Assam Tinsukia killings: State breaks own law to reschedule Gunotsav ahead of 'bandh', but asks deputy commissioners to ensure normalcy

In a surprising move, the Assam government issued two contradictory orders in view of the Assam bandh called by various organisations on Saturday to protest the killings of five Bengali-speaking people by suspected United Liberation Front of Asom (Independent) militants in the state’s Tinsukia district on Thursday.

An order signed by Sarba Siksha Abhiyan, Assam, executive director Dhrubajyoti Das with the subject line “Postponement of date of external evaluation under Gunotsav, 2018” said that “the External Evaluation under Gunotsav, 2018 (Phase - II) to be held on 3rd November, 2018 has been postponed and re-fixed on 5th November, 2018 due to Assam Bandh called by certain organizations. You are therefore, requested to take necessary action for smooth conduct of the Gunotsav on 5th November, 2018 instead of 3rd November, 2018 accordingly”.

The order by the state government amounts to giving official support to the shutdown and bowing down to the pressure these organisations has created. Gunotsav is a mega exercise that assesses the quality of education in State-run elementary schools.

The official website of Gunotsav describe the exercise as: “Gunotsav is a quality enhancement initiative of the State for bringing about improvement in learning levels of students at Elementary level…. It aims to evaluate schools and students of schools in order to assess their performance and design strategies to bring about quality improvement in levels of learning as well as in the school environment. Assessment will be done on four core areas viz Academic achievement of children of Class-2 to 8, Co-scholastic activities, Availability and Utilization of School Infrastructure and other facilities and Community Participation…. The exercise will indicate the gaps in learning levels of students of classes-II to VIII. The teachers based on this assessment will provide appropriate intervention to improve learning levels of students. A special coaching package will be designed for remedial teaching by the teachers in the school itself.”

By endorsing the bandh indirectly, the state government has flouted its own law.

The Assam Prevention Of Unconstitutional Bandh Act, 2013 clearly states: “Any unauthorised calling for or giving of oral, print and/or Electronic media publicity to, holding of and/or enforcing of an unauthorised bandh by any private person, student organisation, organisation with reflected student strength, if any, political party or body in Assam will be unconstitutional, illegal and void being in violation of its public order and maintenance of supplies and services, and also causing individual, public and State loss of production, supply, exchange and distribution of goods and services essential for the life of the community, all these being in violation of the relevant fundamental rights of the affected people of Assam as guaranteed by the Constitution of India.”

The same Act has provisions for the state government to act and prevent such illegal shutdowns and not succumb to pressure that is not in conformity to the constitutional requirements.

“The State Government may order detention of persons for commission of prejudicial acts in the nature of calling, promoting, supporting and/or joining unconstitutional bandh.- The State Government or any officer of the State Government not below the rank of Secretary may, if satisfied with respect to any person that with a view to preventing him from calling, promoting, supporting and/or joining any unconstitutional bandh prejudicial to other citizen’s fundamental rights; or acting in any manner towards any unconstitutional bandh; or acting in any manner prejudicial to the maintenance of public order, or to the maintenance of supply and services essential to the life of the community it is necessary so to do, make an order directing that such person shall be punished with simple imprisonment for two years or with fine or reimbursement not exceeding Rupees 10,000/- (ten thousand) per day in default further imprisonment for two years,” the Act reads.

On 6 January, 2010, a two-bench Gauhati High Court comprising then chief justice J Chelameswar and Justice AC Upadhyay while disposing of PIL No. 72/2005 observed that “in the circumstances both these writ petitions are required to be allowed directing the respondents to strictly implement the law declared by the Supreme Court in the above mentioned judgment by taking all necessary steps for preventing infringement of the various fundamental rights of the citizens on account of the various calls of bandhs etc given from time to time by various political or other organisations.”

The same was reaffirmed in a ruling by the high court in 2013.

In its order in the 1998 1SCC 201 (Communist Party of India (M) vs. Bharat Kumar & Ors case, the Supreme Court said : “We are satisfied that the distinction drawn by the High Court between a “Bandh” and a call for general strike or “Hartal” is well made out with reference to the effect of a “Bandh” on the fundamental rights of other citizens. There cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people. It is on the basis of this distinction that the High Court has rightly concluded that there cannot be any right to call or enforce a “Bandh” which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways.”

The hypocrisy of the state government is evident by the directive it has sought to publicise on the official Facebook page of Directorate of Information and Public Relations, Assam where it ordered all district deputy commissioners to ensure normal functioning in all government offices on Saturday. It is ironic that it has not made its order on rescheduling Gunotsav available on any public forum.

On 22 October , senior Assam minister Himanta Biswa Sarma cited the Gauhati High Court ruling when a 12-hour Assam bandh was called by 46 organisations on 23 October as a part of the protest against the Citizenship (Amendment) Bill, 2016.

The high court ruled in 2013 that calling of bandh was illegal and as such “we have to follow the court’s order and ensure that there is no bandh Tuesday. All shops and business establishments should remain open while government employees must report for their duties or else it will be treated as a contempt of court”, Sarma said.

It seems that rules are made to be broken.