Bandhs/Road/Rail Blockades Illegal and Unconstitutional: Gauhati HC

The Gauhati High Court has held that road and rail blockades are variants of bandh, and thus are illegal and unconstitutional.

Justice Ujjal Bhuyan also observed that the organiser or organisers of such bandh or blockade, at least the principal office bearers of such organiser(s), would be liable to be prosecuted under various provisions of the Indian Penal Code, 1860, National Highways Act, 1956 and the Railways Act, 1989.

While considering a writ petition filed by Lower Assam Inter District Stage Carriage Bus Owner's Association, the court observed that road blockades and rail blockades have paralysed the state on numerous occasions, having a deleterious effect on the people, besides causing immense loss to the economy. Terming them as an 'endemic problem', the judge observed: "The phenomenon called bandh has become an endemic problem in the state. As a matter of fact, such bandhs were called and enforced in different parts of the country causing severe inconvenience to the public besides loss of life and property. At one point of time, it appeared that there was decrease in the call for bandhs in the state, but again it has become a regular phenomenon."

The court also referred to judgments of Kerala High Court on Bandhs, (Bharat Kumar-vs-State of Kerala, James Martin-vs-State of Kerala etc.), which were later upheld by the Supreme Court. It also refers to Bombay and Meghalaya High Court judgments on the subject.

The court further observed: "Thus from the above, it is evidently clear that bandh is illegal and unconstitutional. This is the law declared by the Supreme Court of India. Not only that, Supreme Court has declared that no organisation has any right to call for and enforce bandh. If a person comes forward and claims to have suffered loss to life and property, the organisers of the bandh would be held responsible, and they would be liable to pay compensation. If the state fails to prevent such bandh because of which a person suffers loss, the damages can be recouped from the state."

The court noted that till date, no legislative or executive measures have been taken to give effect to the law declared by the Supreme Court. It also recollected that the advocate general, Assam had submitted before the Division Bench that the state government was about to introduce the Assam Prohibition and Prevention of Bandh Bill, 2017 in the Legislative Assembly. Though more than a year has gone by since then, the required legislation is nowhere in place, the court said.

It added: "Thus, it is evident that the state government is in no hurry to enact a law or to bring in a legislation to give effect to the law laid down by the Supreme Court though submission was made before this Court that an improved draft of the Assam Prohibition and Prevention of Bandh Bill, 2017, had been prepared and was in the process of being enacted into a legislation.”

“In the meanwhile, the general public continue to suffer the depredations of the bandh organizers so much so that even doctors attending to their duties have not been spared. Without expressing any opinion on the raison d'etre for calling bandhs, it has to be mentioned that State of Assam has witnessed a spurt in such bandhs and blockades in recent times causing enormous loss to the citizens and the government alike if the assessment of loss on account of bandhs made by the government for the year 2014 is taken as the yardstick. State cannot remain a mute spectator to such blatant violation of the law laid down by the Supreme Court."

The court also added that the organizer or organizers of such bandh or road/rail blockade, at least the principal office bearers of such organiser(s), would be liable to be prosecuted under various provisions of the Indian Penal Code, 1860, National Highways Act, 1956 and the Railways Act, 1989. The bench issued these guidelines:

1. Road blockades and rail blockades are nothing but variants of bandh; therefore, those are also illegal and unconstitutional.
2. If any organization calls for an Assam bandh or state-wide road blockade/rail blockade and enforces the same, first information shall be lodged by the Commissioner of Police, Guwahati city or by any of his subordinate officer whom he may authorize before the Panbazar Police Station within 24 hours of such bandh/blockade, whereafter written information shall be furnished by the Commissioner of Police, Guwahati city to the Commissioner and Secretary to the Government of Assam, Home and Political Department within 3 to 7 days of lodging of first information with case details.
3. In case of a district bandh or a bandh covering more than one district or a local bandh or a blockade of either road or rail of similar nature, the jurisdictional Superintendent of Police shall lodge first information before the competent police station within 24 hours of such bandh or blockade, whereafter the said Superintendent of Police shall inform the Commissioner and Secretary to the Government of Assam, Home and Political Department about lodging of first information with case details within 3 to 7 days of lodging of first information.
4. Investigating Officers in all such cases shall carry out investigation expeditiously and file charge-sheets before the competent criminal court promptly so that the offenders can be tried in a fast track mode.
5. Assam Police Accountability Commission shall monitor filing of first information and registration of cases as per direction Nos. 2, 3 and 4 above. In case of any default or nonseriousness in complying with the above directions, appropriate action may be taken by the Assam Police Accountability Commission in accordance with law. In addition, Assam Police Accountability Commission shall submit monitoring report to the Registrar (Judicial), Gauhati High Court, Guwahati once every three months.
6. Commissioner and Secretary to the Government of Assam in the Home and Political Department, within 7 days of receipt of information as per direction Nos. 2 and 3 above, shall file contempt petition(s) against the organizers and the main office bearers of such organizations calling bandhs and blockades before this Court, wherein particulars of criminal cases registered against the organizers shall be furnished.
7. If there is any default in carrying out direction Nos. 2, 3, 4 and 6 above, that would be treated as dereliction of duty by the concerned authority, who would, thereafter, be liable to face departmental action, besides exposing themselves to committing contempt of court.
8. Registrar (Judicial), Gauhati High Court, Guwahati shall maintain a record of monitoring reports submitted by Assam Police Accountability Commission. On receipt of each report, he shall examine whether any related contempt petition has been filed in terms of direction No. 6 above, if the occasion had so arisen. If no such contempt petition has been filed, he shall register a contempt case against the organizers and persons concerned which may include the Commissioner and Secretary to the Government of Assam in the Home and Political Department for failure to take steps in terms of direction No. 6.
9. Government of Assam in the Home and Political Department shall make an assessment of loss caused to the State on account of bandh or blockade, be it state-wise or district-wise or locality wise, which shall be recoverable from the organizers and main office bearers of such bandh or blockade as arrears of land revenue.
10. Government of Assam in the Home and Political Department shall constitute a Bandh Loss Compensation Fund within a period of 3 (three) months from today, which will be managed by an authority headed by a retired District and Sessions Judge and which may include one Administrative Officer, retired or serving. The authority may take assistance of an assessor or a valuer while examining or assessing claim for compensation.
11. The quantum of loss recovered under direction No. 9 shall be deposited by the Government of Assam in the Home and Political Department into the Bandh Loss Compensation Fund.
12. All claims for compensation for loss to person or property because of bandh and blockade shall be decided by the authority of the Bandh Loss Compensation Fund by evolving its own procedure, which should however ensure quick settlement of such claims. Claims can be lodged by private individuals, both private and public bodies, juristic persons etc.
13. Claim of the petitioner shall be placed before the Bandh Loss Compensation Fund immediately on its constitution, whereafter the same shall be decided by the authority of the fund in accordance with law.

 The bench said that these guidelines and would hold the field till enactment of appropriate legislation by the State.

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