Published: The Hindu Business Line, December 29, 2003
By Pradeep S Mehta & Nitya Nanda
TWO recent court judgments that relate to the right to protest have resulted in a raging public debate in the country. On September 29, the Calcutta High Court banned rallies and processions in the city during weekdays between 8 a.m. and 8 p.m.
In another judgment in August, the Supreme Court ruled that government employees had no fundamental, legal, moral or equitable rights to go on strikes. Both judgments are under review. On an appeal filed by the West Bengal Government, the Calcutta High Court stayed its earlier order on ban on rallies and processions until further direction, while the Supreme Court decided to reconsider its judgment of banning strikes by government employees.
Predictably, while the average citizen has welcomed the judgments, politicians and political parties, by and large, are not comfortable with them. On the issue of banning strikes by government employees, the Bharatiya Janata Party (BJP), which leads the ruling NDA at the Centre, has supported the apex court verdict.
Admittedly, in a democracy, a total ban on rallies and processions may not be a solution. After all, it is a form of protest that is practised even in many developed countries such as the US and the UK. Moreover, it is not only the political outfits that organise rallies and processions, but non-political groups as well. Indeed, many religious as well as marriage processions, and such other events organised by private individuals also cause inconvenience to the public. Many such rallies and processions are part of India’s cultural traditions. But in cities they cause much disturbance. Indians must change their attitude towards such processions, as they may not be in consonance with the standards of city living.
Kolkata has received the dubious distinction of being termed “city of processions.” The Right to Protest or the Right to Freedom of Expression has become a public interest issue. There are instances when victims of violence could not reach the hospital in time. Undoubtedly, we have gone too far with our sense of rights but ignored responsibilities, thus forcing the High Court to be so restrictive.
The question is should such processions be banned? The people of Kolkata are fed up with rallies and processions and, hence, may be happy with the court order. However, they may also not want it. After all, rallies, processions and road-blockades are sometimes organised spontaneously in response to some outrageous event.
Thus, an outright ban may not be the best solution. People may even ignore such bans. One may recall that such rallies were banned in China and the enforcement of the ban led to the infamous Tiananmen Square massacre in 1989. Ironically, some of the political groups that oppose the Calcutta High Court order failed to condemn the Tiananmen Square incident. Instead of imposing a total ban, a proper regulatory mechanism should be evolved so that such rallies and processions do not disrupt public life.
The ban on strike by government employees is another complex issue. Nevertheless, the issue has not been understood many in its proper perspective. Many trade union leaders, unsurprisingly, observed that this would lead to a totalitarian regime. However, it must be noted that the Supreme Court judgment pertains to government employees only. It does not relate to workers in general who are covered by the Industrial Disputes Act and have a right to strike.
Government employees, compared to the average working standards in the country, are actually a pampered lot. Their record of accountability and responsibility, in people’s perception, are also not very high. One does not hear of action against government employees on the ground of non-performance. Moreover, they are employed not by profit-seeking and exploitative businessmen but by democratically elected governments. If governments are not able to do justice to their own employees, then one may very well argue that they cannot do justice to the people. Moreover, they have a number of channels for redressing their grievances.
However, sometimes they go on a strike even for petty reasons, putting public interest at stake. They forget that a strike should be resorted to only as the last option when all other available channels are exhausted.
The Supreme Court observation is, however, not tantamount to imposing a total ban on strike. It has just interpreted the existing legal provisions. Denial of the right to strike as a fundamental right does not necessarily mean that they cannot go on strike. However, it allows the governments to take penal action against the striking employees. One may, of course, argue that the government should not take harsh actions, such as dismissal, for going on strike. The government decision will, however, be challenged in a court.
Both the issues need to be debated widely before coming to any conclusion, as they are not simply legal or judicial issues. It is also important to raise awareness among all the stakeholders on these issues. Government employees must recognise that their job is to serve the people who pay for their salaries. People at large also must keep in mind that their right to protest or celebrate through rallies and processions should not disrupt public life.