POLITICAL DIARY

New Delhi, 6 October 2007

Tamil Nadu Defiance Irks Court

FREEDOM FROM BANDHS ---- AT LAST?

By Poonam I Kaushish

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?

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.

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.

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. 

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

(ICopyright, India News and Feature Alliance)