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2013 DIGILAW 103 (CAL)

Mofijul Haque v. Union of India

2013-02-14

Arun Mishra, Joymalya Bagchi

body2013
JUDGMENT : - This writ petition has been filed by the petitioners by way of public interest litigation. Prayer has been made to command the respondents to withdraw/cancel or rescind the ‘Bandh’ dated 20th and 21st February, 2013. It is further prayed that ‘Bandh’ to be declared as ultra vires to the Constitution of India and it is a penal offence. Compensation of Rs.1,00,000/- be ordered to be paid to each to the effected persons for their loss due to the damage caused to them. 2. It is averred in the petition that the petitioner is a member of All India Minority Forum. It is a registered organization. It is averred that the Centre of Indian Trade Unions (CITU) has called a 48 hours countrywide massive Bandh protesting inter alia against PFRDA Bill and also for expediting joint discussions in joint consultative forum for settlement and sort out the demand of the Central Government Employees. News item relating to Bandh has been filed as Annexure P-1 to the petition. Illegal countrywide Bandh has been called by CITU on 20th and 21st February, 2013 for fulfillment of their political purpose. Bandh is illegal, unconstitutional and the political organization like Centre of Indian Trade Unions cannot give such call. Calling of such Bandh is illegal. Bandh will cause irreparable loss to the economy and there will be a loss of around of Rs.1000/-crores due to such Bandh. Bandh is unproductive causing damage, degenerating growth, causing damage and destruction of life and property and effects the various fundamental rights of the citizens. 3. Reliance has been placed on the decision of the Full Bench of Kerala High Court in the case of Bharat Kumar K. Palicha & Anr. Vs. State of Kerala & Ors., reported in A.I.R. 1997 Kerala 291 which has been affirmed by the Hon’ble Supreme Court in Communist Party of India (M) Vs. Bharat Kumar & Ors., reported in (1998) 1 SCC 201 . 4. It is submitted by Mr. Adhikary and Mr. Mukhopadhyay, learned Counsel appearing on behalf of the C.I.T.U. and A.I.T.U.C./intervenor respectively that call for Bandh has not been given. Call for two days general strike on 20th and 21st February, 2013 has been given. Thus, Court cannot interfere as called for general strike can be given. 5. Mr. 4. It is submitted by Mr. Adhikary and Mr. Mukhopadhyay, learned Counsel appearing on behalf of the C.I.T.U. and A.I.T.U.C./intervenor respectively that call for Bandh has not been given. Call for two days general strike on 20th and 21st February, 2013 has been given. Thus, Court cannot interfere as called for general strike can be given. 5. Mr. Idris Ali, learned Counsel appearing for the petitioners has submitted that call is, in fact, for Bandh and essential services are not also spared including various other institutions which are not industrial concerns. In fact, underlying idea is to go for a Bandh. Thus action is illegal and has been held to be so by the Hon’ble Supreme Court in Communist Party of India (M) Vs. Bharat Kumar & Ors. (Supra). Reference has also been made to A.I.A.D.M.K. Vs. Chief Secretary, Government of Tamil Nadu & Ors., reported in (2009)5 SCC 452. 6. It is submitted by Mr. Ashok Kumar Banerjee, learned Government Pleader appearing on behalf of the State of West Bengal that call for Bandh is illegal and in fact Bandh is being organised under the guise of the aforesaid call of general strike as call has been given not to the particular establishment but to all the working people of the country and their Unions-federation irrespective of affiliations to respond in a massive way the call for countrywide united struggle and participate enmassee in the action programme. This in fact call for Bandh. Thus there is prima facie violation of the decision rendered by the Hon’ble Supreme Court in Communist Party of India (M) Vs. Bharat Kumar & Ors. (Supra) and AIADMK Vs. Chief Secretary, Government of Tamil Nadu & Ors. (Supra). 7. It is submitted by the learned Counsel appearing on behalf of the AITUC that Bandh is not going to be organised. Essential services are not going to be disrupted and it is only a general strike in terms of para 14 of the decision of the Kerala High Court in Bharat Kumar K. Palicha Vs. State of Kerala & Ors. (Supra). 8. The Hon’ble Supreme Court has considered the distinction between Bandh or Strike/Hartal. Call given by the political parties to conduct total cessation of work and closure of shops on the date specified was held to be prima facie a call for Bandh and not a strike/Hartal. State of Kerala & Ors. (Supra). 8. The Hon’ble Supreme Court has considered the distinction between Bandh or Strike/Hartal. Call given by the political parties to conduct total cessation of work and closure of shops on the date specified was held to be prima facie a call for Bandh and not a strike/Hartal. The Apex Court has held that giving of a call for or enforcing of Bandh is impermissible. The Apex Court considered the call given by several political parties by resolution dated 24.9.2007 giving a call to conduct to total cessation of work and closure of shop on 1.10.2007. Prayer was made restraining the political parties concerned from proceeding with the call for Bandh. The same was declared as unconstitutional. High Court recorded a finding that the said call given by the political parties concerned was prima facie call for a Bandh not a strike or Hartal as claimed by them. Interim order was passed on 28.9.2007 requiring the State Government and its officers merely to ensure that the organisers of the Bandh could not to resort to force or intimidation to stop or interfere with road/rail/air traffic or free movement of citizen. The petitioner then approached the Hon’ble Supreme Court. Only five political parties appeared before the Hon’ble Supreme Court. The Hon’ble Supreme Court found that call in question to be prima facie a call for Bandh which was impermissible. The Supreme Court has also observed that ordinarily the High Court as well as the Supreme Court refrained from passing an interim order the effect of which would be granting the main relief but in cases where a party approaches the Court without loss of time, there are no laches on its part, it is not possible to give notices to all the necessary parties and hear them because of paucity of time and in case interim order is not passed in a case like the present one which has been concluded by the judgment of the Supreme Court, the main case would become infructuous, different considerations would arise an appropriate interim order should be passed. While admitting the petition, directions were issued to the Chief Secretary to ensure that no political party, organization, association, group or individual, can by organising bandh/hartal or by force or intimidation, stop or interfere with the road and rail traffic or free movement of the citizen in the State of Tamil Nadu on the day of Bandh i.e. 1.10.2007. To ensure that public transport of the State including the civil aviation runs smoothly on the date of the Bandh. To take appropriation action against the person (s) concerned indulging in stoppage or interference with the road or rail traffic or free movement of the citizens in the State of Tamil Nadu. Directions were also given to the Chief Secretary to inform the public about the preparation made by the police to deal with the Bandh and to make people secure. Certain other directions were issued on 27.9.2007 with respect to maintenance of essential services. To provide adequate protection to High Court and other Courts to arrange for regular supply of milk and other essential, arrange for open-line petrol with immediate effect. Necessary protection of market and business places shall be given. To ensure that Hartal passes off peacefully. 9. Referring to the decision of the Kerala High Court in Bharat Kumar K. Palicha (Supra), the Apex Court has laid down that neither can anybody give a call for Bandh nor can the same be enforced. 10. In Bharat Kumar’s case (Supra) has been approved by the Hon’ble Supreme Court in Communist Party of India (M) (Supra). In a Full Bench decision, the Kerala High Court has laid down thus; 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 ‘bandh’. ‘Bandh’ is a Hindi word meaning ‘closed’ or ‘locked’. The expression therefore convey an idea that everything is to be blocked or closed. Therefore, which the organiser of a bandh, call for a bandh, they clearly express their intention that they expect all activities to come to a standstill on the day of the bandh. A call for a bandh is obviously distinct and different from the call for a general strike or the call for a hartal. Therefore, which the organiser of a bandh, call for a bandh, they clearly express their intention that they expect all activities to come to a standstill on the day of the bandh. A call for a bandh 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 bandh is to ensure that no activity either public or private if carried on that date, is also clear from their further statement sometime made that the newspapers, hospitals and milk supply is excluded from the bandh. This clarification obviously implies that otherwise the intention is that those services are also to be effected. If the intention is to prevent the milk supply, prevent the distribution of newspapers, prevent people going to the hospital for treatment, prevent the people from travelling and to generally prevent them from attending to their work either in services of the State or in their own state, that obviously means that it amounts to a negation or the right of the citizen to enjoy their natural right. Their fundamental freedom and the exercise of their fundamental rights. It is no doubt true that while calling for a bandh it is not also announced that any citizen not participating in the bandh will be physically prevented or attacked. But experience has shown that when any attempt is made either to ply vehicle on the date of the bandh or to amend to one’s own work, or to open one’s shop to carry on trade it has resulted in the concerned person being threatened with consequences if he look out his vehicle, if he went for his work or if he kept his shop open. The leaders of the political party who call for the bandh cannot escape by saying that they are not telling the citizens not to do these things under threat but if some of the participants in the bandh indulged in such activities, they cannot be held responsible. Obviously, they can with reasonable intelligence foresee the consequences of their action in calling for the bandh. Nor can they pretend that the consequences that arise out of the calling for a bandh, is too remote or does not have reasonable proximity to the call they have made. Obviously, they can with reasonable intelligence foresee the consequences of their action in calling for the bandh. Nor can they pretend that the consequences that arise out of the calling for a bandh, is too remote or does not have reasonable proximity to the call they have made. Learned Counsel appearing for the political parities contended that this Court cannot take note of what actually happen when a bandh is called, but this Court can only go by the call for the bandh 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 bandh is called. 12. It is true that here 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 bund if he is able to establish before the Court that his fundamental rights are curtained to destroyed by the calling of and the holding of a bundh ? When Article3 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 bandh 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 into protect the rights of the citizen so as to ensure that the freedoms available to him are not curtailed any person or any political organization. The way in this respect to the Courts has been shown by the Supreme Court in Bandhua Mukti Morcha Vs. We think that it is the duty of the Court to step into protect the rights of the citizen so as to ensure that the freedoms available to him are not curtailed any person or any political organization. The way in this respect to the Courts has been shown by the Supreme Court in Bandhua Mukti Morcha Vs. Union of India, A.I.R., 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 generalize that the calling of a bundh always entails actual violence or the threat of violence in not participating in or acquiescing in the bundh. The decision in Kameshwar Prasad Vs. Bihar, A.I.R. 1962 SC 1166 is referred to in that context. This theoretical aspect expounded by 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 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 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. 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 when we consider the impact of a bundh on the freedom of a citizen, we are not merely theorizing 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 the counsels for the respondents that there are no sufficient allegations either in O.P.7551 of 1994 or in O.P.12469 of 1995 which would enable us to come to such a conclusion. In fact, the uncontroverted allegation in O.P.12469 of 1995 are specific and are also supported by some newspapers clippings which though could not be relied on as primary material, could be taken note of as supporting material for the allegation in the original petition. 14. It is argued that the Court cannot restrict the freedom of the political parties to call for a general protest and any restriction placed thereon would be violative of the fundamental rights of those who compose the political party, their freedom of expression, speech and to assemble peacefully. It may be true that the political parties and organisers may have a right to call for non-co-operation or to call for a general strike as a form of protest against what they believe to be either an erroneous policy or exploitation. But when exercise of such a right infracts the fundamental right of another citizen who is equally entitled to exercise his rights, the question is whether the right of the political party extends to right of violating the right of another citizen. In Railway Board, New Delhi V. Niranjan Singh, A.I.R. 1969 SC 966, the Supreme Court observed (Para 13) :- ‘The fact that the citizens of this Country have freedom of speech , freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the right of someone else to hold his property intervenes. Such limitation is inherent in the exercise of those rights. The exercise of those freedoms will come to an end as soon as the right of someone else to hold his property intervenes. Such limitation is inherent in the exercise of those rights. The validity of that limitation is not to be judged in the tests prescribed by sub-Articles (2) and (3) of Article 19. In other words, the contents of the freedom guaranteed under clauses (a) (b) and (c), the only freedoms with which we are concerned in this appeal, do not include the right to exercise them in the properties belonging to others.’ If this be the position and if the call for the bundh and holding of it entails restriction on the fundamental freedoms of the citizen, it has to be held that no political party has the right to call for bundh on the plea that it is part of its fundamental right of freedom of speech and expression. Moreover, nothing stands in the way of the political parties calling for a general strike or hartal unaccompanied by express or implied threat of violence to enforce it. It is not possible to accept that the calling of a bundh alone to demonstrate the protest of a political party to a given decision or in a given situation. 17. No political party or organization can claim that it is entitled to paralysed the industry and commerce in the entire State or Nation and is entitled to prevent the citizens not in sympathy with its view point, 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 this 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 Art. 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 respondent. This is all the more so since the case of the petitioner is based on their fundamental rights guaranteed by the Constitution. As indicated already this Court has ample jurisdiction to grant a declaratory relief to the petitioners in the presence of the political party respondent. This is all the more so since the case of the petitioner 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 can not compel the State or the Legislature to issue orders to make law in that regard. As we find that organized bodies or Association 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 holding of it is unconstitutional especially since it is understood, 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 parities or other organizations. We are inclined to the view that the political parties and the organizations which calls for such bundh 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 shark its responsibility of taking steps to recoup and of recouping the loss from the sponsors and organizers of such bundhs. We think , that this aspect justify our intervention under Article 226 of the Constitution. In view of our discussions above, we allow these Original Petitions to the extent of declaring that the calling for bundh by any association or organisation or political party and the enforcing of that call by it is illegal and unconstitutional. We direct the State and its officials including the law enforcement agencies to do all that is necessary to give effect to this declaration. The original petitions are allowed to the above extent. We make no order as to costs.” 11. In Communist Party of India Vs. Bharat Kumar & Ors. (Supra), the Hon’ble Supreme Court has laid down thus. “3. The original petitions are allowed to the above extent. We make no order as to costs.” 11. In Communist Party of India Vs. Bharat Kumar & Ors. (Supra), the Hon’ble Supreme Court has laid down thus. “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 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 Bundh on the fundamental rights of other citizen. 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 bundh 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 are in agreement. We may also observe that the High Court has drawn a very appropriate distinction between a Bundh 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. “ 12. The decision having been affirmed by a reasoned order by the Hon’ble Supreme Court is enforceable as binding precedent. 13. The way in which preparations are being made to keep the entire life and all the activities of various institutions including the essential one not only industrial establishment and others. Prima facie it appears to be a call for bundh under the guise of general strike. Thus it is necessary to ensure that there is no disruption of the essential services. Prima facie it appears to be a call for bundh under the guise of general strike. Thus it is necessary to ensure that there is no disruption of the essential services. Hence, issuance of requisites directions are necessary; 1) The Chief Secretary of the Government and the Director General of Police and the District Collectors and Officers of the State to ensure that while organising bandh/strike, no use of force or intimidation is made, no interference with road and rail traffic or free movement of the citizens of the State of West Bengal is made on 20th and 21st February, 2013 for which call has been made. 2) To ensure that the public transport in the State vehicle, the civil aviation can runs smoothly on 20th and 21st February, 2013. 3) To take appropriate action against the person/s concerned indulging in stoppage or interference with the road and rail traffic or free movement of the citizens in the State of West Bengal. 4) Essential services like telephone and telecommunication, water supply, milk distribution, power supply, fire services, newspapers, hospitals including High Court and other Courts shall be ensured to function and protection given; 5) Provide adequate protection to vital installation of importance and arrange for regular supply of milk and other essentials; 6) Adequate protection be provided to the various institutions including High Court and other Courts; 7) Action to be taken against anti social elements and persons indulging in acts of violence and vendalism; 8) Adequate police arrangement be made outside the railway station, bus depots, main roads, main junctions, Hospitals, Courts , Schools, Colleges etc. and necessary protection to market and business places shall be given. 9) All Police Control Rooms will be fully activated to take proper and timely action; 10) To ensure that no unlawful activity takes place. 14. Since it is averred that there may be loss of property and work in various essential services is likely to be disrupted, we are keeping this petition pending to take to its logical end. In case any loss of property is caused, this Court proposes to put on notice to the persons responsible bodies who have given this call for strike BMS, INTUC, AITUC, HMS, CITU, AIUTUC, TUCC, AICCTU, UTUC, LPF, SEWA. 15. In case any loss of property is caused, this Court proposes to put on notice to the persons responsible bodies who have given this call for strike BMS, INTUC, AITUC, HMS, CITU, AIUTUC, TUCC, AICCTU, UTUC, LPF, SEWA. 15. They may be held liable to make the payment of compensation for any destruction of property takes place and in case essential services wording of institutions are disrupted in violation of our direction, this Court may also impose the suitable compensation to be paid for the causing of deficiencies in the services which are vital for human life and part of Article 21 of the Constitution of India. 16. Mr. Ashok Banerjee, learned Government Pleader has assured that they will implement the order and give information to the general public that there will be no disruption of public life and the State will provide all necessary security. 17. The petitioner is directed to add the other bodies who have given the call as respondents in the petition. 18. Let the petitioners issue the notice to the other bodies who are not represented before us. Notice be issued within 10 days and returnable within four weeks. 19. List after six weeks. Urgent photostat certified copy of this order, if applied for, be given to the appearing parties upon compliance of necessary formalities and plain copy be given to Shri A. K. Banerjee for compliance.