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.

Unfortunately, the Supreme Court has been very retrogressive on the questions of strikes, demonstrations and bandhs. In the Tamil Nadu Services Case (2003) and the Uppal decision (2003), civil servants and lawyers were denied the right to strike. In another Kerala case (2004), the Supreme Court laid down that hartals, bandhs and strikes could not cause inconvenience to others or risk their life, liberty or property, including government or public property. This issue is pending in the Gurjjar matter before the Supreme Court.

A time honoured way is not to ban any form of non-coercive protest but simply subject it to ‘time and place’ constraints, but the constraints must not swallow up the right while respecting those of others.

The DMK bandh was an involuted form of protest. It is not very different from bandhs called by other political parties. Tested on the Kerala judgment, it would be difficult to distinguish it from a hartal or a general strike. Karunanidhi claimed that as a DMK leader, he was on hunger strike, but as chief minister, his administration did its best. What is he guilty of? The mere calling of a bandh (which he claims he didn’t) should not be held unconstitutional. The mere fact that it may cause inconvenience (to borrow the SC’s phrase) is not enough. Basic public services pertaining to health and the supply of goods must be maintained. But, a bandh must be respected as a form of social and political expression in a live democracy. It may be expensive to do so. But democracy does not come cheap.

Most political parties believe that there is a right to call a bandh, but are stultified by the courts’ bandh decisions, which are unprincipled and, in the case of the Supreme Court, unreasoned. The DMK bandh was complicated by political grounds. BJP opposed it on Ram Setu grounds. The Congress, was silent. The people of Tamil Nadu had a long weekend. No serious violence was reported.

The SC’s words in the DMK case on bandhs had an excessive quality to them. It decreed what it could not enforce totally. Its warning seemed inappropriate.

Over the years, president’s rule has been recognised as a subversive mini-emergency. To suggest that the court might declare a constitutional breakdown to invite president’s rule is not only predatory of the government’s power but a threat to constitutional wisdom. It is not for the Supreme Court to enter the political domain in this way. The words were orally expressed. But the gospel according to the Supreme Court is much too influential not to be menacing. For the Court to threaten use of its contempt powers is no solution.

The chief minister was on hunger strike (which is acceptable). His administration claims to have done whatever it could. Where do we go from here? The Supreme Court should have a serious look at its law of bandhs. It is intrinsically unconstitutional even though declared by the Supreme Court.

The writer is a senior lawyer