India is a live democracy, and it is the duty of every live democracy to encourage protest in all its forms. Tragically for India, the Supreme Court has declared the right to strike and to hold a bandh unconstitutional.

The abolition of the right to a bandh owes its origins to a suspect decision of a Kerala Full Bench of 1997, which plays with words to say that, “political parties may call for a general strike or hartal unaccompanied by express or implied threats of violence to enforce it”, but “no political party has the right to call for a bandh on the plea that it is a part of the fundamental right of freedom of speech and expression”. And even though no law prohibited bandhs, it declared them unconstitutional. Astoundingly, the Supreme Court in 1998, in a mere one-paragraph order (as opposed to a judgment), adopted the Kerala bandh decision, which is now law. Never in the history of the Supreme Court has a judgment of such import been pronounced in so facile a way.

What, then, is a bandh? How is it to be distinguished from a hartal or a general strike? Is it the measure of coercion and violence or is it the national loss? Unfortunately, we don’t really know. In the Congress Party decision (2002), the Supreme Court made it clear that calling a bandh was not a ground for the Election Commission to de-register a party. But can a court do so?

The Kerala High Court was unable to identify any provisions which would criminalise or ban bandhs. To impinge on the free speech associated with bandhs, there should be two important constitutional limitations. First, there must be a law that prohibits bandhs. Second, the law must be a reasonable restriction in the interests of security and public order amongst others. At present, there is no law that prohibits bandhs. One is forced to ask: On what basis is a bandh prohibited? Only the legislature can prohibit bandhs. It is outside the province of the Supreme Court. Justice Balasubramanyan’s judgment in Kerala and Justice Verma’s adoption of it in the Supreme Court in outlawing bandhs at the threshold are fundamentally flawed. Faulty cases give rise to faulty laws leading to flawed controversies.

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