Opinion The right to riot
Political parties must pay for the vandalism their protests cause
On March 5,2010,a division bench of the Bombay high court asked former Shiv Sena legislator Sitaram Dalvi to report on whether his party would pay compensation for acts of vandalism committed by him and other party workers. This direction has yet again raised the thorny issue of vicarious liability of political parties for acts of destruction committed by its members.
Political agitation takes manifold forms and names in India,some of the popular versions being bandh,hartal and chakkajam. These deceptive heads of the sinister hydra are propped up with the support of several foot-soldiers who employ money and muscle to make the agitation a success. States like Kerala and West Bengal are fit case studies on how normal public life is derailed by the illegal use of force.
It was this reality that prompted the Kerala high court in its 1997 verdict in Bharat Kumar Palicha vs State of Kerala,to ban bandhs. Observing that the very intention behind the call for a bandh was to bring about negation of the rights of the citizens to enjoy their natural rights,their fundamental freedoms and the exercise of their fundamental rights,the high court held that political parties which called for such bandhs and enforced them would be liable to compensate the government as well as private citizens for losses suffered by them. According to the high court,the state was responsible for taking steps to recoup these losses. This judgment was
subsequently affirmed by the Supreme Court.
To get over this,political parties then engaged in a tautological exercise by renaming violent acts of political agitation hartals. So much for substance over form! When hartals became a euphemism for resorting to violence,the Kerala high court in Kerala Vyapari Vyavasayi Ekopana Samithi vs State of Kerala clarified that the moment an agitation sought to impinge on the rights of others,it ceased to be a hartal in the real sense of the term. Shockingly,the state of Kerala raised an ingenious plea that it was difficult to identify the trouble makers and hence,it would be unfair to call upon the sponsor of the hartal to pay for the destruction caused. The court rightly rejected this. The Madhya Pradesh high court has also followed the Kerala high court verdict in the Bharat Kumar case to issue directions restricting the practice of chakkajams.
The argument of political parties has been that articles 19(1)(a) and 19(1)(b) confer rights on them to express their political views and assemble for this purpose. What they blissfully forget is that Article 19(1)(b) confers the right to assemble peaceably. Violent means of protest do not fit in even within the fringes of this fundamental right. However,political parties maintain that even the possibility of being called upon to pay compensation can have a chilling effect on their right to assembly.
The provisions of the Trade Unions Act 1926 and the manner in which they have been interpreted by our Supreme Court shed light on the scope of protection for organised assembly. Section 18 of this act immunises registered trade unions from any act done in contemplation or furtherance of a trade dispute to which a member of the trade union commits.
But this immunity applies only in cases where a person breaks a contract of employment,interferes with the trade of some other person,or prevents disposing of his capital or of his labour as he wills. Qualifying this immunity,Justice V. R. Krishna Iyer held that even if a technically illegal strike was protected by section 18,if some individuals destroyed the plant or damaged the machinery wilfully to cause loss to the employer,they would be liable for the injury so caused. Sabotage,in the learned judges view,was no weapon in the workers legal armoury.
Historically,there has been a reason for conferring immunity on trade unions,not so for political parties. In many situations witnessed in the recent past,the sponsor political party had actively supported resorting to violence to meet its objectives.
The effect that payment of compensation may have on the right of political parties is a small compromise for the larger public interest served by making parties accountable for their actions. It is about time our politicians learnt to disagree without being disagreeable.
The writer practises law in the Madras high court
Share
