Benchmarking comment

Subsequently in the case of James Martin vs State of Kerala the Supreme Court ruled in December 2003 that no person has any right to destroy another’s property in the guise of bandh or hartal or strike, irrespective of the proclaimed reasonableness of the cause. No one can quarrel with this proposition except that the court sub silentio obliterated the clear distinction made by the three-judge bench between a strike and hartal on the one hand and a bandh on the other. The Supreme Court further observed that “the question whether bandh or hartal or strike has any legal sanctity is of little consequence, especially where even law-enforcing authorities/those in power also precipitate to gain political advantage at the risk and cost of their opponents”. The court thundered about the necessity of controlling bandhs with an iron hand to protect “victims of the high-handed acts of some fanatics with queer notions of democracy and freedom of speech or association”.

It is arguable that these Supreme Court judgments require reconsideration. In any event the wide observations in the judgment in James Martin need to be toned down. They reflect a judicial mindset which accords priority to law and order over the “queer notions” of fundamental rights of expression, association and assembly. The crux of the matter however is that until these Supreme Court judgments are reconsidered or modified they hold the field and bind everyone. The bench of Justice B.N. Agrawal and Justice P.P. Naolekar which passed the order last Sunday banning the bandh called by the DMK ministry was bound by these previous judgments and its order cannot be constitutionally faulted.

It is significant that there were no mass protests over the high court or Supreme Court judgments. Besides no one, much less any chief minister, thought of going on a hunger strike. It is perplexing why the Gandhian method, or rather expedient, of hunger strike as a protest has been resorted to now by the Tamil Nadu CM when all that the bench did was to follow the previous binding judgments. But in the world of politics nothing is perplexing. Besides, as Goldsmith reminds us, “Logicians have ill defined as rational the human mind.”

When the Supreme Court was informed on the next day, last Monday, that its orders were flouted and normal life in Chennai was disrupted, the court was understandably indignant. It is reported to have made observations about failure of constitutional machinery in the state of TN and is supposed to have recommended imposition of President’s Rule in the state. Clearly it is not the court’s function to recommend President’s Rule in a state. Its function is to adjudicate upon its constitutionality when it is imposed.

If it is established by cogent evidence that the state of Tamil Nadu had directly or indirectly encouraged total cessation of work resulting in disruption of normal life, the appropriate remedy would be initiation of contempt proceeding for defiance of the court’s order. The remedy does not lie in imposing President’s Rule, which results in dissolving duly elected legislative assemblies. If imposition of President’s Rule were permissible only because of defiance of court’s orders more than half the states in our country would be under President’s Rule and federalism, which is a basic feature of our Constitution, would become extinct.

But let us not lose our cool. Remember that a judge is not an automaton and at times judges tend to make off-the-cuff oral observations during the course of oral hearing in the surcharged atmosphere of the courtroom. In the present case judges expressed their anguish on account of the vehement submission of the petitioner’s counsel about the state flouting the court’s order and normal life coming to a halt in TN. It was in this context that the observations were made, which on sober subsequent reflection they would surely have refrained from making.

It is utterly wrong to construe these off-the-cuff oral observations as judicial encroachment and it is mischievous to raise the bogey of tussle between the court and the executive. Let us not forget that the court has not passed any judicial order or direction recommending President’s Rule nor has it expressed any judicial opinion about breakdown of constitutional machinery in Tamil Nadu. Let there not be much ado about nothing.

The writer is former attorney general for India