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POLITICAL DIARY
Tamil Nadu Defiance Irks Court
FREEDOM FROM BANDHS ---- AT LAST?
By Poonam I Kaushish
New Delhi, October 09, 2007
Your freedom ends where my nose begins. This truism once
again came to life when Tamil Nadu ‘shut down’ on Monday last.
Thanks to a bandh called by the ruling DMK supremo and Chief
Minister Karunanidhi to pressurize the Centre to expedite work
on the controversial Sethusamudram Project. So what if it
crippled life, inconvenienced the aam aadmi, brought the State
machinery to a grinding halt, knocked out the concept of good
governance and earned the wrath of the Supreme Court. Wherein
in a first-of-its-kind observation the Court threatened to
recommend imposition of President Rule in the State in case
the State Government defied its order, resulting in a
breakdown of the Constitution.
Predictably all hell broke loose. The polity yelled blue
murder and came down like a ton of bricks on what they termed
as judicial activism and encroachment into the powers of the
Executive. The media too went to town with some in Chennai
trying to be more loyal than the DMK king. The legal
fraternity busied itself with dissecting and analyzing the
Apex Court observations. Had the judiciary overstepped its
bounds? Did it have the powers to recommend dismissal of a
State Government and imposition of the President’s rule? Or
merely advise the Centre to look into it?
Constitutional Issues
Needless to say, Tamil Nadu has thrown up several
Constitutional issues and, importantly for the aam aadmi, once
again brought the issue of bandhs sharply on the national
radar. True as jurists from former Chief Justices of the
Supreme Court PN Bhagwati and JS Verma to ex-Attorney General
of India Soli Sorabjee and senior advocates like KK Venugopal
have stated, it is nobody’s case that the Apex Court has the
powers either to dismiss a State Government, dissolve a duly
elected legislative assembly and impose President’s rule,
which the Executive alone is empowered to do.
In case the Supreme Court is of the opinion that there is a
Constitutional breakdown, according to Bhagwati, it can surely
advise the Government to look into it. But, according to Verma,
the Court’s function is essentially to adjudicate on the
constitutionality of President’s Rule. In fact, he has also
clarified the reason why the Constitution did not empower the
Court with this power. Article 356 empowers only the President
to issue orders to impose President’s rule. This has to
ratified by both the Houses of Parliament within 60 days of
its sitting. If the Court was empowered to impose Central
rule, then how would it examine the legal validity of its own
action?
Adds Sorabjee, “The Court could have slapped a contempt notice
on the State Government for flouting its orders.” As matters
stand, what Justice B.N. Agarwal, heading the Supreme Court
bench, stated were only “oral observations”. Unlike formal
orders, these have no force in law. They were simply intended
to ensure that the State respected the Court’s orders.
Fortunately, the observations had the desired effect when
these were flashed by the TV channels by 1.30 pm. Karunanidhi
hurriedly called off his hunger strike and post haste returned
to the Secretariat with his brood in tow. But the bandh had
already done its damage. Chennai was virtually paralysed and
the aam aadmi helplessly harassed.
Maximum Dislocation
If the happenings in Tamil Nadu were unprecedented, cut to
Delhi numero uno road --- Parliament Street. Heavily
barricaded with baton-wielding policemen, fire engines and
police vans, it stands vandalized every other day by
slogan-shouting masses protesting about something or the
other. Time and again, punctuated by the bursting of tear-gas
shells and water cannon volleys. The cause is immaterial. It
is all about registering ones protest, the louder the better.
Success is measured in terms of causing maximum dislocation
and discomfiture to the people at large. Bringing work to a
standstill in the prime business district with the entry-exit
points repeatedly sealed.
The havoc is not limited to New Delhi. In Kerala last year
alone, Kochi was shut down for 11 days, the State Capital,
Thiruvananthapuram, for 19 and Thrissur lost 59 days to
hartals. And, there has been no let-up this year. In fact, no
day passes without a strike somewhere. Be it a mohalla,
district or State. The story is the same.
Tragically, India has travelled a long way from Lokmanya
Tilak’s “swaraj is my birth right” to “strikes is my birth
right” Today, every other section of the society plans strikes
as a matter of routine. Bringing things to such a pass that it
is like living life between strikes. Be it labour strikes,
political protests or chakka jams which bring life to a
standstill, replete with violence, mayhem, deaths et al. Curse
all you want, it is for a cause, remember.
Part of the current paradox is explained by the changed notion
of strikes aka hartal aka bandh as a form of protest. The
original concept was centred on the logic that the only way
for a group of disempowered people to shake the system was to
agitate. From a simple gherao for more wages to a voluntary
hartal against policy decisions. But slowly perversion set in.
A strike could be effective only if stoppage of work could not
be overcome easily by the system. Therefore, the strikers use
their power base, including violence, to stall anything that
spells change from the set routine. Never mind that in the
long run it is detrimental for the country and the people.
Kerala Judgement
Recall, in August 2003, the Supreme Court had expressed its
anguish over strikes. Upholding the Kerala and Calcutta High
Courts’ judgments declaring bandhs as “illegal and
unconstitutional way of collective bargaining”, it had ruled,
that Government employees had no “fundamental, legal, moral or
equitable right” to go on strikes whatever the cause, “just or
unjust”. Pointing out that aggrieved employees had other
options available to them, the Bench opined: Strikes as a
weapon is mostly misused, which results in chaos and total
maladministration.
Adding: “In a democracy, government employees are part and
parcel of the governing body and have a duty to society. They
cannot hold society to ransom.” To buttress its contention,
the Court observed: “The law on this subject is well settled
and even a very liberal interpretation of Article 19 (Freedom
of Expression) cannot lead to a conclusion that trade unions
have a fundamental, guaranteed right to an effective
collective bargaining or to strike either as part of
collective bargaining or otherwise.”
The Apex Court’s judgment also upheld the Kerala Court’s
distinction between a hartal and a bandh. It held that a
hartal was a form of passive resistance and a call for it did
not involve force. However, a bandh was an enforced muscle
flexing act which interfered with the freedom of citizens. A
bandh call might completely halt locomotion and, as a result,
involve life and property, particularly of those who attempt
to go against the strike call.
Trust our “law abiding” netagan to circumvent the Court’s
ruling. They simply replaced their call for bandh by hartal.
To plug this loophole, the Supreme Court and the Kerala High
Court, yet again directed the Election Commission to entertain
complaints seeking de-recognition of political parties that
called for hartals by “force, intimidation --- physical or
mental --- and coercion was unconstitutional”. They even
imposed a fine on holding of bandhs and hartals. (The Bombay
High Court ordered the Shiv Sena and BJP to pay Rs.20 lakh
each to compensate for losses incurred during a bandh
organized by them in 2003). Predictably, this led to a
political uproar. Nothing more, nothing less.
Unfortunately, our polity fails to realize that strikes negate
the basic concept of democracy. They are just a camouflage for
non-performance, self-glorification, to gain sympathy or
wriggle out of working hard. Some old hands at the game admit
that the exercise is to flex their might and muscle to
show-off their strength. And if one is a bandh regular, other
parties actually start believing that you have the might and
the muscle. Ignoring that it all boils down to what you are
willing to spend on renting a crowd and giving it a free trip.
All issues evoke the same bystanders who are more interested
in a jagha darshan, the money and the food packets. The net
result? Zilch.
American Law
Clearly, the time has come to take a leaf out of the US law,
wherein there is no constitutional right to make a speech on a
highway or near about, so as to cause a crowd to gather and
obstruct the highway. The right to assembly is to be so
exercised as not to conflict with other lawful rights,
interests and comfort of the individual or the public and
public order. Also, the municipality has the power to impose
regulations in order to assure the safety and convenience of
the people. And the power to break up a meeting if the speaker
undertakes incitement to riot or breach of peace.
In the UK, the Public Order Act, 1936 makes it an offence for
any person in uniform to attend any public meeting, signifying
his association with any political organization. The
Prevention of Crime Act, 1953, makes it an offence to carry
any weapon in any ‘public place’ without lawful authority. The
Seditious Meeting Act, 1817 prohibits meetings of more than 50
persons within a mile of Westminster Hall during the sitting
of Parliament.
In sum, in a milieu wherein adoption of strong-arm tactics to
extract one’s pound of flesh has become our second nature, it
is time to cry a halt to the political nautankis and strikes.
The Tamil Nadu bandh has exposed how dangerous this game has
become. No longer can we simply dismiss strikes and hartals as
a system’s failure. The right of the citizen is paramount. How
long will this chalta hai attitude persist. With each
shrugging his shoulders and asserting ki pharak painda hai.
Time now to call a bandh against hypocritical parties and our
moribund State. What do you say? ---- INFA
(Copyright, India News and Feature
Alliance)
E-Mail :
newseditor@sarkaritel.com
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