The word “Bandh” has its origin from Hindi word which means “shutdown” or “closed up”. It has been popularly used by the countrymen to show their anger, rage against governmental actions or decisions or can be referred as a means of protest projecting civil disobedience. The big question arises as to whose rights should be given preference, i.e. rights of the people who want to continue their daily routine or the rights of the persons involved in these bandhs. Law needs to come out with certain measures to curb this menace or else the country will have to suffer a lot. As Supreme Court in Destruction of Public & Private properties v. State of A.P, had taken suo motu action and pronounced certain guidelines for determining the quantum of losses that take place and fixing the liabilities upon the organizers of that protest, and further declared that until and unless legislator comes up with any appropriate legislation, these guidelines would be binding and effective. [Tilak Marg, The Road to Justice, Supreme Court guidelines for damage to property during agitations already exist, Feb 24, 2016]
Over a period of time it can be said that the losses to the public property is increasing day by day due to these bandhs, hartals and nothing is being done for controlling or putting any chains on the legs of the protestors. The incident of Patels in Gujarat and Jat agitations in Haryana seeking reservations are still fresh and no one is able to forget it, reports state that during the Jat movement losses up to the extent of more than 20,000 crore happened [Tilak Marg, The Road to Justice, Supreme Court guidelines for damage to property during agitations already exist, Feb 24, 2016].
Constitutionality of bandh
Court while considering the constitutionality or unconstitutionality of Bandh, stated that this is an idea which projects that everything needs to be closed down or locked up, and all public, private works should cease on that day. Past experiences also show that if anyone tried to do anything or go against the order of the protestors, they have only become a victim of violence or have been threatened badly. During bandhs, the fundamental right of free movement, access to medical treatment or usage of public roads is all prohibited and all these rights are violated due to all these agitations. The contention of the Right to Free Speech and Expression raised by political parties can’t be allowed because this right under Article 19 of the Constitution of India is subject to silent and peaceful protest and not by violence. Taking into account all the destruction caused to the public property, violation of Fundamental Rights of the people and the losses which the economy suffered, it could be contended that Bandhs are illegal and unconstitutional.
Legal Framework and Judicial Pronouncements with regards to guidelines
Primarily the state has the responsibility to ensure safety of life and public properties during bandhs. Legislature had tried to come up with legislation for safeguarding property, and Prevention of Damage to Public Property Act, 1984 being a special legislation enacted by the legislature for protecting the public property from losses and it deals with mischievous people who cause harm and damage to the public property. The act being specific in nature also lays down specific punishment for the type of losses which occurred, for e.g., loss caused by way of fire or by the nature of property damaged. Indian Penal Code also recognizes certain offences of the like nature and mentions punishment for the same. Code of Criminal Procedure also gives vast amount of powers to the Police authorities and under section 151 of the code, it recognizes that in the wake of prevention of any crime or mishap, Police can make arrests without warrant or order from the magistrate.
The most important case in the event of ruling over the destruction of public property during bandh is In Re: Destruction of public and private properties v. State of A.P.& ors.. In this case the court set up two committees for dealing with the issue of large scale destruction of the public and private properties. One of the significant recommendations given by the committee was an amendment in the Prevention of Damage to Public Property Act, which includes making the leader guilty of the act, cancelling the bail application and granting only in cases where court has reasonable ground to believe that the person accused either directly or indirectly was not involved in the activity. Another major recommendation was of imposition of strict liability on the persons who cause damage to the property and are part of such agitations. The committee also recommended following the principle of “restituto in interregnum” (making whole or restoring to original position) for deciding and awarding compensation, fine on the offenders.
Apart from the above discussed recommendations, the guidelines majorly include the following [Law Mantra, An overview and Critical Analysis of the legal Framework Regulating Bandh, Hartal and Similar Protests in India]
- The police shall submit a report of the event and damages caused to the State government which shall then present the report before the High Court or Supreme Court, as the case may be;
- High Court may issue suo motu action and can set up machinery for determining the damage caused and the compensation to be awarded;
- Absolute liability shall be imposed upon the offender;
- Damages should be assessed and cost of actions taken by the police and the executive to take preventive steps should be measured;
- Exemplary damages not exceeding twice the amount of the damages liable to be paid may be imposed.
If we look at the previous instances of bandhs, it shows that it has always caused damage and destruction to the public property and bodily injury to innocent people. It creates restriction on the free movement of people and violates the fundamental rights of the citizens and the public in fear of such violence also does not take the risk of enforcing their rights. So, a new legislation or amendment in existing laws should be brought up in such a way so as to restrain these people from causing harm to public property and protecting the general public from the rage and anger of such violence. All such activities have huge impact on the economy and all these things are weakening the Indian economy. Our constitution states that the welfare of the people is supreme but these bandhs are demolishing the basic structure of the Constitution and hence should be declared unconstitutional.
Government came up with the draft bill for amending the Prevention of Damage to Public Property and in this it incorporated the recommendations given by the committees established under the Supreme Court in the case of In Re: Destruction of public and private properties v. State of A.P.& ors.. Further it is a sign of relief and gives a positive signal showing that the Central Government is also sensitized with the issue and it had taken it into consideration. Now its time for the State legislature to show its dominance and to come up with a legislation dealing with the law and order situation during bandh, hartal and other similar other movements. Apart from such legislations, Police authorities should try to devise such a mechanism so that examinations are called off, public transport should never be stopped just because of these immoral activities, as it gives a clear message and motivation to the organizers that Police and Government have surrendered before us and now we have won!