Assignment

Industrial Strike Case Law

Kameshwar Prasad v. State of Bihar
(AIR 1962 SC 1166)

Submitted By:

Name: Utsav Singh

BA LLB (H), Sem-5 (B)

Roll No. 2101088

Submitted To:

Mrs. Renu Sharma

Assistant Professor in Labour Law

Dr. B. R. Ambedkar National Law University

 Acknowledgment

On completion of this project, it is my privilege to acknowledge my heartfelt gratitude

and indebtedness towards my teachers for their valuable suggestion and constructive
criticism.

I wish to express my sincere gratitude towards my professor Mrs. Renu Sharma mam for
her constant support and guidance throughout. Without his support, I would have never
been able to complete this project. Thank you.

I am also thankful to my institute for they have provided me with all the necessary E-
books, journals, and articles via sources like Manupatra, SCC, JSTOR etc.

Thank you.
Case Analysis: Industrial Strike
Kameshwar Prasad v. State of Bihar (AIR 1962 SC 1166)

In Kameshwar Prasad v. State of Bihar the Supreme Court was called upon to decide a
question "of considerable public importance and of great constitutional significance".2 The
issue before the court was whether R. 4-A of Bihar Government Servants' Conduct Rules,
1960 violated Article 19(1) (a) and (b) of the Constitution.3 The rule runs as follows : "No
Government servant shall participate in any demonstration or resort to any form of strike in
connection with any matter pertaining to his conditions of service." The court struck down
that part of the rule prohibiting demonstrations on the ground that it infringed Art. 19(1) (a)
and (b).4 Relying on this decision, the court subsequently struck down,5 in part, Rule 4-A of
Central Civil Servants (Conduct) Rules, 1955, which was on similar lines with the Bihar
Rule. Critics are likely to interpret this decision as one creating an eighth freedom - freedom
to demonstrate - in Art. 19 through judicial process by re-grouping freedom of expression
with freedom to assemble.

Right to make demonstration is not an expressly recognised fundamental right in the

Constitution. Consequently, the court had to construe whether "demonstration" could be
accommodated in "freedom of speech and expression" [Art. 19(1) (a)] or in "freedom t
peaceably assemble" [Art. 19(l)(b)] or in both. The court arrived the conclusion that some
forms of demonstrations would come within the purview of both Art. 19(1) (a) and 19(1) (b).

The Concise Oxford Dictionary defines 'demonstration' as "an outward exhibition of feeling,
as an exhibition of opinion on political or other question especially a public meeting or
procession." Webster defines it as "a public exhibition by a party, sect or society dictionary
definitions, the court define manifestation of the feelings or sent group. “While the dictionary
meaning major factor in the definition, the court the 'individual' on par with group. Th not
without significance. As an individual is communication of one's ideas, that is, one form of
freedom of speech. If individual demonstrators join hands in a common cause, it is freedom
of speech consummating in freedom to assemble. Thus the starting point for freedom of
demonstration is based on freedom of speech and expression. That is how the court had
developed the idea : "Without going very much into the niceties of language it might broadly
be stated that a demonstration is a visible manifestation of the feelings or sentiments of an
individual or a group. It is thus a communication of one's ideas to others to whom it is
intended to be conveyed. It is in effect therefore a form of speech or of expression, because
speech need not be vocal since signs made by a dumb person would also be a form of speech.
It has however to be recognised that the argument before us is confined to the rule prohibiting
demonstration which is a form of speech and expression or of a mere assembly and speeches
therein and no other forms of demonstration which do not fall within the content of Art. 19(l)
(a) or 19(l)(b). A demonstration might take the form of an assembly and even then the
intention is to convey to the person or authority to whom the communication is intended the
feelings of the group which assembles. It necessarily follows that there are forms of
demonstration which would fall within the freedoms guaranteed by Art. 19(1 )(a) and 19(l)
(b).

The court then drew a distinction between different forms of demonstrations: Some might be
violent and disorderly such as those indulging in stone-throwing and gate-crashing. The court
held that demonstrations of that description "would not obviously be within Art. 19(1) (a) or
(b)."8 Other forms of demonstrations might be peaceful and orderly as in those cases wherein
members merely wear some badges, drawing attention to their grievances. The court held the
latter to be covered by Art. 19(l)(a) and (b). It is significant that the court did not say that
some types of demonstrations - the violent and disorderly ones- could be prohibited by virtue
of Art. 19(2) and (3); instead, it had altogether excluded them from the frontiers of freedom
of expression and of assembly.

A close scrutiny of the above observations make the court's definition of demonstration a
little inconsistent. When it stated that "demonstration is a visible manifestation of the feelings
or sentiments of an individual or a group" and that it would, therefore, be °a form of speech
or expression", palpably the court purported to define 'demonstration' in its generality, and
not demonstration of this or that form only. Such being the definition of demonstration to
which the court was unequivocally committed, the distinction drawn by the court between
different forms of demonstrations for the purpose of their inclusion in, and exclusion from,
freedom of expression appears to be self-contradictory. If the definition of demonstration
given by the court is to be taken on its face value, it is difficult indeed to discount disorderly
demonstration from the purview of Art. 19(1 )(a). The result, therefore, is that either the
court's definition of demonstration does not tell us the whole truth or the exclusion of
disorderly demonstrations from the benefit of that definition illogical. Perhaps, the court
could have been at least conceptually consistent if only it made the right to assemble
peaceably, instead of the freedom of expression, the starting point inasmuch as freedom to
assemble peaceably and indulgence in violent demonstrations are inherently incompatible.

Once it held that some forms of demonstrations were protected by Art. 19(l)(a) and (b), the
court had to consider whether the rule in question could be justified by Art. 19(2) and (3).
The court characterised the rule in terms of "an embargo on any form of demonstration for
the redress of grievances of the Government employees."9 Being so the court then considered
whether the rule could be sustained as a reasonable restriction under the 'public order' clause
appearing both in Art. 19(2) and Art. 19(3). In this context, the state contended that
maintenance of discipline among government servants was a sine qua non of public order and
that if the government servants were allowed to agitate in a disorderly manner, it would lead
to demoralisation of the public, reflecting thereby the disappearance of public order. The
court did not, however, give in to this circuitous route to 'the public order'. Reiterat in Supdt.
Central Prison , Fątehgarh v. Ram Mano searched for a proximate nexus between the n tion
prohibited and the public order, and f "The vice of the rule", the court observed, "c ban on
every type of demonstration be the and however incapable of causing a breach of does not
confine itself to those forms of dem lead to that result."11 Inasmuch as the cour separate the
legal from the unconstitutional p the entire rule was struck down as unconstitutional.

The manner in which the demonstrative right' had been accommodated in Art. 19(1) (a) and
(b) may give rise to new problems. This may be noticed from the developments that have
taken place subsequent to the decision.

While striking down the rule in its totality, the court indicated at the same time the permissive
boundaries within which the right to demonstrate could legitimately be restricted. The court
observed : "if the rule were so framed as to single out those types of demonstrations which
were likely to lead to a disturbance of public tranquillity or which would fall under the other
limiting criteria specified in Art. 19(2) the validity of the rule would have been sustained."12
Apparently relying on this obiter , the Government of India amended Rule 4-A of the Central
Civil Servants (Conduct) Rules, 1955 which, as it originally stood, was partly struck down by
the Supreme Court in O. K. Ghosh v. E. X. Joseph.1* After amendment, Rule 4-A(i) runs as
follows : "No Government servant shall (i) engage himself or participate in any
demonstration which is prejudicial to the interests of the sovereignty and integrity of India,
the security of state, friendly relations with foreign states, public order, decency or morality,
or which involves contempt of court, defamation or incitement to an offence." The grounds
enumerated in this rule correspond to the grounds mentioned in Art. 19(2) which was referred
to in the court's obiter . It may, however, be recalled that the court read the right to
demonstrate into the right to assemble also [Art. 19(1) (b)]. But the right to assemble can be
restricted on grounds only of 'public order' under Art. 19(3). Inasmuch as the amended rule
purports to restrict the right to demonstrate qua the right to assemble on grounds not
mentioned in Art. 19(3), one may be tempted to doubt the validity of the amended rule also
despite the court's clearance. But on a close examination, the rule appears to be in perfect
harmony with the Constitution.

It may be realised that freedom of speech and expression is essentially individualist in nature,
but in this case it had been given a composite character. The question will therefore arise
whether the freedom of speech and expression, which is subject to several restrictions
enumerated in Art. 19(2) will enlarge its scope when it is exercised in conjunction with
freedom to assemble which is subject to only one ground under Art. 19(3). In other words,
can it be that freedom of expression individually exercised may be subject to many grounds,
but freedom of expression conjointly exercised by a group of individuals is subject only to
'public order'? An affirmative answer is anomalous and illogical. Such a curious construction
cannot be placed on the Constitution, nor can it be imputed to the court's decision. If freedom
of expression is allowed to merge with freedom to assemble, the resultant consequence will
be to defeat the provisions of Art. 19(2).

The matter may be viewed from another angle. What are the precise frontiers of freedom to
assemble ? In the right to ‘assemble there inhere two juridical components : First, an
individual must be entitled as of right to a given course of action. This relates to the object of
the assembly and the lawfulness of the purpose. Secondly, one is entitled for a particular
course of action in unison with others. Though distinct, these two aspects are interlocked. It
may be noticed that the source of authority for the former right has to be found in other legal
provisions, but not in Art. 19(l)(b); the right to assemble merely takes for granted such
entitlement. On the other hand, the latter entitlement is the direct resultant of tie right to
assemble. The legal position, therefore, appears to be as follows: If an individual is free to do
a particular act, it does not ipso facto follow that he can do the same conjointly with others.
The precise province of Art. 19(1) (b) is to assure the latter faculty. Conversely, the right to
assemble has to be confined to the faculty to assemble, the fact of assembling. But it cannot
be extended to all the matters for the purpose of which individuals assemble. Meets are meant
to exchange views, to campaigned on political issues, to enlighten the public, to address on
matters of religion, or to transact any other cannot be invoked in protection of such subst in
an assembly; the protection or prohibition on other legal norms. But so far as Art. 19 founded
on the assumption that members entitled individually for a given course of ac make such a
course of action on the part o action does not become legal by acting col will be of no avail in
such a situation as th this right is found missing. Whether such a course of action on the part
of individuals is judged by other provisions of the Constitution but not by Art. 19(1)(b) read
with Art. 19(3).

Applying this analysis to the examination the right of individuals to demonstrate i mentioned
in Art. 19(2). The right to demand freedom of expression - such is the starting p right - and
consequently, it can be restricted which freedom of expression can validly be expression can
be restricted under Art. 19(2) demonstrative right on grounds similar t Art. 19(2) is, therefore,
unimpeachable. Th are validly prohibited from having recourse t through freedom of
expression. As mention becomes operative only when persons who ar a particular course of
action are denied of together. In this case the first requirement as individually they are validly
prohibited Such being the case, the stage is not ripe for into action and therefore, the question
whet specifications of Art. 19(3) does not arise at all.

While the validity of the amended rule can cannot help reflecting on the probable utility may
be recalled that this rule is amended in under review. But it will be evident that t the
minimum requirements of the Administer the nature of the restrictive grounds referred be
unrealistic in the context of demonstration is of general nature, amenable for applic largely
unrelated to the peculiar condition of civil service disciple

This may, therefore, lead us to consider the correctness of the postulates underlying the
decision. It is true that demonstration is a form of communication of feelings or ideas, but
will that be sufficient inali cases to equate it with freedom of expression ? Beating a truant
child is also a form of communication of feelings, but surely one cannot on that count style it
a freedom of expression. Hunger strike before Parliament is also a form of communication of
feelings or ideas, but it is doubtful whether one can call it freedom of expression. It is,
therefore, essential to note that every form of communication of feelings is not necessarily
freedom of expression which is but one means through which feelings or ideas can be
communicated. It is against this background that the problem may be viewed whether it is not
an over-simplification to process 'demonstration' to 'expression* through conceptual
conveyance of "communication of feelings."

‘Demonstration’ is a distinct sociological phenomenon and it has acquired a special

significance and meaning in the contemporary social life, in contradiction to the theoretical
possibility of an individual's demonstration as envisaged in the courts' definition of
demonstration. It is essentially collective in character with a relatively higher rate of
agitational intensity than a mere peaceful assembly. Though the characteristics of assembly
are also present in demonstration, they may not be considered to be synonymous for the
simple reason that some characteristics which are familiar to demonstration may not be
present in assembly.14 Hence, it may not be correct to consummate demonstration either with
freedom of expression or with freedom to assemble or with both. It is altogether a different
concept, with a distinct connotation.

It may further be noted that if the framers of the Constitution thought it necessary to accord
protection or qualified protection to demonstration, they could have easily said so, as they did
so in the case of the cognate faculty, the faculty to assemble peaceably and without arms.
Even the freedom of assembly is contained by the Constitution in a very limited compass,
first, by restricting it to peaceful assemblies, and again, by adding to it the « disarmament
clause '. If right to assemble, which is relatively less disorderly than demonstration, is thus
provided in a circumscribed province by an express grant, can it be surmised that a more
explosive right like
‘demonstration right', is left by the frame inference through judicial decisions ? It m court
itself had recognised that demonstrate kinds - innocuous and disorderly ones. But stations. As
mentioned earlier, the court the disorderly demonstrations from the pervasion but extended
the protection of free assembly only to dumb demonstrations. The legislative role in splitting
up the unity of copt, demonstration, and by assigning the p it to expression and assembly with
all the c patrimony. It is needless to add that such r possible only at the hands of legislator
whether the court is correct in carving out a stations of a particular description without grant.
It is, therefore, likely that some crit sion as a piece of judicial legislation constitution in
Article 19. Shorn of the technicalities, the court's decision will virtually amount to saying that
expression plus assemble is equivalent to demonstration, an equation, even if be true
otherwise, will not ensure all the properties of the former two in the latter just as hydrogen
and oxygen will not ensure all their properties in water (H20), nor will it automatically extend
the constitutional protections meant for expression and assembly to their by-product, the
faculty to hold demonstration.

It is not irrelevant to mention here that even within the four corners of the decision in review,
it is quite possible to enlarge the scope of the amended rule prohibiting the Union
Government employees from participating in demonstrations. The rule, as it stands now,
prohibits demonstrations of all kind only on some specified grounds. But in the case of
violent and disorderly demonstrations there is no need to delimit the prohibition to the
enumerated field. They can be totally prohibited, regardless of the grounds, because the court
recognised that violent and disorderly demonstrations would not come within the purview of
Article 19(l)(a) or (b). Thus, there is no need in their case to satisfy either Article 19(2) or (3).
Consequently, the repealed rule may be restored by confining it to violent and disorderly
demonstrations and the amended rule be restricted to orderly demonstrations.