Report of the Task Force on Bandh

Government of Assam vide Notification No PLA.550/2012/72 dated 04.12.12 and no PLA.550/2012/124 dated 08.1.13. set up a Task Force to explore feasibility of bringing a suitable legislation to control and regulate ‗Bandhs‘ in light of the order passed by Hon‘ble Supreme Court of India and High Courts declaring calling and enforcing a Bandh as unconstitutional. The Task Force had the following members:

1. Shri J. Chakravarty, IPS, ADGP, BI(EO), Assam 2. Dr. K. K. Dwivedi, IAS, Commissioner, P&RD, Assam 3. Shri Anurag Agarwal, IPS, DIGP, CID, Assam 4. Shri Nitin Khade, IAS, Joint Secretary, Home, Assam 5. Mrs M. Begum, Deputy Secretary, Legislative Department, Govt. of Assam.

The terms of reference of the Task Force were as follows:-

(a) To study the feasibility of bringing a suitable legislation to control and regulate Bandhs in Assam and modalities of setting up ―Bandh Loss Compensation Fund‖ as done in other states including Maharashtra. (b) To undertake brain storming discussion and study tours to the states of Maharashtra, Kerala, Madhya Pradesh and Bihar. (c) Any other relevant issue found noteworthy by the Task Force.

The Task Force set about its task by making an extensive study of the Judgments pronounced by the Supreme Court of India and by the High Courts of Kerala and Bombay on issues relating to Bandhs, Hartals and damage caused to life and property as a consequence of enforcement of Bandhs or Hartals or caused by unlawful assemblies. The Task Force also studied the existing provisions of Criminal Major Acts, Special Acts and Local State Acts dealing with such situations. The Task Force interacted formally and informally with a number of senior police and administrative service officers to ascertain their views and also took opinion of legal experts.

The Task Force also undertook study tours of Kerala and Maharashtra and held discussion with officials of the departments of Home and Law of the two states and also interacted with field officers at all levels to understand how various orders have been implemented and what new legislation or procedures have been made or framed to deal effectively with Bandhs and related issues. The Task Force collected copies of a number of State Acts, Government orders, notifications laying down procedures and also collected copies of new Acts and amendments made to existing Acts.

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After thorough analysis of the material and extensive deliberation held by the members of the Task Force on various issues, the Task Force endeavoured to pick up provisions and procedures which appeared to be legally the soundest and also effective. The Task Force found it feasible to bring a comprehensive legislation to deal with Bandhs and related issues. Specific recommendations of the Task Force are presented towards the end of this report.

As a matter of fact, under clause (c) of the Terms of Reference of the Task force, the Task Force in its report has recommended comprehensive provisions to deal not only with ‗Bandh‘ but also to deal with other forms of agitation such as Hartals, Strikes, Blockades, Demonstration etc. and also provisions to deal with damage to life and property. It will be pertinent to mention here that in the 1997 Kerala High Court judgement a distinction was made between ‗Bandh‘ and ‗Hartal‘ which was also approved/upheld by the Supreme Court. Calling for a ‗Bandh‘ was held as illegal and unconstitutional but not ‗Hartal‘ per se. During the tour to Kerala, the Task Force found that various organisations have been trying to get around the legal liability by simply changing the nomenclature from Bandh to Hartal, where the Hartal that is called for has more or less the same characteristics that Bandh has. There is, however, a case in point where the Tamil Nadu High Court held that on a particular occasion a ‗Hartal‘ was actually to be treated as a ‗Bandh‘. This view was also later confirmed by the Supreme Court vide (2009) 5 SCC 452. The Task Force felt that since terms such as ‗Bandh‘ or ‗Hartal‘ do not have any legal definitions, deeper principles of law should be invoked to comprehensively bring under the ambit of the new legislation any such activity, by whatever name it may be called, that impinges on the fundamental rights of the public at large.

Another important recommendation is to put private property on the same footing as public property whenever property is damaged in connection with enforcement of a Bandh or in connection with any rioting etc. The Prevention of Damage to Public Property Act is not applicable in the case of damage caused to private property. A person who opposes the call for the Bandh often suffers damage to his private property which does not get covered by insurance either. This, according to the Task Force is one of the two prime reasons why a ‗Bandh‘ call is often ‗successful‘ even though people at large do not support the ‗cause‘ for which the Bandh is called. The other prime reason of course is fear of personal injury or hurt. The Task Force found sufficient legal basis to put private property in the same category as public property. Two important legislations where the distinction has been dropped are the amended Bombay Police Act, 1951 and the Tamil Nadu Property (Prevention of Damage and loss) Act, 1992.

The Assam Scenario:

The State of Assam has perennially been affected by ―Bandhs‖, which in various forms became the most used or abused mode of displaying opposition to or of voicing protest

Page 2 of 41 against any policy of the Government, or against any action taken by the government, or against the occurrence of an incident, or to mount pressure on the Government to meet various demands. It always was a popular perception that calling for or observing a ―Bandh‖ was a legitimate way of registering protest in a democratic set up. In Assam, Bandhs became rampant during the Assam agitation between the years 1979 to 1983 and later during the Bodoland movement in the years 1988-90. In later years, in addition to major student organisations and political parties, several militant groups and quasi-political organisations have also joined in giving Bandh calls in support of their various demands.

The number of Bandhs that have been called in the state during a particular year depends on many contemporary economic- socio-cultural-political issues and also on the real or perceived sense of injustice allegedly done in respect of various ethnic, religious or linguistic communities. Increased number of Bandhs not only indicates a worsening state of the law and order, but also causes severe damage to the economy of the state. It was found that during the year 2012, ―Assam Bandh‖ was called on as many as 52 occasions. There were numerous other local Bandhs called in various parts of the state. An indicative list or organisations that have called for Bandh in recent years is given below:

1. Communist Party of India 2. Bharatiya Janata Party 3. All Assam Students Union. 4. All Koch Rajbanshi Students Union. 5. All Assam Minority Students Union. 6. All Bodo Students Union. 7. All Tiwa Students Union 8. All Tea Tribe Students Association 9. All Adivasi Students Association of Assam 10. Krishok Mukti Sangram Sammittee 11. Sanjukta Surakhya Bahini Asom. 12. Tai Ahom Yuba Fedaration. 13. Vishwa Hindu Parishad 14. Trade Union of India 15. Asom Jatiatabadi Yuba Chatra Parishad 16. Peoples Joint Action Committee of Bodoland Movement 17. Asom Miya Parishad 18. Bajrangdal 19. Rastriya Swayam Sevak Sangha 20. People joint Actions Committee 21. Anushushita Jati Janajati Sangha 22. Yuba Chatra Parishad 23. United Liberation front of Assam 24. National Democratic Front of Bodoland

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25. United People‘s Democratic Front. 26. Autonomous State Demand Committee 27. Karbi People‘s Liberation Tigers 28. Karbi Students Association. 29. Bokajan State Demand Committee

Calling of ―Bandh‖ by unlawful organisations or underground militant organisations is also very common in Assam. The Task Force members deliberated at length on the issue of controlling Bandh calls given by banned organisations. Field officers with whom the Task Force interacted had diverse views on the issue. One view was that some restriction should be imposed on media on publication of news items in respect of ―Bandhs‖ called by unlawful association or organisation. The other view, however, was that the proposed new legislation is not a tool to deal with terrorist groups. Any measure meant to be used against under-ground organisations or terrorist organisations, it is felt, ought to be brought in under the Unlawful Activities (Prevention) Act.

It was in the year 1997 that a High Court of the country univocally declared that calling for a Bandh was illegal and unconstitutional. The Supreme Court of India upheld the decision. Later, several other High Courts have made important pronouncements on a number of issues relating to Bandhs. The principles on the basis of which these judgements were pronounced are best explained by excerpts taken from the judgements themselves.

Excerpts from AIR 1997 Kerala 291: Bharat Kumar K. Palicha .. vs State Of Kerala And Ors. on 28 July, 1997

Para2. According to the petitioners, calling for a bundh entails exhortation to violence and physically restraining others who are citizens of the country and hence it is an illegal activity and cannot he supported as a fundamental right of freedom of speech and expression or of assembling peaceably and without arms, protected by Article 19(1) (a) and (b) of the Constitution. The petitioners further complain that by the calling of the bundh and the holding of it citizens are prevented from attending to their avocations and the traders are prevented from keeping open their shops or from carrying on their business activities. It is also contended that the workers are prevented from attending to work in the factories and other manufacturing establishments leading to loss in production leading to national loss, his also contended that with a view to purvey terror, the organisers of the bundh also indulge in wanton acts of vandalism like destruction of Government property and transport vehicles and even private cars and two wheelers. These illegal acts cannot be recognised as part of the right of any person protected by Article 19(1) of the Constitution. It is also contended that the right of the political parties, if any to hold demonstration or to show protest, cannot extend to preventing the citizens of the country from exercising their fundamental rights of

Page 4 of 41 attending to their business, their studies and their avocations and in such a context, the calling for and the holding of 'bundhs' ought to be declared illegal. It is complained that neither the Slate nor the police force takes steps to prevent violence and to prevent coercion so that whenever a bundh is called, a citizen out of fear for his life and his property, is forced to remain indoors. No person has a right to prevent a citizen from going to the hospital or from seeking medical aid and no person or organisation has a right to prevent the doctors from attending to their duties by attending on their patients and those who come to them for emergency treatment. The right to go to the railway station, the aerodrome and to the bus terminal could not be prevented in the guise of a protest at the instance of some of the political organisations and when such prevention is achieved by threat, sometimes naked and visible und sometimes by psychological means and by the stalking menace, the same has to be prevented. Since the Stale and its machinery has failed the citizen by doing nothing to ensure that he is enabled to enjoy his fundamental freedom and his fundamental rights, the petitioners are compelled to approach this Court by invoking its jurisdiction under Article 226 of 'the Constitution. The petitioners-submit that the Court in exercise of its jurisdiction under Article 226 of the Constitution has not only the right but the duty to protect the citizen and his fundamental rights and fundamental freedoms guaranteed to him under Articles 19 and 21 of 'the Constitution. The Court is reminded that though it cannot direct the Legislature to legislate or the executive to introduce a legislation, it has the duty to direct the executive to ensure that the rights of the citizens are not trampled upon by a political organisation or a violent minority and in that context, to issue any appropriate direction that may be required in the circumstances of the case.…..

Para 7. Before proceeding to consider the constitutional issues sought to be projected before us. we think that it is necessary to understand what is a 'bundh'. 'Bundh' is a Hindi word meaning 'closed" or 'locked'. The expression therefore conveys an idea that everything is to be blocked or closed. Therefore, when the organisers of a bundh call for a bundh they clearly express their intention that they expect all activities to come to a standstill on the day of the bundh. A call for a bundh 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 bundh 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 is excluded from the bundh. This clarification obviously implies that otherwise the intention is that those services are also to be affected- If the intention is to prevent the milk supply, prevent the distribution of 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 bundh it is 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 bundh or to attend to one's own work, or to open one's shop

Page 5 of 41 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 bundh 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 bundh indulge in such activities, they cannot be held responsible. Obviously, they can with reasonable intelligence foresee the consequences of the or action in calling for the bundh. Nor can they pretend that the consequences that arise out of the calling for a bundh 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 of what actually happens when a bundh is called, hut this Court can only go by the call for the bundh itself which does not involve the call for violence or forceful prevention of people from going about 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 bundh is called.

Para 12. It is true that there is no legislative definition of the expression 'bundh' and 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 bundh 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 bundh? When Article 19(1) of the Constitution guarantees to a citizen the fundamental rights referred to therein and when Article 21 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 culling of a bundh entails the restriction of the free movement of the citizen and 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 protect the rights of the citizen so as leisure that the freedoms available to him are not curtailed by any person or any political organisation. The way in this respect to the Courts has been shown by the Supreme Court in Bundhua Mukti Morchu v. Union of India, AIR 1984 SC 802.

Para 13. It is argued on behalf of the respondents that a bundh could he peaceful or violent and even if the Court were to act, it could act only to curtail violent hundhs and not peaceful bundhs. It is contended that the Court cannot presume or generalise that the calling of a bundh always entails actual violence or the threat of violence in not participating in or acquiescing in the bundh. The decision in Kameshwar Prasad v. State of Bihar. AIR 1962 SC 1166 is referred to in that context. This theoretical aspect expounded by counsel for the respondents does not appeal to us especially since as understood in our country and certainly in our Slate, the calling for a bundh is clearly different from a call for a general strike or a hartal. We have already noticed that a call for a bundh holds out a warning to the citizen that if he were to go for his work or to

Page 6 of 41 open his shop he would be prevented and his attempt to take his vehicle on to the road will also be dealt with. It is true that theoretically it is for the State to control any possible violence or to ensure that a bundh is not accompanied by violence. But our present set up the reluctance and sometimes the political subservience of the law- enforcing agencies and the absence of political Will exhibited by those in power at the relevant time, has really led to a situation where there is no effective attempt made by the law-enforcing agencies either to prevent violence or to ensure that those citizens who do not want to participate in the bundh are given the opportunity to exercise their right to work, their right to trade or their right to study. We cannot also ignore the increasing frequency in the calling holding and enforcing of the bundhs in the State and the destruction of public and private property. In the face of this reality, we think that when we consider the impact of a bundh on the freedom of a citizen we are not merely theorising but arc only taking note of what happens around us when a bundh is called and a citizen attempts either to defy it or seeks to ignore it. We are not in a position to agree with counsel for the respondents that there are no sufficient allegations either in O.P. 7551 of 1994 orin O.P. 12469 of 1995 which would enable us to come to such a conclusion. In fact, the uncontroverted allegations in O.P. 12469 of 1995 are specific and arc also supported by some newspaper clippings which though could not be relied on as primary material, could be taken note of as supporting material for the allegations in the Original Petition.

Para 17. No political party or organisation can claim that it is entitled to paralyse the industry and commerce in the entire State or Nation and is entitled to prevent the 'citizens not in sympathy with its view point, from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the Nation. Such a claim would be unreasonable and could not be accepted as a legitimate exercise of a fundamental right by a political party or those comprising it. The claim for relief by the petitioners in these Original Petitions will have to be considered in this background.

Para 18. The contention that no relief can be grained against the political parties in these proceedings under Article 226 of the Constitution cannot be accepted in is entirely. As indicated already this Court has ample jurisdiction to grant a declaratory relief to the petitioners in the presence of the political party respondents. This is all the more so since the case of the petitioners is based on their fundamental rights guaranteed by the Constitution. The Slate has not taken any steps to control or regulate the bundhs. The stand adopted by the Advocate-General is Unit the Court cannot compel the State or the Legislature to issue orders or make law in that regard. As we find that organised bodies or Associations or registered political parties, by their act of calling and holding bundhs trample upon the rights of the citizens of the country protected by the Constitution, we are of the view that this Court has sufficient jurisdiction to declare that the calling of a bundh" and the holding of it is unconstitutional especially since, it is undoubted, that the holding of 'bundhs are not in the interest of the Nation, but tend to retard the progress of the Nation by leading to

Page 7 of 41 national loss of production. We cannot also ignore the destruction of public and private properly when a bundh is enforced by the political parties or other organisations. We are inclined to the view that the political parties and the organisations which call for such bundhs and enforce them are really liable to compensate the Government, the public and the private citizen for the loss suffered by them for such destruction. The State cannot shirk its responsibility of taking steps to recoup and of recouping the loss from the sponsors and organisers of such bundhs. We think that these aspects justify our intervention under Article 226 of the Constitution.

In view of our discussion above, we allow these Original Petit ions to the extent of declaring 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. We direct the State and its officials., including the law enforcement agencies, to do all that is necessary to give effect to this declaration.

Excerpts from Communist Party of India (M) vs Bharat Kumar and others: (1998) 1 SCC 201:

On a perusal of the impugned judgement of the High Court, referring to which learned counsel for the appellant pointed out certain portions, particularly in paras 13 and 18 including the operative part in support of their submissions, we find that the judgement does not call for any interference. We are satisfied that the distinction drawn by the High Court between a “Bandh” and a call for general strike or “Hartal” is well made out with reference to the effect of a “Bandh” on the fundamental rights of other citizens. There cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people. 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 a “Bandh” which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways. We may also add that the reasoning given by the High Court , particularly those in paragraphs 12,13 and 17 for the ultimate conclusion and directions in paragraph 18 is correct with which we are in agreement. We may also observe that the High Court has drawn a very appropriate distinction between a “ Bandh” on the one hand and a call for general strike or “Hartal” on the other. We are in agreement with the view taken by the High court. The appeals are dismissed accordingly. No costs.

Excerpts from G Deshmukh and others vs State of Maharashtra: CDJ 2006 BHC 267:

Para1. 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

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“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.1 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, ad leaders at whose direction and instance such wrongful acts were carried out, and to take steps in future to prevent such wrongful 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 of the free movement of the citizens throughout Mumbai.

Para 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 1998 SC 184, upheld the decision of the Full Bench of Kerala High Court in Bharat Kumar K. Palicha vs. State of Kerala reported in AIR 1997 Kerala 291, 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 19 and 21 of the Constitution of India. Pursuant to these judgments the petitioner Nos.1 to 4 had earlier filed Writ Petition No.2514 of 2000 where they had joined along with respondent Nos.1 to 3 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 2001 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 an 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 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

Page 9 of 41 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.1 to 3 also failed to take appropriate and effective steps to stop and disperse such activities. No steps were taken to arrest, detail 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 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.100 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 amounts 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 providing facilities/benefits, additional services to the affected citizens of Mumbai.

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 practice any profession or to carry on any occupation, trade or business and that there is also violation of Article 21 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 organizations have no fundamental right to call for and enforce bandh and such political parties and organizations are liable to compensate the Government, public and private citizens for the loss caused by such bandhs. The observations of the Full Bench in paras 12, 13, 17 and 18 which were specifically approved by the Supreme Court read as under….:

Para26. Thus, to sum up, it is now well accepted position that monetary or peculiary compensation is appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental rights

Page 10 of 41 of the citizens. The claim for compensation for established infringement of the fundamental rights guaranteed under the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under legal system wherein their rights and interest shall be protected and preserved. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making “monetary amends‟ under the public law for the wrong done due to breach of public duty. The compensation is in the nature of “exemplary damages” awarded against the wrongdoers for violation of the fundamental rights and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in the court of competent jurisdiction and/or prosecute the offender under the penal law. Moreover, the court‟s power to award compensation is not restricted to the State and public functionaries and the award of compensation can be made even against private individuals for violating the fundamental rights guaranteed by the Constitution. Thus, in consumer Education Research vs. Union of India (supra) the Supreme Court directed private employers to pay compensation to the workers working in asbestos industries and held that the authorities and even private persons or individuals are bound by the directions issued by the Court. In Bodhi Satawa Gautam (supra) the Supreme Court invoked its power under art 32 to direct the accused to pay monthly compensation to a rape victim pending criminal trial. Similarly, in M.C. Mehta v. Kamal Nath (2000) 6 SCC the court direct M./s Span Motels which was found guilty of causing pollution to pay damages to those who have suffered loss on account of the act of the company. The Court observed in para 10 as follows:

“In the matter of enforcement of fundamental rights under Article 21 under public law domain, the court in exercise of its powers under Article 32 of the constitution has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment.

Para 32. We are of the view that this is high time that the authorities concerned should take a serious note of the consequences and apprehension of risk to life, liberty and property of the citizens in bandh‟ or coerced closure enforced by the political parties and organizations. Unless such acts are controlled with iron hand, innocent citizens are bound to suffer, and they shall be continued to be victimized by the parties and organizers who think that they have licence to take law into their hands. We are satisfied that the State authorities failed to deal with the organizers of the “bandh‟ with a firm hand. It is seen that in the guise of tactful and mature handling of the situation, the police failed to taken stern action against the organizers of Bandh and though some cases have been registered on account of incidents of rail rokos, rasta rokos and violence there is no further progress in the investigation, and all these cases have been kept in cold storage. On this background, we welcome the stand taken by the learned Page 11 of 41

Advocate General that the State must firmly deal with the political authorities or organizations calling such bandhs or hartals in the nature of bandh. In the result we dispose of this petition with the following declarations and directions:-

1) It is declared that the calling for and enforcing Mumbai bandh by the respondent Nos.4 and 5 on 30th July 2003 was unconstitutional and violative of the fundamental rights of the petitioners and other citizens of Mumbai guaranteed under Articles 19 and 21 of the Constitution: 2) The respondent Nos.4 and 5 are directed to deposit with the State Government the amount of compensation of Rs.20 lacs (Rupees Twenty Lacs only) each to the special fund to be created under the name “The 30th July 2003 Bandh Loss Compensation Fund” and this amount be utilized for providing facilities, benefits and additional services to the citizens of Mumbai; 3) It is declared that the enforcement of a „bandh‟ or a „hartal‟ would amount to an unconstitutional act, and any political party, organization, association, group or individual giving such call for bandh or hartal to force or intimidation or otherwise; 4) The concerned political party, organization, association, group or individual giving “bandh” call will be served with a notice under section 149 of the Criminal Procedure Code. In the notice, attention will be drawn to the judgments of the Supreme Court and this Court regarding illegality of “bandh‟. The notice will clearly state that such a political party, organization, association, group or individual will be liable for legal action and compensation for loss of life, injury or for loss of livelihood due to “bandh‟. 5) We direct the State, District Collectors and all other officers of the State to ensure: a) that no political party, organization, association, group or individual can, by organizing a “bandh‟, or by force or intimidation, stop or interfere with road and rail traffic or the free movement of citizens in city of Mumbai or State. b) To take all actions, including arrest, detention and prosecution against those who seek to enforce such “bandh” or “hartals‟ by organizing, leading or participating in rail and rasta rokos and assaults on trains, buses, other vehicles and private citizens. 6) The police shall take appropriate action against the person or persons involved in such “bandh‟ under provisions of the Indian Penal Code, Criminal Procedure code and Bombay Police Act, and submit action taken report in such cases to the Sessions Judge of the concerned District. 7) The general public shall be informed by issuing press note through print media and also through electronic media informing them about the preparations made by the police to deal with “bandh” and for making people secured. 8) A visible police presence shall be maintained throughout the city prior to the “bandh‟ in preference to other police duties. 9) A visible bandobast outside railway stations, bus depots, main roads, main junctions, hospitals, courts, schools and colleges will be maintained during “bundh”. 10) Wireless mobile patrolling, Beat Marshall Patrolling, fixed point bandobast shall be deployed to curb any on toward incident on “bandh” day. 11) Necessary protection to market and business places shall be given.

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12) There shall be video-recording so as to identify miscreants and to book them under law. 13. All police control rooms will be fully activated to follow up incident regarding “bandh‟. to take proper, stern and timely action. 14) The police shall complete the investigations in the various offences recorded on the “bandh‟ on 30th July 2003, and complete the investigations and file charge-sheets against the accused expeditiously. 15) The Chief Secretary of the Government Director-General of Police and all other officers to take all necessary steps to give effect to the above directions.

On the request made by learned counsel appearing for respondent Nos.4 and 5, the direction issued against respondent Nos.4 and 5 for deposit of damages is stayed for a period of eight weeks. All the concerned to act on copies of this judgment, duly authenticated by the Associate/Private Secretary.

Excerpts from 2011 (4) KHC 89, Kerala High Court: Hemanth Kumar and Others v. Sub Inspector of Police and Another

Facts of the case: Petitioners were accused of offences under S.143, S.147 and S.452 read with 149 of the Indian Penal Code and S.3(1) of the Prevention of Damages to Public Property Act. Petitioners were students from outside the school, accused of damaging furniture, computer etc. belonging to another school, in connection with a political strike by one of the students‟ union. They were in judicial custody. Petitioners have now approached the High Court with a petition for regular bail. Court held that destruction of public property is to be viewed very seriously. In cases under Prevention of Damages to Public Property Act, accused should be directed to deposit value of the property as a condition precedent while granting bail.

Held: Destruction of public property is to be viewed very seriously. Very often, under the guise of strikes, hartals and other political adventures, public properties are being destroyed unmindful of the consequences. Public property means the property belonging to the public. Every citizen has a right in the public property. It cannot be destroyed by anybody under the guise of strike or protest, whatever may be the reason for the strike or protest. Even if the strike or protest is for a genuine cause, nobody can say that destruction of public property would be part of that genuine cause. There can be no justification for destruction of public property, whatever may be the cause sought to be espoused for the same The allegation is that the petitioners destroyed the valuable articles available in the school, which are intended for the use of the students. It is stated that the petitioners are also students. If so, they must understand the value and utility of the articles and materials available in the school. The petitioners had no business to enter into the compound of the school where the offence was committed. Therefore, their alleged entry was illegal. Destruction of public property is to be viewed Page 13 of 41 very seriously. Very often, under the guise of strikes, hartals and other political adventures, public properties are being destroyed unmindful of the consequences. Public property means the property belonging to the public. Every citizen has a right in the public property. It cannot be destroyed by anybody under the guise of strike or protest, whatever may be the reason for the strike or protest. Even if the strike or protest is for a genuine cause, nobody can say that destruction of public property would be part of that genuine cause. There can be no justification for destruction of public property, whatever may be the cause sought to be espoused for the same.

8. I am of the view that in cases where public property is destroyed, the value of the same or even more should be directed to be deposited by the accused as a condition for granting bail to them. Otherwise, the loss sustained to the State would not be realised at all. Courts cannot be mute spectators to the wanton destruction of public property. Nobody should be allowed to destroy public property and claim success of the strikes on the basis of the quantum of loss sustained to the State. It is easy to destroy; but it is not so easy to make. 9. If the accused are found not guilty and they are accordingly acquitted, they would be entitled to get refund of the amount deposited by them. If the Court comes to the conclusion that the accused are liable to pay any fine, the amount in deposit can be utilised for payment of fine.

It is established now that calling for a “Bandh” is illegal and unconstitutional irrespective of whether the “Bandh” was observed with or without violence, and irrespective of whether the “cause” behind the “Bandh” was just or unjust. Calling for a “Bandh” has ceased to be a fundamental right or a legitimate democratic means of registering a protest. Yet, the import of the judicial pronouncements, it appears, has not sunk deep in the mind of the general public and the level of awareness is low.

The law, therefore, is that whenever an organisation gives a call for a ―Bandh‖, it acts in contravention of the Constitution of India. The Task Force has taken the view that when a particular act is illegal and unconstitutional, the State has the jurisdiction as well as a duty to make the said act into an offence by means of a suitable legislation. It may be mentioned that in none of the judgements has the court directed the state to pass a new Act or to make the calling for a Bandh a punishable offence. But that does not preclude fresh legislation by the state in order to protect and uphold the fundamental rights of the people.

Provisions under Existing Laws:

The Task Force made an exhaustive review of the provisions that exist under various Central and State Acts. A brief summary is presented below.

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(i) Indian Penal Code (IPC)

In a scenario where a ‗Bandh‘ is enforced on large sections of public with resultant violence, offences defined under the following sections of the Indian Penal Code are generally attracted.

Section 143. Punishment for being member of unlawful asswmbly: Whoever is a member of an unlawful assembly shall be punished with imprisonment of either description for a term which may extend to six month, or with fine, or with both. Punishment—Imprisonment for 6 months, or fine, or both—cognizable—Bailable— Triable by any Magistrate—Non-compoundable.

Section 144. Joining unlawful assembly armed with deadly weapon- Whoever, being armed with any deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable— Triable by any Magistrate—Non-compoundable.

Section 145. Joining or continuing in unlawful assembly, knowing it has been commanded to disperse. Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable— Triable by any Magistrate—Non-compoundable.

Section 147. Punishment for rioting Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable— Triable by any Magistrate—Non-compoundable.

Section 148. Rioting, armed with deadly weapon Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Punishment—Imprisonment for 3 years, or fine, or both—Cognizable—Bailable— Triable by Magistrate of the first class—Non-compoundable.

Section 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members or that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time

Page 15 of 41 of the committing of that offence, is a member of the same assembly, is guilty of that offence. Punishment—The same as for the offence—According as offence is cognizable or non- cognizable—According as offence is bailable or non-bailable—Triable by court by which the offence is triable—Non-compoundable.

Section 152. Punishment for assaulting or obstructing a public servant while supressing a riot: Punishment: Imprisonment up to three years and/or fine. The offence is Cognizable and Bailable.

Section 188. Disobedience to order duly promulgated by public servant Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance of injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Para I Punishment—Simple imprisonment for 1 month, or fine of 200 rupees, or both— Cognizable—Bailable—Triable by any Magistrate—Non-compoundable. Para II Punishment—Imprisonment for 6 months, or fine of 1,000 rupees, or both— Cognizable—Bailable—Triable by any Magistrate—Non-compoundable.

Section 336. Act endangering life or personal safety of others Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both. Punishment—Imprisonment for 3 months, or fine of 250 rupees, or both—Cognizable— Bailable—Triable by any Magistrate—Non-compoundable.

Section 341. Punishment for wrongful restraint Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term, which may extend to one month, or with fine which may extend to five hundred rupees, or with both.

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Punishment—Simple imprisonment for 1 month, or fine of 500 rupees, or both— Cognizable—Bailable—Triable by any Magistrate—Compoundable by the person restrained or confined.

Section 342. Punishment for wrongful Confinement Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Punishment—Imprisonment for 1 year, or fine of 1,000 rupees, or both—Cognizable— Bailable—Triable by any Magistrate—Compoundable by the person restrained or confined.

Section 352. Assault or criminal force otherwise than on grave provocation: Whoever assaults or uses criminal force to any person otherwise than on grave provocation ……shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may be extended to five hundred rupees, or with both. The offence is Non-cognizable and Bailable.

Section 353. Assault or criminal force to deter public servant from discharge of his duty Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Non-Bailable— Triable by any Magistrate—Non-compoundable.

Section 427. Mischief causing damage to the amount of fifty rupees Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable— Triable by any Magistrate—Compoundable by the person to whom the loss or damage is caused. Section 431. Mischief by injury to public road, bridge, river or channel: Punishment—Imprisonment up to 5 years, or fine, or both—Cognizable—Bailable— Triable by any Magistrate—Non-Compoundable.

Section 435. Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees

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Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards 1[or(where the property is agricultural produce) ten rupees or upwards], shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Punishment—Imprisonment up to 7 years and fine—Cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.

Section 436. Mischief by fire or explosive substance with intent to destroy house, etc. Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Punishment—Imprisonment for life, or imprisonment for 10 years and fine— Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.

Section 503/506. Criminal Intimidation: The offence is Cognizable and Bailable. Punishment: Imprisonment up to 2 years and/or fine, but up to 7 years if associated with a threat to cause death or grievous hurt or destruction of property etc. The offence has been made Non-bailable in Uttar Pradesh and Andhra Pradesh by State amendments.

In addition, offences of all kinds of hurt and culpable homicide may also take place.

It is seen that most of these offences are bailable. Offences other than those relating to rioting do not take into account the circumstances as to whether the offence was committed by an isolated individual or by or on behalf a large and powerful group of people that forms the organisation calling for the Bandh. To constitute an offence under the rioting section, it is necessary that five or more accused persons are physically present at the place of occurrence and participate in the crime with a common object. In a Bandh scenario there exists a fear psychosis playing on the mind of the public. Even though the actual number of persons enforcing the bandh at a particular place may be less than five, what weighs heavy in the mind of the public is the awareness that there is a very large and powerful group of people behind the few persons enforcing the Bandh. Thus the public gets intimidated even when the enforcers of the Bandh are few in number and are not resorting to explicit acts of violence. Therefore, an offence such as criminal intimidation, wrongful restraint, wrongful confinement, assault or mischief when committed during the course of observance or enforcement of a Bandh ought to be treated as an aggravated form of the offence committed by a single individual under ordinary circumstances. When supporters or organisers of the Bandh resort to violence, it became a highly organised

Page 18 of 41 crime and therefore special provisions are needed to deal with violent offences committed during the course of enforcement of the Bandh by organisers or supporters. Offences of rioting cannot entirely take care of Bandh related offences because five or more persons may not be physically present while a particular offence is committed. As an example, two members of a large and powerful organisation walking down a road calling upon shop-keepers to pull down their shutters will create almost the same effect as created by a large number of persons doing the same act. IPC has under Sections 152 and 353 an aggravated form of the offence of assault or use of criminal force when committed on a public servant on duty. The Task Force felt that an aggravated form of assault or use of criminal force should be incorporated in the proposed legislation when the offence is committed pursuant to enforcement of a Bandh.

The offence ‗Mischief with fire or explosives under section 435 is also bailable. Only the offence under section 436, which is attracted when mischief with fire or explosives is committed in respect of a dwelling house etc. is non-bailable.

(ii) The Prevention of Damage toPublic Property Act, 1984:

This special central Act is applicable in the case when public property is damaged. Important provisions of this Act are the following:

Section 3. Mischief causing damage to public property. – (1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine. (2) Whoever commits mischief by doing any act in respect of any public property being– (a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy ; (b) any oil installation ; (c) any sewage work ; (d) any mine or factory ; (e) any means of public transportation or of telecommunications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years, and with fine : Provided that the Court may, for reasons to be recorded in its judgement award a sentence of imprisonment for a term of less than six months.

4. Mischief causing damage to public property by fire or explosive substance – Whoever commits an offence under sub-section (1) or sub-section (2) of section 3 by fire or explosive substance shall be punished with rigorous imprisonment for a term which shall not be less than one year, but which may extend to ten years and with fine.

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Provided that the Court may, for special reasons to be recorded in its judgement award a sentence of imprisonment for a term of less than one year.

5. Special provisions regarding bail. – No person accused or convicted of an offence punishable under sec. 3 or sec. 4 shall, if in custody, be released on bail or on his own bond unless the prosecution has been given an opportunity to oppose the application for such release.

It is seen that offences under this Act are aggravated forms of the similar offences of mischief under IPC in that the punishment is harsher and that bail will not be given without an opportunity to prosecution to oppose bail. The Task Force during interactions with some senior field officers found that provision of this Act are not used much even in cases where they are applicable. The Task Force is of the view that where Bandh related violence is concerned, public property and private property ought to be put on the same footing and therefore a new legislation is required. The Prevention of Damage to Public Property Act, however, is applicable in situations of all kind. The Task force also felt that the provision of this Act regarding bail should also figure in the proposed Act.

(iii) Assam Maintenance of Public Order Act, 1947

Section 5. (1) If it appears to the State Government that the inhabitants of any area are concerned in or abetting the commission of offences prejudicially affecting the public safety or the maintenance of public order, or the maintenance of supplies or services necessary to the life of the community, or are harbouring persons concerned in the commission of such offences, or are failing to render all the assistance, in their power to discover or apprehend the offender or offenders are suppressing material evidence of the commission of such offences, the State Government may, by notification in the official Gazette, impose a collective fine on the inhabitants of that area:

Provided that an imposition of a collective fine by any authority on whom the power may have been delegated under this Act may be made by publication of the order imposing the fine in any such manner as such authority may consider best calculated to bring the order to the notice of the inhabitants of the area concerned. (2) The State Government or any officer empowered in this behalf of the State Government by general or special order may exempt any person or class or section of such inhabitants from liability to pay any portion of such fine.

(3) The District Magistrate, after such inquiry as he may deem necessary, shall apportion such fine among the inhabitants who are liable collectively to pay it, and such appointment shall be made according to the District Magistrate‘s judgment of the respective means of such inhabitants.

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(4) In any such appointment the District Magistrate may assign a portion of such fine to a joint or undivided family to be payable by it. (5) The portion of such fine payable by any person (including a Hindu undivided family) may be recovered –

(a) in the manner provided by the Code of Criminal Procedure, 1898, for the recovery of fines imposed by a Court as if such portion were a fine imposed by the District Magistrate acting as a Court:

Provided that the State Government may, in lieu of the rules referred to in sub-S.(2) of S. 386 of the Code of Criminal Procedure, 1898, make rules under this Act regulating the manner in which warrants under CI. (a) of sub-S. (1) of the said Code are to be executed and for the summary determination of any claim made by any person other than person liable to pay the fine in respect of any property attached in execution of the warrant; or

(b) as arrears of land revenue.

Section 6. Control of meetings, processions etc. (1) The State Government for the purpose of maintaining public order, by general or special order prohibit, restrict or impose conditions upon the holding of processions, meetings or assemblies by a class of persons or organisations whose activities, in the opinion of the State Government, are subversive of law and order. (2) If any person contravenes any order issued under this section, he shall be punishable with imprisonment which may extend to two years or with fine or with both. Section 8-A. Control of use of loud-speakers, megaphones, etc. (1) The State Govt. may, for the purpose of preventing activities, which in their opinion undermine the security of, or tend to overthrow the State by general or special order, prohibit, restrict or impose conditions on – (i) The use or operation in any street, square, public place or any other place of any apparatus for amplifying the human voice, or any reproduction of the human voice, such as a megaphone or an electrically operated loud-speaker ; and (ii) The use or operation or driving an any street, square public place or any other place of any vehicle which carries or has attached to it any apparatus referred to in sub-Cl. (i). (2) If any person contravenes any order issued under this section, he shall be punishable with imprisonment which may extend to two years or with fine or with both. (3) The apparatus referred to in sub-Cl. (i) together with the vehicle, if any, to which it may be attached shall be liable to be forfeited to Government if it be used or operated in contravention of an order passed under this section. (4) Section 8-D. Punishment for carrying or possessing any corrosive substance or liquid Any person who carries on his person or knowingly has in his possession or under his control any corrosive substance or liquid, under circumstances as to give rise to a

Page 21 of 41 reasonable suspicion that he does not carry it on his person or have it in his possession or under his control for a lawful object, shall, unless he can show that he was carrying it on his person, or that he had it in his possession or under his control for a lawful object, be punishable with imprisonment for a term which may extend to two years or with fine or with both.

(iv) The National Highway Act, 1956

8B. Punishment for mischief by injury to national highway – Whoever commits mischief by doing any act which renders or which he knows to be likely to render any national highway referred to in sub-section (1) or section 8A impassable or less safe for travelling or conveying property, shall be punished with imprisonment of either description for a term which may extend to five years, or with a fine, or with both.

(v) The Railways Act, 1989

74. Obstructing running of train etc. If any railway servant (whether on duty or otherwise) or any other person obstructs or caused to be obstructed or attempts to obstruct any train or other rolling stock upon a railway –

(a) By squatting or picketing or during any Rail roko agitation or bandh ; or (b) By keeping without authority any rolling stock on the railway; or (c) By tampering with, disconnecting or interfering in any other manner with its hose pipe or tampering with signal gear or otherwise, he shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both.

Before going into the final recommendations, a quick review of certain developments taking place in several states, and measures that have been initiated in such states is made, which is presented below.

Maharashtra:

During field tours undertaken by the task-force members to Maharashtra, it was learnt that in the year 2011 there was a devastating fire in the Maharashtra Secretariat building in Mumbai. All files of the department of Home, Govt. of Maharashtra were destroyed by the fire. The task force was unable to procure any document on the related subject from the Home department. The task force also tried to procure some documents from the department of law, from the office of the Commissioner of Police, Mumbai and the office of the Collector, Mumbai. A summary of various developments that had taken place in Maharashtra after the Bombay High Court judgement of 2006 are presented below:

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The order of the Mumbai High Court directing the Government to open a ‗Bandh loss compensation Fund‘ was specific to the particular incident of Bandh that took place on 30th July, 2003. The Govt. of Maharashtra, it appears, did not open a ‗Bandh loss compensation Fund‘ account as a general measure. There was, however, a provision in the Bombay Police Act, 1951 (Sec.51) under which the State Government can realize compensation for any loss or damage caused to any property or for any death or grievous hurt caused to any person by a member of an unlawful assembly. It was mentioned in the section that the compensation would be a tax imposed under that section, the procedure for recovery of which is also prescribed in the section. In order to make these provisions more effective, the Govt. of Maharshtra brought an amendment in the year 2008 delegating certain powers, to the District Magistrate under sub section (4) of Section 51. The District Magistrate may require (a) In any disturbance area which is within the limits of a Corporation, the Municipal Commissioner, or any other authority authorised by the Collector; (b) in any disturbance area which is within the limits of Municipality, the Municipality, or any other authority authorised by the Collector; and, (c) in any disturbance area which is outside the area specified in clauses(a) and (b), any authority authorised by the Collector, to recover the compensation amount either in whole or in any part. Where the Municipal commissioner or Municipality is to recover such an amount, an additional sum not exceeding 3 % of the compensation amount, generally will be recovered from all persons who were inhabitants to the disturbance area or the members of the unlawful assembly, or specially from any particular section or sections, or class or classes of such persons and in such proportion as the District Magistrate may direct. The amendment also brought in new provision vide sub section 4A authorising the District Magistrate of another district to recover compensation from the person of his district on receiving information from the District Magistrate of the District where the violence took place. Under section 52 the District Magistrate has been authorised to award or apportion any recovered money as compensation to victims of violence. It must be noted that this compensation was earlier recoverable only from inhabitants of a particular area. The amended section made compensation recoverable from members of the unlawful assembly also who took part in the violence. The provisions under Bombay Police Act as above have some legal and technical difficulties. One is that the term tax has financial connotations. The Government of Maharashtra issued a circular dated 2.7.2009 highlighting the issues and prescribing certain procedures, which are reproduced below:

No- SMWP 8409/1091/C.R 161/2/SPL-1-A,Home Department(Special), Mantralaya, Mumbai-400 032 dated- 2nd July, 2009 Sub: Quick recovery of compensation caused in cases of damage by Individuals or unlawful assemblies. The state Government has amended the Bombay Police Act, 1951 which deals with compensation for injury caused by Unlawful Assembly. The section prescribes that the amount of compensation determined shall be a tax and shall have to be recovered

Page 23 of 41 by municipalities/ Corporation in urban areas. The term tax has special financial connotation in the Government. The conversion of compensation/ fine into tax needs review by the Finance Department. However, in order to proceed to recover compensation from those liable for causing damage to property and disburse it to the victims as directed by the Hon‟ble High Court, Mumbai, the application of section 51 of the Bombay Police Act, 1951 in letter and spirit is essential. In order to facilitate quick recovery of compensation caused in cases of damage by individuals or unlawful assemblies, the following procedure is recommended under sub-section 3 of section 51 of Bombay Police Act, 1951 until such time as the issue of tax is resolved.

The following procedure for taking action by District Magistrates under Sub- section 3 of section 51 of the Bombay police Act, 1951 should be carried out. (i) If the damage is caused by a pre-announced agitation by a political party, the organizer of the agitation shall be held liable for the damage. (ii) If the damage is caused by sudden outburst of emotions, the Collector/ DM shall fix liability on the basis of evidence collected in Police investigation as well as other evidences such as photograph and Videograph available with either the Media or other sources. (iii) In case of damages caused by an individual/ groups of individuals (other than the type mentioned in Section (i) and (ii), the procedure to be followed will be the same as in Section (ii). (iv) Assessment/evaluation of the damage done shall be based on the panchanama drawn by investigating officer and Tahsildar jointly. (v) The collectors are authorized to open a separate P.L.A. account for deposit of compensation amount and its payment to victims. (vi) After fixation of responsibility and determination of damage by District Magistrate as aforementioned, the Collector shall order the liable organization/ individual in writing to deposit the amount in the PLA account of the Collector within the time limit mentioned in the order. Any individual compensation to be paid to the victim shall be from the PLA account. (vii) If the individuals/ organization failed to deposit the amount as directed under Section (vi) within the prescribed time limit, the Collector shall proceed to recover it as arrears of land revenue. The aforesaid procedure shall be in force until the issue of tax is resolved and fresh orders issued.

The next difficulty is about the Head of Account under which the compensation amount is to be deposited. The circular dated 2.7.2009 asked collectors to open a separate PLA account for deposit of compensation and its payment of victims. However Government of Maharashtra issued another circular some time later in the year 2009 prescribing detailed procedures for collectors for recovering compensation amount. A copy of this document was obtained from the office of collector of Mumbai which, though undated and unsigned, is being used by the Collector, Mumbai. The Home department could not produce any record pertaining to this circular. But the

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Collector of Maharashtra has already taken up several proceedings for recovery of compensation under the guidelines laid down in the said circular. Under this circular the compensation amount is to be deposited under the head ―Criminal deposit‖ or ―Independent Account‖. This circular is silent on payments of compensation to victims. The circular available in the Marathi Language is furnished in the annexure while a translation is furnished below:

PROCEDURE REGARDING COMPENSATION FOR DAMAGE CAUSED BY UNLAWFUL ASSEMBLY, GOVERNMENT OF MAHARASTRA HOME DEPARTMENT No.SMWP/0409/1091/Pra.Kra.-161/Vi.Sha.-1 CIRCULAR Background ;-

Several political, social, religious, educational, non-governmental organisations demonstrate regarding their grievances. Sometimes these demonstrators or the unlawful assembly cause damage to life as well as damage to public and private property. As there has been increase in such incidents and the provisions in the Bombay Police Act were not effective, the State Government has brought into force the Bombay Police (Amendment) Act, 2008, specifically Section 51, 52 & 53 have been suitably amended. In accordance with these amendments, the Government was thinking about issuing guidelines and the procedure regarding the recovery of compensation for damage caused to public or private property. The Bombay High Court also in the PIL.No.24/2009 (Julio Ribeiro vs Govt. of Maharastra) directed the Government to frame general policy regarding the recovery of compensation. In view of the above the guidelines are being issued as follows:- Procedure to be followed – 1) If the unlawful assembly has caused damage to property, then the concerned SP or DCP will send a report regarding the same to the concerned District Magistrate‟s Control Room or the concerned district‟s Resident Deputy Collector within 24 hours. 2) After receiving such report, the concerned District Magistrate will invoke the provisions in Section 51 (1) of the Bombay Police Act and declare within 48 hours from the time of receipt of such report, as „disturbed area‟, the area where the unlawful assembly had assembled. 3) After the District Magistrate makes a declaration regarding disturbed area, the Revenue Officer will visit the actual place of occurence as mentioned in the Police report and panchnama regarding damage to property, and will do panchnama. The concerned District Magistrate if needed may take assistance from the officials of PWD, Transport Department or Valuation Officers to access the damages. 4) The Resident Deputy Collector (RDC) will act as Co-ordination Officer to handle such issues. 5) In pursuance of report submitted by the Police, a notice should be issued to such persons, organisations or associations who have done such act as to recovery of compensation from them in view of the evidence collected. A hearing should be given

Page 25 of 41 to all concerned after issuance of notice. The District Magistrate may as per requirement authorise a Tehsildar (Circle Officer) or an officer senior to him, to conduct such hearing. 6) In such cases where there has been damage to property, the concerned Police Officer will file a charge-sheet in the Court within 90 days from the date of occurrence and send a copy of the same to the District Magistrate. The District Magistrate's office will give a hearing to all concerned after the charge-sheet has been filed and will conduct proceedings for recovery of compensation. 7) Though the Police Officers have done a panchnama during investigation of the offence, the panchnama done by the Revenue Officers about the damage caused will be treated as final. 8) After submission of charge-sheet in the Court of Law, the concerned District Magistrate should complete within 180 days the procedure regarding recovery of compensation. 9) The recovered amount of compensation will be deposited in the District Magistrate's Criminal Deposits / Independent account, for the purposes of accounts. 10) If the concerned persons / organisations fail to pay the amount of compensation within stipulated time, the same should be recovered as arrears of land revenue. The provisions of Maharastra Land Revenue Code, 1966 should be invoked for the same.

The next issue is the possible question of double jeopardy when the accused of the crime is convicted by a criminal court and punished with imprisonment and fine, and a compensation amount is also recovered from him by the Collector. There is still another problem where a compensation amount has been recovered from an accused person who is later found not guilty during criminal trial. In this case the said accused person can possibly reclaim the amount paid by him as compensation. To understand issues relating for imposing of fine or compensation, the task force made a study of several other special acts under which the Executive has been empowered to impose collective fine. Some of the Acts are (i) The West Bengal collective fines Act, 1950 (ii) Assam Maintenance of Public order Act, 1947 (section 5) (iii) Protection of civil rights Act, 1955 (Section 10(a)) and similar provision in SC and ST ( prevention of atrocities) Act 1989. The Study revealed that provisions for imposing collative fine are essentially similar in all these Acts though the purpose is different in every Act. In all cases the fine is to be imposed on the inhabitants of a particular area. It has been mentioned above that the Bombay Police Act amendment in 2008 made this fine recoverable from members of the unlawful assembly taking part in violent incident also. It appears that the provisions for imposition of collective fine can be invoked where inhabitants of a particular area generally take part or promote certain violent act in that area but criminal charges cannot be established against specific individuals. It also appears that the same principle of collective liability can be invoked to impose a fine/compensation in respect of members of an unlawful assembly that take part in commission of an act of violence, or in respect of the leaders and members of the organisation who called for the Bandh, and violence took place as a consequence of the Bandh.

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Kerala:

During the study tour to the state of Kerala it was learnt that even after the Kerala High Court order of 1997, there have been a series of Writ Petition and OPs on Bandhs, Hartals, meetings and processions and a number of judgements have been pronounced. A study of the new Act-―The Kerala Public ways (Restriction of Assemblies and Processions) Act, 2011, revealed that the said Act is not quite relevant to the subject that the Task Force is concerned with. Interactions with field officers revealed that after the pronouncement holding Bandh as illegal and unconstitutional, many organisations changed the terminology and used the word ―Hartal‖ instead, but incidence of violence came down substantially. More recently, the Kerala High Court ordered in 2011 that a person arrested in the charge of causing damage to public property may not be granted bail until the person deposits an amount equal to the value of the property destroyed. This has made a strong impact on Bandh related violence. The High Court order is general in nature and is applicable to all situations where public property has been damaged. This decision has been challenged in the Supreme Court and a final decision is pending. The Task Force is of the view that until such time as the decision is upheld by the Supreme Court, a similar condition should not be put in the proposed Act. But the Government of Assam may perhaps call upon the Hon‘ble Gauhati High Court to make a similar pronouncement.

As far as compensation for loss/damage to property is concerned, the Government of Kerala issued a circular No G.O. (Ms) No 277/2003/Home dated-17.12.2003, laying down certain guidelines for recovery of damages caused to public property during Bandhs and agitations. The following paras of the circular will speak for themselves:

3. Government have examined the matter in all aspects and decided to formulate an institutional mechanism for recovery of damages caused to the properties of the State or the properties of the State run corporations from the perpetrators of the damage/destruction or from the persons/organization who have issued calls for respective hartals. 4. Accordingly, the Government order that the mechanism for recovery of damages to public property during bundhs and agitations from the persons/organizations who were instrumental in calling for and perpetrating such damages shall be as follows. 5. The agitations, processions, public meetings by whatever name called where cessation of normal business and public activities are enforced implicitly or explicitly will be brought under the purview of the Institutional mechanism. Other agitations, either with lesser severity or coverage, but leading to destruction of public property will also be covered under this mechanism. 6. The term “Public Property" for the purpose of claiming such damages would mean any property whether immovable or movable (including any machinery) which is owned by, or in the possession of or under the control of- (i) The Central Government; or (ii) Any State Government; or (iii) Any local authority; or (iv) Any institution/body/established by, or under, a Central, State Act; or

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(v) Any company as defined in Sec. 617 of the Companies Act, 1956; (vi) Any autonomous body/organization wholly controlled by the State or Central Government 7. The cause of action for initiating steps would be acts causing damage to such public property as described above. 8. The primary responsibility for initiating the action for claiming damages would vest with the Head of the office exercising control over the property damaged during and as a result of the bundhs etc. In the case of Public Sector Undertakings, the Head of the office or the Chief Executive shall take necessary steps to file the suit for recovery of damages. Such suits shall be filed before the Civil Court of competent jurisdiction within a month of the occurrence resulting in damage to such property. Any lapse on the part of such official in initiating action for claiming damages would be viewed seriously. 9. As soon as such Head of office, becomes aware of the damage so caused, he shall without any loss of time, lodge a complaint with the SHO of the police station having jurisdiction over the area where such damage had taken place. 10. On receipt of such a complaint, the Station House Officer shall duly register a case, if not already registered and investigate the matter and furnish a report with copies of mahazars regarding the involvement of persons responsible for the damage, to the Head of the office immediately. 11. On receipt of the report of the Station House Officer and other information gathered in the meanwhile, the Head of office shall take immediate steps to file a suit for the recovery of damages, within one month of the date of causing of the damage to the public property. 12. In such a suit for damages, the Head of office will include as respondents, the persons who within his knowledge had exhorted or committed such acts, the persons who are so named in the report of the police, the names and designation of the person who exhorted or perpetrated the acts leading in the destruction or damages, and office bearers of the organizations of whatever description and at whatever level, who sponsored, called for or exhorted the agitation. l3. Any person including the organizers of hartals, while applying for permission for processions should be required to make an undertaking to ensure that no damage will be caused to the public property and any such damage will be compensated for by them while making application for permission before the authorities for the conduct of processions/meetings. The Director General of Police shall incorporate necessary conditions in the standing instructions to include such undertaking in the permission letter issued to applicants. 14. The G.O would constitute the sanction within the meaning of the 55 & 56 of the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Case Rules, 1978. 15. The Government Pleaders or the Standing Counsel or the Counsel engaged as the case may be shall take special attention in filing suits and conducting the cases. 16. The Head of the Department shall monitor the conduct and disposal of civil suits filed for recovery of damages caused to public property and give necessary directions to the Head of Office periodically. 17. The District Collectors will review the conduct of the civil cases on a quarterly basis and send reports to the Government. 18. The Superintendents/Commissioners of Police will review the investigation of the criminal cases on a quarterly basis and send reports to the Director General of Police.

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19. All the old cases of damages, not barred by limitation would be taken up for the above action forthwith. 20. All Officers of the State, Heads of Departments and Public Undertakings and District Collectors shall follow the directions scrupulously and any lapses on their part will be viewed seriously.

The view of field officers of Kerala is that the above procedures whereby concerned govt. departments are to file civil suits and pursue them in the court for compensation are slow and ineffective. This recovery procedure has not really worked as a deterrent, but the High Court order restricting grant of bail has. A copy of the circular and a copy of the notice that is issued by police to the organisations calling the Bandh are placed in the annexures. Government of Kerala has not initiated any other measure to deal with recovery of compensation. The number of Bandh calls and related incidents of violence have come down substantially due to the stern judicial pronouncements made from time to time by the Kerala High Court.

Tamil Nadu

Though the Task Force did not tour Tamil Nadu, a study was made in respect of the Tamil Nadu Property (Prevention of Damage and loss) Act, 1992. This Act is an amended version of the Act originally known as the Tamil Nadu Public Property (Prevention of Damage and loss) Act, 1992. The main objective of the amendment was to drop the distinction between public property and private property and to put both on the same footing. The amended Act is applicable in case of both public and private property. The act defines offences of ―Mischief‖ in an aggravated form. An interesting feature of this Act is that under section 7, the court while imposing a sentence of fine can apportion the whole or any part of the fine recovered as compensation to victims in various forms. The Act also states in Section 7(4) that at the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under that section. This provision takes care of the double-jeopardy issue. The Tamil Nadu Act appeared to be legally sounder that the Bombay Police Act though the Executive has not been empowered under the former to impose fine or compensation. After a detailed discussion, however, the Task Force decided to recommend incorporation of a combination of provisions that exist in the Assam Maintenance of Public Order Act, 1947, and the Bombay Police Act, 1951 with suitable modifications to make it applicable in cases of Bandh related violence. Another feature of the Tamil Nadu Property (Prevention of Damage and loss) Act is section 5 under which throwing of stones, bricks etc. is also an offence. Inclusion of this new offence in the proposed Act is recommended.

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Summary of Findings and Recommendations: Part A:

1. The Task Force found it eminently feasible to bring a comprehensive legislation to deal with Bandhs and related issues. The primary objective of the new legislation will be to protect and uphold the constitutional rights of the people of India and to ensure the freedom to exercise their rights without fear. The provision for recovering compensation from offenders would serve as a strong deterrent. The law should be friendly towards the law abiding citizens and strict with organisations and their supporters who still indulge in giving calls for ―Bandh‖ even after it has been held as illegal and unconstitutional. Yet, the law should not be perceived as draconian or as a repressive tool capable of being misused, or being used in a partisan manner.

2. Though in the judgements on the subject, the Courts did not direct the state to pass a new Act or to make the calling for a Bandh a punishable offence, this fact does not preclude fresh legislation by the state in order to protect and uphold the fundamental rights of the people. The Task Force finds sufficient justification for recommending that calling for a Bandh ought to be made into a specific offence. First, calling for a Bandh is illegal and unconstitutional and interferes with exercise of fundamental rights of the people. Secondly, a Bandh deprives millions of people of their income for the day and causes wrongful loss to them. Bandh also causes massive loss to individuals, to the society and to the state in areas of education, trade and commerce and industrial production. There is no prescribed way to estimate the loss in terms of money. But the organisation and its followers by enforcing the Bandh has made the country suffer heavy losses and are therefore liable to be punished with imprisonment and fine. The following observation made in the Kerala High Court order is reiterated:

…..”we are of the view that this Court has sufficient jurisdiction to declare that the calling of a “bundh" and the holding of it is unconstitutional especially since, it is undoubted, that the holding of 'bundhs are not in the interest of the Nation, but tend to retard the progress of the Nation by leading to national loss of production. We cannot also ignore the destruction of public and private properly when a bundh is enforced by the political parties or other organisations. We are inclined to the view that the political parties and the organisations which call for such bundhs and enforce them are really liable to compensate the Government, the public and the private citizen for the loss suffered by them for such destruction. The State cannot shirk its responsibility of taking steps to recoup and of recouping the loss from the sponsors and organisers of such bundhs.”…

3. The Task Force attempted to invoke deeper principles of law to comprehensively bring under the ambit of the proposed legislation any such activity, by whatever name it may be called, that infringes on the fundamental rights of the public at large.

4. The Task Force recommends putting of private property on the same footing as public property whenever any property is damaged in connection with enforcement of a Bandh or in connection with any rioting etc.

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5. On the issue of Bandh called by banned organisations, one view was that some restriction should be imposed on publication of news items in respect of Bandhs called by unlawful association or organisation. ―Like should be treated likewise and unlike should be treated unlikewise" - this is the spirit of the Fundamental Right to Equality as mentioned in the Indian Constitution. Bandh calls given by unlawful organisations need to be differentiated from bandh calls given by lawful organisations. In case of bandh calls given by lawful organisations, the state machinery can proceed against the office bearers and may imprison them and recover compensation from them as well as other members of concerned unlawful assembly causing damage to property. However, in case of underground & notified unlawful organisations like ULFA, the state machinery cannot give effect to these measures and will not also be in a position to recover compensation from such underground and notified unlawful organisation. Due to long standing fear in the minds of people at large, whenever there is a news item published or publicity given to a bandh call given by such declared unlawful organisations, the general life comes to a standstill. Hence, the very act of publishing or dissemination information about such bandh called for by an unlawful organisation needs to be prohibited and made punishable. The other view, however, is that the proposed new legislation is not a tool to deal with terrorist groups. Any measure meant to be used against under-ground organisations or terrorist organisations, according to this view, ought to be brought in under the Unlawful Activities (Prevention) Act and not under this legislation. There was no unanimity among the Task Force members over the provision put in the proposed Act prohibiting publishing of news about Bandh called by unlawful organisations.

6. The Task Force recommends that offences such as criminal intimidation, wrongful restraint, wrongful confinement, assault, hurt or mischief when committed during the course of observance or enforcement of a Bandh ought to be treated as an aggravated form of the offence committed by a single individual under ordinary circumstances.

7. The Task force also recommends that the provision of the Prevention of Damage to Public Property Act, 1984 regarding bail should also figure in the proposed Act.

8. The Task Force is of the view that the principle of collective liability can be invoked to impose a fine/compensation in respect of members of an unlawful assembly that take part in commission of an act of violence, or in respect of the leaders and members of the organisation who called for the Bandh and violence took place as a consequence of the Bandh.

9. The Task Force is of the view that until such time that the decision is upheld by the Supreme Court, the condition imposed by Kerala High Court in 2011 on grant of bail to persons accused of causing damage to public property should not be put in the new proposed Act. But the Government of Assam may perhaps call upon the Hon‘ble Gauhati High Court to make a similar pronouncement.

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10. The procedures adopted by government of Kerala for recovery of compensation by filing of civil suit by government departments appeared to be slow and ineffective. This recovery procedure has not really worked as a deterrent, but the High Court order restricting grant of bail has made a strong impact on incidence of violence during Bandhs. On the other hand, government of Maharashtra is adopting a parallel procedure for recovery of compensation from accused persons through District Magistrates/Collectors under section 51 of Bombay Police Act in addition to the criminal prosecution. The Task Force found that no ‗Bandh compensation Fund‘ account has been created. Instead, PLA account or Criminal deposit/Independent account of the District Magistrate have been used. The Government may perhaps allow opening of a savings bank account in any nationalised bank at district level where compensation amounts can be deposited.

11. For recovery of compensation, the Task Force recommends incorporation of a combination of provisions that exist in the Assam Maintenance of Public Order Act and the Bombay Police Act with suitable modifications to make it applicable in cases of Bandh related violence and in cases of acts of violence are committed by unlawful assemblies. Incorporation of provisions similar to section 51(4A) and section 52 of the Bombay Police Act is recommended. Detailed guidelines laying down the procedure for recovery of compensation may be issued by the Government as and when necessary.

12. Under section 5 of the Tamil Nadu Property (Prevention of Damage and loss) Act, throwing of stones, bricks etc. at motor vehicles is also an offence. Inclusion of this offence in the proposed Act is recommended.

13. It is generally observed that in spite of the country's Apex Court declaring Bandh calls as unconstitutional and illegal and in spite of having several provisions in the existing statutes, effective criminal and civil proceedings are not instituted by the law enforcement agencies. On the other hand, the experience with the Right to Information Act shows that as there is a certain possibility of concerned officer being fined for failure to perform his duty, the concerned officer makes all efforts to comply with the provisions of RTI Act. Hence, if the state really wants to make a difference with regard to the violation of Fundamental Rights during Bandh calls, there will be a need to impose an obligation and accountability on the law enforcement agencies in the field to enforce the provisions of the proposed legislation. A specific provision to this effect, therefore, is recommended for the proposed Act.

Suggested provisions of the new legislation:

A. Title and Preamble: Short Title: The Assam (Prohibition) of Bandh Act, 2013. Long Title: An Act to prohibit the activity of calling for, holding of and enforcing of Bandhs in the state of Assam. Preamble

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Whereas there are organised attempts on the part of political parties, associations and organized bodies or on the part of organisations banned under an Act operating in the state of Assam to call and enforce frequent bandhs and disrupt normal life of the large sections of citizens residing in Assam;

And whereas the enforcing of such band paralyses the state causing national loss by the effect of closing down all activities in the 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, engage in trade, travel or study and thereby violating the fundamental rights of the citizens of the state guaranteed by Articles 19 and 21 of the Constitution of India;

And whereas, it is the constitutional obligation of the State to arrest and curb such illegal bandh by initiating criminal proceedings against the sponsors and organizers of such Bandh and for taking steps to recoup the losses;

And whereas, it is necessary to enact a new law to safeguard the rights and interests of the people of the state and to maintain public order which is adversely affected by such illegal and unconstitutional activity……..

B. Definitions:

Bandh: The word ‗Bandh‘ in its meaning includes a Hartal, Strike, Blockade or any other form of agitation or activity undertaken by an organisation of any kind or any individual, by whatever name the agitation or the activity may be called, which interferes with the exercise of fundamental rights of people at large.

Organisation: The term ‗organisation‘, wherever it is used in the Act includes a political party, an association of any kind, a society, a trade union or any other group or body of people, whether or not registered under any Act or Rule.

Public property: The phrase ‗public property‘, wherever it appears in the Act will have the same meaning as in the Prevention of Damage to Public Property Act.

C. General conditions for applicability of provisions of the Act:

Panel Provision under this Act will be attracted if the following conditions are satisfied: 1) It is proved that a Bandh was called by an organization on a particular day and in a particular area by giving publicity through a News Paper or a Television News channel or through posters or banners put up in public places, or through announcements made in public places or through door to door campaign or by any other means to spread the information; and

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2) There exists a nexus between the commission of the offence and the Bandh. It will be sufficient to show that reasonable grounds exist to believe that the offence was committed in pursuance of the Bandh call or because of an attempt to enforce the Bandh call or as a result or consequence of any disagreement or altercation over observance of the Bandh.

Exception 1: Provisions of the Act will not be attracted in the case of a programme undertaken by an organisation that affects only the people related to the organisation and not the public at large, and the area affected is the closed premise of an office or a factory or a go-down or any other place of work. Exception 2: Provisions of the Act will not be attracted in the case of a programme undertaken by an organisation in a lawful manner with due permission of competent authority.

D. Offences Calling for a Bandh: (1) Whenever a person or an organisation calls for a Bandh, that person or any or all of the leaders or office bearers or members of the executive body or the executive committee of the said organisation, or any or all such persons that are responsible for taking the decision to call for the Bandh shall be punished with imprisonment which shall not be less than three months but may extend to six months and shall also be liable to fine. (2) Whoever does any act to give publicity to a Bandh call or aids or assists in enforcing a Bandh call shall be punished with imprisonment that may extend to three months and shall also be liable to fine.

Publishing news item: Whoever publishes or gives publicity or by any means disseminates information pertaining to a Bandh call given by any organisation declared unlawful under the Unlawful Activities (Prevention) Act, shall be punished with imprisonment which shall not be less than three months but may extend to six months and shall also be liable to fine.

Wrongful restraint or wrongful Confinement Whoever wrongfully restrains or whoever wrongfully confines any person shall be punished with simple imprisonment for a term, which shall not be less than one year but may extend to three years, or with fine, or with both. Wrongful restraint under this section will have the same meaning as in section 339 of the Indian Penal Code, 1960, and wrongful confinement under this section will have the same meaning as in section 340 of the Indian Penal Code, 1960.

Assault or criminal force otherwise than on grave provocation: Whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person shall be punished with imprisonment of either

Page 34 of 41 description for a term which shall not be less than six months but may extend to two years, or with fine, or with both. Criminal force under this section will have the same meaning as in section 350 of the Indian Penal Code, 1960 and assault under this section will have the same meaning as in section 351 of the Indian Penal Code, 1960.

Mischief by injury to public road, bridge, river or channel: Whoever commits mischief by doing any act which renders or which he knows to be likely to render any public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for travelling or conveying property, shall be punished with imprisonment of either description for a term which shall not be less than three years but may extend to seven years, or with fine, or with both.

Mischief causing damage to the amount of one hundred rupees or more: Whoever commits mischief and thereby causes loss or damage to the amount of a hundred rupees or upwards, shall be punished with imprisonment of either description for a term which shall not be less than one year but may extend to five years, and shall also be liable to fine. Mischief under this section will have the same meaning as in section 425 of the Indian Penal Code, 1960.

Mischief by fire or explosive substance: Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Mischief under this section will have the same meaning as in section 425 of the Indian Penal Code, 1960.

Throwing of stones, bricks etc.: Whoever commits or instigates, incites or otherwise abets the act of throwing stones, bricks, bottles or any other material whatsoever upon the persons travelling in any motor vehicle, shall be punished with imprisonment of either description for a term which shall not be less than two years but may extend to five years, and shall also be liable to fine. Explanation: For the purpose of this section ‗motor vehicle‘ shall have the same meaning as in the Motor Vehicles Act, 1988.

Criminal Intimidation: Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which shall not be less than two years may extend to five years, or with fine, or with both. Criminal intimidation under this section will have the same meaning as in section 503 of the Indian Penal Code, 1960.

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Voluntarily causing hurt: Whoever voluntarily causes hurt shall be punished with imprisonment of either description for a term which shall not be less than one year but may extend to three years, or with fine, or with both. The word ‗hurt‘ will have the same meaning as in section 319 of the Indian Penal Code, 1960, and the phrase ‗voluntarily causing hurt‘ will have the same meaning as in section 321 of the Indian Penal Code, 1960.

Voluntarily causing grievous hurt: Whoever voluntarily causes grievous hurt shall be punished with imprisonment of either description for a term which shall not be less than five years but may extend to ten years and also with fine. The words ‗grievous hurt‘ will have the same meaning as in section 320 of the Indian Penal Code, 1960, and the phrase ‗voluntarily causing grievous hurt‘ will have the same meaning as in section 322 of the Indian Penal Code, 1960.

E. Special provisions

Offences to be cognizable and non-bailable: All offences under this Act will be cognizable and non-bailable.

Special provisions regarding bail: No person accused or convicted of an offence punishable under this Act shall be released on bail or on his own bond unless the prosecution has been given an opportunity to oppose the application for such release.

Awarding a sentence of imprisonment for a term less than the minimum prescribed limit: Wherever a lower limit for the period of imprisonment for an offence has been prescribed in this Act, the Court may, for reasons to be recorded in its judgement, award a sentence of imprisonment for a term of less than the lower limit prescribed for that offence.

Court may presume: Notwithstanding anything stated in the Indian Evidence Act, 1872, where it is proved that information in respect of the Bandh being called on a particular day and in a particular area was published in a newspaper or in a Television News channel having circulation or coverage in the area in question, and where it is proved that the organisation calling the ―Bandh‖ as published, or any authorised person acting on behalf of the said organisation did not publish before the commencement of the Bandh a clarification contradicting the information of the Bandh in a newspaper or a Television News channel having circulation or coverage in the area in question, the court may presume that the Bandh was indeed called by the said organisation.

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F. Recovery of compensation from certain section of people: (1) If it appears to the District Magistrate of a district that the inhabitants of any area, or the members of an unlawful assembly, or a person or persons, or a person or persons belonging to any particular section or sections, or class or classes, organisation or organisations are concerned in or abetting the commission of any offence under this Act including the case where an offence committed under this act results in death of a person, or are harbouring persons concerned in the commission of such offences, or are failing to render all the assistance, in their power to discover or apprehend the offender or offenders are suppressing material evidence of the commission of such offences, the District Magistrate may, by notification in the official Gazette, order any or all such aforesaid person or persons to pay such amount as determined by the District Magistrate of the district where the offence took place or any other authority designated by the District Magistrate, not being below the rank of an Additional District Magistrate, as compensation.

Provided that an imposition of compensation by any authority under this Act may be made by publication of the order imposing the compensation in any such manner as such authority may consider best calculated to bring the order to the notice of the inhabitants of the area and other persons concerned.

(2) The State Government or any officer empowered in this behalf of the State Government by general or special order may exempt any person or class or section of such inhabitants or other persons from liability to pay any portion of such compensation.

(3) The District Magistrate, after such inquiry as he may deem necessary, shall apportion such compensation among the inhabitants or other persons who are liable to pay it, and such appointment shall be made according to the District Magistrate‘s judgment of the respective means of such inhabitants or other persons.

(4) The portion of such compensation payable by any person may be recovered –

(a) in the manner provided by the Code of Criminal Procedure, 1973, for the recovery of fines imposed by a Court as if such portion were a fine imposed by the District Magistrate acting as a Court:

Provided that the State Government may, in lieu of the rules referred to in subsection (2) of S. 421 of the Code of Criminal Procedure, 1973, make rules under this Act regulating the manner in which warrants under cIause (a) of sub section (1) of the said Code are to be executed and for the summary determination of any claim made by any person other than person liable to pay the fine in respect of any property attached in execution of the warrant; or

(b) As arrears of land revenue.

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(5) Any person aggrieved by the imposition of the compensation under sub-section (1) or by the order of apportionment, may, within the prescribed period, file a petition before the State Government or such other authority as that Government may specify in this behalf for being exempted from such fine or for modification of the order of apportionment.

Recovery in case of inhabitants of area beyond the jurisdiction: If the District Magistrate observes that the amount of compensation as determined under section--, either in whole or in part is to be recovered from persons or section or sections or class or classes of such persons who are inhabitants of the area, which is beyond the area of his jurisdiction, the District Magistrate shall send the information, along with his report, to the District Magistrate of the district in whose jurisdiction such persons or section or sections or class or classes of such persons are residing to recover the amount from them. On receiving such information, the District Magistrate of such area shall recover the amount of compensation in the manner as provided under section--. District Magistrate to award or apportion compensation: (1) It shall be lawful for the District Magistrate to award or apportion all or any moneys recovered as compensation amount under this Act to any person or among all or any persons whom he considers entitled to compensation in respect of the loss or damage to property or death or grievous hurt. (2) No compensation will be awarded under this section except upon a claim made within 45 days from the date of occurrence of the loss or damage to property or death or grievous hurt. (3) The compensation payable to any person in respect of death or grievous hurt shall not in any way be capable of being assigned or charged or be liable to attachment or to pass to any person other than the person entitled to it by operation of law, nor shall any claim be set off against the same. (4) Any person aggrieved by the order of apportionment made by the District Magistrate, may, within the prescribed period, file a petition before the State Government or such other authority as that Government may specify in this behalf.

Government may make orders: The government may make orders to lay down detailed procedure and for the operation of provisions regarding recovery and award or apportionment of compensation. Obligation on public authorities: (1) (a) Whenever a Bandh is called for by an organisation, Police shall register a case suo moto at the Police Station within whose jurisdiction the State headquarters or the state level office of the organisation calling for the Bandh falls in case of a state-wide Bandh, at the Police Station within whose jurisdiction the district headquarters or the district level office of the organisation calling for the Bandh falls in case of a district-

Page 38 of 41 wide Bandh, and at the Police Station within whose jurisdiction the local office of the organisation calling for the Bandh falls in case of a local area Bandh. Provided that nothing stated above precludes registration of a case by any other Police station within whose area of jurisdiction a Bandh has been called or enforced. (b) Whenever an offence under this Act is committed in the presence of a Police officer, it shall be the duty of the Police officer to lodge an FIR and get a case registered. (c) Whenever any information in respect of a public property being damaged in connection with a Bandh is received by an officer of the department or the Public Sector Undertaking as the case may who has the custody of or exercises control over the property damaged, it shall be his duty to lodge an FIR with Police without loss of time and also to send a report to the District Magistrate. (d) The District Magistrate or the officer designated to initiate a proceeding for recovery of compensation under this Act must complete the proceeding within the time stipulated by the government by an order. (2) In case of any failure or lapse on the part of the concerned officer to perform the duty mentioned in sub-section (1), the officer may be fined of an amount up to rupees twenty five thousand by an Authority appointed by the government by an order after giving the officer such hearing as deemed appropriate.

Recommendations: Part B:

The Task force is of the opinion that under the existing legal framework, the under mentioned measures can be adopted to control Bandhs even before the proposed new legislation is passed:

1. When the call for a Bandh is given by a registered political party or by any organization registered under an Act, the Government or the local administration can report the matter to the Election commission or the Registering authority, as the case may be for taking up proceedings to withdraw registration. Since calling for a Bandh has been declared as illegal and unconstitutional, no other legal provision is required in order to proceed as mentioned above.

2. By virtue of the fact that calling or enforcing a Bandh is illegal, any assembly of five or more persons, which has a common object of calling or enforcing a Bandh becomes an unlawful assembly as defined in the Indian Panel Code and section 143 IPC is attracted even though there may be no violence.

3. Provisions of the Prevention of Damage to Public Property Act should be used whenever applicable. This Act prescribes graver punishment for commission of mischief in respect of public properties and also has stringent condition for grant of bail.

4. The Assam Maintenance of Public order Act, 1947 has a provision for imposing collecting fine in certain situation which can be made use of.

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5. Administrative measures such as issuing notice to the organization calling for the Bandh or Hartal can be adopted in the manner that the Government of Kerala has prescribed.

6. Whenever an organization calls for a Bandh, Government through a press release or a statement made through print and electronic media can convey to the public the message that the call for the Bandh is illegal and unconstitutional and should be opposed and also assure the public that the Government will take all measures to ensure safety and to maintain normal life.

7. Agencies concerned with maintenance of law and order may take adequate measures including arrangement for video-recording of incidents to prevent disruption of normal life and activities in the manner prescribed by the Bombay High Court in its judgment in 2006.

Submitted on this 15th day of February, 2013.

J. Chakravarty, IPS

Dr. K. K. Dwivedi, IAS Anurag Agarwal, IPS Nitin Khade, IAS Mrs M. Begum

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Annexures:

I. Copy of High Court of Kerala Judgement: AIR 1997 Kerala 291: Bharat Kumar K. Palicha .. vs State Of Kerala And Ors. II. Copy of Supreme Court Judgement: Communist Party of India (M) vs Bharat Kumar and others: (1998) 1 SCC 201. III. Copy of High Court of Kerala Judgement: 2011 (4) KHC 89: Hemanth Kumar and Others v. Sub Inspector of Police and Another. IV. Copy of High Court of Bombay Judgement: G Deshmukh and others vs State of Maharashtra: CDJ 2006 BHC 267. V. Copy of Supreme Court Judgement: AIDMK vs Tamil Nadu: (2009) 5 SCC 452. VI. Copy of Kerala Govt. Order G.O. (Ms) No. 277/2003/Home dated 17.12.2003. VII. Copy of Notice issued by Kerala Police. VIII. Copy of Maharashtra Govt circular No.SMWP 8409/1091/C.R 161/2/SPL-1- A,Home Department(Special), Mantralaya, Mumbai-400 032 dated- 2nd July, 2009. IX. Copy of Sections 51-52 of amended Bombay Police Act, 1951. X. Copy of Maharashtra Govt circular No. SMWP/0409/1091/Pra.Kra.-161/Vi.Sha.-1. XI. Copy of notice issued by Collector, Mumbai dated 04.01.2009. XII. Copy of order issued by Collector, Mumbai for recovery of compensation, dated 20.08.2009. XIII. Copy of letter issued by Collector, Mumbai dated 06.11.2009. XIV. Copy of Tamil Nadu Property (Prevention of Damage and loss) Act, 1992.

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