Sunday, September 30, 2007

SC stays DMK Bandh on Sethu Project

Dinamalar ePaper

Supreme Court stays DMK-sponsored Tamil Nadu bandh

New Delhi, Sept. 30 (PTI): The Supreme Court today stayed a ruling DMK-sponsored bandh in Tamil Nadu on the Setusamudram project issue slated for tomorrow.

After three hours of arguments on a petition filed by AIADMK, a bench headed by Justice B N Aggarwal stayed the bandh called tomorrow or on any other day.

In the meanwhile, in Chennai, the DMK patriarch and Tamil Nadu Chief Minister M Karunanidhi plans to undertake fast tomorrow demanding early completion of the Sethusamudram project.

The Court had especially met on a Sunday, a rare occurrence, to dispose of the AIADMK's petition.

The AIADMK has filed the SLP, after the Madras High Court on Saturday declined to interfere with the party's plea for restraining the ruling combine from going ahead with the bandh call.

"Bandh unconstitutional"

The AIADMK in the SLP had contended that the proposed bandh was unconstitutional and violative of the apex court's directive on the issue.

Seldom does the apex court take up for open hearing on any matter on Sundays and holidays unless the issue involved is of grave importance.

The AIADMK has sought special hearing of its SLP on the plea that its petition would become infructous if no decision was taken before Sunday.

"That's the problem in this country. We have to deal everything with an iron hand in this country. Otherwise things will not work. Every organ, let it be the legislature, executive or judiciary has to deal with an iron hand," the apex court observed.

Recalling that the apex court had in 1998 clearly upheld the ruling of a full bench of the Kerala High Court that calling or enforcing a bandh was illegal and unconstitutional, the bench regretted that orders of the courts were being violated with impunity in the country.

"We have come to this stage in the country that everything has to be monitored, hammered or directed by courts. Even orders of the Supreme Court are not observed, what to talk of the High Courts. Ninety-nine per cent of the High Court orders are not complied," the apex court said.

The apex court rejected arguments of senior counsel Altaf Ahmed and A K Ganguly appearing for Tamil Nadu and the DMK that the October 1 protest programme was not a bandh call but rather a "hartal".

"If it is a bandh then it is a breakdown of the Constitutional machinery. Your own resolution says that the programme on October 1, is intended to ensure complete cessation of all activities, then how can you say it is not a bandh?," the bench grilled the Tamil Nadu counsel.

The bench brushed aside the claims of the State and the DMK that what was essentially intended was a public meeting.

"Where is the public meeting you show us. Your resolution say it is cessation of all activities and work. You want to show your popularity. Why do you want to close all down educational institutions and commercial activities. Where will you then find the people for your meetings," the apex court asked in a sarcastic tone.

"Protest against whom?", asks Court

The apex court observed that the object of the DMK and its constituents in calling for the bandh was to demonstrate their might rather than doing it for a cause.

"Your protest is against whom? the project, Central Government or against this court,? the bench queried to which the counsel claimed that the protest was for seeking early implementation of the project.

The apex court also rejected the arguments of the State that the Madras High Court had permitted the protest programme by ensuring that there was on hindrances to the normal public life.

The bench said it was mainly concerned with the issue of deciding whether a bandh call can be given by any individual or organisation, after the concept of bandh had been declared illegal and unconstitutional by the apex court.

According to the bench, a bandh call essentially paralysed public life and was violative of the Fundamental Rights guaranteed under Article 19 (Freedom of Speech) and Article 21 (Right To Liberty) of the Constitution.

Interestingly, during the argument, counsel for the State and Tamil Nadu submitted that they were not opposed to "any alternative alignment" of the project's route.

However, the bench said in the present petition it was not addressing the validity of the project's alignment, but the legality of a bandh call.

Since the apex court had earlier ruled that a bandh is unconstitutional, the bench said it cannot permit the DMK and the State from enforcing the October 1, protest call.

"We have laid down the law and it is final. Only a larger bench of this court can decide on our earlier ruling," the bench observed, while asserting that bandhs per se are illegal.


Apex court pulls up Madras High Court

Legal Correspondent

“It ought not to have issued directions on bandh”

There can’t be any peaceful cessation of work: apex court

Everything has to be dealt with an iron hand: Bench

New Delhi: The Supreme Court on Sunday pulled up the Madras High Court for giving certain directions in addition to the instructions given by Tamil Nadu Chief Secretary on a bandh called by the DMK and its allies.

A Bench, comprising Justices B.N. Agrawal and P.P. Naolekar, said “having come to the conclusion that it was only a bandh, the High Court ought not to have issued certain directions in addition to those given by the Chief Secretary as if to facilitate the holding of a bandh.”

Law and order

Appearing for the petitioner, the AIADMK, counsel Guru Krishnakumar said: “Our grievance is that the High Court, having given a finding that it is a bandh, had refused to interfere with the bandh. The State owes a duty to maintain law and order, for it can’t create a ghost and try to destroy it.”

The Bench said, “The High Court has committed a mistake. In the teeth of the law laid down by this court, the High Court had no other option except to declare the bandh illegal and unconstitutional. By not doing so, the High Court had failed in its duty for all times to come. By giving the directions, the High Court had tried to over-reach the orders of this court.”

When senior counsel for the State Altaf Ahmad and counsel for the DMK A.K. Ganguly asserted that it was only a strike, the Bench said: “If it is a strike, it has to be against some institution or an organisation. You [DMK] are part of the Central government. Are you against the Centre or against the Supreme Court? The moment it is directed against the general public and not against any particular institution, it would have to be construed as a bandh, which is prohibited by this court.”

When Mr. Ganguly said the purpose of the strike was only to expedite the Sethusamduram project, the Bench said: “How can you expedite the project when this court has said that the dredging work can go on without damaging Ramar Sethu and when the Centre had sought three months time for considering an alternative alignment.”

Mr. Ganguly replied, “What we are saying is don’t take three months; expedite it even if it is through an alternative alignment. For this we are going to hold peaceful meetings.”

The Bench referred to the resolution and asked counsel “what do you mean by cessation of work and closure of shops if it is not a bandh. There can’t be any peaceful cessation of work. The purpose for which you are resorting to a bandh is immaterial. For us it appears to be a bandh. The moment we find that it is a bandh, we can’t permit it.”

The Bench issued notice to the DMK, Congress, CPI (M), CPI and the PMK to respond to the AIADMK petition against the impugned High Court order.

© Copyright 2000 - 2007 The Hindu


Supremacy of law

In declaring the proposed Monday’s State-sponsored work stoppage (bandh) in Tamil Nadu unconstitutional, the Supreme Court has reinforced a well-established doctrine that sustains governance. One of the primary duties and responsibilities of a government is to safeguard and maintain law and order and not facilitate or promote the breach of it.

The law, as it stands on the statute book at present, is the one laid down by the Supreme Court in the earlier 1998 case upholding the Kerala High Court’s ruling declaring bandhs called either by the State or public/private parties/organisations illegal and unconstitutional.

In this context, Tamil Nadu Chief Minister Karunanidhi’s call for a day’s State-wide bandh on October 1 to back up his government’s demand for the early completion of the Sethusamudram Shipping Project (SSP) has been held by the Court not only as violative of the standing law but of the principles of good governance. Mr Karunanidhi’s acceptance of the court order shows good grace on his part, but his decision to resort to a day’s fast by himself and his cabinet colleagues and partymen is likely to be seen more as a protest against it than as being supportive of the government’s demand for the implementation of the SSP.

Had Mr Karunanidhi announced a token fast of the kind he now proposes to undertake instead of a bandh, he might not fallen foul of the law. However, the harsh comments accompanying the Apex Court’s judgement, delivered in a rare Sunday sitting, are not flattering at all to the observance by governments and the citizenry, not to mention political parties, of the required degree of respect for court rulings directly and to the supremacy of the law indirectly. If the court’s observation that ninety-nine per cent of the High Court orders are not complied with is true, then we have no right to claim, as we often tend to do, that India is one of the few countries that places the highest priority to the concept and implementation of the rule of law.

Deccan Chronicle

AIADMK moves apex court against bandh


“The bandh is in violation of Supreme Court judgments”

SLP seeks a direction to quash High Court order

New Delhi: The Supreme Court will hear on Sunday a Special Leave Petition filed by All India Anna Dravida Munnetra Kazhagam on Saturday seeking to restrain the Dravida Munnetra Kazhagam and other constituents of the Democratic Progressive Alliance from proceeding with a State-wide bandh in Tamil Nadu on October 1.

A Bench headed by Justice B.N. Agrawal will hear the petition in the court. Since the Tamil Nadu Government had filed a caveat, counsel for the State would also be heard before the court passes any order on the petition.

The decision to hear the matter in the court on Sunday, though it is a holiday, was taken by Mr. Justice Agrawal tonight after he perused the petition submitted to him by the Supreme Court Registry.

In its special leave petition against the Madras High Court order dated September 28, the AIADMK, through its presidium chairman E. Madhusoodhanan, said the High Court had erred in not restraining the political parties (DMK, Congress, CPI (M), CPI and PMK) from proceeding with the bandh, notwithstanding its own finding that prima facie there was substance in the petitioners’ contentions.

A violation

The SLP said the bandh call was in violation of Supreme Court judgments. The High Court ought to have noted that Chief Minister M. Karunanidhi, who is also the leader of the DMK, had chaired a committee and taken the decision.

The High Court had failed to appreciate that the bandh call was given by the very same political parties who were running and supporting the Government and thus the call was ironically by the State, which was duty bound to protect law and order and prevent enforcement of a bandh.

It said various directions had been issued by the High Court for ensuring maintenance of law and order, which was, in any event, the duty of the State. Thus the State itself created the occasion for commission of unconstitutional and illegal acts and issue orders thereafter to purport to take steps for maintaining law and order.

The various directions issued related only to maintenance of essential services and did not envisage carrying out regular commercial, trading and official activities. Even schools and colleges had declared a holiday on October 1.

Contending that grave prejudice and irreparable loss and hardship would be caused to the public and the nation by the bandh, the SLP sought a direction to quash the impugned order and an interim injunction to restrain the DMK and other political parties from going ahead with it.

© Copyright 2000 - 2007 The Hindu


It's not 'Sun' day: SC says no bandh in TN

Monday October 1 2007 00:00 IST

Prabhakar Rao Voruganti

NEW DELHI: In a major decision, Supreme Court has on Sunday restrained the ruling political combine in Tamil Nadu from going ahead with the bandh slated for Monday in seeking early implementation of the Sethusamudram project.

In a rare Sunday hearing in the open court, a Bench comprising Justice B N Agrawal and Justice P P Naolekar, observed that after the Madras High Court had come to a prima facie finding that it is a bandh, it ought not to have permitted the ruling party from proceeding with the bandh, the Bench said.

The orders were passed on a Special Leave Petition filed by the AIADMK challenging the September 28 order of the High Court. The Bench agreed with the averments of the petitioners that the apex court had held in Communist Part of India VS Bharat Kumar (1998) that no one has a fundamental right to call for a bandh and that the calling and enforcement of a bandh negates the fundamental rights of the citizens under Article 19 and 21 of the Constitution.

The Bench also has taken note of its 2001 judgment affirming the decision of the Full Court of the Kerala High Court on the same issue. Senior counsel Altaf Ahmed appearing for the State of Tamil Nadu and A K Gangulay for the DMK tried to convince the court that it is a call for hartal and not for a bandh.

The Bench, however, did not agree with them and pointed out that the High Court had given a finding on the resolution passed on September 24, calling for cessation of work, meaning closure of shops and other establishments. It said it is a bandh and we are prima facie in agreement with it, the Bench added.

The moment you say it is a bandh, we cannot permit political parties either to call for it or to enforce it because it is unconstitutional in the teeth of the law laid down by the Supreme Court, the Bench pointed out. The Bench said that there is only a thin distinction between a strike (hartal) and the bandh. Strike is against a particular institution or an organization, but bandh is against the general public.

In our view, it appears to be a bandh. We cannot allow it to be enforced, the Bench added.


After the Bench passed the order, Ganguly wanted to know whether the party can go ahead with a public meeting. To this the Bench remarked, “Don’t give a different meaning to our order. Be cautious. Don’t play with fire.”

The Bench also found fault with the Chief Secretary for giving various instructions, in the process, facilitating the bandh.

“So long as this judgment remains (unless reversed by a larger Bench) you cannot call for a bandh which has been completely prohibited. Public right is superior to individual right or party right”, the Bench stated.

The Special hearing went on for three hours. The AIADMK moved the apex court by way of an SLP challenging the order of the Madras High Court declining to interfere with the ruling combine’s plan for going ahead with the bandh call. The special hearing was taken up on the contention of the AIADMK that its petition would become infructuous if no decision was taken before Sunday as the bandh was scheduled for Monday.

“That's the problem in this country. We have to deal everything with an iron hand in this country. Otherwise things will not work. Every organ, let it be the legislature, executive or judiciary has to deal with an iron hand,” the Bench stated.

The Respondents who were restrained from organizing a bandh on Monday in Tamil Nadu are the DMK, the Indian National Congress, Communist Party of India (Marxist), the Communist Party of India and the Pattali Makkal Kactchi. (An inset can be used with the following news report incorporating remarks.)

“We have come to this stage in the country that everything has to be monitored, hammered or directed by courts. Even orders of the Supreme Court are not observed, what to talk of the High Courts. Ninety-nine per cent of the High Court orders are not complied with,” he Bench deplored.

“Where is the public meeting you show us. Your resolution says it is cessation of all activities and work. You want to show your popularity. Why do you want to close all down educational institutions and commercial activities. Where will you then find the people for your meetings,” the apex court asked the counsel.

“Protest against whom?” The object of the DMK and its constituents in calling for the bandh is to demonstrate their might rather than doing it for a cause. “Your protest is against whom? The project, Central Government or against this court?” the bench asked the counsel for the respondents.

They replied that the protest was for seeking early implementation of the Sethusamudram project.


Related stories:

Madras HC declines to interfere into DMK's Bandh

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