‘Bundh’ or ‘ Jan Andolan’ held to be unconstitutional and illegal by the Hon’ble Supreme Court of India? A news item under the caption “Pahar Bandha Abaidh Ghosna Garney Mang” was published in Himalayan Darpan, Vol. XII, Issue No. 31 dated the 6th August,2013, a daily news paper in Nepali vernacular that one Ld. Advocate Shri Ramaprasad Sarkar has preferred a Public Interest Litigation in the Hon’ble High Court of Calcutta for the relief that the ongoing indefinite bandh/Strike called by Gorkha Janamukti Morcha be declared as unconstitutional and illegal. According to the said news item, the petitioner in his Public Interest Litigation has asserted that according to the judgment of the Hon’ble Supreme Court of India, not quoted in the news item, such Bandhs/Hartals are unconstitutional and illegal. I think it would be appropriate if the judgments are placed before the people for their understanding of the issues involved in those cases and larger issues involved in the ongoing agitation in the hill areas of Darjeeling. These are the judgments of the Hon’ble Supreme Court of India pronounced in the Civil Appeals No. 7728-29 of 1997, between Communist Party of India(M) .....Appellant Versus Bharat Kumar and others...Respondents, reported in (1998)1 Supreme Court Cases page 201 and Special Leave Petition (C) No. 18879 of 2007 between All India Anna Dravida Munnetra Lazhagam.....Petitioner Versus Chief Secretary, Govt. Of Tamil Nadu and others...Respondents, reported in (2009) 5 Supreme Court Cases page 452. It is for the understanding of the readers that there is distinction between the court of original jurisdiction and the court of appellate jurisdicition. The court of original jurisdiction is that court where the litigation starts and the court of appellate jurisdiction is that court where the parties aggrieved by the judgment of the court of original jurisdiction file appeal questioning/assailing the correctness or legality of the judgment of the court of original jurisdiction. In the appeal of Communist Party of India (M) before the Hon’ble Supreme Court, the appellant Communist Party of India(M) had challenged the correctness and legality of the judgment of Hon’ble Kerala High Court in Bharat Kumar K. Palicha and another ..Petitioners Versus State of Kerala and others case, reported in AIR 1997 Kerala page 291. However, the appeal was dismissed and the judgment of the Hon’ble Kerala High Court was upheld by the Hon’ble Supreme court. In Special Leave Petition between AIDMK Vs. Chief Secretary, Govt. Of Tamil Nadu and others also the Hon’ble Supreme Court has considered and discussed the judgment of the Hon’ble Kerala High Court rendered in Bharat Kumar K Palicha’s case. In Kerala High Court the petitioners Bharat Kumar K. Palicha and another had, who were carrying on their avocation in Cochin, sought the relief of a declaration that the calling for and the holding of what has come to be known as ‘bundh’ is unconstitutional and is hence illegal. The Chambers of Commerce of Tamil Nadu had also filed similar petition in the Hon’ble Keral High Court for declaration that the ‘bundhs’ violate Articles 19 and 21 of the Constitution of India and also the Directive Principles of State Policy embodied in the Constitution of India. Article 19 of the Constitution of India guarantees certain fundamental rights of the citizens of the country and reads as follows:- “ 19. Protection of certain rights regarding freedom of speech, etc.(1) All citizens shall have the right – (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India. Article 21 of the Constitution guarantees the protection of life and personal liberty of person and it reads as follows:- “ 21. Protection of life and personal liberty. No person shall be deprived of his life and personal liberty except according to procedure established by law. Bharat Kumar K. Palicha and another, the petitioners before the Hon’ble Kerala High court were carrying on their avocation in Cochin directly affected by bundhs. Whereas, the Petitioner Shri Ramaprasad Sarkar before the Hon’ble High Court of Calcutta, most probably unaware of the plight of the people here, is definitely not carrying on his profession in our region directly affected by the Jan Andolan. In Bharat Kumar’s case the Communist Party of India (Marxist) and Communist party of India were the main respondents claiming fundamental rights of freedom of speech and expression guaranteed to the citizens of the country by the constitution. Whereas, in our case the people as citizens of the country are fighting for the fundamental rights of freedom of speech and expression and also the right to assemble peaceably without arms. It is the struggle of people not of any political party or organisation, political parties are forced by the people to fulfil their aspiration of separate state. The Hon’ble Judges of Kerala High Court before proceeding to consider the constitutional issues raised in the said case thought it necessary to understand what is a ‘bundh’ and looked into Hindi dictionary. According to their lordships ‘Bundh’ is a Hindi word meaning ‘closed’ or ‘locked.’ The expression, therefore, conveys an idea that everything is to be blocked or closed. Their Lordships further held that when the organisers of a bundh, call for a bundh,they clearly express their intention that they expect all activities to come to standstill on the day of the bundh. A call for a bundh is obviously distinct and different from the call for a general strike or the call for a hartal. Bundh involves threat, express or implied to citizen not to carry on his activities or to practice his avocation on the day of bundh,therefore, it violates the fundamental rights of the citizen and Court can step in to protect rights of the citizen. In Bharat Kumar K.Palicha’s case the focus of their Lordships was on the issue of bundh called by political parties and organisations and it’s fallout on the fundamental rights of the people. There was no occasion for their Lordships to understand the meaning of “Jan Andolan” which is actually going on in the hill areas of Darjeeling. The word “Jan Andolan” has wider connotation than the word “Bundh”, “Jan Andolan” can include “Bundh” but “Bundh” cannot include “Jan Andolan”. Bundhs are the call of political parties or organisations but the Jan Andolan is the call of people to fight against the social, economical, political injustice and sometimes against colonisation as our freedom fighters did under the leadership of father of nation Mahatma Gandhi. No case has come up and decided by the Hon’ble Supreme Court or the Hon’ble High Courts of our Country in the post independence era of 67 years involving the issues of identity crisis of the community, almost 108 years of struggle of the people of a particular region with different culture, language, customs and tradition than rest of the state for emancipation, lease executed by the predecessor governments i.e. British Govt. and the then Chogyal (King) of Sikkim, white paper issued by the Government of West Bengal clearly admitting the clear position of Darjeeling. The issues raised by the people in their long struggle of more than hundred years need serious consideration of the political bosses of the State and Centre. The issues having national and international ramification should be resolved within the four walls of the august house of Parliament invoking Article 3 of the Constitution of India which gives sweeping power to the Parliament to form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State. But in case of “Gorkhaland” by foreclosing the Lease agreement between the then Chogyal (King) of Sikkim and the British Government. Including Martyr Mangal Singh Rajput 108 persons have already sacrificed their lives for the cause of Gorkhaland and instead of addressing the legal and constitutional demand of the people the authorities are deploying Central and State forces, as such, it is also necessary to bear in mind as to what their Lordships Deoraiswamy Raju and Arijit Pasayat of the Hon’ble Supreme Court have observed in their judgment rendered in a case between James Martin...Appellant versus State of Kerala, reported in (2004) 2 Supreme Court Cases, page 203. I quote “ All the more so when the days are such where even law-enforcing authorities/ those in power also precipitate to gain political advantage at the risk and cost of their opponent.” K.T.Bhutia, Sr. Advocate, Gangtok. Phone 03592-202672 (M) 9832094403
Posted on: Fri, 09 Aug 2013 04:35:41 +0000
Trending Topics
Recently Viewed Topics
© 2015