Curfew lifted in Kashmir after 51 days and the Central Unions intent on plans for a nationwide strike on the 2nd of September were the two major pieces of news that caught my attention on Monday. The news items were not on the same page and yet, they seemed so integrally connected.
In a curfew, the State prohibits the people from enjoying public spaces; and in a strike, the people or at least the people on strike cease to carry on their everyday activities. Ordinarily a strike is a localised protest within the confines of the particular sector, which is protesting. Hence to position strikes as the people’s other to curfews seems inappropriate.
The appropriate pair with curfews would be bandhs which are more general in import and constitute a people’s call to prevent the general populace from using public spaces. Whilst there have been cases where courts have distinguished between strikes, general strikes and bandhs and poured all their opprobrium on the last, in the main, the courts have started to club all the three and perceived them as nuisance creating phenomenon, where some disruptive elements hold the rest of the populace to ransom.
The opportunity cost of closed schools, the plight of the daily wager who has to sleep hungry because his plight is not visible to his more endowed brethren, the difficulties of obtaining access to essential goods and services are eloquently spoken of in a plethora of judgements. This judicial impatience and clubbing together of all forms of protest has prevented mature discourse to develop on the circumstances in which, public protest is an integral part of free speech.
If governance breeds disaffection, then governors should be asked to woo back the disaffected and not beat people into submission.
Similarly, strikes are the only potent weapon of collective bargaining available with workers, hence like in the case of public protest, courts could dwell on its legitimate use and not work at wiping it off from the statute book.
Moreover, it would be pertinent to find out whether protest is a response. Did the people and the workers take recourse to this protest after all other means of having their voices heard, had failed?
If this question is answered in the affirmative, then governing class, be they ministers, administrators, industrialists or managers should be held accountable for failing to do their duty and the responsibility for the omission be placed at their door.
Unfortunately, courts have in the main failed to balance the scales between the parties, and the workers are continually cast as the irresponsible disrupters. A protest, especially a peaceful one, is a cry for help, which when not heeded leads to violence.
When pronouncing on the matter, it is only correct to not just look at the violence but also what caused it to erupt. As already mentioned, curfews and bandhs need to be seen as pairs, as both have a similar impact on the fundamental freedoms of people, be it the freedom of movement, or the right to earn a livelihood or the freedom to access education. And yet, here judicial oversight is present in its absence. The only major judicial pronouncement I could find on the subject is a 1974 pronouncement of the Gujarat High Court (Jayantilal Mohanlal Patel vs Eric Renison MANU/ GJ?1093/1974) where the court was required to pronounce on a notification issued by the Government of Gujarat which stated that a person could be shot down for the mere breach of a curfew order.
The Government tried to justify the notification as an effort to impress upon the people the necessity of obeying the order, there was no intention of using the power. The court, however, refused to accept the argument and struck it down as beyond the powers of the government.
In another case ( Shatrughanlal vs State of MP MANU /MP/0968/1996) the Madhya Pradesh High Court peremptorily dismissed the case of a licensed liquor shop owner who was seeking compensation from the government for loss of business. The decision in Shatrughanlal could not and possibly, should not have been otherwise.
What is remarkable is that neither the government nor the court concerned themselves with people who true to the biblical adage can only eat if they work. Yet, they are not the ones, who are entitled to obtain curfew passes, that privilege being reserved for doctors, nurses and mill workers who possess an identity card. The curfew is relaxed for designated periods to enable people to stock essential provisions.
However, what happens to those who do not have the resources to make such purchases? If the rights of life and security are to be balanced, then food provisioning obligations should have been placed at the door of the government.
Unfortunately, the power to impose and lift curfews belongs to the realm of state impunity. It is about time that it was subjected to constitutional scrutiny to control its wayward and insensitive exercise.
Amita Dhanda is Professor of Law and Head of the Center of Legal Philosophy and Justice Education, NALSAR, Hyderabad Email: amitadhanda@gmail.com