INSTITUTE OF SOCIAL WELFARE Vs. STATE OF KERALA

JUDGEMENT

(1.) After this Court declared in Bharat Kumar Vs. State of Kerala, 1997(4) RCR(Civil) 190 (Kerala) : AIR 1997 Kerala 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) Vs. Bharat Kumar, 1998(1) RCR(Civil) 411 (SC) : AIR 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) Vs. Bharat Kumar (supra) while affirming the decision of this court approved the distinction so made by this Court. Presumably in the context of this, political parties and mashroom organisations in this State stated 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 preserved, holding of a hartal would become unconstitutional especially in the light of the decision of the Supreme Court in Communist Party of India (Marxist) Vs. Bharat Kumar (supra) and it is therefore necessary for this court to declare that the calling of hartal in the manner in which it is now done is also unconstitutional. In fact it is contended that the hartal as it is now observed or compelled to be observed is lion in a sheep's clothing. In O.P. No. 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 19 and 21 of the Constitution and the Directive Principles of State Policy and the Constitutional duties contained in Art. 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 Vs. State of Kerala, 1997(2) K.L.T. 287 affirmed by the Supreme Court in Communist Party of India (Marxist) Vs. Bharat Kumar, AIR 1998 Supreme Court 184 (supra) and to issue a writ of mandamus commanding the Chief Election Commissioner to take action against respondent No. 3, Community 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 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 Vs. 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 recourses 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 Commissioner 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.P. No. 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.