Is Bharat Bandh Constitutional or Unconstitutional?

Bharat Bandh is being observed on 27th September, 2021 yet again marking the anniversary of Farmers Protest in India. While Bandhs, Hartals, strikes, agitations are very frequent in the country, their constitutionality remains confusing. Many times these are linked with the fundamental right to form associations and unions that is Article 19(1). But how efficient and correct is this exudation? The article below would provide the students the correct understanding of this Bandh or strike and also inform about the basic rights to hold such protests. 

The Supreme Court has many times held that hartals can not be unconstitutional. A bench of Justice JS Khehar and Justice DY Chandrachud said in a decision, "Hartals can never be unconstitutional. Right to protest is a valuable right. How can we say hartals are unconstitutional?" Read the article below to understand the details. 

Bandh: Constitutional or Unconstitutional?

What is a  Bandh?

Bandh is a form of protest that is used mainly by political activists in South Asian countries like India. It carries similarities to strike. During a bandh, a community can generate a general stike as well.  It is a form of civil disobedience. 

Exudation from Article 19: Relevance

Freedom of speech and expression is included in Article 19(1) of the Indian Constitution, which gives the Indian citizens the right to associate with unions. The Article 19 of the constitution also restricts the powers of the state compared to the rights of the citizens. 

The article empowers the Indian citizens the liberty to express one's view, opinions, beliefs, suppositions and convictions. In a way it implies the right of any citizen to express his/her opinions by word of mouth, writing, printing, pictures or any other mode freely.

The Supreme Court has many times asserted that the Demonstrations can be considered a form of freedom of speech unless they violate the public order. However the court refused to hold strikes within the ambit of freedom of speech. Article 19 does not give explicit permission to any resident of India to organize Hartal, Bandh or Chakka Jam. These forms can be either non violent or peaceful, but are not guaranteed by the fundamental rights of 

1. Speech and expression
2. Assemble peaceably and without arms
3. Forming associations or unions

Even BR Ambedkar said that the idea of satyagraha would be null under the condition, "where constitutional methods are open, there can be no justification for these unconstitutional methods.”

So can the farmers' protests and the chakka jams or Bharat Bandhs organized by them be justified, given how the agricultural reforms were tried to be pushed in the country?

No, says the court as the livelihood of people or ordinary citizens is also affected through these on an everyday basis. The matter still can be said to be subjective. 

Supreme Court and Government's take on Bandh, Hartal or Strikes

In 1961, the apex court, the Supreme Court held in Kameshwar Prasad v State of Bihar case that even a liberal interpretation of the Article 19(1)(c) would conclude that the Trade Unions would guarantee the fundamental right to strike. 

However, in the All India Bank Employees Association case, the SC rejected the idea of formation of associations guaranteed by 19(1)carried with the concomitant right to conduct strikes. 

It was also later said in many decisions of the court that the right to strike cannot be counted as a Fundamental Right. In the case of T. K. Rangarajan v Government of Tamilnadu, the Court held that the mass strike cannot be legal. It held, "there is no legal, moral or equitable right with the government employees to go on strike."

In B.R. Singh and others V. Union of India the Supreme Court observed that the right to strike was not a fundamental right. However the right to form associations without disturbing the public order can be counted as one.  

In the case of Bharat Kumar K. Palicha v. State of Kerala, the full bench decision of Kerala High Court was seconded by the Supreme Court in the case of Communist Party of India (M) vs Bharat Kumar and others. The full bench judgment of the Kerala High Court had drawn a distinction between a "bandh" and "a call for general strike" or "hartal". The calling for bandh is clearly different from a call for a general strike or hartal.

The Government of Kerala also drafted a bill in 2015 called the Kerala Regulation of Hartal Bill which criminalised the enforcement of hartals by force, threats or injury to common people. All organizers are required to obtain permission from the authorities of the state to conduct a gathering at least three days prior to organizing it.