PIL against the strikes was entertained by the HC, which passed a series of directions on the line of law settled by the apex court banning strikes by lawyers. It also warned of contempt of court proceedings against errant advocates.
The bench also took suo motu cognisance of lawyers resorting to strikes in several parts of the country despite a series of judgments by the SC banning strikes by advocates. “We take suo moto cognisance and issue notices to Bar Council of India and all state bar councils to suggest further course of action and to give concrete suggestions to deal with the problem of strikes/abstaining from work by lawyers,” the bench said and sought responses from BCI and state councils within six weeks.
Sit-ins/ dharnas in others' homes/ offices
Delhi HC questions the practice
The Delhi high court disapproved of the sit-in by chief minister Arvind Kejriwal at Raj Niwas and asked the AAP government to explain how strikes or dharnas can take place “inside someone’s office or house”.
“How do you call it a dharna? Or a strike. Who authorised it?” a bench of Justices A K Chawla and Navin Chawla asked even as it made the IAS association a party to the petitions it is hearing on the latest face-off between the CM and lieutenant governor Anil Baijal.
“You are sitting inside the LG’s office. If it’s a strike, it has to be outside the office. You cannot hold a strike inside someone’s office or residence,” the court re-iterated while listing the matter for June 22.
Last week, two lawyers Umesh Gupta and Hari Nath Ram moved court seeking its intervention. While Gupta has sought a direction to the LG to ensure that the alleged “informal strike” by the IAS officers of Delhi is called off, Ram’s petition wants a declaration from the court to the effect that the sit-in by Kejriwal, deputy chief minister Manish Sisodia, health minister Satyendar Jain and labour minister Gopal Rai is unconstitutional.
Opposition leader Vijender Gupta, along with rebel AAP MLA Kapil Mishra, also moved the high court on Monday against Kejriwal’s protest.
When HC asked the government counsel in what capacity Kejriwal and others went to Raj Niwas, senior advocate Sudhir Nandrajog said they had taken the decision in their individual capacity and were empowered to do so under the Constitution. The counsel urged the court to instruct the IAS officers to attend routine departmental meetings held by the ministers. He said an association representing the bureaucrats had admitted at a press conference on Sunday that they were not attending routine meetings.
But additional solicitor general Aman Lekhi and standing counsel Naushad Ahmed, appearing on behalf of the LG and the chief secretary, said no IAS officer was on strike and urged the bench to direct Kejriwal and the others to vacate Raj Niwas.
The sit-in is on since June 11 urging the LG to end the IAS officers’ “strike” and take action against those refusing to attend meetings convened by the ministers or take their calls.
Dharna outside CM house sets wrong example
December 18, 2020: The Times of India
Delhi High Court expressed alarm over the ongoing dharna outside chief minister Arvind Kejriwal’s residence and observed that any permission to allow such demonstrations in a residential area could set a wrong precedent.
“There is no problem if you come, protest and leave. But this is going on for 11days. Once you set a precedent, anyone will come and squat there. If this is permitted, then you know what the state of certain areas, such as Ramlila Ground and Jantar Mantar, is, where squatting and protests are permitted. We cannot have that kind of a situation in a residential colony,” Justice Sanjeev Sachdeva remarked.
The court’s concerns came while hearing a plea by Civil Lines residents’ association against the protest stating that it was blocking a road and causing inconvenience to the residents. It contended that the protest had been permitted in a residential area and roads leading there were barricaded, which is in violation of the high court’s 2017 direction to restrict dharnas in residential areas and keep the roads clear.
The mayors of the three municipal corporations have been protesting outside Kejriwal’s residence seeking release of funds and clearance of alleged pending dues payable to them.
The court, during the hearing, observed that tents had come up in the area and there were news reports that stated that the mayors were going to run their office from there. It asked Delhi Police how could office run from there and what arrangements were in place for the protesters to go about their daily routines.
While holding protests or dharnas is a fundamental right, people cannot be “squatting in a residential area”, it said.
It underlined that public functionaries deal with all kinds of people. “Today it’s one group who are protesting, tomorrow it will be another. Today the protest is peaceful. But once a precedent is set, there will be another group protesting there and then you will come running,” the court said, posting the matter.
In its report, Delhi Police said 20-25 people, including the mayors, started their protest from December 7 at Flag Staff Road outside the CM’s residence.
Strikes/ protests
HC, 2020: No right to hold strikes on campuses
February 27, 2020: The Times of India
Reiterating that student organisations do not have the right to compel students to participate in strikes, nor do they have the right to conduct strikes on school or college campuses, the Kerala HC on Wednesday ordered heads of all educational institutions to promptly report such “disturbances” to the police. It also asked the state police chief to direct his officers to take prompt action in such cases.
Justice PB Suresh Kumar issued the order after considering a total of 26 petitions filed by schools and colleges, with the lead case being on a plea by Raju Kuruvilla, manager of MS Higher Secondary School at Ranni in Pathanamthitta. In its judgment, the court referred to a 2017 decision (Antony Thomas vs Muhammed Rafique) in which it was held that it is the obligation of police to ensure that academic atmosphere in educational institutions is not disturbed and that educational institutions cannot be hijacked or converted into a political battle field.
The court also cited a 2003 decision (Vijayakumar V vs State of Kerala), which held that police can enter campuses to prevent or take action against students engaging in violent activities.
