-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION [P.I.L.] NO. 2827 OF 2003 1. B.G.Deshmukh, of Mumbai Indian Inhabitant residing at 41, Buena Vista, General J. Bhosle Marg Mumbai 400 021. 2. Alyque Padamsee, of Mumbai Indian Inhabitant, residing at Christmas Bldy. 3rd Flr., Flat H Westfield Estate Warden Road, Mumbai 400 026 3. Julio Ribeiro, of Mumbai, Indian Inhabitant, residing at 51, Sagar Tarang, Khan Abdul Gaffar Khan Road, Worli Seaface, Mumbai 400 025. 4. Gerson Da Cunha, of Mumbai Indian Inhabitant, residing at 10, Fairlawn, 28 Maharishi Karve Road, Mumbai 400 020. 5.Vinod Kumar, residing at Roshan Nagar, Behram Baug Jogeshwari, Mumbai. 6. Ayub Khan, residing at Mohili Village, Saki Naka, Andheri East, Mumbai. 7.Sabit Ali, residing at A 303 Leela Sagar, Yari Road, Versova, Andheri West, Mumbai 400 061. 8.Sanser Singh, residing at Marol Maroshi Raod, Lok Bharati Complex, Andheri Easwt,Mumbai 400 059 ..Petitioners -2- VERSUS 1.The State of Maharashtra 2.The Director General of Police for the State of Maharashtra, having his office at Maharashtra State Police Head Quarters,Shahid Bhagat Sing Marg, Old Council Hall, Mumbai 400 039. 3.The Commissioner of Police for Greater Mumbai, having his office at Opp.Crawford Market, D.N.Road, Mumbai 400 001 4.The Shiv Sena Party having its office at Shiv Sena Bhavan, Gadkari Chowk, Dadar, Mumbai 400 028. 5.The Bharatiya Janata Party having its office at C.D.O.Barrack No.1, Jeevan Beema Marg, Nariman Point, Mumbai 400 020 ....Respondents. Mr Aspi Chinoy, Senior Counsel with Mr. Janak Dwarkadas, Senior Counsel, Mr. Shiraz Rustomjee, Mr.Jamshed Mistry and Mr. Rahul Dwarkadas instructed by M/s Wadia Gandhy and co for petitioners Mr.V.A.Thorat, Advocate General with Mr.Niranjan Pandit, Asst.Govt. Pleader,for respondent nos.l to 3 Mr S.L.Sanghi, Senior Counsel with Mr. A.J.Rana, Senior Counsel, Balkrishna Joshi, Ms Bharti Mahant and Ms Pushpa Diwan for respondent no.4 Mr. Bal Apte, Senior Counsel with Mr Sanjeev Kanchan, Mr. Subhash Jha and Mr. Gaurav Agarwal for respondent no.5 CORAM: A.P.SHAH Acg C.J.& CORAM: A.P.SHAH Acg C.J.& CORAM: A.P.SHAH Acg C.J.& -3- S.U KAMDAR J. S.U KAMDAR J. S.U KAMDAR J. Dated 23rd July.2004 Dated 23rd July.2004 Dated 23rd July.2004 ORAL JUDGMENT:(Per A.P.Shah Acg C.J.) ORAL JUDGMENT:(Per A.P.Shah Acg C.J.) ORAL JUDGMENT:(Per A.P.Shah Acg C.J.) 1. In this writ petition, the petitioners have prayed for issuance of a writ, order or direction directing the two political parties namely Shiv Sena and Bharatiya Janata Party, who have been impleaded as respondent nos. 4 and 5, to pay damages /compensation to the petitioners and other citizens of Mumbai through a ‘bandh loss compensation fund’ for having called for and enforced the ‘bandh’/forcible closure of Mumbai city on 30th July 2003 and having thus flagrantly violated their fundamental rights and freedom, commensurate with the loss caused to the city and its residents and citizens by their wrongful, illegal and unconstitutional acts. The petitioners have also prayed for issuance of a writ, order or direction to the State, Director General of Police and Commissioner of Police - respondent nos. l to 3 to arrest and prosecute those involved in rail and rasta rokos designed to forcibly stop free movement of road traffic and local trains and assaults on busses, trains, private cars of citizens, and leaders at whose direction and instance such wrongful acts were carried out, and to take steps in future to prevent such wrongful -4- interference with the constitutionally guaranteed fundamental rights of the citizens by ensuring that no political party or group can by force or intimidation stop or interfere with the road and rail traffic or the free movement of the citizens throughout Mumbai. 2. According to the petitioners the Supreme Court by its judgment delivered in the case of Communist Party of India (M) vs Bharat Kumar reported in AIR l998 SC l84, upheld the decision of the Full Bench of Kerala High Court in Bharat Kumar K. Palicha vs State of Kerala reported in AIR l997 Kerala 29l, that the organizing of a ‘bandh’ by a political party or other organizations, which has the effect of closing down all activities in a city or State by the threat of violence or by actual violence directed both against public and private property and against the vast majority who wish to exercise their right to work, trade, travel or study, violates the fundamental rights of the citizens of the city/State which are guaranteed by Articles l9 and 2l of the Constitution of India. Pursuant to these judgments the petitioner nos.l to 4 had earlier filed Writ Petition No.25l4 of 2000 where they had joined along with respondent nos.l to 3 -5- various political parties including respondent nos. 4 and 5, and had sought orders preventing holding of bandhs in general. The Division Bench comprising of the learned the Chief Justice B. P. Singh ( as His Lordship then was) and V.K.Tahilramani J. by its judgment dated 4th July 200l directed the respondents to act in accordance with the judgment and order of the Supreme Court with regard to the action that must be taken by the State Government when call for a ‘bandh’ is made and to take necessary action in accordance therewith. The petitioners complain that notwithstanding the judgment of the Supreme Court of India and of this Court, on 29th July 2003 the respondent nos. 4 and 5 called for and organized the ‘Mumbai bandh’ on 30th July 2003, stated to be in consequence of the bomb blast at Ghatkopar. The petitioners have alleged that the ‘Mumbai bandh’ call given on 29th July 2003 was followed by the leaders of respondent no. 4 and 5 issuing statements containing direct threats and also veiled hints that violence would follow if the citizens did not listen to them and support the call for ‘Mumbai bandh’. It is further alleged that the activists and members of respondent nos. 4 and 5 with the intent of enforcing the ‘Mumbai -6- bandh’ and forcing the closure of activity and movement in the city, carried on rail and rasta rokos at numerous places, prevented the movement of local trains, BEST buses and private vehicles. They also threatened and assaulted those citizens and used violence, who attempted to travel to work and by such threats and use of violence they succeeded in forcibly closing down almost all industrial and commercial and other activities and travel in the city of Mumbai. The petitioners contend that the police force under the control of respondent nos.l to 3 also failed to take appropriate and effective steps to stop and disperse such activities. No steps were taken to arrest, detain or prosecute those who were stopping busses,trains and private vehicles and assaulting the private citizens, who had attempted to venture out, notwithstanding the threat and intimidation. 3. The petitioners claim that as a consequence of the ‘bandh’, industrial and commercial activity in the city of Mumbai was almost crippled and the taxis and rikshaws were forced to stay off the road till 6 p.m. and the BEST busses and local trains were running only skeleton service and the railway authorities were forced to cancel scheduled -7- service. The petitioners further claim that the organized sector of Mumbai has daily G.D.P. ( on value added basis) of approximately Rs.200 crores and Rs.l00 crores in unorganized sector. This is distinct from daily turnover of both sectors which would be much larger. According to the petitioners even on the basis of a conservative estimate, enforcement of ‘bandh’ has resulted in loss of more than Rs.50 crores to the citizens of Mumbai. The petitioners have, therefore, prayed for a direction to respondent nos. 4 and 5 to pay damages/compensation in the sum of Rs.50 crores or such sum as may be fixed by this Court for violation of constitutional rights of the petitioners and other citizens of Mumbai. The petitioners have further prayed that a Special Fund be constituted named as "The 30th July, 2003 Bandh Loss Compensation Fund" and thereafter claims be invited from all citizens, who have suffered losses as a consequence of the enforced closure/bandh on 30th July 2003 and on satisfactory material being produced by them in support of the claim, the amount may be paid over to such affected and aggrieved citizens from the said fund and any unclaimed amount in the said fund be utilized for -8- providing facilities/ benefits/ additional services to the affected citizens of Mumbai. 4. The State, in its counter, in addition to denying the allegation of the Police inaction during the ‘Mumbai bandh’, contended that there were some stray incidents of rasta and rail rokos at various places where the movements of busses, local trains and private vehicles were prevented and obstructed but whenever such incidents were noticed and brought to the notice of the Police, necessary action, including arrest of those involved, has been taken. The Police took all efforts to ensure that there is no interference in road and rail traffic and that the vehicles are not disrupted on the date the ‘bandh’ was called. It was contended that it is the primary duty as well as concern of the Police to try and maintain peace and prevent any law and order situation to arise. The entire problem required tactful and mature handling of the situation as well as of the mob psychology, as the primary concern is to keep and maintain peace and to prevent a law and order problem arising or worsening. It was contended that making of arrest of leaders would be to play into the hands of those leaders, resulting in -9- eruption of unnecessary and continued violence and agitation, as has been seen in the past all over Mumbai. It was contended that many people did not come out of the residences, either due to fear or due to support of the ‘bandh’, which was called to protest against the bomb blast. In either case, there is nothing that Police can do and no matter whatever steps the Government and the Police take, the element of fear is inherent in the minds of public and nothing can change that. This is the reason why the establishments were closed and the Police are in no way responsible for the same. It was contended that when directions have already been given in Writ Petition No. 25l4 of 2000 and the State has followed these direction and taken appropriate steps,there is no reason why any further directions are required to be given in the present case. 5. The Shiv Sena and Bharatiya Janata Party have also filed counter affidavits. In addition to questioning the entitlement of the petitioners to invoke jurisdiction of this Court under Article 226 of the Constitution and finding fault with the nature of the reliefs prayed for in the petition, essential contention raised is that hartal/strike -10- and bandh are always recognized as a peaceful protest, resentment and expression of feelings of the people against the act or omission or dereliction of duty on the part of the authorities and it forms part of their fundamental right of freedom of expression guaranteed by Article l9(l)(a) of the Constitution. There is no basic difference between a call for ‘hartal’ or ‘strike‘ and a call for bandh. The holding of Mumbai bandh was spontaneous expression of protest against bomb blast at Ghatkopar in which four persons were killed and many others were injured.It was contended that there was no direct threat of any violence or consequence given if the citizens did not support the ‘bandh’. The ’bandh’ was by and large peaceful and there was no violation of any fundamental rights of the citizens of Mumbai.According to these respondents the industrial and commercial houses voluntarily supported the bandh in order to deprecate the terrorist activities. Majority of the taxi and rikshaw unions are controlled by the Shiv Sena and Bharatiya Janata Party and they joined the ‘bandh’ voluntarily. The call for ‘bandh’ received spontaneous support from all quarters including muslim organizations to deprecate the act of -11- terrorism. It was in protest against what respondent nos. 4 and 5 considerd inaction of the Union Government and the State Government against the repeated acts of terrorism, as a political movement, the call was given to the residents of Mumbai to abstain from work which in common parlance is described as ‘bandh’. As is inevitable in such situation, various leaders of political parties do lead procession , which is their constitutional right and at times take steps of democratic protest which may interfere with movement of traffic particularly transport which belongs to Government. Nevertheless it is only a form of protest directed against the Government which is the fundamental right of political parties guaranteed under the Constitution of India. It was vehemently denied that the ‘bandh’ has resulted in any loss to the citizens of Mumbai. It was contended that the figures given by the petitioners are highly exaggerated and the petitioners be put to the strict proof of the alleged loss caused to the citizens. In any event the prayer for compensation cannot be invoked in writ jurisdiction under Article 226 of the Constitution and the same requires to be dealt with in appropriate proceedings and such disputed issues cannot be -12- determined in writ jurisdiction. 6. In the affidavit in rejoinder the petitioners reiterated that as a consequence of enforced bandh by respondent nos. 4 and 5, rail and rasta rokos and violence and intimidation, city of Mumbai was almost totally crippled on 30th July 2003. In the guise of handling the situation ‘tactfully’ police have virtually allowed the activists and members of respondent nos. 4 and 5 to intimidate and coerce l5 million inhabitants of the city to stop their normal activity and to stay at home. The police authorities cannot plead helplessness in dispelling the ‘fear’ felt by the citizens which is the key element in calling for and enforcing bandhs. It was contended that attempt to portray wrongful and unconstitutional bandh of 30th July 2003 as a mere peaceful call/appeal to abstain from travel or going to work is also belied by the material placed on record which unmistakably shows the violent, coercive, and intimidatory nature of the bandh called and enforced by respondent nos. 4 and 5. 7. Before proceeding to consider various issues raised before us, it is necessary to understand what is a ‘bandh’. ‘Bandh’ is a Hindi word meaning -13- "closed" or "locked". The expression thus conveys an idea that everything is to be locked or closed. Therefore when the organizers of bandh, call for a bandh, they clearly express their intention that they expect all activities to come to a stand still on the date of the bandh. Thus giving a call for a bandh is qualitatively different than giving a call for strike or hartal and is clearly intended to close down all travel, commercial and industrial activity in a city/State by threats of violence or actual violence directed against those who dare to venture out despite the threats and intimidating statements made by organizers of the bandh. The Supreme Court in the case of Bharat Kumar (supra) has specifically approved the distinction drawn by the Full Bench of the Kerala High Court between a ‘bandh’ and calling for a ‘general strike’ or ‘hartal’ with reference to the effect of a bandh on the fundamental rights of the citizens and has further held that "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 bandh which interferes with the exercise of fundamental freedoms of other citizens, in order to causing national loss in many ways". The relevant observations of the Full Bench read as under: -14- "....A call for a bandh is obviously distinct and different from the call for a general strike or the call for a hartal. The intention of the callers of the "bandh" is to ensure that no activity either public or private is carried on that day, is also clear from their further statements sometimes made that the newspapers, hospitals and the milk supply are excluded from the bandh. This clarification obviously implies that otherwise the intention is that those service are also to be affected. If the intention is to prevent the milk supply, prevent the distribution of the newspapers, prevent people going to the hospitals for treatment, prevent the people from traveling and to generally prevent them from attending to their work either in service of the State or in their own interest, that obviously means that it amounts to a negation of the rights of the citizens to enjoy their natural rights , their fundamental freedoms and the exercise of their fundamental rights. It is no doubt true that while calling for a bandh it is -15- not also announced that any citizen not participating in the bundh will be physically prevented or attacked. But experience has shown that when any attempt is made either to ply vehicles on the day of the bandh or to attend to one’s own work, or to open one’s shop to carry on trade, it has resulted in the concerned person being threatened with consequences if he took out his vehicle, if he went for his work or if he kept his shop open. The leaders of the political parties who call for the bandh cannot escape by saying that they are not directly telling the citizens not to do these things under threat but if some of the participants in the bandh indulge in such activities,they cannot be held responsible. Obviously, they can with reasonable intelligence foresee the consequences of their action in calling for the bandh. Nor can they pretend that the consequences that arise out of the calling for a bandh, is too remote or does not have reasonable proximity to the call they have made. Learned counsel appearing for the political parties contended that this court cannot take note -16- of what actually happens when a bandh is called, but this court can only go by the call for the bandh itself which does not involve the call for violence or forceful prevention of people from going bout their avocation. We do not think that we would be justified in adopting such an ostrich like policy. We cannot ignore the reality of what is involved when a bandh is called". "....The counter affidavit filed by the State itself has revealed that more often than not the call for a bandh is accompanied by violence and forceful preventing of persons from attending to their avocations. Moreover, a bandh involves the stopping of all transport systems in the State preventing the common man from even going to the hospital in an emergency so as to bring succour to a citizen who has been taken seriously ill. Thus, on the materials made available and taking judicial notice of what generally happens in a bandh, which has resulted even in the working of the High Court being totally disrupted by counsel not being in a position to attend to the court -17- we are inclined to understand the concept of a bandh as one where people are expected not to attend to their work or to travel for any purposes nor to carry on their trades with a threat held out either express or implied that any attempt to go against the call for the bandh would result in danger to life and property. Even if there is no express or implied threat of physical violence to those who are not in sympathy with the bandh, there is clearly a menacing psychological fear instilled into the citizen by a call for a bandh which precludes him from enjoying his fundamental freedoms or exercising his fundamental rights. We are therefore not inclined to accept the contention of the political parties and the learned Advocate General that the calling for a bandh does not involve the holding out of any threat express or implied to the citizens not to carry on his activities or to practise his avocation on the day of the bandh. We are inclined to the view that the call for a bandh implies a threat to the citizens that any failure on his part to honour the call, would result in either -18- injury to person or injury to property and involves preventing a citizen by instilling into him the psychological fear that if he defies the call for the bandh, he will be dealt with by those who are allegedly, supporters of the bandh". (Emphasis supplied) 8. The Full Bench of Kerala High Court has expressly held that calling for and enforcing a bandh amounts to violation of fundamental rights of the citizens to move freely throughout the territories of India and practise any profession or to carry on any occupation, trade or business and that there is also violation of Article 2l of the Constitution, in that there is deprivation of personal liberty and even threat to life without any procedure in that behalf being established by law. It was also held that political parties and organisations have no fundamental right to call for and enforce bandh and such political parties and organisations are liable to compensate the Goverment, public and private citizens for the loss caused by such bandhs. The observations of the Full Bench in paras l2,l3, l7 and l8 which were -19- specifically approved by the Supreme Court read as under: "l2. It is true that there is no legislative definition of the expression ‘bandh such a definition could not be tested in the crucible of constitutionality. But does the absence of a definition deprive the citizen of a right to approach this court to seek relief against the bandh if he is able to establish before the court that his fundamental rights are curtailed or destroyed by the calling of and the holding of a bandh? When Art l9(l) of the Constitution guarantees to a citizen the fundamental rights referred to therein and when Art 2l confers a right on any person not necessarily a citizen not to be deprived of his life or personal liberty except according to procedure established by law, would it be proper for the court to throw up its hands in despair on the ground that in the absence of any law curtailing such rights,it cannot test the constitutionality of the action? We think not. When properly understood, the calling of a bandh entails -20- the restriction of the free movement of the citizen an his right to carry on his avocation and if the Legislature does not make any law either prohibiting it or curtailing it or regulating it, we think that it is the duty of the court to step into the protect of the rights of the citizen so as to ensure that the freedoms available to him are not curtailed by any person or any political organizations. The way in this respect to the way has been shown by the Supreme Court in Bandhua Mukti Morcha vs Union of India, AIR l984 SC 802". l3.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 bundhs. It is contended that the court cannot presume or generalize that the calling of a bandh always entails actual violence or the threat of violence in not participating in or acquiescing in the bandh. The decision in Kameshwar Prasad vs State of Bihar, AIR l962 SC ll66 is referred to in that context. This theoretical aspect -21- 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