Impact Of Bandhs In The Legal Field

KEY TAKEAWAYS

• Bandhs are a great way of enforcing the demand of individuals.
• Bandhs are a means of protest and if conducted peacefully, result in enforceability of such demand.
• Very often, the non-supporters of the cause of protest have to face damages to property and person due to non-willingness to participate in such Bandh.
• The Court grants consideration to the litigants or Advocates who have been absent from such proceedings due to inability to reach the Court premises due to a valid reason, such as Bandh.

INTRODUCTION

Strikes or bandhs are a way of enforcing the demands of one individual or a group of individuals striving towards the same objective. Such objectives may vary from the increase in wages of labours, increased employment opportunities, reduction in the price of natural gas and petroleum, increased accessibility of opportunities at their disposal, or in an attempt to protest against any rules or laws brought forth by the lawmakers.

The Strikes are called by the political parties, general public, the aggrieved workers of any organisation, the victims of any certain general situation, etc.

Strikes may be nation-wide, state-wide or restricted to a few local areas, or in relation to the wrongdoer enterprise, in which the supporters of the strike refuse to dispose of their daily duties of their workplace, and encourage others to join them in such endeavour so that the concerned authority is bound to reconsider their original stand pertaining to the matter for which such strikes are called. The supporters of the cause often restrict the non-supporters from carrying on with their daily activities too, by forcing them to participate in such strikes.

LEGAL VALIDITY OF BANDHS

Bharat Bandhs or State-wide bandhs have been a common phenomenon in the country of India since a long time where political parties, mostly the party in opposition would call for bandhs against several policies formulated by the government or several acts undergone by the government, in order to assert their disapproval for such policies or acts.

In the case of S. Sudin v. The Union of India And Others, the High Court of Kerala, in 2007, ruled that the right to participate and conduct nonviolent demonstrations is a fundamental right. On the other hand, the Court welcomed effective regulatory mechanisms on the call and conduct of hartals.

In the case of Sri Aniruddha Das v. The State of Assam, the Gauhati High Court in its landmark judgement dated March 19, 2019, held that bandhs or road or rail blockades are illegal and unconstitutional and organizers must be prosecuted. In the instant case, the petitioner filed a writ application to seek imposition of exemplary damages from some of the respondents for having called an illegal strike for 51 days, as a result of which their daily income was adversely affected.

LEGISLATIONS RELATED TO BANDHS

The Kerala Government has introduced a draft bill, known as the Kerala Regulation of Hartal Bill, 2015, which criminalises enforcement of hartals by force, threat of injury, etc. The organizers of such strikes are required to obtain permission from the authorities and inform the public three days in advance. They are also required to deposit a security amount for payment of compensation in case of any damage caused to property, and injuries to the people. If the police fail to help the public in exercising their legal rights during such hartals, it would be treated as dereliction of duty on the part of such public servants and can also be punished with a monetary fine extending up to Rupees Ten Thousand. After such arrest due to any such destruction, a bail can be prayed for by the accused only after depositing an amount equal to the value of property as had been damaged by them after a temporary assessment. The Government is also empowered to make rules for effective implementation of the provisions.

The Central Government has drafted Prevention of Damage Public Property (Amendment) Bill, 2015 by integrating the rules recommended by the Justice Thomas Committee Report and the Nariman Committee Report. Even though such bill had never been presented in the Parliament, in the case of Re: Destruction of Public & Private Properties v State of AP and Ors, based on the recommendations of the abovementioned committees, the Supreme Court in 2009 issued the following guidelines:

• In case of violence, the High Court may take cognisance of incidents of mass damage to public property on its own in the absence of state legislation and set up a machinery to investigate and award compensation.
• The court can take up the matter if the state fails to intervene, or it can pursue the matter if the state government approaches it with a report on the damages in the form of a petition.
• In every such case, the high court or the Supreme Court is required to appoint a sitting or retired high court judge or district judge as a “claims commissioner” to estimate the damages and probe liability.
• The claims commissioner could ask for video recordings from private or public sources to examine the damage and to identify the perpetrators.
• Once the liability is assessed, it will be borne by the perpetrators of the violence and the organisers of the event, the share of each perpetrator was to be decided by the court.
• Exemplary damages should not be greater than twice the amount of the damages liable to be paid.
• Damages should be assessed for destruction to public or private property, injury or death and cost of the actions by the authorities and police to prevent and contain the violence.
• The Claims Commissioner will make a report to the High Court or Supreme Court which will determine the liability after hearing the parties.
• The High Court proceeds with the recovery of such amount if the offence is committed in a State.
• In case of violence involving inter-State territory, the Supreme Court is entrusted with the responsibility of ascertaining the damage and injury caused due to such violence and proceed for the recovery of the compensation
• The Supreme Court did say that it was leaving the matter to the authorities “to take effective steps for their implementation.” However, such steps have to be in consonance with the spirit of the abovementioned guidelines.

COURT PRECEDENTS WITH RESPECT TO BANDHS

• In 2004, the Shiv Sena and Bharatiya Janata Party was punished with an exemplary fine of Rs. 20 lakhs by the Supreme Court. Such amount was to be paid by them in lieu of the damages caused by the Bandh called by them in the Ghatkopar blast. Such fine was to be deposited by them to the Maharashtra Government.
• In the case of James Martin v. State of Kerala, the Supreme Court, in 2003, ruled that the exercise of private defence in a case of exposing the victim to violence due to bandhs would not be punishable, since the surrounding circumstances would also have to be taken into consideration.

IMPACT OF BANDHS ON LITIGATIONS

The event of Bandh, even impacting all of India during Bharat Bandhs, do not impact the functioning of the Courts otherwise than the absence of advocates or litigants or witnesses due to the lack of availability and accessibility of transport and communication, or they being harassed by the supporters of such Bandhs for not participating in such protest.

The Court mostly considers the absence on such occasions and do not take strict actions against the absentees. The court withholds itself from granting ex-parte decisions in the applicable cases if the absence of the party is due to a genuine Bharat Bandh.

Order 17 Rule 1 of the Civil Procedure Code states that “the court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the Suit for reasons to be recorded in writing. Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit.”

In the case of the case of The Secretary, Department of Horticulture, Chandigarh and Anr v. Raghu Raj, the Apex Court held that in the event of default on the part of the Advocate to appear in front of the Court on the date of the case, the Appellant would not have to suffer injustice.

In the case of Shashikant Ganpat Jogal Review v. Shashikant Ganpat Jogal, the Bombay High Court allowed the review petitioner to submit her review petition even though she could not file the undertaking due to the event of Bharat Bandh which resulted in lack of transport and communication from her place of residence to the Court.

CONCLUSION

Strikes or Bandhs are mass refusal of workmen or general public to participate in their daily activities thus bringing about a temporary stoppage in the daily lives of the people. Strikes are sometimes used to pressure governments to change policies. Pressurizing the non-supporters of the cause by harassing them into staying indoors and cause them damage to person and property for non-compliance. Such lack of harmony due to the calling of Bandhs is deeply frowned upon by the judicial system.