SESSION 2011-2016
Labour Law
Picketing , Gherao and Bandh
Under the Guidance of: Mr Hrishikesh Manu Assistant Professor (Law)
Submitted By: Kiran Kachhwaha Roll no. 546 IV Semester, Section – Section – A A
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ACKNOWLEDGEMENT
I express my deepest sense of gratitude to my reverend guide Mr Hrishikesh Sir CNLU, Patna for her countenance advice, adherent interest and pain taking nature. He spent no pains in correcting and expertly evaluating my project work.
It is pleasant opportunity to pay my regards and sincere thanks to Sir for her valuable support, guidance and immediate help whenever I approached her.
Finally, I wish to thanks my parents and colleagues for their pleasant cooperation, support and encouragement.
KIRAN KACHHAWAHA
IV Semester, Section – Section – A A CNLU, Patna
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INDEX
Sr.No. 1
Topic
Pg.No.
INTRODUCTION
4
Object
5
Methodology
5
Source of Data
5
2
INDUSTRIAL DISPUTE
6
2.1
Causes
7
2.2
Consequences of Industrial Dispute
8
3
3.FORMS OF INDUSTRIAL DISPUTE INSTRUMENTS OF ECONOMIC COERCION
3.1
Strikes
9
3.2
Forms of Strike
10
Picketing
10
Gherao
14
Bandh
16
4
Conclusion
20
5
Bibliography
21
OR 9
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1.INTRODUCTION
According to Section 2(K) of the Industrial Disputes Act, 1947, and „industrial dispute‟ means “any dispute or difference between employers and employees or between employers and workmen or between workmen and workmen, which is connected with the employment or nonemployment or the terms of employment or with the conditions of labour of any person. Thus form the legal point of view, industrial dispute does not merely refer to difference between labour and capital as is generally thought, but it refers to differences that affect groups of workmen and employers engaged in an industry. Essentially, therefore, the differences of opinions between employers and workmen in regard to employment, non-employment, terms of employment or the conditions of labour where the contesting parties are directly and substantially interested in maintaining their respective contentious constitute the subject-matter of an industrial dispute. The causes of industrial conflict or disputes have been much varied. These may be described partly a psychological or social and partly political, but predominantly economic. There are many important factors responsible for industrial conflict and poor industrial relations such as wages , profits , bonuses , retrenchment, working conditions etc. These factors led to the emergence of dispute among the workers and Employers. The various forms of dispute constitute Strikes and Lockout out of which Strike is generally preferred. “Strike” means a cessation of work by a body of persons employed in any industry acting in combination; or a concerted refusal or a refusal under a common understanding or an number of persons who are or have been so employed to continue to work or to accept employment. Picketing, Gherao and Bandh Consitute it further. Picketing is a common tactic used by trade unions during strikes, who will try to prevent dissident members of the union, members of other unions and non-unionised workers from working. Those who cross the picket line and work despite the strike are known pejoratively as scabs. Gherao means encirclement of the managers to criminally intimidate him to accept the demands of the workers. It amounts to criminal conspiracy under Section 120-A of the I.P.C. and is not saved by Sec. 17 of the Trade Unions Act on the grounds of its being a concerted activity. Bandh, originally a Hindi word meaning "closed", is a form of protest used by political activists in South Asian countries such as India and Nepal. The expression therefore conveys a idea that everything is to be blocked or closed. Bandh is distinct and different from a general strike or hartal.
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OBJECT
The object of carrying out this research work is to study in detail the concept of Picketing, Gherao and Bandh in India. The Project touches upon the background of these instruments of economic coercion in the light of the Industrial Dispute. It also accentuates upon the constitutionality and legality of these with the help of the landmark judgment given by the Courts in India in various cases.
METHODOLOGY For carrying out my research work successfully and with authenticity the Research methodology adopted for the same is doctrinal in manner.
SOURCE OF DATA Library and Internet are sources for data collection, the former being the prime. Relevant statutes, books, and research articles have been referred.
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2. INDUSTRIAL DISPUTE
An industrial dispute may be defined as a conflict or difference of opinion between management and workers on the terms of employment. It is a disagreement between an employer and employees' representative; usually a trade union, over pay and other working conditions and can result in industrial actions. When an industrial dispute occurs, both the parties, that is the management and the workmen, try to pressurize each other. The management may resort to lockouts while the workers may resort to strikes, picketing or gheraos. 1
As per Section 2(k) of Industrial Disputes Act,1947, an industrial dispute in defined as any dispute or difference between employers and employers, or between employers and workmen, or between workmen and which is connected with the employment or non-employment or the terms 2 of employment or with the conditions of labor , of any person. This definition includes all the aspects of a dispute. It, not only includes the disagreement between employees and employers, but also emphasizes the difference of opinion between worker and worker. The disputes generally arise on account of poor wage structure or poor working conditions. This disagreement or difference could be on any matter concerning the workers individually or collectively. It must be connected with employment or non-employment or with the conditions of labor. From the point of view of the employer, an industrial dispute resulting in stoppage of work means a stoppage of production. This results in increase in the average cost of production since fixed expenses continue to be incurred. It also leads to a fall in sales and the rate of turnover, leading to a fall in profits. The employer may also be liable to compensate his customers with whom he may have contracted for regular supply. Apart from the immediate economic effects, loss of prestige and credit, alienation of the labor force, and other non-economic, psychological and social consequences may also arise. Loss due to destruction of property, personal injury and physical intimidation or inconvenience also arises. For the employee, an industrial dispute entails loss of income. The regular income by way of wages and allowance ceases, and great hardship may be caused to the worker and his family. Employees also suffer from personal injury if they indulge into strikes n picketing; and the psychological and physical consequences of forced idleness. The threat of loss of employment in case of failure to settle the dispute advantageously, or the threat of reprisal action by employers also exists. Prolonged stoppages of work have also an adverse effect on the national productivity, national income. They cause wastage of national resources. Hatred may be generated resulting in political unrest and disrupting amicable social/industrial relations or community attitudes. Thus Industrial disputes are the disputes which arise due to any disagreement in an industrial relation. The term 'industrial relation' involves various aspects of interactions between the employer and the employees; among the employees as well as between the employers. Trade
1 2
The definition of the “industrial dispute” is taken from an (English) Act 1906(6 Edw VII C47) Madras Gymkhana Club Employee‟s Union v. Gymkhana Club, (1967) 2 LLJ 72 0,729(SC)
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3
Union as such are not mentioned as they act on behalf of the workmen only. In such relations whenever there is a clash of interest, it may result in dissatisfaction for either of the parties involved and hence lead to industrial disputes or conflicts. These disputes may take various forms such as protests, strikes, demonstrations, lock-outs, retrenchment, dismissal of workers, etc. It is a disagreement between an employer and employees' representative; usually a trade union, over pay and other working conditions and can result in industrial actions. When an industrial dispute occurs, both the parties, that is the management and the workmen, try to pressurize each other. The management may resort to lockouts while the workers may resort to strikes, picketing, etc. 2.1Causes
The various reasons behind an industrial dispute can generally be categorized into economic and non-economic factors. The different types of economic causes are related to monetary compensation like salary, wages, allowances, bonus, working hours, working conditions, leave, medical benefits, holidays without pay, illegal termination, refusal of employment, retrenchments and unjust layoffs. On the other hand, political factors, sympathetic strikes, ill treatment by other workers of the company, indiscipline etc. come within the purview of noneconomic factor which often lead to an industrial dispute or a major labour issue.
Economic causes:
The most common causes of industrial disputes are economic causes. These are follows:
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Demand for higher Wages: Rise in the cost of living forces the workers to demand more wages to meet the rising cost of living index and to increase their standards of living. This brings them into conflict with their employers who are never willing to pay more wages to workers. Demand for Allowances and Bonus :Increase in cost of living was the main cause of the demand of certain allowance allowances such as dearness allowance, house allowance, medical allowance, night shift allowance, conveyance allowance etc; by the workers to equate their wages with the rise of prices. Bonus also plays an important role as a cause of industrial dispute. Both the amount and the method of bonus payment have led to a number of disputes. High Industrial Profits: In the changing world, concept of labour has changed considerably. At the present, employers consider themselves as a partner of the industry and demand their share in the profits. Non-economic causes: Retrenchment and personnel issues :A very nominal 3% of the industrial disputes are caused by factors like retrenchment and layoffs while 14% of the industrial disputes are caused by personnel. Indiscipline and misconducts :One of the leading causes of industrial disputes and labour problems in the industries is due to misconducts, indiscipline and often violent behaviours of the workmen towards the company. And unfortunately, this trend of
Bangalore W.C. and Mills Co. v. Their Workmen (1968) I LLJ 514 at 518
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indiscipline and misconducts is moving towards an upward graph. Around 50% of the industrial disputes are direct results of misconducts of the employees/ workers. Bonus, Working hours and other criteria:Around 7-8% of industrial disputes are due to demand for bonus. Though slowly, this trend of disputes arising out of demand of bonus is ever increasing. Moreover, factors like working hours and leave lead to only 1-2% of industrial disputes.
Miscellaneous causes
Apart from these above mentioned factors, an industry faces problems due to reasons like problems between two different unions, non-implementation of awards, agreements, violation of standing orders, service rules, excessive work pressure on the employees, charter of demand, violation of statutory rules and regulations etc. 2.2 Consequences of Industrial Conflicts:
1. Unrest and unnecessary tensions engulf the hearts and minds of all the people involved - labourers and senior management. 2. There is economic loss due to conflicts because conflicts may result in strikes and lock-outs. This causes low or no production resulting in ind ustrial loss. 3. Industrial losses may cause economic depression because many industries are interlinked. A problem in one industry may drastically affect another indu stry. 4. The lives of low-level labourers become worse when they are out of work. They may be the only working members of the family, and their joblessness may lead everyone in the family to poverty. 5. When industrial conflicts get out of hand, they become a threat to peace and security. Workers may resort to violence and indulge in sab otage.
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3.FORMS OF COERCION
INDUSTRIAL
DISPUTE
OR
INSTRUMENTS
OF
ECONOMIC
In general, Labour‟s instruments of economic coercion comprise of such worker‟s action or omission , in furtherance of an industrial dispute which threaten or inflict financial loss on the management. They put management under economic pressure to accept the (industrial dispute) demands of workers. Likewise, management‟s instruments of economic coercion comprise of such management‟s action or omission, in furtherance of an industrial dispute which is resorted to with the objective of inflicting financial loss on the labour so that they would rather accept management‟s term than suffer irreparable financial loss. Further in harmony with the view ; “no work no payment” the closing of a place of employment or suspension of work or the refusal by an employer to continue to employ any number of persons employed by him is the means adopted to put the requisite economic pressure. The activities may assume various forms,e.g., withdrawl of labour and quarantines of labour , raw material product, customer , dealer or any combination of these .Further this withdrawl may be total or partial. 3.1Strikes
A strike is a very powerful weapon used by trade unions and other labor associations to get their demands accepted. It generally involves quitting of work by a group of workers for the purpose of bringing the pressure on their employer so that their demands get accepted. When workers collectively cease to work in a particular industry, they are said to be on strike. According to Industrial Disputes Act 1947, a strike is “a cessation of work by a body o persons employed in an industry acting in combination; or a concerted refusal of any number of persons who are or have been so employed to continue to work or to accept employment; or a refusal under a common understanding of any number of such persons to 4 continue to work or to accept employment” . This definition throws light on a few aspects of a strike. Firstly, a strike is a referred to as stoppage of work by a group of workers employed in a particular industry. Secondly, it also includes the refusal of a number o employees to continue work under their employer. In a strike, a group of workers agree to stop working to protest against something they think is unfair where they work. Labors withhold their services in order to pressurize their employment or government to meet their demands. Demands made by strikers can range from asking for higher wages or better benefits to seeking changes in the workplace environment. Strikes sometimes occur so that employers listen more carefully to the workers and address their problems. Strikes can occur because of many reasons such as : Dissatisfaction with company policy, Salary and incentive problems, Increment not up to the mark, Wrongful discharge or dismissal of workmen, Withdrawal of any concession or privilege, Hours of work and rest intervals. Leaves with wages and holidays, Bonus, profit sharing, Provident fund and 4
Section 2(q ) Industrial Dispute Act, 1947
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gratuity, Retrenchment of workmen and closure of establishment, Dispute connected with minimum wages Types of Strike
1. Economic Strike: Under this type of strike, labors stop their work to enforce their economic demands such as wages and bonus. In these kinds of strikes, workers ask for increase in wages, allowances like traveling allowance, house rent allowance, dearness allowance, bonus and other facilities such as increase in privilege leave and casual leave. 2. Sympathetic Strike: When workers of one unit or industry go on strike in sympathy with workers of another unit or industry who are already on strike, it is called a sympathetic strike. The members of other unions involve themselves in a strike to support or express their sympathy with the members of unions who are on strike in other undertakings. The workers of sugar industry may go on strike in sympathy with their fellow workers of the textile industry who may already b e on strike. 3. General Strike: It means a strike by members of all or most of the unions in a region or an industry. It may be a strike of all the workers in a particular region of industry to force demands common to all the workers. These strikes are usually intended to create political pressure on the ruling government, rather than on any one employer. It may also be an extension of the sympathetic strike to express generalized protest by the workers. 4. Sit down Strike: In this case, workers do not absent themselves from their place of work when they are on strike. They keep control over production facilities. But do not work. Such a strike is also known as 'pen down' or 'tool down' strike. Workers show up to their place of employment, but they refuse to work. They also refuse to leave, which makes it very difficult for employer to defy the union and take the 5 workers' places . In June 1998, all the Municipal Corporation employees in Punjab observed a pen down strike to protest against the non-acceptance of their demands by the state government. 5. Slow Down Strike: Employees remain on their jobs under this type of strike. They do not stop work, but restrict the rate of output in an organized manner. They adopt go6 slow tactics to put pressure on the employers . 6. Sick-out (or sick-in): In this strike, all or a significant number of union members call in sick on the same day. They don‟t break any rules, because they just use their sick leave that was allotted to them on the same day. However, the sudden loss of so many employees all on one day can show the employer just what it would be like if they really went on strike. 7. Wild cat strikes: These strikes are conducted by workers or employees without the 5
These strikes were first used in the USA and France .They set their foot on the Indian soil in April 1939. The then Congress Government was hesitated to declare them as illegal. They attracted the attention of the Indian Judiciary in 1952. 6 Bharat Sugar Mills Ltd v. Jai Singh (1961)2 LLJ 644( SC)
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authority and consent of unions. In 2004, a significant number of advocated went on wildcat strike at the City Civil Court premises in Bangalore. They were protesting against some remarks allegedly made against them b y an Assistant Commissioner
3.2 Forms of Strike 1.Picketing Picketing is a form of protest in which people (called picketers) congregate outside a place of work or location where an event is taking place. Often, this is done in an attempt to dissuade others from going in ("crossing the picket line"), but it can also be done to draw public attention to a cause. Picketers normally endeavor to be non-violent. It can have a number of aims, but is generally to put pressure on the party targeted to meet particular demands and/or cease operations. This pressure is achieved by harming the business through loss of customers and negative publicity, or by discouraging or preventing workers and/or customers from entering the site and thereby preventing the business from operating normally.
Picketing is a common tactic used by trade unions during strikes, who will try to prevent dissident members of the union, members of other unions and non-unionised workers from working. Those who cross the picket line and work despite the strike are known pejoratively as scabs. Thus, When workers are dissuaded from work by stationing certain men at the factory gates, such a step is known as picketing. If picketing does not involve any violence, it is perfectly legal. Pickets are workers who are on strike that stand at the entrance to their workplace. It is basically a method of drawing public attention towards the fact that there is a dispute between the management and employees. The purpose of picketing is:
to stop or persuade workers not to go to work
to tell the public about the strike
to persuade workers to take their union's side
Types
Informational picketing is the legal name given to the type of picketing described above. Informational picketing, as described by Merriam-Webster's Dictionary of Law, entails picketing by a group, typically a labor or trade union, which inform the public about a matter of concern important to the union. This is a popular picketing technique for nurses to use outside of healthcare facilities.
A mass picket is an attempt to bring as many people as possible to a picket line, in order to demonstrate support for the cause. It is primarily used when only one workplace is being
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picketed, or for a symbolically or practically important workplace. Due to the numbers involved, a mass picket may turn into a potentially unlawful blockade. Secondary picketing is where people picket locations that are not directly connected to the issue of protest. This would include component suppliers the picketed business relies on, retail stores that sell products by the company being picketed against, and the private homes of the company's management.
Another tactic is to organize highly mobile pickets who can turn up at any of a company's locations on short notice. These flying pickets are particularly effective against multifacility businesses which could otherwise pursue legal prior restraint and shift operations among facilities if the location of the picket were known with certainty ahead of time. Picketing is also used by pressure groups across the political spectrum. Disruptive picketing is where pickets illegally use force, or the threat of force, or physical obstruction, to injure or intimidate or otherwise interfere with either staff, service users, or customers.
Increasingly, with the introduction of the Internet and digital photography, picketers have placed cameras at the entrances of their targets, often accompanied with written notices warning those who cross the picket line that their photographs (and, where known, their names and addresses) will be posted on the picketers' website. The legality of these sort of tactics have been challenged in some jurisdictions, on the grounds that such tactics violate privacy rights and/or are intended to incite later reprisals against such individuals. Elements of Picketing
Several elements comprise picketing .There is for instance: 1. Element of freedom of speech and expression to the extent to which the communication of facts and view are involved. 2. Element of freedom of movement to the extent to which the picketers remain stationary or indulge in movement. 3. Element of freedom of association to the extent to which picketing involves group activity. 4. Element of freedom to carry on trade, profession or business to the extent to which the activities may be designed to improve the working conditions of the workers and adversely affect the corresponding rights of the management of non picketing workers. All these elements may not be concurrently present in each and every picketing. Events often quickly move from a phrase involving some of these elements to another involving other of these elements. Picketing may be a Permissible Weapon
Picketing affects business and business property. Frankfurter and Greene have indicated in their 7 classic treaties , the Labour Injunction ,the American‟s Judiciary response to Picketing.Whether or not Picketing was illegal under the Common Law may be open to serious debate. But there is 7
Frankfurter and Greene ,Labour Injuntion,(1930)
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no doubt that in British India early Regulations or Statutes which directly or indirectly rendered strikes illegal and exposed strikers to criminal prosecution also rendered picketing an offence , both in specified industry as well as generally .The Indian Penal Code affected picketing through abetment ,criminal intimidation, criminal restraint and among others breach of contract. Since 1930 picketers could also be prosecuted for criminal conspiracy .The Criminal Law (Amendment)Act,1932 , further affected picketing. The relief given by Trade Union Act does not extend to condoning such acts in furtherance of a trade dispute as it amounted to an offence. Trade Dispute Act, 1929 further affected inciting, abetting or acting in furtherance of an illegal strike was an offence-a position which is preserved under the Industrial Dispute Act, 1947 even though the concept of illegal strike has undergone a radical and revolutionary change. Even at the risk of repetition it may be reiterated that picketing in support of a legal strike , or picketing in the absence of any strike, whatsoever is not necessarily legal. Even today in order to maintain its legality, picketers conduct must steer clear of the aforesaid provisions of the IPC and the Criminal Law(Amendment) Act, 1932, but this may not b e easy. The Indian Constitution added other dimensions to the problem. To the extent to which the picketing involves elements of freedom of speech, movement, association and trade, profession or business, and to the extent to which the state is enjoined from taking away these freedoms that law cannot adversely affect picketing. Picketing and Right to Freedom of Speech
Section7 of the Criminal Law Amendment Act, 1932 prohibits obstruction of access and intimidation of persons or employees or loitering at places of Residence of business with the intent of deterring others from entering or approaching or dealing with such places .The 8 constitutional validity of the section was challenged in Damodar Ganesh v. State and Vimal 9 Kishore Malhotra v. State of Uttar Pradesh .It was held in both the cases that Section 7 was iner vives of the Constitution. Picketing and Freedom of Movement
Article 19(1)(d) of the Constitution guarantees to every citizen the right to move freely throughout the territory of India. This right however does not protect loitering at or near a place 10 where such persons or members of his family resides or works or carries on business . A question therefore arises whether Section 7 of the Criminal Law Amendment Act, 1932 or other law curtails the freedom of movement by making a mere exercise of the right of freedom of movement penal under certain circumstances. Upholding the same the Bombay High Court in 11 Damodar Ganesh v.State observed: In testing, therefore the validity of Section 7 of Criminal Law Amendment Act , we have to see whether this restriction on freedom of movement viz., loitering under certain circumstances accompanied by the requisite intention is justified by Cl.(5) of Article 19 of the Constitution. Picketing and Freedom of Association 8
AIR 1(951) Bombay 459. AIR (1956) Allahabad 56. 10 Raj Narain v. State , AIR(1961) Madras 531. 11 AIR(1951)Bom.459 9
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If picketing is resorted to in combination by a number of workers or involves group activity it may well raise the question of freedom of association. Thus Article 19(1)(c) of the Constitution guarantees to all citizens to form associations or unions. This right is however subject to reasonable restrictions in the interest of public order and morality .For instance if workers resort to picketing which endangers public peace, or interference with the maintenance of the public order or the administration of the law it is not protected under Article 19(1)(c) . In other words this Article does not include right of picketing . 2.Gherao
The word „gherao‟ is to found in the several of the Indian and Persian Languages and literally 12 mean encirclement . Gherao, meaning "encirclement," is a word originally from Hindi and is a typically Indian way of protest. Usually, a group of people would surround a politician or a government building until their demands are met, or answers given. It is used to describe the certain activities of the workers in labour management relations and is of recent origin. In the sixties gherao became the most potent weapon in the hands of the workers. Its use spread throughout the length and breadth of India and found a special niche in West Bengal where 13 ironically it, for the first time , lost its legitimacy in 1968 . This principle was introduced as a formal means of protest in the labour sector by Subodh Banarjee, the PWD and Labor Minister in the 1967 and 1969 United Front Governments of West Bengal, respectively. Like Bandh ,Gherao is another Indian term that has become a household word owing to its applicability in every walk of our collective life whether social, economical, political or educational . In simple words it implies „encirclement‟ or confinement of the employers by the employees for coercing them to meet their demands as per their satisfaction. The main ingredient of this peculiar tactic lies in the confinement of other party for any length of time. That is, it is a form of lock-in of management, employers , managers; the officers are sometimes „besieged‟ in their offices by 14 their employees or subordinates for hours and days until their demand are met . It may mean encirclement in the sense of blockade or a complete and partial encirclement with the object of preventing egress to or ingress from a particular place whether it is some office workshop, 15 factory , even place of abode, in which situation the point of trespass may arise . As Dr. S.C. Kashyap says: “When employers and factory managers , etc. are encircled in their offices or elsewhere by the labourers and are prevented from freely moving about or out for 16 hours or days together until their demands are conceded , the action is called Gherao .” A gherao is usually short but may be long . A peaceful gherao involves crimes like wrongful restraint and criminal trespass .A violent gherao possess a threat to life and property too. In gherao it would require some original offence apart from the simple act of gherao to make it a criminal offence in law. If violence and criminal intimidations or other criminal offences were committed by the workers during gherao , it would be illegal and the workers would be punished according to the procedure established by the law. However for a gherao be illegal there must be criminal intimidation, criminal trespass, wrongful confinement or mischief to person or property 12
Damodar Ganesh v. State AIR(1951)Bom.459 Annual Report of the ministry of Labour, 1967-68 p.13 14 J.C.Johari, Gherao,A Pernicious techniques of Agitational Politics in India, in Journal of Constitutional and Parliamentary Studies, New Delhi, Vol.IV,No.2(1970),pp,231-232 15 G.L. Bannerjee, Gherao,p.50 16 S.C.Kashyap, The Politics of Defection,p.344 13
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, unlawful assembly or other criminal offences under law . Lastly, when a gherao may well become violent in that case the government is justified in interfering there. Since this mode of demonstration has been held to be unconstitutional and unlawful involving the breach of several provisions of the criminal law, its commission will also be misconduct for the purpose of disciplinary action by the industrial employers .All workmen guilty of wrongfully restraining any person belonging to the management , or wrongful confining him , during a gherao would be guilty under Section 339 or 340 of the Indian Penal Code for having committed cognizable offence for which they would be liable to be arrested without warrant and punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to rupees five hundred or with both. Thus gherao, as it is practiced and so far as it seeks to forcibly confine or restrain a person ,amounts to an offence under the IPC. Even under the Trade Union Act of 1926 any act of violence which amounts to the commission of an offence is never excused. An agreement to commit an offence is not exempted by Sec 17 of the Trade Union Act. Therefore , gherao is an aspect of industrial dispute and trade unions have no special privileges and exemptions to this except where criminal conspiracy is involved under Section 17. Gherao is not an offence as such , but where it is accompanied by confinement, restraint or other offences , the fact that it is doen by members of a trade union and used as an instrument of collective bargaining give rise to no special treatment or exemption from liability under the law. In the landmark case of Jay Engineering Works v. State of West Bengal 17 the court reiterated this view and stated that the exemptions granted under s. 17 of the act do not extend to:
“agreements to commit an offence or intimidation, molestation or violence, where they amount to an offence. Members of a trade union may resort to peaceful strike such as cessation of work with the object of enforcing their claims. Such strikes must be peaceful and never violent and there is no exemption where an offence is committed.Therefore, a movement by workmen by gathering together either outside or inside an industrial establishment within the working hours is permissible when it is peaceful and does not violate the provisions of law. However, when such a gathering is unlawful or commits an offence then such exemption is lost. Thus where the workmen resort to confinement of persons, criminal trespass or where it becomes violent or indulges in criminal force or assault or mischief to person or property, then the exemption granted under s. 17 of the act cannot be claimed.” In this case the court defined gherao as a “physical blockade of a target either by encirclement or forcible occupation.” It declared that the objective of a gherao is to force the management in power to agree to the demands of the workers, without regard for the machinery provided for redressal of complaints as provided for by the law, and hence it took the view is that a gherao is illegal and the persons involved cannot be granted immunity from criminal prosecution. As stated earlier in gherao since some criminal intimidation is involved hence it would also not be wrong to regard gherao as such to be legal. No doubt, on the part of the employees it is considered as prompt and easy redress to their grievances , while according to employers it is not only unjust and unlawful but also anti-social and most condemnable breach of discipline in any undertaking connected with this ideological 17
AIR(1968) Calcutta 407.
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differences between the two , is the approach to the problem, that is , whether to regard it as a legitimate weapon on the part of the employees to have their demands fulfilled or to handle it as a problem of maintaining law and order and allowing or even directing the police to intervene and take such action in the matter as may be called foe in the circumstances for the rescue of the persons “gheraoed” and for dispersing the employees resorted to it. 3.Bandh
Bandh, originally a Hindi word meaning "closed", is a form of protest used by political activists in South Asian countries such as India and Nepal. The expression therefore conveys a idea that everything is to be blocked or closed. Bandh is distinct and different from a general strike or 18 hartal . Often, the community or political party declaring a bandh expects the general public to stay in at home and not report to work. Most affected are shopkeepers who are expected to keep their shops closed, as well as public transport operators of buses and cabs who are expected to stay off the road and not carry passengers A bandh is a powerful means of civil disobedience. Because of the huge impact of a bandh on 19 the local community, it is a much-feared tool of protest . Burglary, forced closures, arson attacks, stoning, and clashes between the bandh organizers and the police are common during the period of closure. The state with the highest incidence of bandhs in India is West Bengal where the average number of bandhs per year is 40-50 (ranging in duration from a couple of hours to a maximum of two days per bandh). The Industrial Revolution in Europe contributed to the world in more ways than one. Apart from economics, it also contributed in providing methods of protest to the working/labor class which has had a deep impact on the Trade Unions across the world and also gave a weapon of protest for the political class which could be used against the ruling government. While India was slow to catch up with the process of Industrialisation, however it was not slow in adopting Bandh as a useful protest mechanism. Bandh became a strong weapon of Political protest during the struggle for Independence, and Mahatma Gandhi used it to the fullest extent during the Non-Co-operation movement. The objective of bandh those days was to stifle economic activity and also to indicate that one can't oppress people of a country to do what it doesn't want to. It had it's effect and definitely made the then British Government take notice of such protests. Post Independence one would have thought that, the need for such weapons of protest like bandh wouldn't have a place (except for the Labor/Working class) against a Government that was supposed to be By the, Of the and For the People of India. Yet, Bandhs continue to dominate the political landscape even till date and remains one of the key weapons of protest for the opposition parties against the existing Government and their policies, whether in the state or at the Centre. Bandh - Undemocratic and Unconstitutional
18 19
Bharat Kumar K. Palicha v. State of Kerala , AIR (1997) Ker.291 at 295. 1999 LLR 24
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In India it has become a norm for political parties and organizations to call for 'Bandh's (shutdown) when they want to be heard. More often than not such shutdowns are called to exploit a political or a sensitive issue and to gain attention. Although in India we have learnt to accept 'Bandh' as a mode of protest, it is not. Even though Political parties consider that it is their fundamental right to call public shutdown, they cause great hardship and suffering and disrupt normal life. Shutdowns are usually forced on the people by their leaders and consequently every such act is associated with violence resulting in loss of public and private property and injury to individuals. Such is the history of protests in India that one would expect public organisationswhich opt for such measures- to be at least cautious about its outcomes as it may even lead to mass causality. Moreover, you hardly see people not affiliated to political party call any shutdowns, indicating that such shutdowns are usually carried out under the guidance of wily and influential political leaders. In a way its ironic how we blindly follow our leaders, than them consulting us before resorting to such drastic measures. 'Bandh's by their sheer nature are unconstitutional as they interfere with our fundamental rights. People are forced to support shutdown by fanatic supporters and thugs by forcibly closing shops and halting public transport. People observe these protests on account of fear. Therefore, the success of any such protests cannot be attributed to public opinion as it may not have been observed voluntarily. There must be a clause in India's Constitution to hold accountable, to those who forcibly prevent others from exercising their fundamental rights. One wonders how these people got away with it for so long. On 6th January, 2010 Gauhati High Court declared that “Bandh” is illegal and unconstitutional. It violates citizen‟s fundamental rights. Chief Justice Jasti Chelameswar and Justice Arun Chandra Upadhyay in the light of a 1997 Supreme Court order upholding a Kerala High Court‟s judgment declared bandhs are illegal. Gauhati High Court gave the Judgment after hearing two separate public interest litigations (PILs) which were filed by two citizens in 2005, seeking declaration of “bandh”s as illegal and unconstitutional in Assam and Meghalaya. The petitioners 20 told that frequent “bandh”s affect the economy and education . In 2004, the Bombay High Court fined the Shiv Sena and BJP Rs 20 lakh for organising a bandh in Mumbai to protest bomb blasts. The court permits general strikes which protest against a specific establishment. But, they 21 22 do not support total strike .In a landmark decision in Bharat Kumar ,a full bench of the Kerala High Court has declared “Bandhs” organized by political parties from time to time as unconstitutional being violative of the fundamental rights of the people. The court refused to accept it as an exercise of the freedom of speech and expression by the concerned party calling for the bandh. When a bandh is called, people are expected not to travel, not to carry on their trade, not to attend to their work. A Threat is held out either expressly or impliedly that any attempt to go against the call for bandh may result in physical injury. A call for Bandh is clearly different from a call for general strike or hartal. There is destruction of public property during bandh.The High Court has directed that a call for bandh by any association, organization or political party and enforcing of that call by it, is illegal and unconstitutional. The High Court has also directed the sate and all its law enforcement agencies to do all that may be necessary to give effect to the court order. The Supreme Court has accepted the decision of The Kerala High Court
20
The Telegraph ,7th Jan 2010 Open Magazine, 14th Aug 2010 22 AIR(1997)Ker.291 21
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23
given in Bharat Kumar K. Palicha v.State of Kerala . The Supreme Court refused to interfere with the High Court decision. The Court has accepted the distinction drawn by the High Court 24 between a „bandh‟ and a strike in Communist Party of India (M) v. Bharat Kumar and others . A bandh interferes with the exercise of the fundamental freedoms of other citizens, in addition to 25 causing loss in many ways .In Ranchi Bar Association v. State Of Bihar , following the Apex court decision mention above, the Patna High Court has ruled that no party has a right to organize a “Bandh” causing the people by force to stop them from exercising their lawful activities. The Government is duty bound to prevent unlawful activities like bandh which inva des people‟s life, liberty and property. The Government is bound to pay compensation to those who suffer loss of life, liberty or property as a result of a bandh because of the failure of the 26 government to discharge its public duty to protect them .In appropriate cases, even the organizers of the bandh may be directed to pay compensation. Any organization interfering with the functioning of the courts commits contempt of court and can be punished accordingly. A peaceful strike which does not interfere with the rights and properties of the people is however not illegal. In the instant case, the High Court did award compensation against the State Government for loss of property and death of a person during the bandh for failure of the authorities to take appropriate action and provide adequate protection to the people‟s lif e, liberty and property. The Government failed to discharge its public duty to protect the people during the bandh. (Ibid) .Supreme Court‟s judgment in T.K. Rangarajan vs. State of Tamil Nadu (2003), declaring the right to strike is illegal, and „bandh‟ is unlawful. Taking a serious note of various instances of large-scale destruction of public and private properties in the name of agitation, bandhs, hartals and the like, suo motu proceedings were initiated by the Supreme Court in Destruction of Public & private properties , In re case U.C.O 27 Bank v. Rajinder Lal Kapoor , After perusing various reports filed two committees were 28 appointed ;one headed by a retired Supreme Court Judge, Justice K.T.Thomas , and other headed by Mr. F.S.Nariman, a senior member of the legal profession(Nariman Committee).Both the Committees submitted their reports separately. After considering the reports of the two Committees and hearing the matter, the Supreme Court held the recommendations of the Thomas Committee are wholesome and need to be accepted. To effectuate the reports of the two Committees and adding teeth to the enquiry, the following guidelines are to be observed as soon as there is a demonstration organized: 1. The organizer should meet the police to review and revise the route to be taken and to lay down conditions for a peaceful march of protest; 2. All weapons, including knives , lathis and the like should be prohibited; 3. All undertaking should be provided by the organizers to ensure a peaceful march with marshals at each relevant jurisdiction;
23
AIR(1997)Ker.291. (1997)(7)SCALE 21 25 Bharat Kumar K. Palicha v State Of Kerala, AIR 1997 Ker 29 1 26 AIR 1999 Pat 169 27 (2007)4 SCC474 28 K.T.Thomas Committee 24
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4. The police and the State Government should ensure videography of such protests to the maximum extent possible; 5. The person-in-charge to supervise the demonstration should be SP(if the situation is confined to the district) and the highest police officer in the State, where the situation stretches beyond one district; 6. In the event the demonstrations turn violent , the officer-in-charge should ensure that the events are videographed through private operators and also request such further information from the media and others on the incidents in question; 7. The police should immediately inform the State Government with reports on the events , including damage , if any , caused by the police; and 8. The State Government should prepare a report on the police reports and other information that may be available to it and should file a petition including its report in the High Court in question to take suo motu action. Thus 'Bandh,' a coercive method adopted by our leaders in India is not only undemocratic but also unconstitutional. Why not these so called 'defenders of democracy' resort to legal and constitutional methods such as demonstrating peaceful processions, filing of public interest petitions, creating awareness through mass media, holding fast etc. Most importantly why not use the powerful platform such as Legislative assembly and Parliament, which is meant for one thing only, to give voice to people. However, it is quite ironic that unconstitutional methods are also being adopted inside the house of legislature when leaders stage walkouts and cause commotion. The loss caused by such methods has been enormous to the nation's economy and above all to our dignity. These methods are nothing but unlawful and the sooner they are abandoned, the better for us. It is also high time that we in India adopt or rather enforce a common code of conduct for all political parties. There is also an urgent need for the political leaders to check their attitude and demeanour. Our political and public life today is an extension of the freedom struggle. Therefore, people generally consider it legitimate to take recourse to all those means which we employed against the foreign rulers. Let the Government and all the political parties -which believe in democracy- come to an agreed code and formulate a law with regard to legal ways of expressing public disapproval. The house of legislature is a forum for the elected representatives, and they should debate issues of national importance in that forum instead of disrupting life by holding public for ransom for anything and everything that tickle their fancy. At the same time constituents should remind their leaders of their obligation and demand that their fundamental rights are protected at any cost.
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4.CONCLUSION
Critical study of the Indian political system carried out by people outside of India has led it to be called a Dysfunctional Democracy for various reasons, this even while we continue to be proud of being the largest democracy of the world. I am not surprised with the findings of such critical studies; Where there is paranoia about the alternate voice or intolerance towards any hint of disagreement, there democracy is murdered. While a lot of thinking is required to get the democratic structure back on track, at the minimal, we should look at immediately stopping archaic and self defeatist methods of Political Protest.
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5.BIBLIOGRAPHY
1.
PRIMARY SOURCES 1.1
2.
LEGISLATION The Industrial Dispute Act,1947
SECONDARY SOURCES 2.1 BOOKS
Dr.. B.D. Singh,Industrial Relations and Labour Laws,2008 th .Radhakrishnaiah P.M., Industrial Dispute Act 1947,16 Edition , 2011, Asia Law House, Hyderabad nd Dr. Sanjeev Kumar,Industrial and Labour Laws,2 Edition,2004 Dr. Avtar Singh and Dr. Harpreet Kaur, Introduction to Labour and nd Industrial Laws,2 Edition ,2008 th Prof. S.N. Mishra, Labour and Industrial Laws,26 Edition,2011, Central Law Publications th Kumar H.L., Labour Problems and Remedies,10 Edition 2012, Universal Law Publishing Co. Pvt Ltd, New Delhi th Puri S.D., Labour Laws for Everday Made Easy,4 Edition 2012,Snow White Publications Pvt Ltd. th Srivastava S.C.,Industrial Relations and Labour Laws,5 Edition,2010,Vikas Publishing House Pvt Ltd, New Delhi.
2.2 CASES
Bangalore W.C. and Mills Co. v. Their Workmen (1968) I LLJ 514 at 51 Madras Gymkhana Club Employee’s Union v. Gymkhana Club, (1967) 2 LLJ 720,729(SC) Bharat Sugar Mills Ltd v. Jai Singh (1961)2 LLJ 644(SC) Damodar Ganesh v. State AIR(1951)Bom.459 Jay Engineering Works v. State of West Bengal,AIR 1968 Cal 407 Bharat Kumar K. Palicha v. State of Kerala , AIR (1997) Ker.291 at 295. T.K. Rangarajan vs. State of Tamil Nadu (2003), U.C.O Bank v. Rajinder Lal Kapoor, (2007)4 SCC474 Bhola Sah And Ors. Etc. vs The State Of Bihar And Ors.,AIR 1999Pat 169 Narok.C.C.v.Transmara C.C.,1999 LLR 24 Jagdish Chandra v. Corporation of Calcutta, AIR(1968) Calcutta 407 Raj Narain v. State , AIR(1961) Madras 531 Vimal Kishore Mehrotra v. State of U.P., AIR (1956) Allahabad 56. Bodi Alam And Anr. vs State Of Bihar And Ors, AIR(1951)Bom.459 Rajadhyaksha · Zikar vs State,AIR 1951 Bomb.459
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2.3
ARTICLES J.C.Johari, Gherao,A Pernicious techniques of Agitational Politics inIndia, in Journal of Constitutional and Parliamentary Studies, New Delhi, Vol.IV,No.2(1970),pp,231-232 G.L. Bannerjee, Gherao,p.50 S.C.Kashyap, The Politics of Defection,p.344 Frankfurter and Greene ,Labour Injuntion,(1930)
2.4
WEBSITES http://www.ebc-india.com/lawyer/articles www.lawcommissionofindia.nic.in/ www.legalservicesindia.com/ www.manupatra.com/
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