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Kerala still appears to have been languished in a self-imposed prison of hartals in spite of all efforts to terminate the snowballing menace of social disruption and public nuisance caused by its reckless ‘declaration.’ It was only recently that nearly three dozen trade organisations got together to declare that 2019 would be a ‘hartal-free year.’ However, 2019 began with the undeclared hartal on the second day of the new year itself with widespread blockades and violence across the state protesting the entry of two women into the Sabarimala temple in the early hours of the day. This has been followed by the declaration of a dawn to dusk hartal on 3 January causing widespread violence, stone pelting, lathi charge, tear gas shelling etc. Even those shops that boldly opened on the hartal day were attacked and forcefully shut down.  It was the Sabarimala Karma Samithi which announced the hartal in protest against the women entry into Sabarimala, which the Constitutional bench of the Supreme Court of India allowed in its historic judgement three months ago. The hartal on 3 January has been fully backed by the Sangh Parivar organisations, including the BJP who were obviously upset by the success of the ‘women-wall’ on the new year day lined up by more than five million women across the state—from Kasargod to Thiruvananthapuram.  What angered them further was the confirmation of the report that the two young women who were not allowed to enter the temple two weeks ago have made it now, following the ‘women-wall.’

Already, the Sangh Parivar organisations held as many as 7 hartals (both state-wide and district-wise) during the last three months. Altogether the state witnessed as many as 97 hartals in 2018 (the Sangh Parivar organisations declared 33, the Congress-led United Democratic Front 27, and the ruling Left Democratic Front 16. They were either state-wide or district/taluk-wise). The situation was almost similar in 2017 when it crossed 100 hartals by October of that year. In the first six months of 2017 alone, there were 65 hartals (in 165 days!).  All this pointed out clearly that the loss of man-days and the setbacks in trade, agriculture and industry would be colossal.

According to a report by the Union Labour Ministry, Kerala had lost around 2.1 lakh, 2.11 lakh, 2.94 lakh, and 1.53 lakh (January-October 2017) man-days following lock-outs in its industrial sector in 2014, 2015, 2016 and 2017, respectively. During the same period Kerala had lost 1.71 lakh, 4.04 lakh, 1.65 lakh and 1.37 lakh days due to general strikes. Traders organisations say that a ‘full-fledged’ state hartal means the state would incur the loss of as many as Rs.900 crore. However, this does not cover the colossal loss in the informal sector of the state. This is particularly important when the public sector employment is steadily decreasing and the private sector is making headway in the state (according to the Kerala State Planning Board [KSPB], in 2016, out of 11.85 lakh persons employed in the organised sector, 5.75 lakh (48 per cent) were in the public sector and 6.10 lakh (52 per cent) were in the private sector).

More importantly, unorganised sector is very crucial in the Indian economy from the point of view of employment and its contribution to the GDP, savings and capital formation. KSPB says that more than 90 per cent of workforce remained in the unorganised sector and nearly 50 per cent of the GDP emerged from that sector. It says: “A high proportion of socially and economically weaker sections of society are engaged in the unorganized economic activities in India and Kerala. As per the Employment and Unemployment survey carried out by the NSSO (68th round) based on UPSS approach it is estimated that self employed workers in Kerala constituted 37.7 per cent of the total workers. Comparatively, the percentage share of regular wage/salaried employee accounted for 22.5 per cent and that of casual labour accounted for 39.8 per cent” (Kerala State Planning Board 2016). With the escalating rate of casual labour and daily workforce in the state, the burden of hartal on the working population is very high. This is over and above the number of migrant workers from other states in Kerala whose number had crossed 3 million in 2017.

From bandhs to hartals

Efforts to put a ban on total strikes like bandhs have a quarter century history. This was in the background of persistent strikes in the state, including bandhs and hartals which created an impression that Kerala was not ‘industry-friendly.’ However, the High Court of Kerala in a judgment in 1997 declared the bandhs illegal. The petitioners seeking a ban on bandhs argued that they would violate fundamental rights of the citizens. It was contended that the right to freedom cannot be compromised insofar as the workers would be restrained from going to their workplace, traders being prevented from running their business, citizens being barred from accessing medical facilities in case of emergencies, etc. It was further argued that bandhs under the pretext of peaceful protests would instil fear in the citizens and the likelihood of violence dissuade citizens from discharging their normal activities. Though political parties contended that it was their fundamental right to call for a bandh under Article 19 of the Constitution of India, the High Court held that there existed only the right to peaceful protest through hartals and demonstrations and not through a bandh insofar as exercising freedoms and rights must end when it interfered with rights and freedoms of another individual (Law mantra 2016).  The Court further said that when there was absence of legislation to deal with an issue or when the State failed to take steps to curb a problem, it would be the duty of courts to step in to protect fundamental rights of citizens. Thus taking note of the violence, violation of rights, destruction of property and losses caused to the economy, the court declared call for bandh by any party, organization or association as “illegal and unconstitutional” (Kerala High Court 1997; Law Mantra 2016).

In a subsequent appeal filed by the State Government, the Supreme Court endorsed the High Court judgment and refused to reverse the order. The apex court said: “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 “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 a n 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. 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 we are in agreement. We may also observe that the High Court has drawn a very appropriate distinction between a “Bandh” on the hand and a call for general strike or “Hartal” on the other. We are in agreement with the view taken by the High Court” (Supreme Court of India 1997).

But the political parties in the state found a different route to sidestep the apex court judgment by rechristening bandhs as hartals. Though the High Court again ruled in 2000 that the enforcement of a hartal call by any party or organization by “force, intimidation and coercion” would be “unconstitutional,” that did not bring forth any change in the situation of resorting to frequent hartals.  In James Martin vs State Of Kerala case in 2003, the Supreme Court held that “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. It is high time that the authorities concerned take serious note of this requirement while dealing with those who destroy public property in the name of strike, hartal or bandh” (Supreme Court of India 2003).  In George Kurian vs State Of Kerala on 28 May, 2004, the High Court pointed out that “whatever name it is called, whether general strike, hartal or any other name, nobody can create a Bandh-like situation or obstruct the fundamental rights of others….Those who call for ‘hartals’ or strikes by whatever reason must 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 may go for work and that fundamental right of others to move about will not be affected. They must also instruct their supporters to see that no coercion or force is used for compelling others to participate in the strike or ‘hartal’ ” (Kerala High Court 2004).

In 2015, the UDF Government brought in a bill to curb hartals, introduced by the Home Minister Ramesh Chennithala. He said the aim was not to ban but to curb unnecessary hartals. As per Clause (2) of the Kerala Regulation of Hartal Bill, 2015, “hartal means cessation of activity in any form or of business or occupation or service, at the instance of any other person or organization, for the purpose of creating public pressure, social tension, economic intimidation or apprehension of violence in order to advance a cause or a campaign sponsored by the organizers of the hartal: Provided that a ‘hartal’ under this Act shall not include any strike by workers or a strike organized by any trade union or professional body which otherwise complies with the provisions of the Industrial Disputes Act, 1947 (Central Act 14 of 1947), the Trade Union Act, 1926 (Central Act 16 of 1926) or any other law governing trade union activity and workers’ rights” (Kerala, Legislative Assembly 2015). The Bill says that “no person, group or organization shall have a right to call or conduct any hartal”… “without three days public notice through the media to the fair knowledge of public bodies likely to be affected by the proposed hartal.” It also stipulates that the “organizers of a hartal shall deposit such an amount, in such manner, as may be prescribed, as the security for payment of compensation for destruction or damage likely to cause to property and life.” The Bill says that “whoever calls for, or conducts, hartal in violation of the provisions of this Act shall, on conviction, be punished with imprisonment for a term which may extend up to six months or with fine which may extend up to ten thousand rupees or with both.” “Any person who forcibly prevents another person on the ground of  a hartal from attending his work, visiting a hospital, hotel, educational institution or fuel delivery station or using transport facility, shall, on conviction, be punished with imprisonment for a term which may extend up to six months or with fine which may extend up to ten thousand rupees or with both. The Bill makes it clear that the “police and other agencies shall provide all assistance as specified in sub-section (2) and where the police or such other agency fails to help any person who needs such help, such failure shall be treated as a dereliction of duty on the part of the officer concerned and shall be punished with fine which may extend up to ten thousand rupees.”

However, the LDF which was in opposition then strongly opposed the bill, characterizing it as ‘anti-democratic, anti-people.’ It was seen as against the Fundamental Rights guaranteed in the Constitution. Though the bill was referred to a select committee for consideration, it has not been taken up for the consideration of the Legislative Assembly. Ironically, the Congress party which spearheaded the bill during its rule became responsible for declaring a large number of hartals in the state.

An important ruling relating to the regulation of hartals came in 2009 in the case of In Re: Destruction of public & private properties v. State of A.P. & ors. The Supreme Court set up two committees to bring forth guidelines to deal with the issue. One committee was headed by Justice K.T. Thomas, a former judge of the Supreme Court and the other was headed by Fali S. Nariman, Senior Advocate, Supreme Court of India. Justice Thomas committee brought out recommendations for the amendment to the Prevention of Damage to Public Property Act, 1984 “to create a rebuttable presumption of guilt against offenders, amending the Act to make leaders of the party who call for direct action, guilty of abatement, Videography of demonstrations and activities damaging public property, granting of bail only in cases in which the Court has reasonable grounds to presume that the accused is not  guilty of the offence.” The Nariman Committee report dealt with “imposition of liability for damages caused to public and private property.”  The apex court accepted both the committee reports and brought forth a set of guidelines. Besides the recommendations noted earlier, the guidelines included: 1. “Organizers to meet police before the protest and give an undertaking for maintenance of peace; 2. Use of knives, lathis and weapons to be prohibited; 3. The senior most police officer in the district or city to supervise the protest; 4. The police shall submit a report of event and damages caused to the State Government which  shall then file a report before the High Court or Supreme Court as the case may be; 5. High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation; 6. A retired or sitting High Court or Supreme Court judge may be appointed as Claims Commissioner estimate damages and investigate imposition of liability. An Assessor may be appointed to assist the Claims Commissioner. They shall have power to summon video footage and other evidence to discharge their duties; 7. Absolute Liability shall be imposed once the link between the event and damage is clear; 8. Damages shall be assessed for damage to public property, private property, damage due to  causing of hurt or death of persons and cost of actions taken by police and the executive to take preventive steps; 9. Exemplary damages not exceeding twice the amount of damages liable to be paid may be imposed; and 10. The Claims Commissioner shall report to the High Court or Supreme Court as the case maybe” (Law Mantra 2016).

In 2015, the Union Government had brought in the Prevention of Damage Public Property (Amendment) Bill, incorporating the guidelines put across by the Justice Thomas Committee Report and the Nariman Committee Report. It apparently got delayed since then. In 2018, in the Kodungallur Film Society &Vs Union of India &Ors case, the Supreme Court held that “Nobody has the right to become a self-appointed guardian of the law and forcibly administer his or her own interpretation of the law on others, especially not with violent means. Mob violence runs against the very core of our established legal principles since it signals chaos and lawlessness and the State has a duty to protect its citizens against the illegal and reprehensible acts of such groups”( Supreme Court of  India 2018). The Court also took note of the proposed legislation on Prevention of Damage Public Property (Amendment) Bill, 2015, which was under consideration of Parliament, and noted that the guidelines put in place by Justice Thomas Committee Report and the Nariman Committee Report were comprehensive enough to deal with the issue of protecting the public and private properties. The court hoped that “the said Bill will be taken to its logical end in the right earnest” (Ibid).

While there have been court orders and directions from time to time on the issue of the destruction of public property, violence and disruption of  normal life, the political parties and organisations continued to resort to hartals and other violent protests causing widespread destruction and damage. For example, on the day of hartal in Kerala on 3 January, the police registered more than 500 cases in connection with the widespread violence. As many as 700 persons were arrested across the state on charges of violence, arson, rioting, unlawful assembly, illegal use of explosives, attacks on law-enforcers on duty, destruction of public property etc. Several hundred people remain in preventive custody. The situation may continue to be tense until the Supreme Court takes up the review petitions later this month. However, the Sangh Parivar organisations seem determined to turn the tide against the Left Government of Kerala for political gains in the forthcoming Lok Sabha lections. Meanwhile, the people of the State will have to bear the burden of all vandalism let loose by the Sangh Parivar.

References

Kerala High Court (1997): “Bharat Kumar K. Palicha And Anr. vs State Of Kerala And Ors. on 28 July, 1997, AIR 1997 Ker 291,”  available @ https://indiankanoon.org/doc/385307/

Kerala High Court (2004): “George Kurian vs State Of Kerala on 28 May, 2004,” available @ https://indiankanoon.org/doc/904355/

Kerala, Legislative Assembly (2015): “The  Kerala Regulation of Hartal Bill, 2015, Thirteenth Kerala, Legislative Assembly Bill No.369,  http://www.niyamasabha.org/bills/13kla/published/369-pub-eng.pdf

Kerala State Planning Board (2016): Economic Review 2016, http://spb.kerala.gov.in/EconomicReview2016/web/index.php

Law mantra ( 2016): “An Overview and Critical Analysis of the  Legal  Framework Regulating Bandh, Hartal and Similar Protests in India,” http://journal.lawmantra.co.in/wp-content/uploads/2016/06/14.pdf

Supreme Court of India (1997): “The Communist Party Of India (M) vs Bharat Kumar & Ors on 12 November, 1997,” available @ https://indiankanoon.org/doc/1663947/

Supreme Court of India (2003): “James Martin vs State Of Kerala on 16 December, 2003,” available @ https://indiankanoon.org/doc/1812977/

Supreme Court of India (2018): “Kodungallur Film Society &Vs Union of India &Ors,” WRIT PETITION (CIVIL) NO.330 OF 2018, available @  https://www.sci.gov.in/supremecourt/2018/3158/3158_2018_Judgement_01-Oct-2018.pdf

The author is Dean of Social Sciences and Professor, School of International Relations and Politics, Mahatma Gandhi University, Kerala. He can be reached at  kmseethimgu@gmail.com

 

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