Kerala Vyapari Vavasayi Ekopana Samithi v State of Kerala & Ors [2000] ICHRL 40 (1 June 2000)

2000-06-01

Asia - India - AIR 2000 Ker 389

 For the Petitioners: Siby Mathew, Wilson Urmese and Pauly Mathew Muricken For the Respondents: K Balakrishnan, Govt Pleader K K Ravindranath, Mathew, C N Radhakrishnan SC, Raju Joseph

In the earlier decision of the Kerala High Court, Bharat Kumar v State of Kerala (AIR 1997 Ker 291) which was upheld by the Supreme Court in Communist Party of India v Bharat Kumar (AIR 1998 SC 184), it was held that hartals are peaceful acts of non-co-operation or passive resistance movements, which are constitutional. A hartal was distinguished from a bundh which involves coercion and is therefore unconstitutional. In the present case, petitions were filed complaining that coercion is used in accompanying the calls for hartals thereby making them unconstitutional. The petitioner sought a declaration that calling a hartal infringes their constitutional rights (Art 19 and 21) including the right to life (Art 21) and the Directive Principles of State Policy and the constitutional duties contained in Article 51A of the Constitution of India. The petitioner also sought a writ of mandamus directing the State of Kerala to take appropriate measures. The third respondent, the Communist Party of India, in its counter-affidavit, submitted that it had not called for a bundh, but for a hartal. The State also filed various affidavits stating that no organisation has called a bundh, but there have been calls for hartals which had generally given rise to violence and loss of property. It argued that it had already taken action to ensure that the rights of the citizens were not affected when a call for a hartal is given, although the petitioners argued that these steps have not improved the situation. During the course of earlier litigation, the court had made a number of directions to the respondent State and police to respond to the problems which arose from calling hartals. Held that: The essential question is at what stage the calling of a hartal ceases to be a legitimate exercise of freedom of association and freedom of speech. There is no doubt that forcibly compelling individuals to join a hartal interferes with their constitutional rights. The authorities are bound to protect the rights of the citizens and uphold the freedoms available under the Constitution. The destruction of public and private property when staging a hartal cannot be considered to be a constitutional act, and calling and enforcing hartals, which curtail the rights of others, cannot be accepted. Hartals should be used rarely, for instance when an issue concerning the preservation of democracy arises. Whilst it is recognised that hartal was a weapon during India’s struggle for independence, it has no continuing role when it results in the destruction of national property and loss of national production and where there are constitutional methods to achieve the same objective. The mere calling of hartal in the strict sense cannot be held to be objectionable, but the moment it comes out of this strict concept and seeks to impinge on the rights of others, it ceases to be a hartal and becomes a violent demonstration, a form of bundh, involving intimidation and coercion. The enforcement of a call for hartal by force, intimidation and coercion is unconstitutional. When a call for hartal made by an association or body of citizens is enforced by coercion, the Election Commission, which registers political parties for the purposes of the Representation of Peoples Act, 1951, (the Act), can take action by cancelling that registration or de-recognising that body for violating s 29A(5) of the Act, which requires registered parties to comply with the constitution or face de-registration. The High Court can direct the Election Commission to consider cancelling registration. The Commission should have an active role in preventing calls for hartals enforced by coercion. The enforcement of the directions given by the Chief Secretary and the Director General of Police to the District Collectors and police officers would enable the traders to open their shops if they are not willing to participate in a hartal. Police authorities have sufficient power under law to take preventive measures. It is for them to take measures to ensure that citizens are not prevented from using the roads or taking out their vehicles in exercise of their right of free movement guaranteed by the Constitution. Further, those who have called for the hartal would be liable for the damage caused to public property. Directions are made to the State of Kerala and all officers to give effect to this judgment by taking all necessary steps. Further, they are directed to take prompt action for recovery of damages from those who have issued the call, in cases where pursuant to a call for hartal public property is damaged. The Election Commission is ordered to entertain complaints of violation of s 29A(5) and after a fair hearing take appropriate measures.