Constitution of India Art. 19, 21 & 226 Bundh meaning Calling of Bundh and enforcement is unconstitutional -
Calling of a bundh and the enforcement of that call is illegal and unconstitutional. Distinction made between Bundh and Hartal High Court has jurisidiction t declare the calling of bundh and enforce them are unconstitutional . Political parties and the organisors which call for bundhs and enforce them are liable to compensate the Government, the public and private citizen for th loss suffered by them. [ Bharat Kumar vs State of Kerala 1997 (2) KLT 287 = AIR 1997 Ker 291. K.G.Balakrishnan, P.K.Balasubramanyan & J.B.Koshy (JJ)] Affirmed in Commmunist Party of India (Marxist) vs State of Kerala. 1997 (2) KLT 1007 = AIR 1998 SC 184. J.S.Verma (CJ), B.N.Kirpal & V.N.Khare (JJ)]
Constitution of India Art. 19(1)(g) & 21 Foot paths and pavements are public properties intended to serve the convenience of the general public and not meant for use by certain individuals for their private purposes.
Every citizen has a right to use the public street vested in the State as a beneficiary, but this right is subject to such reasonable restrictions as the State may choose to impose. The right to street trading under Art.19(1)(g) of the Constitution does not, however, extend to a citizen occupying or squatting on any specific on any specific place of his choice on the pavement regardless of the rights of others, including pedestrians, to make use of the pavements . It is well known that footpaths and pavements are public properties which are intended to serve the convenience of the general public , and not meant for use by certain individuals for their private purposes. [ Vasath Nagar Allottees Association vs District Collector. 2000 (1) KLT 148. A.S.Venkatachala Moorthy (J)]
Constitution of India Art.21 Bundh No person or group of persons, party or organisation has any right under the Constitution or any other law to hold bund Duty of the Government not to allow unlawful bandh, rally, etc in order to protect life and liberty of people.
Supporters of bundh forcing closure of the courts, interfered with its working and prevented unlawfully the lawyers from attending their cases it was held that they are committed contempt of court. Government, being duty bound to protect the people, has to prevent unlawful activities like bundh, rally, etc which invade or threaten to invade their life , liberty and property, it is neither open to any person , organisation, or political party to take the people to ransom , nor is it permissible for the Government to allow such unlawful activities. Such activities have to be prevented at the threshold otherwise it may not be possible for the Government to allow such unlawful activities. [ Ranchi Bar Association vs. State of Bihar. AIR 1999 Patna 169. R.A.Sharma and A.K.Prasad (JJ)]
Constitution of India Art. 21 Hartal and Bundh No person has any right to cause any inconvenience to other person or to cause in any manner, a threat or apprehension of risk to the life, liberty, property of any citizen or destruction of life and property.
In the name of hartal or bandh or strike no person has any right to cause inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty, property of any citizen or destruction of life and property, and the least any Government or public property. Unless such acts are controlled with iron hands, innocent citizens are bound to suffer and they shall be the victims of the highhanded acts of some fanatics with queer notions of democracy and freedom of speech or association. [ James Martin vs. State of Kerala. 2004 (1) KLT 513. Doraiswamy Raju & Arijit Pasayat (JJ) ]
Constitution of India Art. 21 Bundh or Hartal Directions issued to protect the life No holidays to be declared Call for the help or Army or para-milatry forces No compulsion - Damages should be paid - Directions issued
Government should take adequate measures to see that normal life of the citizens is not paralyzed. That is to be done not by declaring holidays or postponing examinations, but, by giving effective protection to those who are not participating in such hartals or strikes. Government should be able to deal with the situation with strong hands. Considering the past experience, if the Government is feeling that they are unable to give adequate protection. It should request the Centre for deputing Army or para-military forces so that there should not be any constitutional breakdown and violation of fundamental rights of the citizens In cases of damage to public property, action should be taken to recover the damages from the persons who actually cause damages and also from the political parties, organisers and persons who give actual call for such hartals or general strikes. In view of the happenings in the past, they cannot say that they did not visualise such a situation which was created by anti-social elements and directions issued earlier .Effective action should be taken under the Prevention of Damages to Public Property Act, 1984 and Those who call for hartals or strikes by whatever reason should make it clear in their call that nobody will be compelled to participate in the hartals or strikes, that traffic will not be obstructed and those who are willing can go for work and that fundamental rights of others to move about will not be affected., They should also instruct their supporters to see that no coercion or force is used for compelling others to participate in the strike or hartal. With regard to the injuries and damages caused to the private persons and their properties. Government should adequately compensate them immediately as Government has failed to fulfill its constitutional obligation to protect lives and properties of the citizens and the Government should take steps to recover the same from the persons who caused such damages or injuries and also from the persons and political parties or organisations who called for such hartals or general strikes. Criminal cases also should be taken against the offenders as well as the abettors to the offence. Such criminal cases registered should be pursued with enthusiasm and it should not be withdrawn merely on political pressure and investigation should be conducted fairly not with a purpose of filing a subsequent refer report as undetected. Government should see that an atmosphere is treated so that citizens can move about on the roads freely without fear and vehicular traffic is not obstructed and public transport can ply without any hindrance. Damages caused to the public or private properties etc. and recovery steps initiated . Government should also take appropriate action against the District Administration and Police authorities if effective steps are not taken by them against the persons who use force or who are trying to impose their will on others to deprive the fundamental rights of majority of the citizens in the guise of hartals and general strikes. [ George Kurian Vs State Of Kerala .N.K.Sodhi (Cj) ,J.B.Koshy (J)And A.K.Basheer.]
Constitution of India Art. 226 Hartal - Enforcement by force , intimidation , physical or mental and coercion would amount to an unconstitutional act - No right to enforce it.
Mere calling of a hartal or the advocating of it as understood in the strict sense, cannot held to be objectionable especially in the context of the decision of the Supreme Court in C.P.I vs Bharat Kumar. But the moment it comes out of the concept of hartal strictly so called and seeks to impinge of the rights of others it ceases to be a hartal in the real sense of the term and really becomes a violent demonstration affecting the rights of others. That facet of it has certainly to be curtailed and can be curtailed by this court at the instance of others who have equal constitutional rights, while exercising jurisdiction under Article 226 of the Constitution. It is clear that what is called and enforced as hartal is not what is meant strictly by that term but a form of bundh involving intimidation and coercion of those who do not want to respond to the call or to participate in it. The enforcement of a hartal call by force, intimidation, physical or mental and coercion would amount to an unconstitutional act and a party or association or organisation that calls for hartal has no right to enforce it by resorting to force or intimidation. [Institute of Social Welfare vs State of Kerala, 2000 (1) KLJ 869 = 2000 (2) KLT 430 P.K.Balasubramanyan & K.A.Mohmmed Shafi (J&J)] [Affirmed by the Supreme Court in Indian National Congress vs Institute of Social Welfare . 2002 (2) KLT 548 = 2002 AIRSCW 2245]