Communist Party of India(M) v. Bharat Kumar Palicha

Citation: (1998) 1 SCC 201

Background:
This is an appeal case. An original petition was instituted by the petitioner Bharat Kumar, the defendant in this case in the Kerala High Court. The CPI(M), aggrieved by the decision of the Kerala High Court approached the Supreme Court by an appeal against the decision of the Kerala H.C.

Coram: A3 judge bench of the S.C. comprising of J.S. Verma, C.J., B.N. Kirpaland and V.N. Khare JJ. heard the present case (appeal).

Facts: Two petitions, were filed via an O.P. in the H.C. of Kerala and sought relief from the Kerala H.C. for a declaration to the effect that, holding of a bundh by political parties is unconstitutional as it violates Articles 19 and 21 and is therefore, illegal and is constitutive of a penal offence under the IPC.

Two petitions were heard together by the H.C. The first petition was filed by two persons who were engaged in some business activity in Cochin as part of their avocation which got adversely affected due to calling in for a bundh by the CPI(M) in the state of Kerala.

Similarly, the second petition was filed by the varied Chambers of Commerce in the State of Kerala who had to face the brunt of the holding of bundh in the state. Five registered All India Political Parties were also impleaded as respondents in the O.P. in addition to CPI(M).

Issues:

1. Whether call for a bundh is distinctive from call for a strike or a hartal?
2. Whether there exists a fundamental right of political parties to call or enforce a Bandh under Article 19(1)(a) and (b) of the Constitution?
3. Whether calling or enforcement of a bundh infringes Articles 19(1)(g), 19(1)(d) and 21 of the citizens?

Law(s) applicable:

1. The Constitution of India, 1950:
   
   1. Article 19(1)(a)- Every citizen has the right to freedom of speech and expression
   2. Article 19(1)(d)- Every citizen has the right to freedom of movement throughout the territory of India
   3. Article 19(1)(g)- Every citizen has the right to freedom of carrying on any trade, profession or business
   4. Article 21- right to life and personal liberty; no deprivation of life and liberty allowed except if it's according to procedure established by law
2. Indian Penal Code, 1860

Arguments on behalf of the Respondent (Original Petitioner):

1. The counsel on behalf of the petitioners contended that the calling of a bundh by the political parties inevitably amounts to an imposition of myriad restrictions on the fundamental rights of citizens enshrined under Articles 19(1)(a), 19(1)(d), and 21 of the Constitution. The citizens are restrained in their right to cater to their avocations too.
2. The holding and enforcement of bundhs result into a national loss of production and impacts the country's economy in a negative manner.
3. Furthermore, they contended that the political parties cannot claim their right to call bundhs and strikes as part of their fundamental rights under Article 19(1), at the expense of the fundamental rights of the other citizens. This right of theirs cannot grant the political parties a freeway to exercise the same in any manner, in as much as such exercise renders the fundamental rights of others violated.
4. The calling of a bundh restricts the freedom of movement of the common citizens and hence they contended that calling for and holding of bundhs should be declared illegal.
5. They also argued that the calling of a bundh impliedly or expressly entails the possibility of violence, destruction to property and safety of human lives etc. can ensue on the streets which thereby impairs the citizen in the free enjoyment of their Fundamental rights under Article 19(1)(a), (d), and (g) and Article 21.

Arguments on behalf of the Appellant (Original Respondent):

1. The counsel on behalf of the appellant in this case contended that the right to call for or holding of a bundh is a fundamental right protected under Article 19(1)(a) and (b) of the Constitution and any restriction on the same would amount to a violation of the fundamental rights of the political parties or of every citizen comprising that party, in this case.
    
2. Moreover, they also disputed and denied the respondent/petitioner's assumption that all bundhs are expressly calls for violence as such assumption is general and lacks logical basis.
    
3. They contended that the mere calling of a bundh for peaceful purposes cannot be declared as unconstitutional or illegal.
    
4. Furthermore, they argued that only the State had the authority to restrict the freedoms granted under Article 19 via imposition of reasonable restrictions. Therefore, the Court has no authority to do the same.
    
5. The appellants further contended that Article 19(1)(a) grants to every citizen a fundamental right to strike, protest and the right to civil disobedience.

Analysis:
The Court in this case, sought to first arrive at the conclusive definition of what actually is a bundh. They stated that the origin of the word lies in the Hindi word which signifies closing or locking. The Court hence inferred that Bundh essentially entails a complete closure or locking of all activities on the day of the bundh.

They state that intent of the organizers of the bundh is to prohibit all activity, whether public/private, within the city/state for that day and hence a bundh is essentially different from the call for a protest or a general strike.

The Court stated that it inevitably leads to the conclusion that calling for or enforcing of a bundh essentially signifies the negation of the fundamental rights of the other citizens enshrined under Article 19(1)(a), (d) and (g) and Article 21. Furthermore, even if the leaders of the political party organizing a bundh, state that the bundh's objective is peaceful however, they cannot be held liable if some members of such party undertake certain illegal activity such as acts of violence.

There also exists a psychological fer in the minds of the citizens during the existence of a bundh and hence that inevitably attracts the violation of Article 21 of the Constitution and the freedom of movement and trade under Article 19.

The Court on the basis of evidence submitted by the respondent/petitioner, came to the conclusion that it cannot deny the possibility that bundhs in their inherent nature have a huge likelihood of violence and forceful prevention of persons from undertaking their avocations. This forceful prevention by itself attracts violation of Article 19(1)(g) of the citizens. The Court further reasoned that the freedom exercised by one citizen ends at the tip of the nose of another citizen.

The Court followed the judgement given in Railway Board v. Niranjan Singh[1], and arrived at the reasoning that when the exercise of fundamental rights by political parties jeopardizes the rights of other citizens, such right cannot be protected. However, the Court herein did not restrict the right to conduct a general strike peaceably or for call for non-co-operation of the political parties.

Conclusion:
The Supreme Court in this appeal case, upheld the judgement of the Kerala High Court which declared that the calling of or enforcing of a bundh by any association/organization or political party if unconstitutional and illegal and is violative of Article 19(1)(a), (d) and (g) along with Article 21 of the Constitution.

The political parties do have a right to call for a general strike or to protest peaceably however, such right cannot be protected if it imposes restrictions on the freedom to speech/expression or of free movement or of trade/avocation on the citizens. The Supreme Court relied on its judgements in Railway Board v. Niranjan Singh[2] and Bandhua Mukti Morcha v. Union of India[3], to hold that the fundamental rights of one cannot be protected when it infringes the fundamental rights of the citizens at large.

Furthermore, the Supreme Court highlighted the various freedoms that get violated as a result of calling of or enforcement of a bundh, in the cases of - A.K. Gopalan v. State[4] which held that that the right to move about, of free locomotion, is a fundamental right protected by Art. 19 of the Constitution.

Similarly, right to use the public roads was recognised as a fundamental right in Saghir Ahamad v. State,[5] and in Maneka Gandhi v. Union of India[6], S.C. upheld the right to travel abroad and the right to locomotion as fundamental rights guaranteed under Articles 19 and 21 of the Constitution. The right to education and the right to medical treatment are protected under Art. 21 of the Constitution [7].

Since all these freedoms conferred to citizens and protected under Article 19 and 21 of the Constitution are jeopardised by the holding of bundhs by political parties, the latter's rights to call for a bundh as part of 19(1)(a) cannot be protected.

The appeal was hence dismissed.

End-Notes:

1. AIR 1969 SC 966
2. Supra note 1.
3. AIR 1984 SC 802
4. 1950 SCC 228
5. AIR 1954 SC 728
6. AIR 1978 SC 597
7. Parmanand Katara v. Union of India, AIR 1989 SC 2039