Labour Law Project Final Draft
Introduction
The first major decision of an Indian court with regard to strikes and bandhs was Bharat Kumar Palicha v State of Kerala. The crux of the decision was that a peaceful strike was legitimate as it did not collide with the fundamental rights of others while a bandh was unlawful as the violence and apprehension that supplements it hamper the enjoyment of fundamental rights of others. The Kerala High Court verdict was upheld in a short judgment by the Supreme Court in Communist Party of India (M) v Bharat Kumar and others. A clear demarcation was made by the apex court with regard to ‘bandhs' and ‘hartals' or general strikes.
The emphasis was laid on the fact that the calling of a bandh causes apprehension in the minds of the public in carrying out their daily functions as they are often associated with violence and the mere excuse of the political party not being in control of the miscreants will not be enough for them to evade liability. The loophole in the judgment however, seems to be the fact that since strikes have not been deemed illegal, political parties resort to calling a strike and turn it effectively into a bandh with coercive measures like ‘chakka jams' or throwing transport out of gear and carry out vandalism in the name of strike.
In fact, the question of applying the principles to general strikes seems to have gained significance in light of several cases filed regarding this issue like in Kerala Vyapari Vavasayi Ekopani Samithi, Ottappalam and others v State of Kerala. As the Supreme Court in a 1998 verdict has banned bandhs, political parties are now ever desperate and on several occasions disrupt public life in the garb of calling a general strike. The paper will seek to study the application of these principles in light of the present situation and how the courts in India have evolved their decisions with growing challenges.
In recent times, the courts in India have looked beyond mere definitions and have been more proactive in defending people's rights. The literature that has been used for the study consists of several commentaries on the subject which have helped in understanding the present issues and in answering the main premise of the paper. A thorough review of newspapers and periodicals has also been helpful in narrating a series of events that have taken place in relation to the present subject.
Research Questions
The following questions have been answered in this research:
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Are the principles which have been enunciated with respect to bandhs by the courts applicable to general strikes?
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What has been the approach of the court in light of attempts by political parties to enforce bandhs in the garb of calling a general strike?
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What is the redress that can be sought for damage caused during such bandhs which are also characterized by violence and vandalism?
Understanding A ‘Peaceful Strike'
The decision of the Supreme Court in the T.K Rangarajan case has come under heavy debate for the stance that it has taken on strikes. In the review by the larger Bench, it was ruled that non - violent strikes are an important part of the ongoing master - servant relationship and indeed in times of distress of the weaker labour class it acts as an effective weapon for them to assert their rights. The assertion of the right to strike being such a primary instrument in the hands of labour has been already upheld in international law. Article 8(1) (d) of the International Covenant of Economic, Social and Cultural Rights (ICESCR) enjoins a signatory to the instrument to undertake and ensure:
“The right to strike provided that it is exercised in conformity with the laws of a particular country.”
India as a signatory to the Convention is in conformity with this principle as the domestic labour laws have been seen to incorporate this measure. For instance, in the Industrial Disputes Act, 1947 the right to a peaceful strike as a measure of settling worker grievances has been enshrined. But the controversies have arisen with the growing incidence of violence associated with strikes.
Indulging in the act of destruction of private property and holding public life at ransom cannot be regarded as upholding a Fundamental Right as enshrined in the Constitution. Also due regard has to brought to the expenses that have to be incurred by the executive in the aftermath of such bandhs. In any case, such bandhs are characterized by bringing general life to a standstill. So, in addition to the loss in man - days, society must also suffer from such additional irresponsible activities. So, there is a need for a political party or organization who call such bandhs be made responsible for such costly actions.
In the case of Bharat Kumar Palicha v State of Kerala, a petition was filed requesting for a declaration that a bandh is unconstitutional and hence illegal. The Court considered the meaning of the term ‘bandh' which in Hindi means “closed” or locked.” Thus, it is clear that the party or organisation calling the bandh express their intention or desire to ensure that all activities on that particular day come to a standstill. This would extend to paralysing all activities whether they are of a public or of a private nature. The important question is the situation where sometimes ordinary activities like the supply of milk, newspapers and emergency services though excluded officially from the purview of the bandh are also disrupted.
Observing this, the Court ruled that if the intention behind calling the bandh is also to hamper the functioning of emergency services and offices whether they belong to the State or not and generally prevent people from travelling for their own interests then this is to be termed as a negation of fundamental rights as there is no effective expression of these rights in the face of coercion. The Court explained that when the call for a bandh is made an assurance is given that all citizens who do not support the bandh will not be assaulted or coerced into joining the protest. But actual experience would show otherwise in the practice that if a person dares to venture out on the day of the bandh or decides to open for business, he is threatened with dire consequences for his insistence in doing so.
Against the said judgment in Bharat Kumar case, the matter was brought to the Court in the Communist Party of India case and while granting leave, the Court in paragraph 3 approved the law laid down by the Kerala High Court. The Court observed that the reasoning given by the High Court, particularly in paras 12, 13 and 17 for the ultimate conclusion and directions in para 18, was correct. It was further observed that the High Court had drawn a very appropriate distinction between the bandh on the one hand and a general strike or hartal on the other.
The Judgment In Paragraph 3 Reads As:
“The court is 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.”
Destruction of public property has become rampant during such direct actions called by organisations. In almost all such cases the top leaders of such organisations who really instigate such direct actions will keep themselves in the background and only the ordinary or common members or grass root level followers of the organisation would directly participate in such direct actions and they alone would be vulnerable to prosecution proceedings. In many such cases, the leaders would really be the main offenders being the abettors of the crime. If they are not caught in the dragnet and allowed to be immune from prosecution proceedings, such direct actions would continue unabated, if not further escalated, and will remain a constant or recurring affair.
The High Court of Kerala in the case of Kerala Vyapari Vavasayi Ekopani Samithi, Ottappalam and others v State of Kerala ruled that the government must take all steps possible including the police to stop the enforcement of a hartal in the name of a strike. The initial reactions of the Court reveal that the calling or the supporting of a hartal is not to be condemned but the moment it leads to the infringement of the enjoyment of rights by others it must be halted. In such a situation, a hartal really becomes a violent demonstration which adversely affects the general life of others. The Court also took a very serious stance on the calling of hartal deeming its accompaniment with violence as reprehensible as it should be considered to be called only during the rare times of a national emergency or calamity.
The Court clarified that forcing an unwilling person to support the hartal amounts to infringing his fundamental right. Hence, it would be inconceivable that the party or organisation responsible for calling the hartal can hide under the plea that this was the only legitimate means of mass protest and yet at the same time can create an atmosphere of tension and instability through intimidation and coercion. The Court also critically held that no party could be given the right to block municipal offices to stop people from entering work. It also held that the blocking of private vehicles on the day of such hartals is an unjust act as it impedes the free movement of ordinary citizens.
On the point of redress for ordinary citizens, the Court explained that any political party or organisation responsible for such disruptive and violent bandhs, hartals and chaka jams can be penalised by complaints made under Section 29 A(5) of the Representation of Peoples Act, 1951. In this situation, the Election Commission, after affording all the affected parties a chance to express their claims, may take a decision resulting in the derecognising or the cancellation of registration of the said political party or organisation. In a writ of mandamus, the Court issued various directions including emphasising that a hartal which involved violence cannot be said to be constitutional and also that no one has the right to enforce.
Accounting For Violent Strikes
Since then, there has been a growing tendency to fine political parties engaged in violence. In a progressive ruling by the Bombay High Court an MLA from the Shiv Sena was asked to pay rupees five lakhs for the damage that was caused to a prominent hotel by persons from his party in the name of a protest. This was exactly the kind of response that was being awaited from the court as there have been several such victims of protests in the past. The High Court upheld the right of political to organise protests but insisted that the right did not extend to the destruction of property and disruptive activities which paralyse public life. The Maharashtra government has taken a strong view of the violent protests and had amended the Bombay Police Act to ensure that there can be a recovery of damages from the political party responsible. In 2006, Bombay High Court had directed the Sena-BJP combine to pay Rs 20 lakh each as fine for organising a Mumbai bandh in 2003 in the aftermath of a terror attack.
The AIADMK had a hearing of its SLP regarding a “public meeting” organised by the DMK owing to certain grievances with the Sethasamudram project. As the Supreme Court in 1998 had clearly upheld the ruling of a full bench of the Kerala High Court that calling or enforcing a bandh was illegal and unconstitutional, the bench observed that orders of the courts were being rampantly disregarded under the protection of political muscle. The bench rejected the contention of the State and the DMK that it was a public meeting. The court observed that the object of the DMK and its constituents in calling for the bandh was to demonstrate their might rather than doing it for a cause. The main issue was of deciding whether a bandh can be called by any individual or organisation, after it had been declared illegal and unconstitutional by the court. According to the bench, a bandh essentially paralyses public life and violates the Fundamental Rights guaranteed under Articles 19 and 21 of the Constitution of India. The bench stated that in light of all the precedents there can be no enforcement of the protest called by the DMK.
In the case of All India Anna Dravida Munnetra Kazhagam v Chief Secretary, Government of Tamil Nadu, the basic principles as suggested by Nariman Committee were considered to be appropriate. In the absence of legislation various guidelines were proposed to be adopted to assess damages. If mass destruction to property takes place due to protests, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and award compensation. The Claims Commissioner and the assessor may seek instructions from the High Court or the Supreme Court as the case may be, to summon the existing video or other recordings from private and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage.
The Committee recommended that the principles of absolute liability should apply once the nexus with the event that caused the damage was established. In a situation, where there are several persons acting in a joint or individual capacity during a protest resulting in damage to private or public property, the persons who have caused the damage, or who have organised should be held strictly liable for the damage so caused, which may be assessed by the ordinary courts or by any special laws which might be enacted for the purpose of preserving the infringed rights. Exemplary damages, which may be awarded, shall not be greater than twice the amount of the damages liable to be paid. Damages are to be assessed for damages to public property, private property, damages causing injury or death to a person or persons and cost of the actions by the authorities and police to take preventive and other actions.
In one of the most recent cases, In Re: Destruction of Public & Private Properties v State of A.P. and Ors, the Supreme Court, taking a serious note of various instances where there was large scale destruction of public and private properties in the name of bandhs and hartals suo motu proceedings were initiated by a Bench of the Court. Realising the need for adjudicating liability, the Justice K.T. Thomas Committee was quoted in paragraph 4 of the judgment and reads as:
“This Committee is of the view that it is in the spirit of the observation in M.C. Mehta v Union of India (1987 (1) SCC 395) that this Court needs to lay down principles on which liability could be fastened and damages assessed in cases in which due to behaviour of mobs and riotous groups public and private property is vandalised and loss of life and injury is occasioned to innocent persons. These are clearly “unusual situations,” which have arisen and likely to arise in future and need to be provided for in the larger interest of justice.”
The recommendations of the Thomas Committee and the Nariman Committee which were approved by the Supreme Court in the above two cases were to immediately become operative as guidelines.
Conclusion
The right to strike is indeed an important instrument not only for workers but also for political parties to exercise their right to protest. This has always been protected by the Indian courts. The objectives in outlawing bandhs were primarily to weed out any violent tendencies and acts that would harm the enjoyment of rights by others. But the political parties had started to carry on their violent campaigns by calling general strikes which were really in the nature of bandhs. But as has been seen through the various cases over the years, the courts are not differentiating between water tight definitions but are holding those responsible for violence and damage.
Essentially, the courts are now looking to enquire whether any rights have been infringed and if so then it will ensure that it is made good by those looking to disrupt law and order. There will be criticisms on part of the victims in their clamour for even declaring strikes illegal for that may be the only effective way of ending the menace. But this is where the courts have done an effective balancing act by not diluting the right to effective speech and expression while at the same time creating a deterrent for those bent on flouting norms. Now it is up to the executive machinery to enforce the preventive measures and bring the perpetrators to justice.
Bibliography
Primary Sources
Industrial Disputes Act, 1947
The Representation of the People Act, 1951
Secondary Sources
Dharmadhikari, Justice D.M., Bandhs, Strikes, Chakajam and Human Rights, Journal of the National Human Rights Commission, India, Vol.7, 2008
Kumar, Gaurav and Kumar, H.L., Practical Guide to the Industrial Disputes Act and Rules, Second edition, (New Delhi, Universal Law Publishing Co. Pvt. Ltd., 2007)
Malhotra, O.P., E.M.Rao (ed.), The Law of Industrial Disputes, Sixth edition, (New Delhi, Lexis Nexis Butterworths, 2004)
Misra, S.K. and Misra, S.N., An Introduction to Labour and Industrial Laws, Nineteenth edition, (Allahabad, Central Law Publications, 2002)
Roy, S.R., (ed.), Bagri on Law of Industrial Disputes, Third edition, (Kolkata, Kamal Law House, 2001)
http://www.hindu.com/thehindu/holnus/00020070930150, (last visited on 2nd March, 2010)
http://www.hindu.com/2004/07/24/stories/2004072405561100.htm, (last visited on 2nd March, 2010)
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