The Communist Party of India (M) Vs Bharat Kumar & Ors

INTRODUCTION-

Civil disobedience, agitations, hartals, and bandhs are common in India because they are regarded as a well-known means of expressing dissent, drawing the attention of the government to particular demands made by a community or organization, and occasionally compelling the government to give in to the demands made. As per the ruling in Communist Party of India (M) v. Bharat Kumar [(1998) 1 SCC 201: AIR 1998 SC 184], calling for a bandh and enforcing it is forbidden, rather than striking or holding a hartal. A call for a bandh is not the same as a call for a hartal or strike.

FACTS OF THE CASE-

The petitioners in this case were two private citizens and the various chambers of commerce in the State of Kerala. The State of Kerala, the Director General of Police and five registered All India political parties were impleaded as respondents. It was contended that bandhs should be declared unconstitutional as they violate Articles 19 and 21 of the Constitution and that they also contravene the Directive Principles of State Policy and the Fundamental Duties enumerated in the Constitution. The petitioners further prayed that the calling for and holding of bandhs should be declared an offence under the Indian Penal Code.

The Kerala High Court held that the calling for a bandh by any association, organisation or political party and its enforcement, is illegal and unconstitutional. The court also held that the groups that organize and carry out these bandhs are accountable for paying back the government, the general public, and private citizens for any losses they incur as a result of the destruction of both public and private property. In a decision that was upheld on appeal, the Supreme Court simply stated that the High Court’s reasoning was sound and that their intervention was not required.

ISSUES RAISED-

• Is it a fundamental right to hold a Bandh, Hartal, or other similar protests?

JUDGEMENT (DECISION) -:

1. Leave Granted: The court authorizes the case to proceed.

2. Legal Arguments Heard: The court has listened to the arguments presented by Mr. Harish Salve and Mr. Soli J. Sorabjee, who are representing the appellant, as well as Mr. Mathai M. Paideday, who is the legal representative for the respondents.

3. Evaluation of the High Court’s Decision: Upon examining the High Court’s contested judgment [(1997) 2 KLT 287 (FB): (1997) 2 KLJ 1 (FB) : AIR 1997 Ker 291 (FB)], to which the appellant’s legal representatives referred, it is determined that the High Court’s judgment does not require any modifications. The court concurs with the High Court’s distinction between a “Bandh” and a general strike or “Hartal” regarding their impact on the fundamental rights of other citizens. It is evident that the fundamental rights of the entire population should not be subordinated to the claims of individual fundamental rights or those of a specific group. Based on this differentiation, the High Court aptly established that there is no entitlement to declare or enforce a “Bandh” that disrupts the exercise of the fundamental freedoms of other citizens and harms the nation in various ways. Furthermore, it acknowledges the High Court’s appropriate distinction between a “Bandh” and a call for a general strike or “Hartal,” and concurs with this perspective.

4. Dismissal of Appeals: Consequently, the appeals are rejected, and no costs are imposed.

Judgement Analysis and Comments-:

The Court appears to have accepted the argument that fundamental rights are enforceable not only against the “State” by ruling that bandhs violate those rights and are therefore unconstitutional, but also against private citizens. This is in direct contravention of the Supreme Court ruling in State of West Bengal v. Subodh Gopal Bose, where the Court declared that the Fundamental Rights guaranteed in Part III of the Constitution serve as protection only against State action. It was the contention of the petitioners that a bandh called for and enforced by a political party violates their Fundamental Rights enshrined under Articles 19 and 21.5 It is submitted that the High Court, by upholding the contention of the petitioners, has ignored past decisions of the Supreme Court which have held that the rights guaranteed under Part III of the Constitution are available only against ‘state action’. Since political parties, which consist of private citizens, are not ‘state’ for the purposes of Article 12,7 their actions do not constitute ‘State Action’ for the purposes of Part III of the Constitution and thereby, cannot violate the Fundamental Rights of citizens enshrined in the same.

CONCLUSION:

It is argued that fully outlawing bandhs or leaving them unchecked are both undesirable options. It would be irresponsible to overlook the financial damage and suffering brought about by the bandh call. In deciding how much social control is appropriate, the Court must attempt to strike a balance between the freedoms protected by the Constitution. But in trying to help people who have been impacted by bandhs, the Court has overreached itself, basing its decision more on sentiment than reasonable legal analysis.

REFERENCES-

• https://indiankanoon.org/
• http://docs.manupatra.in/newsline/articles/Upload/EAFAC050-3CCB-4615-8D7E-33BAC06605E1.%20State%20of%20Kerala.pdf
• https://www.scconline.com/Members/NoteView.aspx?enc=KDE5OTgpIDEgU0NDIDIwMSYmJiYmNDAmJiYmJlNlYXJjaFBhZ2U=#FN0002

This Article is written by Aastha Srivastava, a 3^rd Year LL.B student of DES Shri Navalmal Firodia Law College, Pune; Intern at Legal Vidhiya.

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