The Right to Strike, Hartal and Bandh

In a democratic society like India, the right to express dissent and demand redressal of grievances is fundamental. However, the methods used to exercise these rights—such as strikes, hartals and bandhs—often spark intense debate over their constitutionality and impact on public life.

The Basics of Strike, Hartal and Bandh

1. Strike: A strike typically refers to a collective refusal by workers to perform their duties as a form of protest against their employer. Strikes are usually aimed at securing better wages, working conditions or other labour rights.
2. Hartal: The term “hartal” is derived from the Gujarati language, meaning “closing down shops” or “cessation of work.” In India, hartals are organised as a form of protest where businesses, offices and educational institutions voluntarily shut down to express discontent over specific issues.
3. Bandh: A bandh is a more aggressive form of protest, where the organisers not only call for a shutdown of services but also enforce it through coercion or intimidation. Bandhs often result in the complete stoppage of public life, affecting transportation, business and daily activities.

Constitutional Provisions and Judicial Interpretations on Strike, Hartal and Bandh

The Indian Constitution provides a broad framework for the protection of individual rights, including the right to protest. However, the Constitution does not explicitly grant the right to strike, hartal or bandh. Instead, these actions are often analysed through the lens of Article 19, which guarantees certain fundamental freedoms and the limitations that can be placed on these freedoms in the interest of public order, morality and the sovereignty of the nation.

Article 19(1)(a) – Freedom of Speech and Expression

This article guarantees the right to freedom of speech and expression. Protests, including peaceful strikes and hartals, are considered an extension of this right, as they are a form of expressing collective dissent. However, this freedom is not absolute and can be restricted under Article 19(2) in the interest of public order, decency or morality.

Article 19(1)(b) – Right to Assemble Peacefully and Without Arms

This article grants citizens the right to assemble peacefully. Hartals and protests fall under this provision, provided they are non-violent and do not disturb public order. The Supreme Court has repeatedly emphasised that the right to assemble does not extend to activities that disrupt normal life or infringe on the rights of others.

Article 19(1)(c) – Right to Form Associations or Unions

This article allows citizens to form associations or unions, which is often interpreted as including the right to collective bargaining and, by extension, the right to strike. However, the Supreme Court has clarified that the right to strike is not a fundamental right under this provision.

The Legal Status of Strikes, Hartals and Bandhs

Strikes

The right to strike, while recognised as an important tool for collective bargaining, is not considered a fundamental right in India. The Supreme Court has held that while workers have the right to form unions and negotiate with employers, the right to strike can be regulated by law and is subject to reasonable restrictions. The case of T. K. Rangarajan v. Government of Tamil Nadu (2003) reiterated that there is no legal or moral right for government employees to go on strike.

Hartals

Hartals, being voluntary shutdowns, are generally considered lawful as long as they are peaceful and do not involve coercion. However, when hartals escalate into bandhs, where force is used to enforce participation, they become illegal. The distinction between a hartal and a bandh was highlighted in the Kerala High Court’s ruling in Bharat Kumar K. Palicha v. State of Kerala (1997), where the court declared bandhs unconstitutional because they infringe on the rights of others.

Bandhs

The most stringent judicial scrutiny has been applied to bandhs. Courts have consistently held that bandhs violate fundamental rights, particularly the right to freedom of movement and the right to carry on any occupation, trade or business. The Kerala High Court’s decision in the Bharat Kumar K. Palicha case, later upheld by the Supreme Court, marked a significant step in declaring bandhs unconstitutional.

Key Judicial Rulings on Right to Strike, Hartal and Bandh

1. Kameshwar Prasad v. State of Bihar (1962): In this case, the Supreme Court held that even a liberal interpretation of Article 19(1)(c) would not include a right to strike within the ambit of the right to form associations. This ruling laid the foundation for later decisions restricting the right to strike.
2. All India Bank Employees’ Association v. National Industrial Tribunal (1962): The Supreme Court explicitly rejected the notion that the right to form associations under Article 19(1)(c) includes a right to strike.
3. T. K. Rangarajan v. Government of Tamil Nadu (2003): This case dealt with a mass strike by government employees in Tamil Nadu. The Supreme Court held that there is no fundamental right to strike for government employees and emphasised that the state has the authority to regulate or restrict strikes.
4. Bharat Kumar K. Palicha v. State of Kerala (1997): In this landmark judgement, the Kerala High Court declared that bandhs are unconstitutional, a decision later upheld by the Supreme Court. The court reasoned that bandhs impose a form of coercion that infringes on the fundamental rights of others, particularly the right to free movement and the right to conduct business.
5. James Martin v. State of Kerala (2004): The Supreme Court reiterated the need for the state to curb bandhs and held that the state is responsible for maintaining public order during such events. The court also emphasised that those organising bandhs could be held liable for damages caused to public and private property.

Legislative Efforts and Guidelines

In response to the growing concerns over the disruptive nature of bandhs and hartals, various legislative and judicial measures have been proposed and implemented:

Justice K. T. Thomas Committee and Fali S. Nariman Committee Reports: Following the In Re: Destruction of Public & Private Properties v. State of A.P. case, the Supreme Court set up two committees to formulate guidelines to prevent damage to public and private property during protests. The recommendations included:

• Imposing strict liability on organisers for damages caused during protests.
• Videographing protests to identify offenders.
• Modifying existing laws to hold leaders of organisations accountable for damages.
• Creating a rebuttable presumption of guilt against those accused of causing damage during protests.

Kerala Regulation of Hartal Bill, 2015: This draft bill criminalises the enforcement of hartals through force or intimidation and requires organisers to seek permission from authorities before calling for a hartal. It also mandates organisers to deposit security for compensation for any damage caused during the protest.

Prevention of Damage to Public Property (Amendment) Bill, 2015: The Central Government introduced this bill to incorporate the guidelines suggested by the Justice Thomas and Nariman Committees. The bill aims to impose stricter penalties and make organisers liable for damages during protests.

Conclusion

The right to strike, hartal and bandh represents the delicate balance between the fundamental rights of individuals to express dissent and the state’s responsibility to maintain public order and protect the rights of others. While the Indian Constitution provides for freedom of speech, expression and association, these rights are not absolute and are subject to reasonable restrictions.