Hartal and Bandh

In one line

A political party may ask the country to stop work; it may not shut the country down, because the day it shuts down is a day on which nobody else can trade, travel, study or reach a hospital.

In the wording a student can write in an exam: in Bharat Kumar K. Palicha v. State of Kerala a Division Bench of the High Court of Kerala declared, under article 226, that "the calling for a bundh by any association, organisation or political party and the enforcing of that call by it is illegal and unconstitutional", because a bundh carries an express or implied threat which prevents other citizens from exercising the rights guaranteed to them by articles 19 and 21. A general strike or a hartal, unaccompanied by a threat of violence to enforce it, remains lawful. That decision was affirmed on appeal by the Supreme Court.

Why the law has this at all

Part III is addressed to the State. A political party is not the State, and on the ordinary reading a citizen has no fundamental right against it. That is the subject of [Why the Definition of "State" Decides Everything].

A called bandh exposes the gap in that arrangement. Nobody is arrested, no statute is passed, no officer gives an order. A private organisation announces that on Tuesday the State will be closed, and on Tuesday it is: shops shut, buses off the road, patients unable to reach a doctor. The citizen has lost the use of articles 19 and 21 for a day, and on the vertical reading of Part III he has lost it to nobody the Constitution recognises.

The question this chapter answers is what a court does about that. The answer is the emerging regime the syllabus label points at: a right of the ordinary citizen not to have his freedoms extinguished by private power, enforced through article 226 against the State that failed to protect him and by a declaration binding the organisers.

What a bandh is

The Kerala Court began with the word, and so should an answer. "'Bundh' is a Hindi word meaning 'closed' or 'locked'." The expression therefore conveys "that everything is to be blocked or closed", and the organisers "clearly express their intention that they expect all activities to come to a standstill on the day of the bundh".

That is what separates it from the two things students confuse it with. A hartal is a call to close voluntarily, historically as a mark of protest or mourning. A general strike is a withdrawal of labour by workers. Each is a call to those who choose to answer it. A bandh is a call addressed to everybody, including those who want no part of it, and the Court held that the call itself carries a threat: "the call for a bundh implies a threat to the citizen that any failure on his part to honor the call, would result in either injury to person or injury to property". Even without an express threat, "there is clearly a menacing psychological fear instilled into the citizen by a call for a bundh which precludes him from enjoying his fundamental freedoms".