Can We Defend Bandhs? No. Can We Regulate Them? Yes.

      Like elections, an event that everyone in town knows happening is a bandh.  A good number of bandhs are a near-total shut down with all shops closed in town.  Their success is guaranteed if major political parties are behind the bandh call.

     Last September States of Karnataka and Tamil Nadu witnessed well-enforced bandhs over the issue of sharing of Cauvery water, and Andhra Pradesh went through one because the Centre had not granted ‘special category status’ to that State.  Kerala experienced a full-scale bandh this month to protest the murder of an activist of a political party.  During the bandh days, obviously traders in the four States were affected, and the public too had their enormous woes.  

       Can  bandhs   be  justified  as  a  means  of  voicing  a concern publicly or a condemnation loudly?  There is an argument that bandhs, or hartals, and fasting are methods of public protest that Mahatma Gandhi had espoused powerfully against the then rulers, and hence they have a sanctity and utility in the post-independent democratic India.  Let us have a look.

       Hartal in  the  hands  of  Gandhiji  was  a  different weapon - a creative and constructive one.  But in the hands of today's politicians, bandhs are instruments of causing misery for traders and common people.  Gandhiji was fighting the British, an alien power that had colonised India.  He could not go to the courts, in India or in England, to make the British quit.  As all know, the great leader did not use threat or force on traders to shut down.  Traders voluntarily responded to Gandhiji's call and participated in hartals. He had captivated Indians, including industrialists, by the force of his personality and through a righteous and noble cause.  Anyone else would have found it too daunting to make the traders and people rally behind him on a hartal call.  Gandhiji was unique.

      We also know that it is by sheer threats, direct and indirect, that a bandh is enforced today – more surely when a ruling party is behind a call for a bandh.  In that case, if various traders' associations do not message their members to shut down as resolved by their governing bodies, then traders may face harassment from government agencies for even minor or technical violations of regulatory laws.  So, when a ruling party favours a bandh, traders do not question the governing bodies of their associations about any call for a bandh issued by those bodies. That is why we see a near-total shut down during such a bandh.  Some State may have a tradition of bandhs fostered by all political parties, and there traders readily respond to a bandh call given by any political party in that State rather than risk facing arsonists and an indulging police administration.  So a present-day bandh is different from a hartal enacted on a call given by Gandhiji, when traders willingly participated on a large scale.  If at all, government agencies of those days might have harassed traders for joining in a hartal - which perhaps traders did not mind or the British government did not do.

       Fasting was another method of protest Gandhiji employed.  If he fasted for a public cause, Indians felt guilty and rallied behind him even more.  But today's political leaders know they have not won such hearty admiration from the public, and people know it too.  So, at the present time, if a political leader goes on a fast that will not evoke any greater sympathy or support among people than what he or she already has. That is why there is much less of fasting by political leaders today.  Further, the Mahatma fasted for days and days, but our political leaders cannot do it for more than twelve hours or so, which millions of poor Indians do on many days due to poverty and penury.  Hence a miniature fast by a political leader has no attraction or effect, except getting a mention in print and electronic media.  But then if a present-day political leader wants to fast, let him do it.  That is not objectionable like calling for a bandh. 

      A fasting political leader does not compel shop keepers, auto rickshaw drivers, hoteliers and common people to do the same.  When he fasts, no one else is inconvenienced, and others are not harassed.   Here it is only the fasting leader who must suffer a tiny bit, at the most for twelve hours – and for still less time if he has a secret breakfast before going on a fast.  But during a bandh he does not suffer in any way, and it is the innocent public who are forced to take the beating and feel the pangs. So, as a means of protest, fasting is different from a bandh and is harmless.

       A  bandh  announced or  supported by a political leader and enforced by anyone with threats and rampage would also infringe on the Constitution-given fundamental rights of traders and of the general public.  Since bandhs are mostly enforced illegally with force and threats, violating the fundamental rights of traders and lakhs and lakhs of the general public, law itself may prevent any sort of compulsion on anyone when bandhs are called.  How?

-  An empowered body with a name like “Bandh Regulating Committee” should be created for each district in India.  The Chief Electoral Officer for the State, the District Collector of that district and the Superintendent of Police for that district could be members of the Committee.

-   Any group or political party that intends to call for a bandh on a particular date in a district should give prior notice of its intention to the appropriate Committee at lease fourteen days in advance.  Four days before the date of the proposed bandh, the Committee should take a poll by secret ballot among traders and shop-keepers, through electronic voting, to find out if they are “for” are “against” the bandh.  Those who do not vote shall be considered voting against the bandh.

-  If at least 75% of the number of traders and shop-keepers in the district vote in favour of the proposed bandh, it will be allowed.  If not, that bandh shall not be allowed to take place.

-  No one may give a bandh notice to the Committee for fun.  So, it should be a rule that any person who files a prior notice with the Committee for a bandh should also submit simultaneously forms of support signed by 5% of the number of traders and shop keepers in the district who would be for the bandh.  Seven days before the date of the proposed bandh, the Committee shall take a poll by secret ballot among these 5% of the voters, through electronic voting.  If at least 4% among them vote in favour of the bandh, then polling will be held for the remaining traders and shop-keepers in the district.  If there is no such 4% qualifying support, there will not be any second-stage polling in the district, and the proposed bandh cannot be held.

-  Any bandh held in this manner can last for only four hours in a day, from 2 p.m. to 6 p.m.  Since a bandh is just a symbolic show of support, and is not an instrument of harassment of people, a display of support for four hours will do.  Hospitals, medical shops, hotels and all transport services shall always remain exempt from bandhs.

-  When a bandh is permitted, it will still be open to every trader and shop-keeper to decide if he likes to join the bandh or not.  The reason is, a bandh affects the fundamental rights of every trader and shop-keeper, and they cannot be taken away from him even with his consent. 

       India’s  Supreme Court may itself devise the foregoing rules – with any modification it thinks fit, such as who will be members of a Bandh Regulating Committee or in what manner the approval or disapproval of traders and shop-keepers for a bandh may be recorded and known – in a public interest litigation, and issue directions which will be binding on everyone.

       Yes, if the Supreme Court issues directions on these lines, or in any modified form, they may not be implementable without a hitch or with 100% success.  Now there is no law regulating bandhs, and it is a free for all.  Every political party wants to be seen as supporting some bandh or the other, and it does not wish to leave that space to other parties.  But if Supreme Court's directions regulate bandhs, then all parties will have some comfort in complying with those directions, because other parties cannot steal a march over an abstaining party.  Also, if a political party disobeys a Supreme Court direction and calls for a bandh without the needed support of traders and shop-keepers in the district, the top leaders of the party may have to answer a charge of contempt.

       In one or two instances, if a political party or other group gets scarce support among traders and shop-keepers for a proposed bandh, it will not like to expose its unpopularity next time. True, we have to devise ways of taking the votes of traders and shop-keepers, enlisting them for voting, etc.  But traders will co-operate in this rather than yield to bandh calls.  They can rely on Supreme Court’s directions for having to co-operate, and political parties cannot complain.

       As we know, many crimes occur despite a law banning it. Recently when the law made the punishment stiffer for the offence of rape, that has also not stopped the offenders.  Still we should have the law.  Likewise, we should make a beginning in regulating the menace of bandhs, as best as we can, rather than not do anything.  We cannot expect the legislature to pass a law on this.  Since the fundamental rights of traders and the general public are affected by bandhs, and since people have a weak voice in our democracy, the Supreme Court may intervene and issue directions.  Just as that Court did for dealing with sexual harassment of women in workplaces and for regulating BCCI’s cricket administration.  Bandhs affect millions more, and more severely.

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Copyright © R. Veera Raghavan 2016