SESSION 2011-2016

Labour Law
Picketing , Gherao and Bandh

Under the Guidance of: Submitted By:

Mr Hrishikesh Manu Kiran Kachhwaha
Assistant Professor (Law) Roll no. 546
IV Semester, Section – A

1|Page
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 – A
CNLU, Patna

2|Page
INDEX

Sr.No. Topic Pg.No.

1 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 OR 9

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

3|Page
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 non-
employment 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.

4|Page
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.

5|Page
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.

As per Section 2(k) of Industrial Disputes Act,1947, an industrial dispute1 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
of employment or with the conditions of labor2, 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
The definition of the “industrial dispute” is taken from an (English) Act 1906(6 Edw VII C47)
2 Madras Gymkhana Club Employee’s Union v. Gymkhana Club, (1967) 2 LLJ 720,729(SC)

6|Page
Union as such are not mentioned as they act on behalf of the workmen only. 3 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 non-
economic 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:

 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

3 Bangalore W.C. and Mills Co. v. Their Workmen (1968) I LLJ 514 at 518

7|Page
 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 industrial loss.

3. Industrial losses may cause economic depression because many industries are
interlinked. A problem in one industry may drastically affect another industry.

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 sabotage.

8|Page
3.FORMS OF INDUSTRIAL DISPUTE OR INSTRUMENTS OF ECONOMIC
COERCION
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 of
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
continue to work or to accept employment”4. 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 of
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

9|Page
 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 be 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
workers' places5. 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 go-
slow tactics to put pressure on the employers6.
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)

10 | P a g e
 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 by 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

11 | P a g e
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
classic treaties , the Labour Injunction7 ,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)

12 | P a g e
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 be 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
constitutional validity of the section was challenged in Damodar Ganesh v. State8 and Vimal
Kishore Malhotra v. State of Uttar Pradesh9 .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
where such persons or members of his family resides or works or carries on business10. 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
Damodar Ganesh v.State11 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.

9 AIR (1956) Allahabad 56.
10 Raj Narain v. State , AIR(1961) Madras 531.
11 AIR(1951)Bom.459

13 | P a g e
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
mean encirclement12. 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
ironically it, for the first time , lost its legitimacy in 196813. 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
their employees or subordinates for hours and days until their demand are met14. 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,
factory , even place of abode, in which situation the point of trespass may arise15 .
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
hours or days together until their demands are conceded , the action is called Gherao16.”
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

13 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

14 | P a g e
, 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 Bengal17 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.

15 | P a g e
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
hartal18. 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
the local community, it is a much-feared tool of protest19.
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 Bharat Kumar K. Palicha v. State of Kerala , AIR (1997) Ker.291 at 295.

19 1999 LLR 24

16 | P a g e
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 organisations-
which 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
told that frequent “bandh”s affect the economy and education20. 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
do not support total strike21.In a landmark decision in Bharat Kumar22,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

21 Open Magazine, 14th Aug 2010
22 AIR(1997)Ker.291

17 | P a g e
given in Bharat Kumar K. Palicha v.State of Kerala23. The Supreme Court refused to interfere
with the High Court decision. The Court has accepted the distinction drawn by the High Court
between a ‘bandh’ and a strike in Communist Party of India (M) v. Bharat Kumar and others24.
A bandh interferes with the exercise of the fundamental freedoms of other citizens, in addition to
causing loss in many ways 25.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 invades
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
government to discharge its public duty to protect them26.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 life, 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
Bank v. Rajinder Lal Kapoor27, After perusing various reports filed two committees were
appointed ;one headed by a retired Supreme Court Judge, Justice K.T.Thomas28, 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.
24 (1997)(7)SCALE 21
25 Bharat Kumar K. Palicha v State Of Kerala, AIR 1997 Ker 291
26 AIR 1999 Pat 169
27 (2007)4 SCC474
28 K.T.Thomas Committee

18 | P a g e
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.

19 | P a g e
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.

20 | P a g e
5.BIBLIOGRAPHY
1. PRIMARY SOURCES

1.1 LEGISLATION
 The Industrial Dispute Act,1947

2. SECONDARY SOURCES

2.1 BOOKS
 Dr.. B.D. Singh,Industrial Relations and Labour Laws,2008
 .Radhakrishnaiah P.M., Industrial Dispute Act 1947,16th Edition , 2011,
Asia Law House, Hyderabad
 Dr. Sanjeev Kumar,Industrial and Labour Laws,2nd Edition,2004
 Dr. Avtar Singh and Dr. Harpreet Kaur, Introduction to Labour and
Industrial Laws,2nd Edition ,2008
 Prof. S.N. Mishra, Labour and Industrial Laws,26th Edition,2011, Central
Law Publications
 Kumar H.L., Labour Problems and Remedies,10th Edition 2012, Universal
Law Publishing Co. Pvt Ltd, New Delhi
 Puri S.D., Labour Laws for Everday Made Easy,4th Edition 2012,Snow
White Publications Pvt Ltd.
 Srivastava S.C.,Industrial Relations and Labour Laws,5th
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

21 | P a g e
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/

22 | P a g e