Madhya Pradesh High Court
Dr. P.G. Najpande vs State Of Madhya Pradesh And Ors. on 7 December, 2007
Equivalent citations: AIR2008MP55, AIR 2008 MADHYA PRADESH 55, 2008 (2) ABR (NOC) 330 (MP), 2008 (1) AJHAR (NOC) 275 (MP), 2008 (2) AKAR (NOC) 255 (MP)
Author: Dipak Misra
Bench: Dipak Misra, R.K. Gupta
JUDGMENT Dipak Misra, J.
1. The petitioner, a septuagenarian, as pro bono publico has preferred this writ petition on the substratum that he is a retired Professor and has been actively involved in social services for past several years and also is the President of Nagrik Upbhogta Sanrakshan Manch, Jabalpur which has been taking up issues on behalf of the general public.
2. It is asseverated in the petition that 'Chakkajam' is a method of protest which is adopted by many a political party for various and manifold issues. Because of the aforesaid remonstrance, the major roads of the city especially the crossings are completely blocked for hours together and the demonstrations held by the protestants make life standstill and everything comes to stillstand. It is asserted in the petition that patients who are in critical condition and require immediate medical treatment are not permitted to approach hospitals, school and college going are facing immense difficulty and are not in a position to attend their schools and colleges and to get back to their homes. In essentiality, it is urged that the protestation by way of 'Chakkajam' brings life to complete stillness and affects and impinges upon the fundamental rights of the citizens to move freely on the roads. It is contended that no individual, group or political party has the unfettered and unbridled right to constrict or restrict or bulldoze such fundamental rights of a citizen. The State Government has the sacrosanct obligation to make every possible endeavour to prohibit such entrenchment and encroachment upon the fundamental rights of the citizens. It is set forth that 'Chakkajam' has become so rampant in Madhya Pradesh that in Jabalpur district alone there have been 36 'Chakkajam1 in the month of September, 2007. Despite representations being submitted to the authorities who have the duty to maintain law and order, no steps have been taken and the prayer has fallen in deaf ears. It is averred that the political parties have been continuously holding 'Chakkajam' across the length and breadth of State of Madhya Pradesh having no regard for massive public inconvenience caused to the citizens at large. It is the specific case of the petitioner that there is newspaper report dated 3-12-2007, Annexure-P3, that there will be 'Chakkajam' between 10.00 a.m. to 12 noon throughout the State. It is put forth that if 'Chakkajam' are permitted to be held then it would cause unprecedented inconvenience to the public at large in the entire State and it will send a message that anyone is free to take law unto their own hands and arrest the free movements of the citizens. It is urged that the persons from every walk of like would suffer whether they are students, workers, patients, professionals, etc. In this background a prayer has been made to declare all 'Chakkajams' being organized by various political parties in the State or any other protesting individuals or groups are completely illegal and the State Government should be commanded to prohibit such 'Chakkajam'.
3. We have heard Mr. Anshuman Singh, learned Counsel for the petitioner and Mr. Deepak Awasthy, learned Government Advocate for the respondents on the question of grant of interim relief. Mr. Anshuman Singh, learned Counsel has commended us to the decisions rendered in Communist Party of India (M) v. Bharat Kumar , James Martin v. State of Kerala and T.K. Rangarajan v. Government of T.N. .
4. In Bharat Kumar AIR 1998 SC 184 (supra) a three-Judge Bench of the Apex Court in paragraph 3 expressed the opinion as under:
3. On a perusal of the impugned judgment of the High Court, referring to which learned Counsel for the appellant pointed out certain portions, particularly in paras 13 and 18 including the operative part in support of their submissions, we find that the judgment does not call for any interference. We are satisfied that the distinction drawn by the High Court between a "Bandh" and a call for general strike or "Hartal" is well made out with reference to the effect of a 'Bandh" on the fundamental rights of other citizens. There cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people. It is on the basis of this distinction that the High Court has rightly concluded that there cannot be any right to call or enforce a "Bandh" which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways. We may also add that the reasoning given by the High Court, particularly those in paragraphs 12, 13 and 17 for the ultimate conclusion and directions in paragraph 18 is correct with which we are in agreement. We may also observe that the High Court has drawn a very appropriate distinction between a "Bandh" on the one hand and a call for general strike or "Hartal" on the other. We are in agreement with the view taken by the High Court.
5. At this juncture, it is appropriate to refer to the Full Bench judgment of the Kerala High Court in Bharat Kumar K. Palicha v. State of Kerala, wherein the Full Bench in paragraphs 13 and 17 has held as under:
13. It is argued on behalf of the respondents that a bandh could be peaceful or violent and even if the Court were to act, it could act only to curtail violent bandhs and not peaceful bandhs. It is contended that the Court cannot presume or generalise that the calling of a bandh always entails actual violence or that the threat of violence in not participating in or acquiescing in the bandh. The decision in Karneshwar Prasad v. State of Bihar is referred to in that, context. This theoretical aspects expounded by counsel for the respondents does not appeal to us especially since as understood In our country and certainly in our State, the calling for a bandh is clearly different from a call for a general strike or a hartal. We have already noticed that a call for a bandh holds out a warning to the citizen that if he were to go out for his work or to open his shop, he would be prevented and his attempt to take his vehicle on to the road will also be dealt with. It is true that theoretically it is for the State to control any possible violence or to ensure that a bandh is not accompanied by violence. But our present set up, the reluctance and sometimes the political subservience of the law-enforcing agencies and the absence of political will exhibited by those in power at the relevant time, has really led to a situation where there is no effective attempt made by the law-enforcing agencies either to prevent violence or to ensure that those citizens who do not want to participate in the bandh are given the opportunity to exercise their right to work, their right to trade or their right to study. We cannot also ignore the increasing frequency in the calling, holding and enforcing of the bandhs in the State and the destruction of public and private property. In the face of this reality, we think that when we consider the impact of a bandh on the freedom of a citizen, we are not merely theorising but are only taking note of what happens around us when a bandh is called and a citizen attempts either to defy it or seeks to ignore it. We are not in a position to agree with counsel for the respondents that there are no sufficient allegations either in O.P. 7551 of 1994 or in O.P. 12469 of 1995 which would enable us to come to such a conclusion. In fact, the uncontroverted allegations in O. P. 12469 of 1995 are specific and are also supported by some newspaper clippings which though could not be relied on as primary material, could be taken note of as supporting material for the allegations in the Original Petition.
17. No political party or organisation can claim that it is entitled to paralyse the industry and commerce in the entire State or Nation and is entitled to prevent the citizens not in sympathy with its view point, from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the Nation. Such a claim would be unreasonable and could not be accepted as a legitimate exercise of a fundamental right by a political party or those comprising it. The claim for relief by the petitioners in these Original Petitions will have to be considered in this background.
6. In the case of James Martin (supra) a two-Judge Bench of the Apex Court has expressed its anguish about the inconvenience caused due to 'Bandh' or strike. We think it apposite to reproduce the same:
19. Before we part with the case it needs to be noted that in the name of hartal or bandh or strike no person has any right to cause inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty, property of any citizen or destruction of life and property, and the least any Government or public property. It is high time that the authorities concerned take serious note of this requirement while dealing with those who destroy public property in the name of strike, hartal or bandh. Those who at times may have even genuine demands to make should not loose sight of the overall situation eluding control and reaching unmanageable bounds endangering life, liberty and property of citizens and public, enabling anti-social forces to gain control resulting In all around destruction with counter productive results at the expense of public: order and public peace. No person has any right to destroy another's property in the guise of bandh or hartal or strike, irrespective of the proclaimed reasonableness of the cause or the question whether there is or was any legal sanction for the same. The case at hand is one which led to the destruction of property and loss of lives, because of irresponsible and illegal acts of some in the name of bandh or hartal or strike. Unless those who organize can be confident of enforcing effective control over any possible turn of events, they should think twice to hazard themselves into such risk prone ventures endangering public peace and public order. The question whether bandh or hartal or strike has any legal sanctity is of little consequence in such matters. 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 opponents. Unless such acts are controlled with iron hands, innocent citizens are bound to suffer and they shall be the victims of the high-handed acts of some fanatics with queer notions of democracy and freedom of speech or association. That provides for no licence to take law into their own hands. Any soft or lenient approach for such offenders would be an affront to rule of law and challenge to public order and peace.
7. In T.K. Rangarajan AIR 2003 SC 3032 (supra) a two-Judge Bench of the Apex Court while dealing with the provisions of rights of the Government employees to go on strike expressed its opinion that there is no legal or statutory right to go on strike and that there is no moral or equitable justification to go on strike. We are conscious that the said decision was rendered in the context of Government employees but it has its own signification.
8. In Ex-Capt. Harish Uppal v. Union of India the Constitution Bench has held that the lawyers have no right to go on strike or give a call for boycott and they cannot even go on a token strike. The Constitution Bench has specifically observed that for just or unjust cause, strike cannot be justified in the present day situation.
9. Recently, a Division Bench of this Court in the case of Medha Patkar v. State of Madhya Pradesh 2007 (4) MPHT 219 speaking through Chief Justice has opined thus:
22. Under Article 19(1)(a) of the Constitution, all citizens shall have the fundamental right of freedom of speech and expression and under Article 19(1)(b) of the Constitution they have the fundamental right to freedom to assemble peaceably and without arms. When a group of citizens, therefore, assemble and shout slogans making some demands they exercise their fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(b) of the Constitution. This will be clear from the decision of the Supreme Court in Kameshwar Prasad v. State of Bihar in which the Constitution Bench held that the right to make a demonstration is covered by either or both of the two freedoms guaranteed by Article 19(1)(a) and 19(1)(b) of the Constitution....
10. The Division Bench in the said case in paragraph 23 further expressed thus:
23. The fundamental right of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution, however, is not an absolute right and under Clause (2) of Article 19 of the Constitution, the State can make a law imposing reasonable restrictions on the exercise of this right in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to Contempt of Court, defamation or incitement to an offence. Similarly, the fundamental right to freedom to assemble peaceably and without arms guaranteed under Article 19(1)(b) of the Constitution is not an absolute right and under Clause (3) of Article 19 of the Constitution, the State can make a law imposing in the interests of sovereignty and integrity of India or public order, reasonable restrictions on the exercise of this right. Thus, on both the fundamental rights to freedom of speech and expression guaranteed under Article 19(1)(a) and to freedom to assemble peaceably and without arms guaranteed under Article 19(1)(b), the State can make law imposing reasonable restrictions in the interest of public order.
11. It should be borne in mind that in the name of demonstration or protestation, the life in a civilized society cannot be paralyzed, in the name of legitimate exercise of ones right to protest the fundamental right of others cannot be scuttled. In a democratic polity the fundamental right of each citizen is sacrosanct. The collective cannot destroy the same. No one, however big he may be should foster a misgiving that he can create a tremor in the fundamental rights of others and tremble the spine of the members of the society at large by forming a group or a political party. The splendor of right to move the glory to live with dignity by carrying out a lawful profession or calling cannot be abridged in the name of mass protest or mass demonstration. The collective protest cannot be allowed to take the shape of collective passion to project a fractured mind thereby creating a dent in the concept of 'Rule of law' and bringing in a concavity in the constitutional philosophy which sings the song of highly cherished fundamental rights of millions of people. Be it noted the rights of others cannot be crucified at the fanciful pedestal of a group or a party and by no stretch of imagination it can be guillotined in a cavalier fashion from any pupil. The law of this country does not so countenance.
12. The great society gets further nurtured and fostered by the high ideals of Rule of Law'. The essentiality of' Rule of Law' cannot be allowed to be sent to the sky in a huge balloon to burst. The serenity of body polity cannot be permitted to be destroyed in the name of political pulse making a citizen 'A traveler betwixt the life and death'. The law should be allowed to reign supreme with the splendid vision, in its glorious resplendence.
13. In view of the aforesaid pronouncement of law in the field and regard being had to the conceptual essentiality and connotative expanse of Articles 19 and 21 of the Constitution of India, we are disposed to issues following directions as an interim measure and accordingly we so direct:
(a) The proposed agitation/protest by way of' Chakkajam' on 8-12-2007 would not restrict or constrict the movements of any citizen to any place.
b) It shall not create any obstruction on roads or cause any kind of impediment in the movements of traffic,
c) None of the agitators or protesters will force anyone from carrying out their profession, trade or calling,
d) The protestants or any one shall not cause any hindrance in the movement of any individual in the name of 'Chakkajam'.
e) The protesters, if they intend to show their protestation, may agitate their grievance in a peaceable and peaceful manner without indulging in any kind of violence,
f) The protesters are prohibited to create any noise pollution as the same is prohibited in law.
g) No protester or dissenter would indulge in any kind of activity which would ensue in a law and order situation and usher in a state of anarchy,
h) The respondents shall ensure that the aforesaid directions are complied with in letter and spirit failing which they will be liable for contempt of this Court.
Registrar (Judicial) is directed to send a copy of this order to the Chief Secretary of the State of Madhya Pradesh by FAX to do the needful.