IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present: Mr. Justice P.K.Balasubramanyan, Mr. Justice K.A.Mohamed Shafi
Wednesday 1st day of June, 2000
O.P. No. 20641 of 1998
Institute of Social Welfare ----------------------Petitioner
1. State of Kerala, represented by its Chief Secretary, Trivandrum
2. The Director General of Police
3. The Communist Party of India (Marxist)
4. The Indian National Congress (I)
5. The Chief Election Commissioner ---------------------- Respondents
For Petitioners: P.B.Sahasranaman, K.Jagadeesh and T.S.Harikumar
For Respondents: K.K.Ravindranath, Sr.Govt Pleader, Mathew Zachariah, & Raju Joseph
1. Bharat Kumar v. State of Kerala (A.I.R.1997 Ker. 291)
2. Communist Party of India (Marxist) v. Bharat Kumar (A.I.R.1998 SC 184
3. Bharat Kumar v. State of Kerala (1997(2) K.L.T.287)
4. Communist Part of India (Marxist) v. Bharat Kumar (A.I.R.1998 SC 184)
5. 1998 S.C. 184 (communist Party of India (M) Vs. Bharat Kumar
6. 1997(2) KLT 287 popularly known as 'Bundh case' (Bharat Kumar vs. State of Kerala)
7. A.K.Gopalan v. State of Madras (1950) SCR 88)
8. Damodar Ganesh v. State (A.I.R. 1951 Bom.459
9. Thornhill v. State of Alabama (1939) 310 U.S.1093)
10. Carlson v. State of California (1939) 310 U.S.1104)
11. Lora Lee Dress Company Insurance v. I.L.G.W.U.
12. Allahabad in Vimal Kishore v. State of U.P. (AIR 1956 Allahabad 56)
13. Ram Manohar v. Superintendent, Central Prison, Fatehgarh (A.I.R.1955 Allahabad 193)
14. Raj Narain v. State (A.I.R. 1961 Allahabad 531)
15. A.K.Gopalan v. The State of Madras (1950 SCR 88 at 253)
16. Damodar Ganesh v. State (AIR 1951 Bom.459).
17. Communist Party of India (Marxist) v. Bharat Kumar (A.I.R. 1998 SC 184)
18. Ranchi Bar Association v. state of Bihar (A.I.R.1999 Pat. 169).
19. Janatha Dal (Samaj Vady) v. Election Commission of India (A.I.R.1996 SC 577)
20. K.Venkitachalam v. A. Swamickan (A.I.R.1999 SC 1723)
21. Bharat Kumar v. State of Kerala (A.I.R.1997 Ker. 1291),
22. Communist Party of India (Marxist) v. Bharat Kumar (AIR 1998 SC 1840)
After this court declared in Bharat Kumar v. State of Kerala (A.I.R.1997 Ker. 291) that the calling of bundh and the enforcement of that call is illegal and unconstitutional and that decision of this court was confirmed in appeal by the Supreme Court. In Communist Party of India (Marxist) v. Bharat Kumar (A.I.R.1998 SC 184), Political parties including the appellant before the Supreme Court started calling for Hartals. In Bharat Kumar's case this court had made a distinction between a 'Bundh' and a 'hartal' and had pointed out that a 'bundh' involved coercion of others into toeing the line of those who called for the bundh and that act was unconstitutional since it violated the rights of others. This court proceeded on the basis that a hartal was a peaceful act of non-co-operation or was a passive resistance movement and a call for it did not involve coercion of a person who did not want to join the hartal into compulsorily participating in the hartal. The Supreme Court in Communist Party of India (MARXIST) v. Bharat Kumar while affirming the decision f this court approved the distinction so made by this court. Presumably in the context of this, political parties and mashroom organisations in this State started calling for hartals. These Original Petitions are filed complaining that coercion is used accompanying the calls for hartals and what are not held are not hartals as understood or as recognised by this court and approved by the Supreme Court and that even if the call is for a hartal if the call is enforced by violence, threat, physical or mental, actual or persived, holding of a hartal would become unconstitutional especially in the light of the decision of the Supreme Court in Communist Party of India (Marxist) v. Bharat Kumar and it is therefore necessary for his court to declare that the calling of hartal in the manner in which it s now done is also unconstitutional. In fact it is contended that the hartal as it is now observed or compelled to the observed. Is lion in a sheep's clothing. In O.P.17833 of 1998 filed on 15-9-1998, the prayer is for a declaration that the calling for a hartal and the holding of it constitute infringement of the fundamental rights of the petitioners therein under Articles 10 and 21 of the Constitution and the Directive Principles of State Policy and the Constitutional duties contained in Article 51A of the Constitution of India and for the issue of a writ of mandamus directing the State of Kerala and the Director General of Police to take appropriate measures necessary to give effect to the declaration. The petitioners are the Kerala Vyapari Vyavasayi Ekopana Samithy, Ottapalam unit and the Citizens' Forum, Ottapalam unit. O.P.20641 of 1998 filed on 24-10-1998, is by the Institute of Social Welfare, a Society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Act, 1955 to promote social welfare activities in the State. The prayer in that petition is for a declaration that the hartal and the calling for the closure of shops and other establishments and the stoppage of plying of transport vehicles by any individual or organisation or other group of people is bundh as defined in the judgment of this court in Bharat Kumar v. State of Kerala (1997(2) K.L.T.287) affirmed by the Supreme Court in Communist Part of India (Marxist) v. Bharat Kumar (A.I.R.1998 SC 184) and to issue a writ of mandamus commanding the Chief Election Commissioner to take action against respondent No.3, Communist Party of India (Marxist), the appellant before the Supreme Court in the Bundh case, for cancellation of the registration granted to that political party under the Representation of Peoples Act. There is a prayer for the issue of a writ of mandamus commanding the Director General of Police to issue appropriate directions to all police personnel to take immediate and appropriate action under law against the persons who call for hartal or bundh or stoppage of plying of vehicles and for closure of shops. There is also a prayer for the issue of a direction to the State of Kerala to issue necessary instructions to all news papers and other media not to publish any news about the calling for bundh or hartal which has the effect of a bundh. A declaration that the hartal called for on 25-9-1998 was in fact a bundh and was an act that was unconstitutional is also sought for. In the Original Petition O.P.No.18478 of 1999 filed on 21-7-1999, two citizens who are residents of Adoor Municipality, seek a declaration that the blockade or the calling for restricting entry to Municipal Office, Adoor by any individual or organisation would amount to a bundh as defined in the judgment of this court in Bharat Kumar v. State of Kerala, to declare that what was called by respondents 1 and 2 to that Original Petition as blockade was in fact a bundh which was unconstitutional and for issuance of other consequential directions including the issue of direction to the police personnel to take immediate and appropriate action under law against respondents 1 and 2 and their immediate followers.
2.Thus in effect, all these Original Petitions seek to project an unhappy facet of our public life, that of trying to overreach a decision rendered by the highest court of the land or to bypass that decision by recourse to subterfuge. In other words, what the petitioners submit is that inspite of the decision of the Supreme Court clearly holding that the calling of a bundh and the holding of it is to be considered an unconstitutional act, a new form of hartal has been developed, the effect of which is the same as that a of a bundh found unconstitutional and hence to the extent the calling of a hartal involves coercion and violation of the fundamental rights of others, the same has also to be found unconstitutional and declared invalid in the light of the principles recognised by the Supreme Court.
3. In Bharat Kumar's case this court had pointed out that the Election Commission under the Representation of the People Act, 1951 had the obligation to ensure that the parties registered by it under that Act and who had made declaration of allegiance to the Constitution adhere to that declaration, has not only failed to activate itself in such a situation but has filed a statement before this court in O..20641 of 1998 which indicates a negative approach. In that statement, the Election Commission referred to its powers under the election Symbols (Reservation and Allotment) Order 1968 and absence of power in it to take any action even if the Constitution is flouted or violated by any of the registered political parties or associations. Nothing is stated by the Election Commission regarding its power under Sec.29A of the Representation of the People Act or its obligation to ensure that the party which has made a declaration of allegiance to the Constitution as a condition precedent for registration, does in fact keep up that promise or continues to have allegiance to the Constitution so as to entitle it to continue as a registered political party within the meaning of the Representation of the People Act. It may be noted that one of the prayers in this case is for the issue of a writ of mandamus to the Election Commission to take action against one of the registered political parties for violation of their undertaking that they will abide by the Constitution. The submission is that by holding a hartal and enforcing it by force, threat and destruction, there is the performance of an unconstitutional act and one of the clear and definite ways of preventing such unconstitutional activity on the part of a political party registered under the Representation of the People Act is to take steps for its de-registration on the ground of violation of the Constitution of India.
4. The parties had filed counter affidavits in O.P.20641 of 1998 and it was agreed in O.P.Nos.17833 of 1998 and 18478 of 1999 that the pleadings filed in O.P.20641 of 1998 by the respondents could be treated as their answers to the allegations in the said original petitions also. It is on the basis of this agreement that all the Original Petitions are being disposed of by this common judgment.
5. Communist party of India (Marxist) in its counter affidavit has submitted that Communist Party of India (Marxist) did not call for a bundh but that it gave a call for a hartal. It is stated in the affidavit that inspite of the call for hartal, everybody was free to open or close his shop. If anybody forces a shop keeper to close his shop, penal action against the culprit is the remedy. The question decided in the bundh case was not relevant in the context. The issue arising was whether a political party like the Communist Party of India (Marxist) is forbidden by the Constitution from exercising its right of protest and expression by calling for a hartal against the attempt of the ruling political Government to arbitrarily use Art.356 of the Constitution and subvert Constitutional principles. It is submitted that a political party is entitled and is within its rights to exhort the people to express their protest against subverting democratic principles and Constitutional norms. It is reiterated that no bundh was called by Communist Party of India (Marxist). What was called for was only a hartal. The distinction between the two had been underlined by the decision of the Supreme Court. When there is only an appeal to the public to join a hartal and there is no tone of compulsion in the appeal, it could not be said that there is anything unconstitutional in the act done by the political party. It is submitted that Communist Party of India (Marxist) has not violated the decision of the Supreme Court in Communist Party of India (Marxist) v. Bharat Kumar. What was called for was only a hartal and even if the call for hartal is likely to create a bundh like situation, that alone cannot give a cause of action for the petitioners for claiming relief in the Original Petition. Nor can the fact that the University authorities and other educational authorities decided to keep the Universities and Educational Institutions closed, would made the hartal tainted or make it unconstitutional. It is submitted that there was no holding of a bundh in the guise of a hartal as allege. It is submitted that the various news paper reports relied on by the petitioners could not form the basis of a decision on the question. It is stated that the allegation that during hartal no public or private transport vehicle was allowed to ply was not correct. It is stated that however, if the workers employed in the transport industry are participating in the strike it may become impossible to ply the vehicles. It is also denied that non-plying of vehicles has effectively prevented the freedom of people to move from one place to another. It is stated that freedom of movement as envisaged under the Constitution does not postulate the availability of transport vehicles on any given day. Nothing is seen stated regarding the allegation that private vehicles are also prevented from plying when there is a call for a hartal. The allegation that generally a call for a hartal results in violence is denied. The party had filed a declaration and produced its Memorandum of Association, which has clearly stated that the body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy and would uphold the sovereignty, unity and integrity of India. This was sufficient compliance with the requirement of the relevant provision in the Representation of the People Act. The party was in the forefront of safeguarding the fundamental rights of the citizens of the country embodied in Part III of the Constitution of India. The party had also recognised the fundamental duties as enumerated in Article 51A of the Constitution of India. All matters concerning registration are exclusively within the purview of the Election Commission and scope for interference from outside in its activity, was little. The shops, commercial establishments, hotels and restaurants run by private individuals are closed at their will and nobody can force them to keep the establishments opened or closed during a particular day. The difficulties to Sabarimala pilgrims referred to in the original petition were allegations intended to side track the real issue involved in the case. The transport system in the State is partly private and partly public. The vehicles could not be taken out when the workers of the industry are on strike. The High Court acting under Article 226 of the Constitution of India has its own limitations in dealing with mass actions like Hartal. It is denied that hartals are called in season and out of season. If motor vehicles could not be taken out due to the strike of the workers, the party cannot be held responsible. It may be noted again that nothing is stated about the allegation that actually vehicles are prevented from plying or that its owners and drivers are threatened with destruction if they take out their vehicles. There was no violation of oath by the political party concerned. The original petition was liable to be dismissed.
6. The Indian National Congress-I has filed a counter affidavit submitting that a hartal is not a bundh and the Original Petition is on the bass of a call for hartal made by Communist Party of India (Marxist) and merely because of the violence unleashed on the day of the hartal called by Communist Party of India (Marxist) as reported by the newspapers relied on by the petitioner, it cannot be generally stated that all calls for hartals re unconstitutional. In the Original Petition, certain features are attributed to the hartal that was called, which are not features of a hartal. What happened at the cal for hartal given by Communist Party of India (Marxist) cannot be taken as general features of a hartal. A hartal was a weapon in the armoury of the non-violence movement enunciated by the Father of the Nation during the independence struggle. Article 51A(b) of the Constitution imposes a fundamental duty on the citizen to cherish and follow the noble ideas which inspired our national struggle for freedom. If bundh, hartal and general strikes are declared unconstitutional, the result would be violence. It is stated that these are all parts of freedom of speech and expression protected under Art.19(1)(a) of the Constitution of India. It is submitted that during hartal, there is no element of compulsion to observe the same. Hartal was in fact a device to measure the support of the people towards the specific issue highlighted by any political party or organisation and it is a device to inform and educate the public regarding specific problems affecting them. If there was any element of compulsion, the purpose as above stated will not be achieved. In case of violence or violation of any of the established laws of the country during hartal, the same can be remedied by resorting to appropriate legal proceedings. The State can take preventive measures also in case any violence or interference with the constitutional or legal right of the citizen is apprehended.
7. The State and its officers have filed various affidavits and statements putting forward their stand. It may be noted that even pending this Original Petition a number of hartals were called and this court had issued interim directions regarding to steps to be taken to protect the rights of freedom of movement and freedom of avocation of the citizens who were not interested in responding to the call for hartal. Inspite of such directions and inspite of instructions being issued to the concerned police authorities, ultimately, citizens who did not want to co-operate with hartal or to respond to the hartal call, could not exercise their rights, either because of the apathy of the concerned police officers to enforce the directives issued to them or because of the lack of will to enforce them for extraneous reasons. The stand adopted by the State is that subsequent to the decision in the bundh case, no organisation had called for the holding of a bundh or enforce the call for a bundh, but there has been calls for hartals which had generally given rise to violence and loss of property. It is submitted by the Director General of Police that adequate steps have been taken and the necessary directions issued to all concerned police officers and copies of the judgment in the bundh case and the procession case (both approved by the Supreme Court, the latter with a slight modification regarding one of the directions) have been communicated and the relevant provisions of law brought to the notice of the concerned officers. Directions had been issued by the Chief Secretary to the Government to the District Collectors on 6-2-1999 and by the Director General of Police to the Superintendents of Police of the Districts and other police officials on 4-2-1999 and if they are implemented. It can be ensured that there is no violation of the rights of the citizens when a call for a hartal is given. A we have noted, there were a number of interim directions issued during the pendency of the Original Petition relating to various calls for hartal given by one party or the other, during the pendency of the Original Petition. Since this process was being repeated this court thought that it would be appropriate to issue a direction dated 9-6-1999 to implement the various directions referred to in that order including the directions given by the Chief Secretary to the Government and the Director General of Police. It is pleaded that this direction was also communicated to the various officers. Thus the stand adopted by the State and its officers is that they have taken steps to ensure that the rights of a citizen who does not want to respond to a call for hartal are not in any manner affected or breached.
8. It is the case of the petitioners that inspite of these directions either because of lack of will to implement those directions or otherwise, the situation has not improved and every hartal call is followed by destruction of public and private property and the preventing of citizens from attending to their avocations or from carrying on their normal activities. It is the case of the shop keepers that they are threatened and coerced into closing their shop and they are forced to close their shops for fear of destruction of property and the police authorities merely watch the destruction and do nothing to prevent such destruction or to give them protection for keeping their places of business open. It is the case of the citizens that their right to take out their vehicles on the road or to move from one place to another is curtailed by the supporters of the hartal and they do not get any effective protection from the police authorities thus resulting in their not being able to exercise their rights. The original petitions were argued in the context of this petition and the petitioners sought to support their submissions with reference to various news paper reports which suggested that the so called calling of hartal is only a bundh in disguise and freedom of the citizen is in peril. We think that before proceeding to deal with the other aspects it may be appropriate to refer to the directions issued by the Chief Secretary to the various District Collectors and the directions issued by the Director Genera of Police to the various police authorities and also refer to the interim direction issued by this court on 9-6-1999 as indicating what all steps have been taken to ensure protection to a citizen who does not want to respond to a call for hartal.
9. The decisions taken in a conference in which the Chief Secretary, Director General of Police and other police officers participated and in which certain decisions were taken as communicated by the Chief Secretary to all District Collectors in connection with the hartal call for 9-2-1999 is on the following lines:-
1. Adequate police protection should be given to all Government Offices and establishments by posting police personnel. Nobody would be allowed to gather around such office premises with a view to prevent employee coming to office. Special attention in his regard would be paid to Central Government Establishments.
2. The entire effective police force would be mobilised for the purpose of deployment on 9-2-1999.
3.All likely trouble spots would be identified and police pickets posted at such places with a view to avert untoward incidents, Special police pickets would also be posted at sensitive locations where the supporters of the hartal may report to road blocks, forcible closure of shops and blocking of traffic. Intensive mobile patrols would be organised from midnight on 8-2-1999 to midnight on 9-2-199. Adequate number of vehicles would be hired by the Supdts. of Police and Commissioners of Police for this purpose. They would be responsible for clearing road blocks and attending to calls of emergency. District Collectors will commandeer vehicles of other Government Departments for law and order and other purposes, if required.
4.Protection would be extended to KSRTC to ply buses in convoy system. Police protection would be extended to business establishments and other individual who seek protection.
5. Important housing colonies where Government employees reside would be covered by police pickets to ensure that the residents of such colonies are not put to difficulties by the supporters of hartal and are able to go to the offices, if they so desire.
6.Fire Force 23 personnel would be mobilised and put on the alert. Workers of the Municipalities and other local bodies would also be kept in readiness to come to the aid of police as and when required. The Electricity Board workers also would be requisitioned to be on the alert to attend to calls of emergencies.
7. Supdts. of Police/Commissioners of Police would give a press release reassuring the public of the elaborate police arrangements made in connection with the proposed hartal. They would indicate the telephone numbers of Circle Headquarters at which the public should contact the police in case of emergencies.
8.Special arrangements would be made by the Supdt. Of Police/Commissioner of Police concerned in the three cities of Thiruvananthapuram, Calicut and Ernakulam for enabling air passengers to go to Airport.
9. Police should promptly attend to complaints regarding designs or attempts of anti-social elements to disrupt normal life. Prompt and effective action should be taken against all such elements including preventive measures.
10. Immediate and effective action should be taken against supporters of the hartal, if they resort to picketing of trains. Possible places of picketing of trains should be identified and precautionary steps taken.
11. Adequate protection should be given to all Judicial Officers to attend courts.
12. Processions would be allowed to be taken only in accordance with the instructions issued by the Hon'ble High Court of Kerala. Any violation in this regard would promptly be dealt with under the relevant provisions of law.
13. District Collectors would keep Executive Magistrates in readiness at respective Taluk Headquarters to assist the police.
14. Inspector General of Police (Zones) and Deputy Inspector General of Police (Ranges) would brief all officers of and above the rank of Sub Inspectors with a view to gear up the police machinery to deal with exigencies that may arise in connection with the proposed hartal. They should brief the officers specifically to implement the orders of the Hon'ble High Court of Kerala with regard to bundhs/hartals/processions in letter and spirit.
15. District Collectors and Commissioners of Police/Supdts. of Police will be responsible for ensuring that normal life is not disrupted and no untoward incidents take place during the hartal".
The instructions issued by the Director General of Police proceeding the circular issued by the Chief Secretary referred to above, are to the following effect:-
1. Your attention is invited to the Hon'ble Supreme Court Ruling 1998 S.C. 184 (communist Party of India (M) Vs. Bharat Kumar which is actually upholding of Kerala High Court Ruling reported in 1997(2) KLT 287 popularly known as 'Bundh case' (Bharat Kumar vs. State of Kerala). Directions in the judgment should be strictly implemented by Sps/CPs by ensuring that freedom of movement of any person is not curtailed by any obstruction, unlawful act.
2. Detailed Bundobust schemes should be prepared by posting pickets in all sensitive areas, arranging round the clock mobile patrolling from the midnight of 8-2-1999. Copy of Bundobust scheme should be sent to the Director General of Police, Kerala and Addl. Director General of Police, Intelligence also well in advance
3. The Police will assist the District Collectors throughout the State in the implementation of their orders for requisitioning of additional vehicles, wherever necessary.
4. Maximum possible efforts will be made to mobilise all possible police manpower for using them in dealing with strike situation even to the extent of fully mobilising the force including curtailment of leave.
5. Police personnel will be deployed to guard the locations where buses are parked during night hours in order to prevent sabotage by striking employees/operators.
6. Police field formations will be instructed to make available effective and adequate police protection in all the relevant areas all over the State to run the buses in convoy system with police vehicles and personnel deployed as pilots and escorts maintaining effective wireless communication with the relevant police circle headquarters sub Divisional headquarters, District Headquarters.
7. Special mobile police patrol in police vehicles fitted with wireless sets, will be deployed to cover as many routes/sensitive locations as possible, to enable effective display of police presence, as well as to deal with obstructions and intimidation in the field.
8. Adequate police protection will be afforded to all those who are willing to run their buses/other vehicles and any obstructions along the routes will be prevented/removed by the police. No road blocks should be permitted. Preventive arrests if necessary may be made.
9. Take effective action, including prosecution, to check any illegal activities by the striking workers, including attempts to cause obstruction to willing workers or to intimidate the willing workers or members of the public besides checking the activities of anti-social elements who may try to exploit the situation.
10. Mobile police striking force (MPSF) capable of responding to emergent situations quickly will be mobilised and stationed at police circle Headquarters/police sub divisional Headquarters/every district headquarters, to provide reinforcements wherever necessary.
11.Invariably in such situations a large majority of the public often turn to the police for help especially to transport ill, sick and infirm persons as well as other persons requiring urgent medical attention (like case of pregnant ladies, persons injured in accidents etc.) to hospitals. Special instructions will be issued to all police formations down to every police station level and to all mobile patrols to render such aid and to transport such persons to the appropriate medical care centres without loss of time, in police vehicles, free of cost, on humanitarian grounds.
12. Separate strike control rooms may also be set up by the police to monitor the situation constantly and effectively at each district level and such control rooms will report all emergent developments through regular 'SITREPS' to the state police monitoring room for enabling constant monitoring of the field situation and facilitate quick response. Remedial action. 'SITREPS' will be signalled in two hour intervals from 02000 Hrs to 2400 Hrs on 9-2-1999 besides the situation reports of 1800 Hrs, 2100 Hrs, 2400 Hrs on 8-2-1999 to State Police monitoring control room, SB CID, TVM(SPMR).
13. No obstruction or hindrance to functioning of offices and industrial establishments should be permitted. Protection should be given to all willing personnel to work.
14.In short, in the name of the strike the fundamental rights of any citizen should not be allowed to be curtailed in any manner.
15. Police personnel should be helmeted and wear protective gear also.
16. Violence in any form should be dealt with firmly by initiating appropriate legal action.
17. In case of destruction of public property including transport buses, office buildings etc. prompt action should be taken to book the culprits under relevant sections of PDPP Act and investigations pursued to their logical conclusion without undue delay.
18.It should be ensured that public is not, repeat not, put to any inconvenience by the striking workers by way of obstructions, forcible closure of shops, pelting of stones, blocking of roads etc. In case of complaints, IPC cases will be taken against the accused and prompt follow up action pursued.
19. Data regarding registration, progress of investigation and disposal of all cases registered in this connection should be communicated to Supdt. Of Police, Intelligence, SB, CID, TVM through weekly reports, on every succeeding Monday till the last case is charge sheeted.
20. The Range Deputy Inspectors General of Police, will closely monitor the bundobust scheme issued by the Supdts. of Police, Commrs. Of Police concerned and ensure that the Supreme Court judgment is implemented in its letter and spirit.
21. All the District Supdts. of Police, Range DIsG, Zonal IsGP and other superior police officers will devote their personal attention to ensure constant monitoring and effective and timely response and follow-up action by the police at all levels in all spheres of activity in respect of the above measures.
22. IGP Zones are requested to provide the reserve AP BNS strength under their charge to all the Districts where required. Any laxity in this regard will be viewed seriously".
As notice, these directions were issue pursuant to interim directions of this court relating to one particular hartal call and this court thought that it will be better to issue a direction to ensure during the pendency of the Original Petition so that repeated interim orders need not be made. It is in that context that the order dt. 9-6-1999 was passed by this court. In that order this court stated thus:-
"3. After the Original Petition was filed on 24-10-1998, which was in the wake of a hartal held at the instance of respondent No.3, a call was issued for another hartal to be held on 11-12-1998. This court then passed an order on this Civil Miscellaneous Petition on 10-12-1998. This court directed the Chief Secretary to the Government and the Director General of Police to take effective steps to see to it that persons who do not want to strike and want to work are allowed to work and vehicles that are to ply or that ply, are allowed to ply without any obstruction. The respondents were also directed to give strict instructions to the District Collectors and to the police in all Districts to ensure that the directions contained in the decision of the Supreme Court in Communist Part of India (M) v. Bharat Kumar are strictly followed. It was also directed that shops and establishments that are to open, must be given protection.
4.Another call was given for a hartal on 9-2-1999. This court passed another order on 5-2-1999. This court recorded the submission of the learned Advocate General that all efforts will be made to see to it that the normal life in the State is not affected and untoward incidents warded off. Thus the implementation of the direction earlier issued relating to the hartal earlier held, was undertaken by the Advocate General, to meet the hartal then to be held. Notwithstanding these assurances, some untoward incidents did take place during the hartal.
5. After a high-level conference regarding the implementation of the above directions of the court, the Chief Secretary on 6-2-1999 gave certain directions to all District Collectors regarding the steps to be taken to implement the direction of this court. The Director General of Police, also gave specific directions on 4-2-1999 to the police officers including Superintendents of Police of all Districts as to the steps to be taken by them. Both sets of directions are annexed to the statement filed in this court on 11-2-1999 by the Chief Secretary to the Government. Those directions to the District Collectors and to Superintendents of Police of all Districts, have necessarily to be implemented by the respective District Collectors and Superintendents of Police.
6. The complaint of the petitioners is that the steps thus taken were found to be inadequate and not wholehearted and the common citizen, who did not want to join the hartal, did not get the needed protection to exercise his rights and to perform his duties. He therefore submits that additional directions may be issued especially regarding the averting of forcible compulsory closure of commercial establishments and the plying of public and private vehicles on roads. Counsel for respondent No.3 submitted that any organisation has the fundamental right to call and hold a hartal and this court cannot curtail that freedom by orders in exercise of jurisdiction under Article 226 of the Constitution of India. This argument was dealt with in Harat Kumar's case . Counsel for respondent No.4 submitted that parties other than respondent No.4 were also involved in the hartal call and those parties were not parties to the Original Petition. He also submitted that the leaders of respondent No.4 have specifically appealed while calling for a hartal, that violence be adjured and coercision be avoided and hence there was no need to issue any further direction in this case.
7. He have given anxious consideration to the submissions made, the circumstances obtaining, the earlier directions issued by this court and the directions given to the District Collectors by the Chief Secretary and to the Superintendents of Police by the Director General of Police. We have also adverted to the decision of this court and that of the Supreme Court in Bharat Kumar's case. Taking note of the circumstances as a whole, especially since we cannot hear the case finally, we feel that issue of certain directions to respondents 1 and 2 is called for, to meet the situation arising out of the call for a hartal on 10-6-1999. Respondents 1 and 2 have to implement the directions issued by this court on 10-12-1999 and also to ensure that the directions given by them respectively to the District Collectors and to Superintendents of Police of the Districts and to the other police officials are implicitly obeyed by them. There will therefore be a direction to respondents 1 and 2 to implement the interim directions of this court dated 10-12-1998 and 5-2-1999 and also to ensure that the directions as to the steps to be taken, given by the Chief Secretary to the Government to the District Collectors on 6-2-1999 and the directions given by the Director General of Police on 4-2-1999 to the Superintendents of police of the Districts and to other police officials, are implemented by those officers strictly and without fail. We also direct the District Collectors and the Superintendents of Police of all the Districts to implement the directions given to them by the Chief Secretary and the Director General of Police as above. In addition, respondents 1 and 2 and the District Collectors and Superintendents of Police of all Districts are also directed to ensure that there is no destruction of property including transport vehicles in the guise of enforcing the 'hartal call'. Respondents 1 and 2 will communicate the directions to the District Collectors and Superintendent of Police at once through all available modern means.
We think that an interim direction to respondents 3 and 4 is also called for. Those respondents have the duty to strengthen the democratic process and to exhort their followers to abjure violence and to desist from destruction of property. At the moment, the country is going through a difficult phase and it is all the more necessary for them to ensure that they do nothing to cause loss of production and to disrupt commerce. Respondents 3 and 4 are therefore directed to ensure that all compulsion while staging the hartal be avoided and no force is used to acquire support for it. We feel that it is time for respondents 3 and 4 to consider whether this form of protest, unconnected with any particular establishment or industry by its workers to improve their conditions, envisaged as part of the independence struggle is appropriate in a developing independent nation faced with complexities.
We also think it appropriate to make these directions general and to direct that they be implemented until the Original Petition is disposed off finally, as and when a hartal is called".
Thus, some effort was made to control the situation arising out of repeated calls for hartal. There has been no improvement in the attitude of the political parties or organisations calling for such hartals. The various affidavits filed subsequent to each hartal and the statistics furnished make out that the measures taken are not sufficiently effective. It is in that context that the petitioners plead hat the Original Petition will have to be decided finally by decided finally by deciding the issues sought to be projected.
10. One of the stands adopted by the contesting respondents is that hartal was the legacy of our struggle for independence and none other than the Father of the Nation had called for hartal. Various materials were brought to out notice to indicate that Gandhiji had made the call for hartal, including the work on Gandhiji, "Rashtrapithavu" by Sri. K.P. Kesava Menon and published by Mathrubhumi Printing and Publishing Company. It is the contention that since hartal was something that was recommended by the Father of the Nation, it could not be held that the call for a hartal would in any manner amount to an act which is not in the interests of the Nation or an act which would be unconstitutional. While we may recognise that hartal was a weapon that was continuously used during the independence struggle we must notice it that in dependent India, it may have no place when the result of it is destruction of national property and loss of national production, national income and individual and national loss. We think it apposite to recall the speech of Dr.Ambedkar in the Constituent Assembly when he moved on 17-11-1949 a motion that the Constitution as set by the Assembly be passed. In that speech, Dr.Ambedkar after referring to the fact that it was as if India did not as if India did not know what democracy was as if India did not know what democracy was and that it was really a case of our having lost our democratic system, stated as follows:-
"This democratic system India lost. Will she lose it a second time? I do not know. But it is quite possible in a country like India--where democracy fromits long disuse must be regarded as something quite new--there is danger of democracy giving place to dictatorship. It is quite possible for this new born democracy to retain its form but give place to dictatorship in fact. If there is a landslide, the danger of the second possibility becoming actuality is much greater.
If we wish to maintain democracy not merely in form, but also in fact, what must we do ? The first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us".
(See page 943 of the Framing of India's Constitution select documents Vol.4 under the Chairmanship of B. Shiva Rao)
Surely, indulging in destruction of public and private property and causing loss of production and holding the society to ransom in the name of staging a hartal cannot be considered to be a Constitutional act based on rights conferred by the very Constitution. The expenditure to be incurred by the executive to mobilise sufficient force to meet every hartal call cannot also be ignored. No party or organisation can have a right to compel incurring of such non-productive expenditure merely because they feel like calling for a hartal. There is no such freedom in anyone guaranteed by the Constitution. We are of the view that respondents 3 and 4 cannot claim any such right and that too in a developing country like India. Nor have they a right to curtail the individual freedom of those who do not sympathise with their cause.
11. The stand of respondents 3 and 4 therefore that they can continue to call for and enforce hartals as part of their right either to demonstrate support or for achievement of their objects, cannot be accepted in that form especially in the context where the enforcement of it or the calling of it, involves impairment of the rights of others similarly situated.
12. Right from A.K.Gopalan v. State of Madras (1950) SCR 88) it was recognised by the Supreme Court that there cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for, that would lead to anarchy and disorder. It was also recognised that the possession and enjoyment of rights are subject to such reasonable conditions as may be deemed essential to the safety, health, peace, general order and morals of the community. It was postulated that the question therefore arose in each case for adjusting the conflicting interests of the individual and of the society. The Criminal Law Amendment Act 1932 gave rise to a series of decisions on this aspect of conflict between the right of a few against the rights of others. The validity of the restrictions place on peaceful picketing in mill area by that Act came up for consideration before the High Court of Bombay in Damodar Ganesh v. State (A.I.R. 1951 Bom.459). A Division Bench of the Bombay High Court held that where a conflict exists between the only way in which one section of the public can exercise its right of pursuing its occupation and one of the numerous ways in which the other section of the public can exercise its right of freedom of movement, but which interferes or is likely to interfere even in a small number of cases with the former, in such a case the latter must necessarily give way to the former. A restriction which fractionally interferes with the right of freedom of movement of one section of the public in the interest of the only way in which another section of the public can exercise its right of pursuing its occupation, cannot be said to be unreasonable. There Lordships held:-
"Just as a person has a right of freedom of movement and freedom of speech in exercise of which he wants to carry on a peaceful picketing at the gate of a mill, the employees who wish to go to the mill and pursue their occupations have also the right to move freely and to carry on their occupation, trade or business".
Their Lordships referred to the decision of the American Supreme Court in Thornhill v. State of Alabama (1939) 310 U.S.1093) wherein that court held a statute to be unconstitutional because according to the Supreme Court, its vice appeared upon its face. Their Lordships also referred to the decision in Carlson v. State of California (1939) 310 U.S.1104) where a similar view was taken but also noticed the observations of the Supreme Court:
"The power and duty of the State to take adequate steps to preserve the peace and protect the privacy, the lives, and the property of its residents cannot be doubted".
Their Lordships further referred to Ludwing Teller's 'Labour Disputes and Collective bargaining; and quoted the following passage:
"Picketing has eve9ywhere been held enjoinable where carried on in furtherance of an unlawful strike. In Lora Lee Dress Company Insurance v. I.L.G.W.U. the court said, 'A strike being for an illegal purpose all activities in furtherance thereof are illegal."
And the passage reading,
"Like the strike, picketing is legal only to the extent that its purposes are within the allowable ambit of labour activity".
Their Lordships then held that even assuming that the American view in the two cases referred to were taken to be correct, picketing in connection with an illegal strike would not be justified and in so far as Section 7 of the Criminal Law Amendment Act made such picketing illegal, that Section could not be deemed to la down an unreasonable restriction. This decision of the Bombay High Court was referred to and relied on by the High Court of Allahabad in Vimal Kishore v. State of U.P. (AIR 1956 Allahabad 56). Dealing with Section 7 of the Criminal Law Amendment Act and the further acts prohibited by it, their Lordships observed:-
"It may be that prohibition of some of these acts is unconstitutional. But it does not follow that prohibition of other acts also is unconstitutional. It I possible to separate the valid part from the invalid parts. So assuming (without deciding) that certain parts of sub. s. (1) of S.7 of the Act are ultra vires the Constitution, the entire S.7 cannot be condemned on that ground".
Their Lordships referred to the two decisions of the United States Supreme Court referred to earlier and an earlier decision of the same High Court in Ram Manohar v. Superintendent, Central Prison, Fatehgarh (A.I.R.1955 Allahabad 193). In Raj Narain v. State (A.I.R. 1961 Allahabad 531) it was held that rights granted under Article 19 of the Constitution do not include the right to interfere with the liberty of another citizen. It was therefore held that where the conduct ascribed amounts to an interference with the liberty of another, the plea that he offender is only exercising a right which was granted to him under the Constitution cannot be accepted. The observation of Mukherjea.J. in A.K.Gopalan v. The State of Madras (1950 SCR 88 at 253) that:
"There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder" was relied on. Their Lordships further held:
"In the first place, we would like to observe that the rights given to citizens are not given only to a few persons, but to all the citizens of India. The basic essential factor in deciding whether a person has a right to do something or not is whether his doing so interferes or not, with a similar right given to another citizen. The State cannot have favourities and it cannot hold that where there is a conflict between group A and group B and when group a Wants to enforce its rights even though they may amount to a suppression of the rights of group B, they are protected by the words of Art.19. This interpretation would be absolutely unreasonable. The State has therefore to see that no citizen exercises his rights in such a manner that this exercise violates the rights of another citizen. The basis principles contained in these rights is contained in the maxim 'live and let live'. No group or individual can claim that he has a better right to do what he pleases irrespective of the fact that by so doing he is stopping the other from doing what he pleases"
13. Their Lordships also referred to the decisions of the American Supreme Court in Thornhill and Carlson and agreed with the view of the Bombay High Court in Damodar Ganesh v. State (AIR 1951 Bom.459). Their Lordships also observed:-
"In our opinion, the analogies of American law cannot be applied to the conditions that exist in this country. Perhaps in the United States, picketing has not yet been forged as a weapon to disrupt the administration and paralyse the functioning of the State departments nor has it ever been resorted to 'en masse' on a large scale. We also feel that unless a Court is in a position to determine that the restrictions imposed are definitely unreasonable it is not possible to come to the conclusion that such a law is ultra vires of the Constitution".
14. It was this balancing of rights that was the basis of the decision of this court when it declared in Bharat Kumar that the holding of a bundh was unconstitutional in that in the name of the freedom of association of persons or a group of individuals, it interfered with the rights of others leading to a situation where the court had to step in. This aspect of the said decision was approved by the Supreme Court in appeal. Therefore the essential question that has to be decided is, at what stage the calling of a hartal ceases to be a legitimate exercise of freedom of association and freedom of speech and it oversteps that limit. There cannot be any doubt that forcibly compelling an individual or a group of individuals to participates in a general strike or to join a hartal would amount to interference with the rights of those persons equally jealously safeguarded by the Constitution. It is therefore clear that those who call for hartal cannot take shelter behind the plea that hartal was only a legitimate weapon of mass protest and at the same time create an atmosphere of physical and psychological fear so as to compel others to toe the line or to prevent them from exercising their rights. It was in that context that the conference of the Chief Secretary and the police officers issued the directions dated 6-2-1999 as quoted by us earlier. It is in that context that one has also to view the directions issued by the Director General of Police on 4-2-1999 which also we have set out above. There cannot be any doubt that the implementation of those directions to a considerable extent would reduce the threat posed by the repeated calling for hartals in the State and would free the citizen from the stalking fear that he is visited with when a hartal call to which he does not want to respond is made. During the course of the absence of will on the part of the District Collectors and the police authorities that the steps indicated were not fully implemented and nothing was done to prevent coercion and destruction of property and life leading to the hartal degenerating into a bundh declared unconstitutional by the Supreme Court. Considering the various facts made available to us it cannot be said that this submission on the part of the petitioners wholly lacks substance. We think that it is time for the District Collectors the other officers and the police concerned to ensure that the directions referred to above are implemented by them irrespective of the calls for strike or hartal and irrespective of any consideration other than the protection of rule of law, public property and the constitutional rights of the people. Unless there is a qualitative improvement in the conduct of the officers entrusted with the duties in that behalf, interference with the freedom of others will not be avoided when a hartal is called. The argument that hartal was a concept introduced by the Father of the Nation and it would be used irrespective of its consequences, cannot be accepted. It must be remembered that the Father of the Nation was fighting against foreign dominion and was seeking to organise people in a struggle for achieving freedom and independence. Even then, the Father of the Nation exhorted that violence should be spurned. The political parties cannot adopt only one facet of the call given by the Father of the Nation. If the parties want to call for a hartal 50 years after independence when the country is struggling to progress in every spheres of life and to take its due place in the comity of nations, they have also to adhere strictly to the further adjuration of the Father of the Nation that there should be no compulsion or force while exercising the right of calling a hartal in protest against a national calamity or an executive excess. It may be noted that hartal is not intended to be a weapon to be resorted to every other day for showing protest but is a weapon that must be rarely used on the occasion of national calamity or issues relating to the safety of the country or the prevention of democracy.
15. There was considerable argument before us, as to the meaning of the expression 'hartal'. The expression is of Indian origin and according to Chambers 20th Century Dictionary, it means 'a temporary cessation of commercial activity especially as a type of organised passive resistance '. The Shorter Oxford and English Dictionary on Historic Principles, explains the expression 'Hartal' as 'locking up of shops'. 'A day of national mourning when business is suspended, used as a form of boycott'. The Universal Dictionary of English Language defines the expression as 'stoppage of all work, or business, as a sign of humiliation or protest adopted by Indian Nationals for political purposes'. A hartal, therefore unaccompanied by violence or coercion can be understood to be a legitimate form of protest or signification of mourning in the wake of a tragedy, national or local. The expression 'boycott' appeared in the late 19th century after the Irish tenants objected to the oppressive rent collection policies of a British land agent, named Captain Charles Boycott. The angry tenants refused to work the lands and isolated Captain Charles Boycott both economically and socially. When a boycott is instituted against an employer by a stoppage or slow down of work by the employees it is called a strike. Boycott according to New Websters Dictionary of English Language is "to combine in refusing to work for, or deal with, in order to intimidate or coerce, to refuse to buy from or use the services of". The law in England regarded boycott as legal unless accompanied by violence. It the United States, its Supreme Court has ruled that a boycott is illegal when it results in restraint of trade. The Taft-Hartley Act of 1947 legalised the primary boycott which is directed solely at an employer by the employee, but made illegal the secondary boycott.
16. As we have noticed, the mere calling of hartal or the advocating of it as understood in the strict sense, cannot be held to be objectionable especially in the context of the decision of the Supreme Court in Communist Party of India (Marxist) v. Bharat Kumar (A.I.R. 1998 SC 184) and the decision of the Patna High Court in Ranchi Bar Association v. state of Bihar (A.I.R.1999 Pat. 169). But the moment it comes out of the concept of hartal strictly so called and seeks to impinge on the rights of others, it ceases to be a hartal in the real sense of the term and really becomes a violent demonstration affecting the rights of others. That facet of it has certainly to be curtailed and can be curtailed by this court at the instance of others who have equal constitutional rights, while exercising jurisdiction under Article 226 of the Constitution. It is clear that what is called and enforced as hartal is not what is meant strictly by that term but a form of bundh involving intimidation and coercion of those who do not want to respond to the call or to participate in it.
17. It is argued on behalf of the petitioners that if the Election Commission were to perform its duty properly in exercise of its powers under the Representation of the People Act, the call for hartals involving coercion and threat could be averted. The stand taken by the Election Commission, a party respondent in this proceeding, is that it is helpless to do anything in the matter and it has no power to take any action even in a case where a political party or organisation which is given registration under the Act, violates the Constitution or flouts the undertaking given by it before the Election Commission that it would abide by the Constitution and would respect the Constitution. This stand of the Election Commission requires to be examined in the light of the relevant provisions of the Act. Under Section 29A of the Representation of the People Act, 1951, any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of Part IV A of the Act, can make an application to the Election Commission for its registration as a political party for the purposes of the Act. An application has to be made as provided in Section 29A of the Act in that behalf. Section 29A (5) insists that an application shall be accompanied by a copy of the Memorandum or Rules and Regulations of the association or body and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established and to the principles of socialism, secularism and democracy and would uphold the sovereignty, unity and integrity of India. Once an association or body of individual citizens thus get a registration under the Act, holding out that the body shall bear true faith and allegiance to the Constitution of India and to the principles of socialism, secularism and democracy and would uphold the sovereignty, unity and integrity of India, obviously, that association or body is bound to respect the law declared by the Supreme Court and the verdict of the apex court that no individual or association can exercise a right that would interfere with the rights of the citizens guaranteed by the Constitution, to freedom of movement, to practice their profession and to carry on their avocations unhindered and subject only to reasonable restrictions. By trying to prevent the citizen from moving about or taking his vehicle along the road, from a trader from opening his shop, a worker or employee from going for his work or employment, a student from going to his educational institution which imparts to him education and an intending traveler from making a journey and trying to unleash violence and bring to a stand still the entire life of the State or the Nation, the association or body of individuals, would certainly be violating the Constitution and the principles of democracy adopted by our Constitution. Similarly, by preventing production and forcibly stopping the industrial units and factories and causing economic loss to the Nation, it could even be said that there is a threat to the sovereignty of the country, again amounting to a violation of the requirements of section 29A(5) of the Act. The argument of counsel for the Election Commission that there is only a power in the Election Commission to register and there is no power to de-register has only to be stated to be rejected. It is clear that whenever a power to do something is conferred on a body, there is also conferred on that body the power to undo the same. Sections 16 and 21 of the General Clauses Act (corresponding to Sections 15 and 20 of the Kerala Act) also recognise such power. The power to do something obviously includes the power to undo that thing and the Election Commission cannot be heard to contend that once it has given registration to a political party, it has no right to act if that party with impunity, flouts the Constitution or subvert the sovereignty or democracy or the rule of law, the basis of our democracy. We have therefore no hesitation in holding that when a call for hartal made by an association or body of citizens is enforced by force and the activities of others unwilling to respond to the call, is brought to a standstill by threat coercion or force, an occasion clearly arises for the Election Commission to take action for canceling the registration or for de-recognition of that body or association.
18. In Janatha Dal (Samaj Vady) v. Election Commission of India (A.I.R.1996 SC 577) their Lordships held that Section 21 of the General Clauses Act would become applicable vesting power in the Election Commission which had issued the order recognising the political party as a national party, to rescind the said order, on the said political party ceasing to fulfill the conditions prescribed in the Symbols Order. In paragraph 6 of the said judgment, their Lordships considered the absence of any specific provision in the Symbols Order vesting power in the Election Commission, after having recognised a political party as a national party to declare that such political party has ceased to be a national party and held that such a power is available to the Election Commission in view of Section 21 of the General Clauses act. It is therefore not open to the Election Commission to raise a contention that it has no power to take steps to cancel the registration given to a political party under the Act even if that party violates the Constitution. We may confess that we are somewhat surprised at this stand adopted before us by the Election Commission.
19. In K.Venkitachalam v. A. Swamickan (A.I.R.1999 SC 1723) the Supreme Court has indicated the scope of jurisdiction of the court under Article 226 of the Constitution of India even in matters relating to election and covered by the Representation of the People Act, 1951. It is therefore futile for the respondents to contend that exercising jurisdiction under Article 226 of the Constitution of India, this court cannot issue a direction to the Election Commission to consider the question of cancelling the registration given to a political party for violation of the conditions laid down in Section 29A(5) of the Act. The Election Commission is therefore bound to consider the representation Ext.P9 made in this case and to take appropriate steps on the representation after giving the parties that may be affected, a fair opportunity of being heard. In fact we feel that an active Election Commission can prevent indiscriminate calling for hartals enforced by threat and coercion and bundhs by parties or associations registered by it under the Act, if it assumes an active role and initiates action whenever it comes across instances where the average citizen is held to ransom by a few organised persons or members of a political party or organisation and the arm of the Government remains a mute spectator to such blatant violation of the rights of the citizens.
20. Learned counsel for the Election Commission referred to the order of the Election Commission in an application moved by Mr. Arjun Singh. In that case, the Election Commission rejected an application made by the petitioners therein seeking a de-registration or de-recognition of the Bharatiya Janatha Party, for the freezing or the withdrawal of its reserved symbol, on the allegation that by taking out a 'Rathayatra' the party had indulged in religious activity which was opposed to the principles of secularism, an essential feature of our Constitution. The Chief Election Commissioner held that a party duly registered under Section 29A of the 1951 Act may be deregistered only if the Commission finds that the registration was secured by using fraudulent means or the party indicates that it has ceased to function or itself indicates that it has changed its constitution and it would not function in accordance with the provisions of Section 29A(5) of the Act or the party is declared unlawful by the Central Government under the provisions of the Unlawful Activities (Prevention) Act, 1967 or any like ground where no enquiry is called for n the part of the Commission. The Chief Election Commissioner in affect held that he had no power of enquiry to find out whether a registered association or party is adhering to the conditions prescribed in Section 29A(5) of the Act. It is seen that this decision of the Election Commission was sought to be challenged before the Supreme Court in Petition for Special Leave to Appeal (Civil) No.8738 of 1992. The Supreme Court dismissed that petition for Special Leave at admission stage with the following order:-
"The petition for Special Leave is dismissed".
With respect, we cannot understand the said dismissal as laying down any law that the Election Commission has no power to initiate action under Section 29A of the Act in appropriate cases and deregister or withdraw the registration given to a party or association of persons if circumstances are mad out justifying such withdrawal. We cannot agree with the stand adopted by the Chief Election Commissioner that he has no power to enquire into such complaints and he could act only under the circumstances he has referred to in his order in that case. The Election Commission can act as sentinal to ensure respect to the Constitution an democracy by the associations or parties registered under the Act.
21. Even in Bharat Kumar v. State of Kerala (A.I.R.1997 Ker. 1291), the Full Bench had suggested that it is for the authorities to initiate action for recovery of the damages caused to the State property by the supporters of a bundh call since no one had a right to destroy public property at the cost of the Nation or the State. It is not seen that when destruction is caused by the supporters of hartal to public property--the buses of the Kerala State Road Transport Corporation and Government Officers and institutions appear to be the prime targets--the State or the concerned authority or Corporation has chosen to initiate any action for recovery of the loss caused to the exchequer or to the particular Corporation or entity, so as to mitigate the damage caused to public property. It is argued by the petitioners that if the State and the various authorities are prompt in taking such action for recovery of such damages, the enthusiasm for destroying public property would be considerably dampened and a direction may be issued to the State and its officers and the Corporations under it to take action for recovery of damages. Learned Government Pleader submitted that the destruction of public property was not justified but the State has desisted from taking action for recovery of the damages caused because of the difficulty in identifying the persons who actually caused the damages. The plea that the miscreants can never be identified cannot b accepted. But assuming that this argument of the Government Pleader is correct, even then, it is clear that those who have called for the hartal would be liable for the damage caused to public property and we do not see why they cannot be sued on the principle of compensation or on tort. Obviously, the officers of the State have the duty to protect and preserve public property. The performance of that duty also involves the recovery of compensation when a public or State asset is wantonly destroyed. So, in addition to initiating action under the Penal law including the Prevention of Damage to Public Property Act, 1984, the State can also sue the wrong doers and their instigators for recovery of damages.
22. It was submitted on behalf of the petitioners that if at least, the directions issued by the Chief Secretary to the District Collectors and by the Director General of Police to the police authorities are implemented in letter and spirit by the concerned authorities, relief will be available to the citizen to exercise his rights guaranteed to him under the Constitution even if there is a call for a hartal issued by a political party or organisation. Their submission in this context was that neither the district Collectors nor the police officers show clear allegiance to the Constitution and to the state and seem to think that what is called for, is allegiance to the party in power at the relevant time or to a political party that may come into power in the near future. The learned Government Pleader disputes this submission on behalf of the petitioners. But the various newspaper reports and affidavits filed following the various hartals that were held even during the pendency of this Original Petition and inspite of the circulars issued by the Chief Secretary and the Director General of Police, tend to support the submission that the directions are not implemented whole heartedly. We think that it is necessary for the authorities concerned to realise that their duty lies to the State and not to any particular party or association and in the interests of the State, they are bound to protect the rights of the citizens and uphold the freedoms available under the Constitution subject to reasonable restrictions. We trust that this commitment to the Constitution and to the State would be exhibited by the District Collectors and the police authorities when confronted with enforcement of calls for hartals by parties or organisations by resorting to violence, intimidation or coercion of a citizen. In any event, we think that it is appropriate to issue a direction to the District Collectors and to the officers of the police department all over the State to strictly implement the directions contained in the circulars dated 6-2-199 and 4-2-1999.
23. We do not think that it is necessary to advert to the decisions cited at the bar on the question whether the right of a party or organisation includes the right to coerce an unwilling citizen into participating in a hartal called for by it or to stage a bundh in the guise of hartal. We think that the principles settled in the bundh case affirmed by the Supreme Court in Communist Party of India (Marxist) v. Bharat Kumar (AIR 1998 SC 1840) covers the situation in favour of the petitioners in that no party or organisation or association can claim a right to compel another to participate in a hartal which it has called. There cannot therefore be any difficulty in holding that the enforcement of a call for hartal by force, intimidation and coercion would also be an act in itself unconstitutional.
24. It is contended on behalf of the petitioners in O.P.No.17833 of 1998 that every trader has right to keep his shop open in terms of the relevant labour legislation governing that question and subject to the rights and obligations under those legislations and that no party or association can compel the traders to close down their shops merely because that party or organisation wants to protect against something with which the trader has no sympathy. It is also submitted that participation in a hartal or protest is a voluntary act and is not something that could be enforced by voluntary act and is not something that could be enforced by violence or threat of violence or by coercion. The prayer of the traders in the original petition that they should be given protection to open their shops if they are not willing to participate in the hartal called by any political party or organisation merits consideration. But we think that the general directions given by the Chief Secretary and the Director General of Police to the District Collectors and police officers for the enforcement or which we are compelling by the issuance of a writ of mandamus, would also cover this situation In any event we are certain that it will be the duty of the police authorities and the District Collectors and all administrative officers under him to ensure that the traders are given the necessary protection to keep open their shops if they want to do so, inspite of a call for hartal given by a political party or organisation.
25. Similarly, the submissions of the petitioners in O.P.No.18478 of 1999 that organisations have no right to create a blockage of Municipal Office so as to prevent people from going to these officers for attending to their business, also deserves to be accepted once we accept the principle that no party or organisation has no right to compel others to toe its line unless these others want to do it voluntarily. On that principle, it has necessarily to be held that the contesting respondents in O.P.No.18478 of 1999 have no right to call for a blockage of the office of the local authority so as to prevent people from approaching that authority in exercise of their right of free movement and as part of their personal freedom.
26. Similar is the situation regarding plying of private vehicles on the roads on the day of hartal. It is not proper for the authorities to say that when people throw stones at vehicles they may not be able to prevent the same. Obviously, the police authorities have sufficient power under law including the Police Act, to take preventive steps in that regard. It is for them to resort to such steps to ensure that citizens are not prevented from using the roads or taking out their vehicles on to the roads for their own businesses and in exercise of their right of free movement guaranteed by the Constitution.
In the light of our conclusions as above, we allow these original petitions and grant the following reliefs:-
i. We declare that the enforcement of a hartal call by force, intimidation, physical or mental and coercion would amount to an unconstitutional act and a party or association or organisation that calls for hartal has no right to enforce it by resorting to force or intimidation.
ii. We direct that State, Chief Secretary to the State, Director General of Police, and all administrative authorities and police officers in the State to implement strictly the directives issued by the Chief Secretary dt. 6-2-1999 and the directions given by the Director General of Police dt.4-2-1999 and set out fully in the earlier part of this judgment.
iii. We issue a writ of mandamus to the Election Commission to entertain complaints, if made, of violation of Section 29A (5) of the Representation Act, 1951 by any of the registered political parties or associations, and after a fair hearing, to take decision thereon for deregistration or cancellation of registration or cancellation of registration of that party or organisation, if it is warranted by the circumstances of the case.
iv. We issue a writ of mandamus directing the Election Commission to consider and dispose of in accordance with law, the representation Exhibit.P.9 in O.P.No.20641 of 1998, after giving all the affected parties an opportunity of being heard.
v. We direct the State of Kerala, the Chief Secretary to the Government, the Director General of Police and all other officers of the State to take all necessary steps at all necessary times, to give effect to this judgment.
vi. We direct the State, District Collectors, all other officers of the State and Corporations owned or controlled by the State to take immediate and prompt action, for recovery of damages in cases where pursuant to a call for hartal, public property or properly belonging to the Corporation is damaged or destroyed, from the perpetrators of the acts leading to destruction/damage and those who have issued the call for hartal.
We make no order as to costs.