Rapport définitif - Rapport No. 153, Mars 1976

1. 107. The Committee already examined this case in November 1973, and submitted at that session an interim report, contained in paragraphs 497 to 514 of its 139th Report, which was approved by the Governing Body at its 191st Session (November 1973).
2. 108. India has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 109. The allegations still outstanding concern the arrest and detention for an indefinite period, without trial, of certain members of the complainant union under the Prevention of Acts of Violence Act and the Maintenance of Internal Security Act. According to the All-Bengal Teachers' Association, these measures were taken by way of reprisal because the Association was opposed to the education policy of the Governments both of India and of the State of West Bengal, had always fought for better service conditions for teachers and, in consequence, had not supported the party in power in the general election.
2. 110. In its reply, the Government stated that its education policy and the employment conditions of state teachers involved no infringement of trade union rights. It added that the Government of India and the governments of the states were doing all that was possible to promote education and to improve the working conditions of teachers. The Government further stated that it had not taken any action against teachers because of the views they held or their opposition to government policy, and that if certain teachers, along with some other persons, had been detained under the Prevention of Violent Activities Act, 1970, or under the Maintenance of Internal Security Act, 1971, it was because their activities were regarded as prejudicial to the maintenance of public order and not because of their activities as teachers.
3. 111. The Committee emphasised, as it had done on many occasions in the past, the importance it attached to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists were charged with political or criminal offences which the Government considered had no relation to their trade union functions. Whenever the Committee had concluded, in the light of the information supplied, that the accused had been given a fair trial by a competent judicial body, and had been sentenced for activities unrelated to trade union activities, or going beyond ordinary trade union activities, it had taken the view that the matter did not call for further examination. It had, however, always insisted that the government concerned could not unilaterally decide whether the activities so condemned were common-law offences or trade union activities; that was a point for the Committee to decide, after consideration of all the information available, and especially a transcript of the judgment rendered.
4. 112. In these circumstances, the Committee recommended the Governing Body to request the Government to indicate whether all the trade unionists concerned had been brought to court, and if so, to indicate what court tried them and to supply a transcript of the judgment, together with the reasons adduced therefor.
5. 113. The Government states in its reply of 8 August 1975 that 26 teachers were arrested during 1970-72 under the West Bengal Prevention of Violent Activities Act of 1970 and the Indian Maintenance of Internal Security Act of 1971 (which has been amended since then but not in any way relevant to the present case). According to the Government, each of the persons concerned was served with a detention order setting out clearly the reasons for his detention. The Government appends a list of the detainees indicating the reasons for their arrest (they were all accused in more or less specific terms of disturbing public order).
6. 114. The Government goes on to say that under the aforementioned Act of 1971 the Central Government or a state government may issue an order directing the detention of any person if it is satisfied that it is necessary to do so to prevent that person from acting in a manner prejudicial to the maintenance of public order. At the time the events in question occurred, when any such order was made by a state government it had to report the fact to the Central Government within seven days, stating the grounds on which the order had been made. The Act provided that the authority making the order should, as soon as possible, but ordinarily not later than five days from the date of detention, communicate to the person detained the grounds on which the order had been made and should afford him the earliest opportunity of making a representation against the order. The Government adds that the Act further provided for the setting up of advisory boards, consisting of three persons who were, had been, or could, because of their qualifications, be appointed judges of the High Court. The grounds on which the order had been made and the representation, if any, made by the person affected had to be placed before the advisory board within 30 days of the date of detention. The advisory board was required to examine the material before it and to submit its report to the Government within ten weeks of the date of detention. If the advisory board found insufficient cause for the detention of the person concerned, the appropriate government had to revoke the detention order and set him free forthwith.
7. 115. The Government goes on to say that the cases of 23 teachers were referred in this way to an advisory board constituted for the purpose. The board found that there was "sufficient cause" for detention in 18 cases, but not in the other five. The remaining three cases were not referred to the advisory board, but petitions were filed with the High Court of Calcutta, which set aside the detention orders. Petitions were also filed in 13 other cases, as a result of which the detention orders were set aside by the High Court. The Government emphasises that the detainees against whom the charges were not substantiated on investigation were released forthwith unconditionally. It appends a statement indicating the opinion of the advisory board and the manner in which the case was subsequently disposed of for each of the persons detained. It also forwards copies of four judgments delivered in typical cases by the High Court, setting aside detention orders because it considered that the detentions were unjustified or because the detention orders had been issued in pursuance of a provision already ruled to be unconstitutional. It appears from this information that all the teachers in question are today at liberty, sometimes after a long detention, with the exception of Mr. Smritibrata Sen Gupta.
8. 116. The Government repeats that these teachers were arrested not on account of their activities as teachers, but because of activities prejudicial to public order and that the authorities have at no time taken any illegal or unconstitutional measures to suppress the legal and Constitutional rights of the complainant association or of its members.

B. B. The Committee's conclusions

1. 117. The Committee notes that in the numerous cases where detained trade unionists have appealed to the High Court, the High Court has set aside their detention orders. In these circumstances, the Committee wishes to point out once again, as it has done many times before, that the detention of trade unionists on grounds which are ultimately rejected is liable to involve restrictions of freedom of association and that governments should take steps to ensure that the competent authorities receive instructions appropriate to obviate the dangers of such detention for trade union activities.,

118. The Committee recommends the Governing Body to draw the Government's attention to the considerations and principles set forth in the preceding paragraph.