that this Court, in exercise of writ jurisdiction, cannot
issue any writ restraining from publishing/broadcasting
any information regarding call of hartal/strike.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN
MR.JUSTICE A.M.SHAFFIQUE
&
MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 29TH DAY OF OCTOBER 2014/
WP(C).NO. 32529 OF 2007 (S)
----------------------------
S.SUDIN
Vs THE UNION OF INDIA AND OTHERS
ASHOK BHUSHAN, Ag. CJ,
A.M.SHAFFIQUE, J
&
A.K.JAYASANKARAN NAMBIAR, J.
Citation; AIR 2015 Kerala 49
This bunch of Writ Petitions have been listed before
the Full Bench on a reference made by a Division Bench
of this Court. The Division Bench took the view that the
issues raised in the Writ Petitions are of public
importance, hence they require to be heard by a Full
Bench.
2. This bunch of Writ Petitions highlights the
grievance and suffering by common people of the State,
on whom by the call of observing hartal by different
political parties and organizations forces closure of all
their activities, including respective businesses and
vocations. The petitioners' grievances are compounded
by not taking appropriate action and measures by the
State, who is obliged to secure lives and properties of
members of the society. The grievance is that in spite of
two Full Benches of this Court having declared 'bandh'
and 'forced hartal' unconstitutional, the political parties
and various organizations are giving call for hartals and
prosecuting their calls, which are nothing but forced
hartals. Some of the petitioners, for example, petitioners
in W.P(C).No.32529 of 2007, W.P(C).No.2183 of 2008
and W.P(C).No.21455 of 2012, who are aggrieved by
failure of the State authorities to ensure normal
functioning of the people in bandhs and forced hartals,
have come with the prayer for restraining the print and
W.P(C).No. 32529 of 2007 & connected cases
-: 3 :-
electronic media from publishing any news regarding
call of hartals given by political parties and different
organizations.
3. In bunch of these Writ Petitions several prayers
have been made by different petitioners giving relevant
facts and details. Counter affidavits by some political
parties, the State Government and other respondents
have been filed. For noticing the issues raised before
the Full Bench and the pleadings of the parties it is
sufficient to note the pleadings and reliefs in all the Writ
Petitions. We now proceed to note the facts and issues
brought on record in above Writ Petitions for deciding
the bunch of Writ Petitions.
4. W.P(C).No.32529 of 2007 has been filed by the
petitioner, who claims to be working as the Principal of
an educational institution affiliated to the Central Board
of Secondary Education. The Writ Petition has been
instituted seeking orders restraining publication or
W.P(C).No. 32529 of 2007 & connected cases
-: 4 :-
broadcasting of calls for bandh or hartal by political
parties and other organizations. The petitioner by
referring to two Full Bench judgments of this Court as
noted above pleaded that in spite of various directions
issued by the Full Bench of this Court, the State
Government machinery did not do anything to mitigate
the sufferings of the common people on the day of
bandh/hartal. It is pleaded that on the days of hartal, an
uncontrollable situation had arisen wherein self
proclaimed violators of law, started holding the public to
ransom in the name of hartal and bandh. The petitioner
pleads that the root cause of enforcing a call for
bandh/hartal is the wide circulation, propaganda and
importance given to the same by news papers,
television and radio. This is so, in view of the fact that
once political party decides to call for a bandh/hartal,
all they have to do is to convey the decision to the
respective newspaper/television and once the news is
W.P(C).No. 32529 of 2007 & connected cases
-: 5 :-
flashed, people remain within their homes, fearing
adverse consequences, if they violate the call for
bandh, as is proved by past experiences, which inter alia
amounts to aiding/abetting the call for bandh/hartal. The
petitioner has impleaded representatives of television
channels and newspapers operating in the State of
Kerala. Representatives of political parties are also
impleaded in the Writ Petition. The petitioner has also
pleaded that Norms of Journalistic Conduct have been
framed under the Press Council Act, 1978 and going by
the said Regulation, vis-a-vis, the declarations of this
Court and the Supreme Court, the petitioner pleads that
newspapers ought not publish any call for bandh/hartal
by any political party or group, since such action would
directly infringe the rights guaranteed to a citizen under
Articles 19(1)d and 21 of the Constitution of India. It is
pleaded that the third respondent, Prasar Bharathi
(Broadcasting Corporation of India), is obliged under the
W.P(C).No. 32529 of 2007 & connected cases
-: 6 :-
Prasar Bharati (Broadcasting Corporation of India) Act,
1990 to discharge various obligations, including
promoting social justice and advance the welfare of the
weaker sections of the society, which refrain from
broadcasting/telecasting any call for bandh/hartal made
by the political parties. Similar pleadings have been
made that Cable Television Networks ought not
broadcast any news relating to call for bandh/hartal. The
petitioner in the Writ Petition has prayed for the
following reliefs:
"i) declare that broadcasting/publishing/
telecasting news/call for hartal/bandh/
general strike by respondents 3 to 17
would amount to enforcing such call and
hence un-constitutional and violative of
the rights guaranteed under Article 21 of
the Constitution of India.
ii) issue a writ of mandamus or any other
appropriate writ, direction or order
directing respondents 1 to 4 to adopt
effective measures to ensure that
W.P(C).No. 32529 of 2007 & connected cases
-: 7 :-
respondents 5 to 17 do not
broadcast/publish/telecast any news or
call for hartal/bandh/strike, which acts
have been declared to be
unconstitutional by the Full Bench of this
Honourable Court in Bharat Kumar v.
Union of India, 1997(2) KLT 287 and
K.V.V.E. Samithi v. State of Kerala 2002
(2) KLT 430."
5. W.P(C).No.31985 of 2007 has been filed by an
organization, which has been formed for achieving
overall welfare of the common people and to assist
them in the matter of attaining protection whenever
there is violation of human rights and impediments. The
organization claims to have noted the recent trend
among the political parties to call hartals/bandhs
frequently, only to impose their political image forcefully
on the public. The Writ Petition was filed in the wake of
two prominent political parties in the State giving call of
hartals to be observed on 27.10.2007 and 01.11.2007.
W.P(C).No. 32529 of 2007 & connected cases
-: 8 :-
The petitioners plead that calling of hartal causes lot of
inconveniences to the public and many a time unlawful
things are happening on the hartal days created by both
political supporters and antisocial elements under the
guise of political reactions. The leaders who call on
hartals often declare that distribution of milk,
newspapers and medical shops will be spared on the
hartal day, which statement itself shows that they will
sabotage the other routine activities of the public, such
as travelling, opening of shops for business etc. and
these activities will be hindered. People are forced to
remain at home on the hartal day, thereby not attending
their workplace and refrain from travelling, because of
the hidden threat and danger to their lives. The reason
for observing hartal on 27.10.2007 in the Malabar region
was to protest against the indifferent attitude of Air
India for the overall development of Calicut Airport. It
was further pleaded that even though the Chief Minister
W.P(C).No. 32529 of 2007 & connected cases
-: 9 :-
of Kerala made request to refrain from observing hartal
on 01.11.2007, since the arrival of His Excellency the
President of India to Kerala was scheduled on that day,
but the fourth respondent reiterated that they will
proceed with observing hartal on 01.11.2007. It is
further pleaded that a Full Bench of this Court in Bharth
Kumar v. State of Kerala (1997(2) KLT 287 (FB) had
held that no political party or organization can claim
that it is entitled to paralyse the industry and commerce
in the entire State or Nation and is entitled to prevent
the citizen not in sympathy with its view point from
exercising their Fundamental Rights or from performing
their duties for their own benefit or for the benefit of the
State or the Nation. The Full Bench has declared that
calling bandh is illegal and unconstitutional. The
judgment of the Full Bench was confirmed by the
Supreme Court in Communist Party of India (M) v.
Bharat Kumar (1997(2) KLT 1007(SC). Reference and
W.P(C).No. 32529 of 2007 & connected cases
-: 10 :-
reliance has been placed on George Kurian v. State
of Kerala (2004(2) KLT 758). It is submitted that the
petitioner had issued legal notice on earlier occasion
and reference to legal notice dated 5.8.2007 Exhibit P2
has been made. It is further pleaded that by noticing the
call made by the second respondent to observe hartal in
Malabar region on 27.10.2007, the petitioner
organization had issued legal notice on 24.10.2007. The
petitioner filed the Writ Petition on 26.10.2007 seeking
the following reliefs (as amended):
"i) issue a writ of prohibitory,
prohibiting/restraining the 2nd
respondent proceeding with the call for
observing Harthal on 27.10.2007 in
Malabar region (Palakkad to Calicut), as
it is illegal and unconstitutional.
ii) issue a writ of prohibitory
prohibiting/restraining the 4th
respondent proceeding with the call for
observing hartal on 1-11-2007 as the
same is illegal and unconstitutional.
W.P(C).No. 32529 of 2007 & connected cases
-: 11 :-
iii) issue a writ of mandamus or any
other appropriate writ, order or
direction directing the 7th respondent
to recover and realize compensation
for the damage if any caused to the
public/private property, from the
respondents 1 to 6 as per Prevention
of Damages to Public Property Act,
1984.
Counter affidavits by some of the political parties, i.e.,
6th respondent, Communist Party of India (Marxist) CPM
and 11th respondent Communist Party of India (CPI) have
been filed.
6. W.P(C).No.21455 of 2012 has been filed by the
petitioner, who is a practicing lawyer of the Kozhikode
Bar, who also claims to be a social worker. The Writ
Petition has been filed in the wake of a call for hartal on
15.9.2012. Writ of prohibition has been prayed for
banning the hartal declared on 15.9.2012. A prayer has
also been made for restraining the members of the print
W.P(C).No. 32529 of 2007 & connected cases
-: 12 :-
and electronic media from publishing any news
regarding the announcement of hartal by any political
parties or organization in State of Kerala.
7. W.P(C).No.2183 of 2008 has been filed by the
petitioner, who claims to be a retired school teacher and
a social worker. He has shown his concern for protection
of rights of the children and proper running of
educational institutions. The petitioner pleads that in
spite of bandh and hartal having been declared as
unconstitutional by this Court as well as the Supreme
Court, frequent forced hartal calls are made and such
illegal calls are being published in various medias. The
petitioner has given details of hartals conducted in the
year 2007 in Exhibit P1. It is pleaded that those details
are uploaded in the website "www.harthal.com". The
petitioner pleaded that making of such calls, including
publishing of it, with the intention to cause fear or alarm
in the mind of the public is an offence under Section 503
of the Indian Penal Code. It is pleaded that the worst
affected by such calls of hartals are the children. The
schools will not be able to complete their lessons in view
of such frequent hartals. Examinations in Universities in
the State getting postponed. It is further pleaded that
various all India examinations are conducted on all
India basis and on days when examinations are
scheduled if call of hartal is given, students of Kerala
shall be deprived from participating in such
examinations. The petitioner has prayed for the
following reliefs:
"i. To issue a writ, direction or order in the
nature of mandamus or such other
appropriate writ, direction or order
commanding the respondent to take
immediate steps to see that no call for
bundh or forced hartals, as prohibited by
this Hon'ble Court in Bharat Kumar vs
State of Kerala 1997(2) KLT 287 and
Peoples council for Social Justice vs
State, 2002(2) KLT 548 are published in
any media and appropriate action is
taken against the violators under the
Indian Penal Code, 1860 and Prevention
of Insults to National Honour Act, 1971;
ii. To issue a writ, direction or order in the
nature of mandamus or such other
appropriate writ, direction or order
commanding the respondent to create a
separate fund for the purpose of paying
compensation to the victims of the
hartals and bundhs, forthwith and to
recover the same from the concerned
persons by invoking the provisions of the
Kerala Revenue Recovery Act, 1968,
who make such illegal calls;"
8. W.P(C).No. 30778 of 2005 has been filed by an
association registered under the provisions of the
Travancore-Cochin Literary, Scientific and Charitable
Societies Registration Act. The members of the
association are mainly wholesale distributors of
Kottayam District. The members are distributing various
products to retailers. The petitioner's case is that
because of the frequent calls of bandhs, hartals and
general strikes by political parties, organizations, trade
unions etc., citizens are threatened from travelling for
attending to their duties. The members of the petitioner
association are unable to transact their business. It is
pleaded that although the members of the petitioner
association are ready to carry out business on the days
on which hartal or bandh is called, if given sufficient
police protection by the police. In spite of requests by
the members of the petitioner association to give
adequate police protection to carry out business on
bandh or hartal days, sufficient police protection to carry
out the business has not been given. It is pleaded that
the members of the petitioner association are suffering
huge loss in the business. The following prayers are
made in the Writ Petition:
"i) Declare that the bandh called by the BJP on
9.11.2004 and the Hindu Aikyavedi on
15.11.2004 are unconstitutional and violative
W.P(C).No. 32529 of 2007 & connected cases
-: 16 :-
of Articles 19 and 21 of the Constitution of
India.
ii) Direct the 7th respondent BJP as well as 13th
respondent Hindu Aikyavedi to deposit an
amount of 10 lakhs each as compensation
for the illegal action of calling harthal on
9.11.2004 and 15.11.2004 and to keep the
said amount in a special fund and to
disburse the same to the members of the
petitioner association and other persons
who have suffered loss or damage due to
the above bandh;
iii) To declare that the bandh or harthal or
general strike called or enforcement of
bandh or harthal or general strike will
amount to an unconstitutional act;
iv) Direct the police authorities and the district
administration to give effective and
adequate protection for members of the
association to carry out their business;
v) Direct the police authorities to take video
photos during the call of a
bandh/harthal/general strike etc. so as to
identify the miscreants and to book them
under law;"
9. W.P(C).No.32086 of 2007 has been filed by a
W.P(C).No. 32529 of 2007 & connected cases
-: 17 :-
voluntary organization, which is aggrieved by the action
of the respondents in calling hartals in the State as well
as in Malabar region. Following are the prayers made in
the Writ Petition:
"a) Issue a writ of mandamus, directing the
respondents 1 to 2 to take immediate
and effective steps to ensure the safety
of the citizens who disagree with the
hartal, protect their right to work and
travel and to protect public property on
the days of hartals called for by
respondents 3 and 4.
b. Issue a writ of mandamus, directing the
respondents 1 to 2 to maintain visible
police presence throughout the State
especially outside railway stations, bus
depots, main roads, main junctions,
hospitals, courts, schools, colleges,
market and business places for taking
effective and prompt action against the
violence on the days of hartals called for
by respondents 3 and 4.
c) Issue a writ of mandamus, directing the
W.P(C).No. 32529 of 2007 & connected cases
-: 18 :-
respondents 1 and 2 to assess the loss
caused to the State due to the
destruction of public property by the
organizers of the bandhs and hartals
and to recover the same from the
culprits.
d) Issue a writ of mandamus, directing the
respondents 1 and 2 to take immediate
and effective steps to complete the
investigations and to finalize all pending
criminal cases registered against the
organizers of the Bandhs and hartals, if
necessary by constituting special court."
10. W.P(C).No.34345 of 2007 has been filed
pleading that frequently bandhs and hartals are called
by political parties without caring the hardships and
difficulties faced by the general public. The petitioner
claims to be running a business, which suffers huge loss
on the date of hartals. It is pleaded that examinations
are indefinitely adjourned on account of hartals and
bandhs, causing great loss to the students. The KSRTC are
W.P(C).No. 32529 of 2007 & connected cases
-: 19 :-
also suffering loss on account of the hartals, as they are
not able to operate bus services on hartal days. In a
month the loss suffered by the Corporation is more than
several crores. The petitioner has come up praying for the
following reliefs in the Writ Petition:
"i) Issue a writ of mandamus directing
respondents 5 to 7 to take adequate
measures to see that normal life of the
citizens is not paralysed and that is to
be done not by declaring holidays or
postponing examinations but by giving
effective protection to those who are
not participating any such harthals or
bunds or strikes called by respondents 1
to 4;
ii) Issue a writ of mandamus directing
respondents 5 to 7 to recover damages
from the persons who actually cause
damages and also from political parties,
organizers and persons who actually
cause damages and also from political
parties, organizers and persons who call
for such harthals or general strike;
W.P(C).No. 32529 of 2007 & connected cases
-: 20 :-
iii) Issue a writ of mandamus directing
respondents 5 to 7 to take action under
the Prevention of Damages to Public
Property Act, 1984 against the
organizers of harthals and bundhs;
iv. Issue a writ of mandamus directing
respondents 5 to 7 to adequately
compensate persons who have suffered
losses immediately as the government
has failed to fulfill its constitutional
obligations to protect life and property
of the citizens and to direct the
government to take steps to recover the
same from the persons who cause such
damages or injuries and also from
persons and political parties or
organizers who call for such harthals or
general strikes;
v) Issue a writ of mandamus directing
respondents 5 to 7 to see that public
transport system including KSRTC and
private buses and private vehicles are
not prevented from running on roads on
harthal and bundh days;
W.P(C).No. 32529 of 2007 & connected cases
-: 21 :-
vi) Issue a writ of Prohibition prohibiting 5th
respondent or any of the Universities in
Kerala from postponing or adjourning
public examinations and tests on the
ground of harthals and bundhs;
vii) Issue a declaration declaring that calling
and holding of harthal or bundh is an act
of criminal intimidation which affect
public order and security of the nation
and is punishable u/s.503 I.P.C".
11. W.P(C) No.36376 of 2007 has been filed by
State President of the Senior Citizens Welfare
Association of India. The petitioner prays for a writ of
mandamus directing the respondents to totally ban the
call for hartal and blockade of roads by organizations
such as political parties or otherwise. A counter
affidavit on behalf of Government of Kerala has been
filed stating that this Court has not banned a hartal in
toto. Following is pleaded in paragraphs 2, 3, 5 and 6:
"2. It is submitted that this Hon'ble
W.P(C).No. 32529 of 2007 & connected cases
-: 22 :-
Court has not banned a hartal in toto.
However, as and when political parties
declared hartal the Government is duty
bound to ensure that it does not cause
hindrance to normal life of the general
public. It is submitted that the Government
are taking immediate action in such
instances so as to ensure that public and
private property is protected, besides the
safety of the citizen. Detailed instruction in
this regard is being given to all subordinate
officers and bandobust arrangements with
visible police presence will be made
whenever necessary. Action will be taken
for proper patrolling at important places like
Railway Stations, Airports etc. Whenever
complaints of violence are received, cases
were promptly registered and such cases will
W.P(C).No. 32529 of 2007 & connected cases
-: 23 :-
be expeditiously investigated. Action will
also be initiated to recover damages from
those who cause damages to public
properties.
3. It is submitted that with regard to
damages to properties, provisions are
available to realize the damages caused
during hartals. Every effort is being made to
register cases, whenever complaints are
received by Police. Action is also being taken
to charge the cases expeditiously.
5. It is submitted that when political
parties are declaring Harthals, instructions
are being given to subordinate officers to file
Civil Suits claiming damages from the
agitations in the case of destruction of
property besides registering criminal cases.
6. It is submitted that as and when
W.P(C).No. 32529 of 2007 & connected cases
-: 24 :-
information regarding declaration of harthal
is received, the Government used to take
adequate precautions so that the rights of
citizens are sufficiently protected. During
Hartals proper and adequate Police
Bandobust arrangements are being made.
Forceful closure of shops and obstruction of
employees are prevented. During the entire
Harthal period, the Police force in the State
will stand mobilized. The Government are
taking all possible steps to ensure that the
general public is not deprived of their rights
and claims."
12. The main reliefs, which have been claimed in
different Writ Petitions has been noted as above. The
reliefs claimed in different Writ Petitions can be
summarized to the following effect:
"i) Writ or direction directing the State
W.P(C).No. 32529 of 2007 & connected cases
-: 25 :-
authorities to adopt effective measures
to ensure that various news papers/TV
channels do not broadcast/publish/
telecast any news of hartal/bandh/strike;
ii) Issue a writ or order directing the State to
totally ban calling for
bandh/hartal/general strike;
iii) Issue a writ or direction directing the
State authorities to recover and realize
compensation for the damages caused
to the public/private property from the
political parties/organization calling
hartal/strike/bandh as per the
Prevention of Damages to Public
Property Act, 1984;
iv) Issue a direction directing the political
parties/ organizations calling for
bandh/strike to deposit an amount for
payment of compensation for illegal
action of calling hartal;
v) Issue a direction to the State as well as
the police authorities to take effective
measures as already directed by two
Full Bench of this Court in Bharat
W.P(C).No. 32529 of 2007 & connected cases
-: 26 :-
Kumar v. Union of India (1997(2) KLT
287) and George Kurian v. State of
Kerala (2004(2) KLT 758);
vi) Direct the police authorities to take
video/ photos during the call of a
bandh/harthal/general strike etc. so as
to identify the miscreants who can be
booked under law;
vii) Issue a direction to the State to create a
fund for payment of compensation to
the victims of hartals/bandhs, who suffer
physical injury as well as destruction of
their property; and
viii) Issue a direction to the State
administrative authorities to take steps
expeditiously to get all criminal cases
registered consequent to hartal/bandh
decided at an early date.
13. We have heard Sri.P.B.Sahasranaman,
Sri.T.S.Harikumar, Sri.M.J.Thomas, Sri.R.Manoj,
Smt.Daisy Philipose, Sri.Philip J.Vettickattu, learned
counsel appearing for the petitioners and Senior Counsel
W.P(C).No. 32529 of 2007 & connected cases
-: 27 :-
Sri.T.M.Mohammed Youseff, Sri.Swathy Kumar, Sri.Gilbert
Correya, Sri.Devaprasanth, Sri.Millu Dandapani,
Sri.Nandagopal Nambiar and Smt.Girija Gopal, Special
Government Pleader appearing for the respondents.
14. From the submissions raised by learned counsel
for the parties an d pleadings on record, the following are
the main issues, which arise for consideration before
this Full Bench:
I. Whether the print and electronic media
can be prohibited from publishing/
broadcasting/ telecasting any news for
call of hartal/strike by a political party or
an organization?
II. Whether call for hartal/strike deserves to
be totally banned?
III. What are measures which can be taken
by State for regulating/restricting call
for hartal/strike given by political
parties/different organizations?
IV. What measures have to be taken by
State/District Administration/police
W.P(C).No. 32529 of 2007 & connected cases
-: 28 :-
administration on day of hartal/strike to
ensure that every person is able to
attend his normal duty/business and life
and property both private and public is
protected?
V. What are the measures for prosecution of
guilty and mechanism for claiming
damages/compensation for damage/
destruction of private and public
properties during hartal/strike?
VI. Whether call of hartal/strike violates the
Prevention of Insults to National Honour
Act, 1971?
VII. Whether calling and carrying out
hartal/strike is to be declared an offence
punishable under Section 503 IPC.
VIII. To what relief the petitioners are
entitled?
Issue No.I: Prohibiting the Print and
Electronic media.
15. The first issue, which is the principal relief in
first three Writ Petitions is with regard to prohibiting
W.P(C).No. 32529 of 2007 & connected cases
-: 29 :-
broadcasting/telecasting news/call for hartal/bandh/
general strike by print media, press, radio and
televisions. The prayers made in the above first three
Writ Petitions have already been quoted above.
16. Learned counsel for the petitioners, in support
of the above prayers, submits that Full Benches of this
Court as well as Apex Court, as noted above, have
already declared calling bandh and forced hartal as
unconstitutional. Printing news of above bandh and
hartal and giving publicity by media is nothing but an
illegal and unconstitutional act. It is submitted that the
root cause of enforcing a call for bandh/hartal is the
wide circulation, propaganda and importance given to
the same by news papers, televisions and radio. It is
submitted that once a political party decides to call for a
bandh/hartal, all they have to do is to convey the
decision to the respective newspaper/television and
once the news is flashed, people remain within their
W.P(C).No. 32529 of 2007 & connected cases
-: 30 :-
homes, fearing adverse consequences. This inter alia
amounts to aiding/abetting the call for bandh/hartal by
media. It is further submitted that under the Press
Council Act, 1978, the Council has framed Norms of
Journalistic Conduct, which direct the newspapers to
exercise due restraint and caution in presenting any
news, comment or information, which is likely to
jeopardize, endanger or harm the paramount interests
of the State and Society. It is submitted that publicising
news of hartal and bandh is nothing but to endanger or
cause harm to the interests of the society and public in
general. Similarly, it is contended that Prasar Bharati
Corporation established under Section 3 of the Prasar
Bharati (Broadcasting Corporation of India) Act, 1990 is
obliged to discharge its functions in a manner to
promote social justice and combat exploitations and
evils which may damage the weaker sections of the
society. It is submitted that the Corporation ought not to
broadcast such news or publish information, which is
likely to endanger and harm the people in general. It is
submitted that in view of the declaration of law by the
Full Bench of this Court and Apex Court, as noted above,
as well as the statutory provisions, this Court may issue
a direction prohibiting the press and media from printing
and publishing any news for call for bandh/hartal.
17. Learned counsel for some of the respondents,
i.e., political parties, have submitted that no prohibition
can be imposed on press and media from publishing any
news regarding call for bandh/hartal. It is submitted that
it is the Fundamental Right of press guaranteed under
Article 19(1)(a) of the Constitution of India to
print/publish the views of the press and media, which is
necessary for a healthy democracy. It is further
submitted that the public in general has also a right to
know about all events happening in the State and
blacking out any such information from the public in
W.P(C).No. 32529 of 2007 & connected cases
-: 32 :-
general shall again violate the rights of the people
guaranteed under the Constitution of India. The role of
media is to function as a constructive opposition in a
democracy and they are supposed to oppose what is
bad and to support what is good.
18. Before we proceed to examine the rival
contentions of learned counsel for the parties as noted
above, it is useful to note relevant constitutional
provisions as well as law on the subject as declared by the
Supreme Court.
19. Our Constitution is the documentation of the
founding faiths of a nation and the fundamental directions
for their fulfillment. The Constitution is not just a
document in solemn form, but a living framework for the
Government of the people exhibiting a sufficient degree of
cohesion and its successful working depends upon the
democratic spirit underlined therein. The founding fathers
of the Constitution, cognizant of the reality of life wisely
engrafted the Fundamental Rights and Directive Principles
W.P(C).No. 32529 of 2007 & connected cases
-: 33 :-
in Chapters III and IV for a democratic way of life. The
fundamental rights have in fact proved to be the most
significant constitutional control on the Government,
particularly legislative power. Article 19 of the Constitution
is an arch on which edifice, i.e., the basic structure has
been built and developed. In the present case, we mainly
are concerned with the right guaranteed under the
Constitution to "freedom of speech and expression".
Article 19(1) and 19(2), which are relevant for the present
case, are quoted as follows:
"19. Protection of certain rights
regarding freedom of speech, etc.--(1)
All citizens shall have the right--
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions [co-
operative societies];
(d) to move freely throughout the territory of
India;
(e) to reside and settle in any part of the
territory of India; [and]
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-: 34 :-
(f) [* * *]
(g) to practise any profession, or to carry on
any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause
(1) shall affect the operation of any existing
law, or prevent the State from making any
law, in so far as such law imposes reasonable
restrictions on the exercise of the right
conferred by the said sub-clause in the
interests of [the sovereignty and integrity of
India,] the security of the State, friendly
relations with foreign States, public order,
decency or morality or in relation to
contempt of court, defamation or incitement
to an offence."
20. Although Article 19(1)(a) does not specifically
refers to the "freedom of press", but it is now well
established that right of freedom of press is inherent
and ingrained in the right of speech and expression
guaranteed under Article 19(1)(a) of the Constitution.
21. Patanjali Sastri, J speaking for majority in
one of the earliest cases of the Supreme Court has
W.P(C).No. 32529 of 2007 & connected cases
-: 35 :-
recognized and propounded the freedom of press. In
Romesh Thappar v. State of Madras (AIR 1950 SC
124) the Supreme Court considered Article 19(1)(a) as
well as Article 19(2) of the Constitution. In the above
case, the petitioner was a printer, publisher and editor
of a weekly journal in English. The Government of
Madras, in exercise of their powers under Section 9(1-A)
of the Madras Maintenance of Public Order Act, 1949,
issued an order imposing a ban upon the entry and
circulation of the journal in the State of Madras. The said
order was challenged before the Apex Court. Following
was laid down in paragraphs 11, 13 and 14 of the
judgment:
11. ".....Thus, very narrow and stringent
limits have been set to permissible
legislative abridgment of the right of free
speech and expression and this was
doubtless due to the realization that
freedom of speech and of the press lay at
the foundation of all democratic
organizations, for without free political
discussion no public education, so essential
for the proper functioning of the processes
of popular Government, is possible. A
freedom of such amplitude might involve
risks of a abuse. But the framers of the
Constitution may well have reflected with
Madison who was 'the leading spirit in the
preparation of the First Amendment of the
Federal Constitution", that "it is better to
leave a few of its noxious branches to their
luxuriant growth than, by pruning them
away, to injure the vigour of those yielding
the proper fruits" (Quoted in Near v.
Minnesotta283 U. S 607 at 717-8 ).
13. It was, however, argued that S.9 (IA)
could not be considered wholly void, as,
under Art. 13(1) an existing law inconsistent
with a fundamental right as void only to the
extent of the inconsistency and no more. In
so far as the securing of the public safety or
the maintenance of public order would
include the security of the State, the
impugned provisions was covered by cl.(2) of
Art. 19 and must, it was said, be held to be
valid. We are unable to accede to this
contention. Where a law purposes to
authorize the imposition of restrictions on a
fundamental right in language made enough
to cover restrictions both within and without
the limits of constitutionally permissible
legislative action affecting such right it is not
possible to uphold it even so far as it may be
applied within the constitutional limits, as it
is not severable. So long as the possibility of
its being applied for purposes not sanctioned
by the Constitution cannot be ruled out, it
must be held to be wholly unconstitutional
and viod. In other words cl.(2) of Art. 19
having allowed the imposition of restriction
on the freedom of speech and expression
only in cases where danger to public security
is involved, an enactment, which is capable
of being applied to cases where no such
danger could arise, cannot be held to be
constitutional and valid to any extent.
14. The application is therefore allowed
and the order of the respondents prohibiting
the entry and circulation of the petitioner's
journal in the State of Madras in hereby
quashed."
22. In another case, which was decided by the
Supreme Court on the same day, i.e., Brij Bhushan v.
state of Delhi (AIR 1950 SC 129) speaking for the
majority, Patajali Shastri, J. has laid down following in
paragraph 25:
"25.There can be little doubt that the
imposition of pre-censorship on a journal is a
restriction on the liberty of the press which
is an essential part of the right to freedom of
speech and expression declared by Art.19
(1) (a).As pointed out by Blackstone in his
Commentaries,
"the liberty of the press consists in laying no
previous restraint upon publications, and not
in freedom from censure for criminal matter
when published. Every freeman has all
undoubted right to lay what sentiments he
pleases before the public; to forbid this, is to
destroy the freedom of the press."
Blackstone's Commentaries, Vol. IV. pp. 151,
152.
The only question therefore is whether S. 7
(1) (c) which authorizes the imposition of
such a restriction falls within the reservation
of cl. (2) of Art. 19"
23. The Constitution Bench of this Court in
Express Newspaper Ltd. v. Union of India (AIR 1958
SC 578) had occasion to consider Article 19(1)(a) of the
Constitution in context of freedom of press. The Apex
Court in the said case examined the Constitutional Law
as well as American Law on the freedom of speech and
expression. The Apex Court in the above case has laid
down the following in paragraphs 131, 132, 142 and
143:
131. These are the only two decisions of
this Court which involve the interpretation of
Art. 19 (1) (a) and they only lay down that
the freedom of speech and expression
includes freedom of propagation of ideas
which freedom is ensured by the freedom of
circulation and that the liberty of the press is
an essential part of the right to freedom of
speech and expression and that liberty of the
press consists in allowing no previous
restraint upon publication.
132. There is however, a considerable
body of authority to be found in the decisions
of the Supreme Court of the United States of
America bearing on this concept of the
freedom of speech and expression.
Amendment I of that Constitution lays down :
"Congress shall make no law....abridging the
freedom of speech or of the press....."
142. It is clear from the above that in
the United States of America :
(a) the freedom of speech comprehends the
freedom of press and the freedom of
speech and press are fundamental
personal right of the citizens;
(b) the freedom of the press rests on the
assumption that the widest possible
dissemination of information from
diverse and antagonistic sources is
essential to the welfare of the public;
(c) Such freedom is the foundation of free
Government of a free people;
(d) the purpose of such a guarantee is to
prevent public authorities from
assuming the guardianship of the public
mind ; and
(e) freedom of press involves freedom of
employment or non-employment of the
necessary means of exercising this right
or in other words, freedom from
restriction in respect of employment in
the editorial force.
143.This is the concept of the freedom
of speech and expression as it obtains in the
United States of America and the necessary
corollary thereof is that no measure can be
enacted which would have the effect of
imposing a pre-censorship curtailing the
circulation or restricting the choice of
employment or unemployment in the
editorial force. Such a measure would
certainly tend to infringe the freedom of
speech and expression and would therefore
be liable to be struck down as
unconstitutional."
24. In today's free world freedom of press is the
heart of social and political intermingling. The press has
now assumed the role of the public educator making
formal and non-formal education possible in large scale
particularly in the developing world where television and
other kind of modern communications are not still
available for all sections of society. The purpose of the
press is to advance the public interest by publishing
facts and opinions without which democratic electorate
cannot make responsible judgments. The Apex Court in
its several judgments have explained and elaborated
the right of freedom of press. In Bennett Coleman Co.
v. Union of India [(1972)2 SCC 788] Justice A.N.Ray
speaking for Constitution Bench has laid down following
in paragraphs 45 and 80:
"45. It is indisputable that by freedom
of the press is meant the right of all citizens
to speak, publish and express their views.
The freedom of the press embodies the right
of the people to read. The freedom of the
press is not antithetical to the right of the
people to speak and express.
80. The faith of a citizen is that political
wisdom and virtue will sustain themselves in
the free market of ideas so long as the
channels of communication are left open.
The faith in the popular Government rests on
the old dictum, "let the people have the
truth and the freedom to discuss it and all
will go well." The liberty of the press remains
an "Art of the Covenant" in every
democracy. Steel will yield products of steel.
Newsprint will manifest whatever is thought
of by man. The newspapers give ideas. The
newspapers give the people the freedom to
find out what ideas are correct. Therefore,
the freedom of the press is to be enriched by
removing the restrictions on page limit and
allowing them to have new editions or new
papers. It need not be stressed that if the
quantity of newsprint available does not
permit grant of additional quota for new
papers that is a different matter. The
restrictions are to be removed. Newspapers
have to be left free to determine their pages,
their circulation and their new editions within
their quota of that has been fixed fairly."
25. Justice Beg in his concurrent judgment has
laid down in paragraph 98 as follows:
"98. Although, our Constitution does not
contain a separate guarantee of Freedom of
the Press, apart from the freedom of
expression and opinion contained in Article 19
(1)(a) of the Constitution, yet, it is well
recognized that the Press provides the
principal vehicle of expression of their views
to citizens. It has been said: "Freedom of the
Press is the Ark of the Covenant of Democracy
because public criticism is essential to the
working of its institutions. Never has criticism
been more necessary than today, when the
weapons of propaganda are so strong and so
subtle. But, like other liberties, this also must
be limited"."
26. In Express Newspapers Pvt. Ltd. and
others v. Union of India and others [(1986)1 SCC
133] the Supreme Court again emphasized that freedom
of press is not only valuable freedom in themselves but
are basic to a democratic form of Government. The
following was laid down by the Supreme Court in
paragraph 75 of the judgment:
"75. I would only like to stress that the
freedom of thought and expression, and the
freedom of the press are not only valuable
freedoms in themselves but are basic to a
democratic form of Government which
proceeds on the theory that problems of the
Government can be solved by the free
exchange of thought and by public discussion
of the various issues facing the nation. It is
necessary to emphasize and one must not
forget that the vital importance of freedom of
speech and expression involves the freedom
to dissent to a free democracy like ours.
Democracy relies on the freedom of the press.
It is the inalienable right of everyone to
comment freely upon any matter of public
importance. This right is one of the pillars of
individual liberty--freedom of speech, which
our Court has always unfailingly guarded. I
wish to add that however precious and
cherished the freedom of speech is under
Article 19(1)(a), this freedom is not absolute
and unlimited at all times and under all
circumstances but is subject to the restrictions
contained in Article 19(2). That must be so
because unrestricted freedom of speech and
expression which includes the freedom of the
press and is wholly free from restraints,
amounts to uncontrolled licence which would
lead to disorder and anarchy and it would be
hazardous to ignore the vital importance of
our social and national interest in public order
and security of the State."
27. The right to express one's views by words of
mouth or in writing or through audio-visual
instrumentalities is not a right guaranteed only to every
citizen, but is a right guaranteed to newspapers, radios
and television channels also. The Apex Court in Life
Insurance Corporation of India v. Manubhai
D.Shah [(1992)3 SCC 637] has laid down the following
in paragraphs 6, 7 and 8:
"6. A constitutional provision is never
static, it is ever-evolving and ever-changing
and, therefore, does not admit of a narrow,
pedantic or syllogistic approach. If such an
approach had been adopted by the American
Courts, the First Amendment -- (1791)
-- "Congress shall make no law abridging
the freedom of speech, or of the press" --
would have been restricted in its application
to the situation then obtaining and would not
have catered to the changed situation
arising on account of the transformation of
the print media. It was the broad approach
adopted by the Court which enabled them to
chart out the contours of ever-expanding
notions of press freedom. In Dennis v. United
States Justice Frankfurter observed:
"... The language of the First
Amendment is to be read not as barren
words found in a dictionary but as
symbols of historic experience
illuminated by the presuppositions of
those who employed them."
Adopting this approach in Joseph Burstyn,
Inc. v. Wilson the Court rejected its earlier
determination to the contrary in Mutual Film
Corporation v. Industrial Commission of Ohio
and concluded that expression through
motion pictures is included within the
protection of the First Amendment. The
Court thus expanded the reach of the First
Amendment by placing a liberal construction
on the language of that provision. It will thus
be seen that the American Supreme Court
has always placed a broad interpretation on
the constitutional provisions for the obvious
reason that the Constitution has to serve the
needs of an ever-changing society.
7. The same trend is discernible from
the decisions of the Indian courts also. It
must be appreciated that the Indian
Constitution has separately enshrined the
fundamental rights in Part III of the
Constitution since they represent the basic
values which the people of India cherished
when they gave unto themselves the
Constitution for free India. That was with a
view to ensuring that their honour, dignity
and self respect will be protected in free
India. They had learnt a bitter lesson from
the behaviour of those in authority during
the colonial rule. They were, therefore, not
prepared to leave anything to chance. They,
therefore, considered it of importance to
protect specific basic human rights by
incorporating a Bill of Rights in the
Constitution in the form of fundamental
rights. These fundamental rights were
intended to serve generation after
generation. They had to be stated in broad
terms leaving scope for expansion by courts.
Such an intention must be ascribed to the
Constitution-makers since they had
themselves made provisions in the
Constitution to bring about a socio-economic
transformation. That being so, it is
reasonable to infer that the Constitution-
makers employed a broad phraseology while
drafting the fundamental rights so that they
may be able to cater to the needs of a
changing society. It, therefore, does not
need any elaborate argument to uphold the
contention that constitutional provisions in
general and fundamental rights in particular
must be broadly construed unless the
context otherwise requires. It seems well
settled from the decisions referred to at the
Bar that constitutional provisions must
receive a broad interpretation and the scope
and ambit of such provisions, in particular
the fundamental rights, should not be cut
down by too astute or too restricted an
approach. See Sakal Papers (P) Ltd. v. Union
of India.
8. The words "freedom of speech and
expression" must, therefore, be broadly
construed to include the freedom to circulate
one's views by words of mouth or in writing or
through audio-visual instrumentalities. It,
therefore, includes the right to propagate
one's views through the print media or
through any other communication channel e.g.
the radio and the television. Every citizen of
this free country, therefore, has the right to air
his or her views through the printing and/or
the electronic media subject of course to
permissible restrictions imposed under
Article 19(2) of the Constitution. The print
media, the radio and the tiny screen play the
role of public educators, so vital to the
growth of a healthy democracy. Freedom to
air one's views is the lifeline of any
democratic institution and any attempt to
stifle, suffocate or gag this right would sound
a death-knell to democracy and would help
usher in autocracy or dictatorship. It cannot
be gainsaid that modern communication
mediums advance public interest by
informing the public of the events and
developments that have taken place and
thereby educating the voters, a role
considered significant for the vibrant
functioning of a democracy. Therefore, in
any set-up, more so in a democratic set-up
like ours, dissemination of news and views
for popular consumption is a must and any
attempt to deny the same must be frowned
upon unless it falls within the mischief of
Article 19(2) of the Constitution. It follows
that a citizen for propagation of his or her
ideas has a right to publish for circulation his
views in periodicals, magazines and journals
or through the electronic media since it is
well known that these communication
channels are great purveyors of news and
views and make considerable impact on the
minds of the readers and viewers and are
known to mould public opinion on vital
issues of national importance. Once it is
conceded, and it cannot indeed be disputed,
that freedom of speech and expression
includes freedom of circulation and
propagation of ideas, there can be no doubt
that the right extends to the citizen being
permitted to use the media to answer the
criticism levelled against the view
propagated by him. Every free citizen has an
undoubted right to lay what sentiments he
pleases before the public; to forbid this,
except to the extent permitted by Article 19
(2), would be an inroad on his freedom. This
freedom must, however, be exercised with
circumspection and care must be taken not
to trench on the rights of other citizens or to
jeopardise public interest. It is manifest from
Article 19(2) that the right conferred by
Article 19(1)(a) is subject to imposition of
reasonable restrictions in the interest of,
amongst others, public order, decency or
morality or in relation to defamation or
incitement to an offence. It is, therefore,
obvious that subject to reasonable restrictions
placed under Article 19(2) a citizen has a right
to publish, circulate and disseminate his views
and any attempt to thwart or deny the same
would offend Article 19(1)(a)."
28. The Apex Court had occasion to consider all
earlier cases of the Supreme Court in Secretary,
Ministry of Information & Broadcasting, Govt. of
India and others v. Cricket Association of Bengal
and others [(1995)2 SCC 161]. Article 19(1)(a) of the
Constitution of India was elaborately considered and
explained after noticing the earlier cases of the
Supreme Court in paragraphs 43, 44 and 45 of the
judgment:
"43. We may now summarize the law on
the freedom of speech and expression under
Article 19(1)(a) as restricted by Article 19(2).
The freedom of speech and expression
includes right to acquire information and to
disseminate it. Freedom of speech and
expression is necessary, for self-expression
which is an important means of free
conscience and self-fulfillment. It enables
people to contribute to debates on social and
moral issues. It is the best way to find a
truest model of anything, since it is only
through it that the widest possible range of
ideas can circulate. It is the only vehicle of
political discourse so essential to democracy.
Equally important is the role it plays in
facilitating artistic and scholarly endeavours
of all sorts. The right to communicate,
therefore, includes right to communicate
through any media that is available whether
print or electronic or audio-visual such as
advertisement, movie, article, speech etc.
That is why freedom of speech and
expression includes freedom of the press.
The freedom of the press in terms includes
right to circulate and also to determine the
volume of such circulation. This freedom
includes the freedom to communicate or
circulate one's opinion without interference
to as large a population in the country, as
well as abroad, as is possible to reach.
44. This fundamental right can be limited
only by reasonable restrictions under a law
made for the purposes mentioned in Article
19(2) of the Constitution.
45. The burden is on the authority to
justify the restrictions. Public order is not the
same thing as public safety and hence no
restrictions can be placed on the right to
freedom of speech and expression on the
ground that public safety is endangered.
Unlike in the American Constitution,
limitations on fundamental rights are
specifically spelt out under Article 19(2) of
our Constitution. Hence no restrictions can be
placed on the right to freedom of speech and
expression on grounds other than those
specified under Article 19(2)."
Explaining Article 19(2) of the Constitution, the following
was laid down in paragraph 151 of the judgment:
"151. Article 19(1)(a) declares that all
citizens shall have the right of freedom of
speech and expression. Clause (2) of Article
19, at the same time, provides that nothing
in sub-clause (i) of clause (1) shall affect the
operation of any existing law or prevent the
State from making any law, insofar as such
law imposes reasonable restrictions on the
exercise of the right conferred by the said
sub-clause in the interests of the sovereignty
and integrity of India, the security of the
State, friendly relations with the foreign
States, public order, decency or morality or
in relation to contempt of court, defamation
or incitement of an offence. The grounds
upon which reasonable restrictions can be
placed upon the freedom of speech and
expression are designed firstly to ensure that
the said right is not exercised in such a
manner as to threaten the sovereignty and
integrity of India, security of the State,
friendly relations with the foreign States,
public order, decency or morality. Similarly,
the said right cannot be so exercised as to
amount to contempt of court, defamation or
incitement of an offence. Existing laws
providing such restrictions are saved and the
State is free to make laws in future imposing
such restrictions. The grounds aforesaid are
conceived in the interest of ensuring and
maintaining conditions in which the said
right can meaningfully and peacefully be
exercised by the citizens of this country."
29. In Sahara India Real Estate Corporation
Ltd. v. SEBI [(2012)10 SCC 603] the Apex Court had
occasion to consider Press and Media Law. It was
submitted before the Apex Court that freedom of press
guaranteed in Article 19(1)(a) of the Constitution is not
only for the benefit of the owners or proprietors of the
newspapers or of the editors or journalists, in essence, it
embodies the people's right to know about the working of
administration and about the alleged malfeasance of
Government authorities. The Apex Court, speaking
through Justice S.H.Kapadia, C.J., has laid down the
following in paragraph 25:
"25. ....Freedom of expression is one of
the most cherished values of a free
democratic society. It is indispensable to the
operation of a democratic society whose
basic postulate is that the Government shall
be based on the consent of the governed.
But, such a consent implies not only that the
consent shall be free but also that it shall be
grounded on adequate information,
discussion and aided by the widest possible
dissemination of information and opinions
from diverse and antagonistic sources.
Freedom of expression which includes
freedom of the press has a capacious content
and is not restricted to expression of
thoughts and ideas which are accepted and
acceptable but also to those which offend or
shock any section of the population. It also
includes the right to receive information and
ideas of all kinds from different sources. In
essence, the freedom of expression
embodies the right to know. However, under
our Constitution no right in Part III is
absolute. Freedom of expression is not an
absolute value under our Constitution. It
must not be forgotten that no single value,
no matter exalted, can bear the full burden of
upholding a democratic system of
government. Underlying our constitutional
system are a number of important values, all
of which help to guarantee our liberties, but
in ways which sometimes conflict. Under our
Constitution, probably, no values are
absolute. All important values, therefore,
must be qualified and balanced against other
important, and often competing, values. This
process of definition, qualification and
balancing is as much required with respect to
the value of freedom of expression as it is for
other values. Consequently, free speech, in
appropriate cases, has got to correlate with
fair trial. It also follows that in an appropriate
case one right (say freedom of expression)
may have to yield to the other right like right
to a fair trial. Further, even Articles 14 and 21
are subject to the test of reasonableness
after the judgment of this Court in Maneka
Gandhi v. Union of India.
30. From the foregoing discussion, it is abundantly
clear that freedom of press is one of the cherished
constitutional values of our democracy. Any restriction
on the right of freedom of press cannot be imposed
except by a law under Article 19(2) of the Constitution.
As noted above, right under Article 19(1)(a) of the
Constitution is subject to reasonable restriction imposed
by law in the interest of sovereignty and integrity of
India, the security of the State, friendly relations with
Foreign States, public order decency or morality or in
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relation to contempt of court, defamation or incitement
to an offence. Thus, the restriction, if any, can be
imposed by a law. Learned counsel for the petitioners
have referred to the provisions of the Press Council Act,
1978, specifically Section 13. Sub Sections (1) and (2) of
Section 13 on which reliance has been placed is to the
following effect:
"13. Objects and functions of the
Council.--(1) The objects of the Council shall
be to preserve the freedom of the Press and
to maintain and improve the standards of
newspapers and news agencies in India.
(2) The Council may, in furtherance of its
objects, perform the following functions,
namely:
(a) to help newspapers and news agencies
to maintain their independence;
(b) to build up a code of conduct for
newspapers, news agencies and
journalists in accordance with high
professional standards;
(c) to ensure on the part of newspapers,
W.P(C).No. 32529 of 2007 & connected cases
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news agencies and journalists, the
maintenance of high standards of public
taste and foster a due sense of both the
rights and responsibilities of citizenship;
(d) to encourage the growth of a sense of
responsibility and public service among
all those engaged in the profession of
journalism;
(e) to keep under review any development
likely to restrict the supply and
dissemination of news of public interest
and importance;
(f) to keep under review cases of assistance
received by any newspaper or news
agency in India from any foreign source
including such cases as are referred to it
by the Central Government or are
brought to its notice by any individual,
association of persons or any other
organisation:
Provided that nothing in this clause
shall preclude the Central Government
from dealing with any case of assistance
received by a newspaper or news
agency in India from any foreign source
in any other manner it thinks fit;
W.P(C).No. 32529 of 2007 & connected cases
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(g) to undertake studies of foreign
newspapers, including those brought out
by any embassy or other representative
in India of a foreign State, their
circulation and impact.
Explanation.--For the purposes of this
clause, the expression "foreign State"
has the meaning assigned to it in
Section 87-A of the Code of Civil
Procedure, 1908 (5 of 1908);
(h) to promote a proper functional
relationship among all classes of
persons engaged in the production or
publication of newspapers or in news
agencies:
Provided that nothing in this clause
shall be deemed to confer on the
Council any functions in regard to
disputes to which the Industrial Disputes
Act, 1947 (14 of 1947), applies;
(i) to concern itself with developments such
as concentration of or other aspects of
ownership of newspapers and news
agencies which may affect the
independence of the Press;
(j) to undertake such studies as may be
entrusted to the Council and to express
W.P(C).No. 32529 of 2007 & connected cases
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its opinion in regard to any matter
referred to it by the Central
Government;
(k) to do such other acts as may be
incidental or conducive to the discharge
of the above functions."
31. The above provision cannot be read as
containing any prohibition or restriction on print media.
Press Council has been given power to censure under
Section 14, which cannot be read as any restriction on
the right of press. Learned counsel has referred to the
Norms of Journalistic Conduct framed by the Press
Council of India. Norm 23 has been relied, which is to
the following effect:
"23. Paramount National Interest:
Newspapers shall, as a matter of self
regulation exercise due restraint and caution
in presenting any news, comment or
information, which is likely to jeopardize,
endanger or harm the paramount interests
of the State and Society, or the rights of
W.P(C).No. 32529 of 2007 & connected cases
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individuals with respect to which reasonable
restrictions may be imposed by law on the
right to freedom of speech and expression,
under clause (2) of Article 19 of the
Constitution of India."
32. The above norm is a measure of self regulation
by newspaper by which newspaper has to exercise due
restraint and caution in presenting news, comment or
information, which is likely to jeopardize, endanger or
harm the paramount interests of the State and society.
The above clause also refers to reasonable restrictions
under clause (2) of Article 19 of the Constitution of India.
The said norm has to be read as measure of self
regulation and restraint by the newspapers itself, but
from the above clause, no right of prohibition from
publishing a news can be read. The provisions of the
Prasar Bharati (Broadcasting Corporation of India) Act,
1990 have also been referred to, especially Section 12
(2)(h). Section 12 enumerates the functions and powers
W.P(C).No. 32529 of 2007 & connected cases
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of Corporation. Section 12(2)(h) reads as under:
"12. Functions and powers of Corporation.-
xx xx xx
(2)(h). Promoting social justice and combating
exploitation, inequality and such evils as
untouchability and advancing the welfare of the
weaker sections of the society."
33. The above provision incorporates the objects of
the Corporation, which has to be followed in the
discharge of its function. There cannot be any dispute
that the Corporation has to follow the objective of the
Corporation while discharging various obligations,
including promoting social justice and advancing the
welfare of the weaker sections of the society. The said
provision cannot be read to meet any kind of restriction
on the Broadcasting Corporation in giving information
regarding call for bandh or hartal by media.
34. One more aspect, which has been highlighted
by learned counsel appearing for the respondents,
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political parties, is that putting any kind of restriction on
press and media shall be denying right guaranteed to an
individual, namely, right to know. Right of information,
i.e., right to know has also been read as one of the
Fundamental Rights. The Apex Court in Dinesh Trivedi
v. Union of India [(1997)4 SCC 306] has laid down the
following in paragraph 16:
"16. In modern constitutional
democracies, it is axiomatic that citizens
have a right to know about the affairs of the
Government which, having been elected by
them, seeks to formulate sound policies of
governance aimed at their welfare. However,
like all other rights, even this right has
recognized limitations; it is, by no means,
absolute. This Court has had many an
opportunity to express itself upon this issue.
In the case of State of U.P. v. Raj Narain,
Mathew, J. eloquently expressed this
proposition in the following words: (SCC p.
453, para 74)
"In a government of responsibility like
W.P(C).No. 32529 of 2007 & connected cases
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ours, where all the agents of the public
must be responsible for their conduct,
there can be but few secrets. The people
of this country have a right to know
every public act, everything that is done
in a public way, by their public
functionaries. They are entitled to know
the particulars of every public
transaction in all its bearing. The right to
know, which is derived from the concept
of freedom of speech, though not
absolute, is a factor which should make
one wary, when secrecy is claimed for
transactions which can, at any rate, have
no repercussion on public security. To
cover with veil of secrecy, the common
routine business, is not in the interest of
the public. Such secrecy can seldom be
legitimately desired. It is generally
desired for the purpose of parties and
politics or personal self-interest or
bureaucratic routine. The responsibility
of officials to explain and to justify their
acts is the chief safeguard against
W.P(C).No. 32529 of 2007 & connected cases
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oppression and corruption."
35. The Apex Court again in People's Union for
Civil Liberties v. Union of India [(2004)2 SCC 476]
has emphasized that right of information is the facet of
the freedom of speech and expression.
36. There cannot be any dispute that people have
right to know all events and incidents, which take place
around them and around the world. Suppression of any
information from the people shall be negation of their
right to know and right of information.
37. We, thus, fully subscribe to the submission
made by learned counsel for the respondents that any
prohibition on press and media from publishing any call
for bandh or hartal shall be violative of the right of the
people to know and receive information.
38. Before we conclude our discussion on the
above subject, we deem it fit and proper to make
certain observations regarding self restraint and self
W.P(C).No. 32529 of 2007 & connected cases
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regulation on press and media, which have been
emphasized by the Supreme Court time and again. As
noted above, the Code of Conduct framed by the Press
Council of India, i.e., Clause 23 emphasises about the
self regulation and restraint in presenting any news,
which is likely to jeopardize and endanger or harm the
paramount interests of the society.
39. The media now-a-days is all pervasive and
covering all aspects of life, good or bad. The object of
media has been and is to bring to the notice of the
people in general information or news, which may help
the society to educate and to use the information to
unearth any offence, crime or illegality. It is common
knowledge that any call for bandh or hartal widespread
violence and destruction of property, both public and
private, takes place, which facts and figures have been
brought on record before us by both the parties. Now
after amendments are made in the Indian Evidence Act,
W.P(C).No. 32529 of 2007 & connected cases
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evidence in electronic form is also admissible. Media
can be utilised to book those culprits who indulge in
destruction of public and private properties and cause
physical harm to the members of the society. Bringing
relevant materials with the above objectives before the
administration shall be beneficial and felicitate the
administration and Courts of Law to punish wrong doers.
The role of press has been noted and explained by the
Apex Court in several judgments in Harijai Singh, Re
[(1996)6 SCC 466]. The following was laid down in
paragraphs 9 and 10 of the judgment:
"9. It is thus needless to emphasise
that a free and healthy press is indispensable
to the functioning of a true democracy. In a
democratic set-up, there has to be an active
and intelligent participation of the people in
all spheres and affairs of their community as
well as the State. It is their right to be kept
informed about current political, social,
economic and cultural life as well as the
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burning topics and important issues of the
day in order to enable them to consider and
form broad opinion about the same and the
way in which they are being managed,
tackled and administered by the Government
and its functionaries. To achieve this
objective the people need a clear and
truthful account of events, so that they may
form their own opinion and offer their own
comments and viewpoints on such matters
and issues and select their further course of
action. The primary function, therefore, of
the press is to provide comprehensive and
objective information of all aspects of the
country's political, social, economic and
cultural life. It has an educative and
mobilising role to play. It plays an important
role in moulding public opinion and can be an
instrument of social change. It may be
pointed out here that Mahatma Gandhi in his
autobiography has stated that one of the
objectives of the newspaper is to understand
the proper feelings of the people and give
expression to it; another is to arouse among
the people certain desirable sentiments; and
the third is to fearlessly express popular
defects. It, therefore, turns out that the press
should have the right to present anything
which it thinks fit for publication.
10. But it has to be remembered that this
freedom of press is not absolute, unlimited
and unfettered at all times and in all
circumstances as giving an unrestricted
freedom of speech and expression would
amount to an uncontrolled licence. If it were
wholly free even from reasonable restraints it
would lead to disorder and anarchy. The
freedom is not to be misunderstood as to be a
press free to disregard its duty to be
responsible. In fact, the element of
responsibility must be present in the
conscience of the journalists. In an organized
society, the rights of the press have to be
recognized with its duties and responsibilities
towards the society. Public order, decency,
morality and such other things must be
safeguarded. The protective cover of press
freedom must not be thrown open for wrong
doings. If a newspaper publishes what is
improper, mischievously false or illegal and
abuses its liberty it must be punished by
court of law. The editor of a newspaper or a
journal has a greater responsibility to guard
against untruthful news and publications for
the simple reason that his utterances have a
far greater circulation and impact than the
utterances of an individual and by reason of
their appearing in print, they are likely to be
believed by the ignorant. That being so,
certain restrictions are essential even for
preservation of the freedom of the press
itself. To quote from the report of Mons
Lopez to the Economic and Social Council of
the United Nations "If it is true that human
progress is impossible without freedom, then
it is no less true that ordinary human
progress is impossible without a measure of
regulation and discipline". It is the duty of a
true and responsible journalist to strive to
inform the people with accurate and
impartial presentation of news and their
views after dispassionate evaluation of the
facts and information received by them and
to be published as a news item. The
presentation of the news should be truthful,
objective and comprehensive without any
false and distorted expression."
40. The Apex Court in Hindustan Times v. High
Court Allahabad [(2011)13 SCC 155] had noted that
with the immense power, lot of responsibilities are also
on the shoulders of the press. The Apex Court in the said
case has observed that the press has responsibility also
not to provide any information that is factually wrong or
biased information. The following was laid down in
paragraphs 4 and 6 of the judgment:
"4. With this immense power, comes
the burden of responsibility. With the huge
amount of information that they process, it is
the responsibility of the media to ensure that
they are not providing the public with
information that is factually wrong, biased or
simply unverified information.
6. The unbridled power of the media can
become dangerous if checks and balances
are not inherent in it. The role of the media is
to provide to the readers and the public in
general with information and views tested
and found as true and correct. This power
must be carefully regulated and must
reconcile with a person's fundamental right
to privacy. Any wrong or biased information
that is put forth can potentially damage the
otherwise clean and good reputation of the
person or institution against whom
something adverse is reported. Pre-judging
the issues and rushing to conclusions must
be avoided."
41. From the foregoing discussion, we conclude
that this Court, in exercise of writ jurisdiction, cannot
issue any writ restraining from publishing/broadcasting
any information regarding call of hartal/strike.
42. We observe that in the context of hartal and
forced hartal/strike, information and details collected by
press and media can be shared with administration and
Courts for purpose of identifying wrong doers, so that
people, who suffer any kind of injury of life and property
should get an early justice.
43. As observed above, media has also to enforce
self regulation and restraint on itself in publishing/
broadcasting information and news, which may not
advance the interest of the society. The act of violence
and destruction of public and private property has to be
strongly condemned and those who indulge any such
act have to be brought before the law.
Issue No.2. Hartal/Strike whether can be
totally banned.
44. The second issue which falls for our consideration
is as to whether Hartal/Strike can be totally banned.
Petitioners in the Writ Petition have submitted that Hartal
having been declared as unconstitutional by a Full Bench
of this Court as well as the Supreme Court, political parties
and various organizations are still calling for Hartal/total
Strike which is nothing but Bundh organized by them
disrupting the entire normal life of the common man. It is
submitted that people who resort to barbaric methods of
achieving their objects damage public and private
property causing national loss. On one day of Hartal
there is substantial loss of production which cannot be
compensated. It is submitted that only alternate to deal
with such unconstitutional act is to totally ban the call
and conduct of Hartal.
45. Learned Senior counsel appearing for the
Communist Party of India who has filed counter affidavit
in W.P(C) No.31985 of 2007 has refuted the submission
and submitted that the Apex Court in Communist
Party of India's case (supra) has approved the
general strike or call for Hartal. It is denied that by the
call of Hartal all shops are forced to shut down and the
people are compelled to remain home thereby not
attending their work place. Hartal is voluntary and
there is no restrain from attending normal duties and no
force or violence is used to enforce Hartal.
46. Before we proceed to answer the above issue, it
is relevant to refer to the Full Bench decision of this
Court reported in Bharath Kumar v. State of Kerala
(1997[2] KLT 287 (FB). The Full Bench in the aforesaid
case heard the writ petitions praying for declaration that
calling for or holding of Bundh is unconstitutional and
illegal. It was pleaded in the Writ Petitions before this
Court that Bundh is violative of articles 19 and 21 of
the Constitution of India and violated the State Policy
embodied in the Constitution and the fundamental
duties. The Full Bench laid down the following in
paragraphs 12, 13, 17 and 18:
"12. It is true that there is no legislative
definition of the expression `bundh' and such
a definition could not be tested in the
crucible of constitutionality. But does the
absence of a definition deprive the citizen of
a right to approach this court to seek relief
against the bundh if he is able to establish
before the court that his fundamental rights
are curtailed or destroyed by the calling of
and the holding of a bundh? When Art. 19(1)
of the Constitution guarantees to a citizen
the fundamental rights referred to therein
and when Art. 21 confers a right on any
person - not necessarily a citizen - not to be
deprived of his life or personal liberty except
according to procedure established by law,
would it be proper for the court to throw up
its hands on despair on the ground that in
the absence of any law curtailing such rights,
it cannot test the constitutionality of the
action? We think not. When properly
understood, the calling of a bundh entails
the restriction of the free movement of the
citizen and his right to carry on his avocation
and if the legislature does not make any law
either prohibiting it or curtailing it or
regulating it, we think that it is the duty of
the court to step in to protect the rights of
the citizen so as to ensure that the freedom
available to him are not curtailed by any
person or any political organization. The way
in this respect to the courts has been shown
by the Supreme Court in Bandhua Mukti
Morcha v. Union of lndia (AIR 1984 SC 802).
13. It is argued on behalf of the
respondents that a bundh could be peaceful
or violent and even if the court were to act,
it could act only to curtail violent bundhs and
not peaceful bundhs. It is contended that the
court cannot presume or generalize that the
calling of a bundh always entails, actual
violence or the threat of violence in not
participating in or acquiescing in the bundh.
The decision in Kameshwar Prasad v. State
of Bihar (AIR 1962 SC 1166) is referred to in
that context. This theoretical aspects
expounded by counsel for the respondents
does not appeal to us especially since as
understood in our country and certainly in
our State, the calling for a bundh is clearly
different from a call for a general strike or a
hartal. We have already noticed that a call
for a bundh holds out a warning to the
citizen that if he were to go out for his work
or to open his shop, he would be prevented
and his attempt to take his vehicle on to the
road will also be dealt with. It is true that
theoretically it is for the State to control any
possible violence or to ensure that a bundh
is not accompanied by violence. But our
present set up, the reluctance and
sometimes the political subservience of the
law enforcing agencies and the absence of
political will exhibited by those in power at
the relevant time, has really led to a
situation where there is no effective attempt
made by the law enforcing agencies either to
prevent violence or to ensure that those
citizens who do not want to participate in the
bundh are given the opportunity to exercise
their right to work, their right to trade or
their right to study. We cannot also ignore
the increasing frequency in the calling,
holding and enforcing of the bundhs in the
State and the destruction of public and
private property. In the face of this reality,
we think that when we consider the impact
of a bundh on the freedom of a citizen, we
are not merely theorising but are only taking
note of what happens around us when a
bundh is called and a citizen attempts either
to defy it or seeks to ignore it. We are not in
a position to agree with counsel for the
respondents that there are no sufficient
allegations either in O.P. 7551 of 1994 or in
O.P. 12469 of 1995 which would enable us to
come to such a conclusion. In fact, the
uncontroverted allegations in O.P. No.12469
of 1995 are specific and are also supported
by some news paper clippings which though
could not be relied on as primary material,
could be taken note of as supporting
material for the allegations in the Original
Petition.
17. No political party or organization
can claim that it is entitled to paralyse the
industry and commerce in the entire State or
Nation and is entitled to prevent the citizens
not in sympathy with its view point, from
exercising their fundamental rights or from
performing their duties for their own benefit
W.P(C).No. 32529 of 2007 & connected cases
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or for the benefit of the State or the Nation.
Such a claim would be unreasonable and
could not be accepted as a legitimate
exercise of a fundamental right by a political
party or those comprising it. The claim for
relief by the petitioners in these Original
Petitions will have to be considered in this
background.
18. The contention that no relief can be
granted against the political parties in these
proceedings under Art. 226 of the
Constitution cannot be accepted in its
entirety. As indicated already, this court has
ample jurisdiction to grant a declaratory
relief to the petitioners in the presence of
the political party respondents. This is all the
more so since the case of the petitioners is
based on their fundamental rights
guaranteed by the Constitution. The State
has not taken any steps to control or
regulate the bundhs. The stand adopted by
the Advocate General is that the Court
cannot compel the State or the Legislature
to issue orders or make law in that regard.
W.P(C).No. 32529 of 2007 & connected cases
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As we find that organized bodies or
Associations of registered political parties,
by their act of calling and holding bundhs,
trample upon the rights of the citizens of the
country protected by the Constitution, we
are of the view that this court has sufficient
jurisdiction to declare that the calling of a
`bundh' and the holding of it, is
unconstitutional especially since, it is
undoubted, that the holding of `bundhs' are
not in the interests of the Nation, but tend to
retard the progress of the Nation by leading
to national loss of production. We cannot
also ignore the destruction of public and
private property when a bundh is enforced
by the political parties or other
organizations. We are inclined to the view
that the political parties and the
organizations which call for such bundhs and
enforce them are really liable to compensate
the Government, the public and the private
citizen for the loss suffered by them for such
destruction. The State cannot shirk its
responsibility of taking steps to recoup and
W.P(C).No. 32529 of 2007 & connected cases
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of recouping the loss from the sponsors and
organizers of such bundhs. We think, that
these aspects justify our intervention under
Art. 226 of the Constitution. In view of our
discussion above, we allow these Original
Petitions to the extent of declaring that the
calling for a bundh by any association,
organization or political party and the
enforcing of that call by it, is illegal and
unconstitutional. We direct the State and its
officials, including the law enforcement
agencies, to do all that is necessary to give
effect to this declaration."
The Full Bench thus declared that calling of Bundh and
conducting of it is unconstitutional which is not in the
interest of nation and tend to retard the progress of the
nation. The matter was taken to the Supreme Court by
the Communist Party of India (M) and the Apex Court
vide its judgment reported in Communist Party of
India (M) v. Bharat Kumar (1997 (2) KLT 1007 (SC)
had referred the judgment of this Court. The following
W.P(C).No. 32529 of 2007 & connected cases
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was laid down by the Apex Court in paragraph 3:
"3. On a perusal of the impugned
judgment of the Court, referring to which
learned counsel for the appellant pointed out
certain portions, particularly in paras 13 and
18 including the operative part in support of
their submissions, we find that the judgment
does not call for any interference. We are
satisfied that the distinction drawn by the
High Court between a "Bandh" and a call for
general strike or "Hartal" is well made out
with reference to the effect of a "Bandh" on
the fundamental rights of other citizens.
There cannot be any doubt that the
fundamental rights of the people as a whole
cannot be subservient to the claim of
fundamental right of an individual or only a
section of the people. It is on the basis of this
distinction that the High Court has rightly
concluded that there cannot be any right to
call or enforce a "Bandh" which interferes
with the exercise of the fundamental
freedoms of other citizens, in addition to
causing national loss in many ways. We may
W.P(C).No. 32529 of 2007 & connected cases
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also add that the reasoning given by the High
Court, particularly those in paragraphs 12, 13
and 17 for the ultimate conclusion and
directions in paragraph 18 is correct with
which we are in agreement. We may also
observe that the High Court has drawn a very
appropriate distinction between a "Bandh" on
the hand and a call for general strike or
"Hartal" on the other. We are in agreement
with he view taken by the Court."
The Apex Court has approved the judgment of this
Court by which judgment a distinction was drawn
between Bundh and Hartal, i.e., general strike. The Full
Bench noted in paragraph 13 of the judgment that
calling for a Bundh is entirely different from calling for a
general Strike or Hartal. Again in paragraph 14, the Full
Bench laid down the following:
"...It may be true that the political and
organizers may have a right to call for non-
co-operation or to call for a general strike as
a form of protest against what they believe
W.P(C).No. 32529 of 2007 & connected cases
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to be either an erroneous policy or
exploitation...."
As noted above, the above distinction has been
approved by the Apex Court in Communist Party of
India (M)'s case (supra).
47. The right guaranteed under Arts.19(1)(a) and
19(1)(b) of the Constitution India entitled every citizen
to express his views in public and assemble without
arms. Article 19(1)(c) also gives fundamental rights to
citizens to form Associations or Unions. It has been
held by the Supreme Court that the freedom of thought
and expression guaranteed by Art.19(1)(a) are basic to a
democratic form of Government which proceeds on the
principle that the problems of the Government can be
solved by the free exchange of thoughts and by public
discussion as has been laid down in paragraph 75 by the
Supreme Court in Express Newspapers pvt. Ltd. &
Others v. Union of India and Others ([1986] 1 SCC
W.P(C).No. 32529 of 2007 & connected cases
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133) as quoted above.
48. A Constitution Bench of the Apex Court in
Kameshwar Prasad v. State of Bihar (AIR 1962 SC
1166) had occasion to consider the ambit and scope of
Arts.19(1)(a) and (b). Before the Apex Court, the validity
of Rule 4-A introduced into the Bihar Government
Servants' Conduct Rules, 1986 was under challenge.
Rule 4-A which came for consideration is to the
following effect:
"4-A. - Demonstrations and strikes.- No
Government servant shall participate in any
demonstration or resort to any form of strike
in connection with any matter pertaining to
his conditions of service."
The Apex Court in the above context examined whether
demonstration is covered by Art.19(1)(a) or (b) of the
Constitution. The Apex Court laid down that
demonstration is a means of communication and so
long it is demonstration which is the form of speech and
W.P(C).No. 32529 of 2007 & connected cases
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expression, the same is protected by Art.19(1)(a) or (b).
However, it was laid down in the same judgment that
when demonstration becomes disorderly and violent, the
same shall not be within Art.19(1)(a) or (b). Following
was laid down in paragraph 13.
"13. The first question that falls to be
considered is whether the right to make a
"demonstration" is covered by either or both
of the two freedoms guaranteed by Art. 19
(1)(a) and 19(1)(b). A "demonstration'" is
defined in the Concise Oxford Dictionary as
"an outward exhibition of feeling, as an
exhibition of opinion on political or other
question especially a public meeting or
procession". In Webster it is defined as "a
public exhibition by a party, sect or society . .
. . . .. . . . as by a parade or mass-meeting'.
Without going very much into the niceties of
language it might be broadly stated that a
demonstration is a visible manifestation of
the feelings or sentiments of an individual or
a group. It is thus a communication of one's
W.P(C).No. 32529 of 2007 & connected cases
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ideas to others to whom it is intended to be
conveyed. It is in effect therefore a form of
speech or of expression, because speech
need not be vocal since signs made by a
dumb person would also be a form of speech.
It has however to be recognised that the
argument before us is confined to the rule
prohibiting demonstration which is a form of
speech and expression or of a mere
assembly and speeches therein and not
other forms of demonstration which do not
fall within the content of Art. 19(1)(a) or 19
(1)(b). A demonstration might take the form
of an assembly and even then the intention
is to convey to the person or authority to
whom the communication is intended the
feelings of the group which assembles. It
necessarily follows that there are forms of
demonstration which would fall within the
freedoms guaranteed by Art. 19(1)(a) and 19
(1)(b). It is needless to add that from the
very nature of things a demonstration may
take various forms; it may be noisy and
disorderly, for instance stone-throwing by a
W.P(C).No. 32529 of 2007 & connected cases
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crowd may be cited as an example of a
violent and disorderly demonstration and this
would not obviously be within Art. 19(1)(a) or
(b). If can equally be peaceful and orderly
such as happens when the members of the
group merely wear some badge drawing
attention to their grievances."
The Apex Court, however laid down that there is no
fundamental right to resort to strike and the rule was
only partly struck down to the extent it prohibited "any
form of demonstration". The following was laid down
in paragraph 20:
"20. We would therefore allow the
appeal in part and grant the appellants a
declaration that R.4-A in the form in which it
now stands prohibiting "any form of
demonstration" is violative of the appellants'
rights under Art.19(1)(a) and (b) and should
therefore be struck down. It is only
necessary to add that the rule, in so far as it
prohibits a strike, cannot be struck down
since there is no fundamental right to resort
W.P(C).No. 32529 of 2007 & connected cases
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to strike."
A Full Bench of this Court in George Kurian v. State of
Kerala (2004 [2] KLT 758 (FB) also has reiterated that
forced Hartal and general Strike are illegal and
unconstitutional. The Apex Court in James Martin v.
State of Kerala (2004 [1] KLT 513) had laid down that in
the name of hartal or bandh or strike no person has any
right to cause inconvenience to any other person or to
cause in any manner a threat or apprehension of risk to
life, liberty, property. The Apex Court further observed
that such cases are to be controlled with iron hands.
Following was laid down in paragraph 19:
"19. Before we part with the case it
needs to be noted that in the name of hartal
or bandh or strike no person has any right to
cause inconvenience to any other person or
to cause in any manner a threat or
apprehension of risk to life, liberty, property
of any citizen or destruction of life and
property, and the least any Government or
public property. It is high time that the
W.P(C).No. 32529 of 2007 & connected cases
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authorities concerned take serious note of
this requirement while dealing with those
who destroy public property in the name of
strike, hartal or bandh. Those who at times
may have even genuine demands to make
should not loose sight of the overall situation
eluding control and reaching unmanageable
bounds endangering life, liberty and property
of citizens and public, enabling anti-social
forces to gain control resulting in all around
destruction with counter productive results at
the expense of public order and public peace.
No person has any right to destroy another's
property in the guise of bandh or hartal or
strike, irrespective of the proclaimed
reasonableness of the cause or the question
whether there is or was any legal sanction
for the same. The case at hand is one which
led to the destruction of property and loss of
lives, because of irresponsible and illegal
acts of some in the name of bandh or hartal
or strike. Unless those who organize can be
confident of enforcing effective control over
any possible turn of events, they should think
W.P(C).No. 32529 of 2007 & connected cases
-: 96 :-
twice to hazard themselves into such risk
prone ventures endangering public peace
and public order. The question whether
bandh or hartal or strike has any legal
sanctity is of little consequence in such
matters. All the more so when the days are
such where even law-enforcing
authorities/those in power also precipitate to
gain political advantage at the risk and cost
of their opponents. Unless such acts are
controlled with iron hands, innocent citizens
are bound to suffer and they shall be the
victims of the highhanded acts of some
fanatics with queer notions of democracy and
freedom of speech or association. That
provides for no license to take law into their
own hands. Any soft or lenient approach for
such offenders would be an affront to rule of
law and challenge to public order and
peace."
49. The Apex Court again in Ex.Capt. Harish
Uppal v. Union of India and Another ([2003] 2 SCC
45) (a Constitution Bench) while dealing with strike by
W.P(C).No. 32529 of 2007 & connected cases
-: 97 :-
Advocates has laid down the following in paragraphs 31
and 35.
"31. It must immediately be mentioned
that one understands and sympathises with
the Bar wanting to vent their grievances. But
as has been pointed out there are other
methods e.g. giving press statements, TV
interviews, carrying out of court premises
banners and/or placards, wearing black or
white or any colour armbands, peaceful
protest marches outside and away from
court premises, going on dharnas or relay
fasts etc. More importantly in many
instances legal remedies are always
available. A lawyer being part and parcel of
the legal system is instrumental in upholding
the rule of law. A person cast with the legal
and moral obligation of upholding law can
hardly be heard to say that he will take the
law in his own hands. It is therefore time that
self-restraint be exercised.
35. In conclusion, it is held that
lawyers have no right to go on strike or give
W.P(C).No. 32529 of 2007 & connected cases
-: 98 :-
a call for boycott, not even on a token strike.
The protest, if any is required, can only be by
giving press statements, TV interviews,
carrying out of court premises banners
and/or placards, wearing black or white or
any colour armbands, peaceful protest
marches outside and away from court
premises, going on dharnas or relay fasts
etc. It is held that lawyers holding vakalats
on behalf of their clients cannot refuse to
attend courts in pursuance of a call for strike
or boycott. All lawyers must boldly refuse to
abide by any call for strike or boycott. No
lawyer can be visited with any adverse
consequences by the Association or the
Council and no threat or coercion of any
nature including that of expulsion can be
held out. It is held that no Bar Council or Bar
Association can permit calling of a meeting
for purposes of considering a call for strike or
boycott and requisition, if any, for such
meeting must be ignored. It is held that only
in the rarest of rare cases where the dignity,
integrity and independence of the Bar and/or
W.P(C).No. 32529 of 2007 & connected cases
-: 99 :-
the Bench are at stake, courts may ignore
(turn a blind eye) to a protest abstention
from work for not more than one day. It is
being clarified that it will be for the court to
decide whether or not the issue involves
dignity or integrity or independence of the
Bar and/or the Bench. Therefore in such
cases the President of the Bar must first
consult the Chief Justice or the District Judge
before advocates decide to absent
themselves from court. The decision of the
Chief Justice or the District Judge would be
final and have to be abided by the Bar. It is
held that courts are under no obligation to
adjourn matters because lawyers are on
strike. On the contrary, it is the duty of all
courts to go on with matters on their boards
even in the absence of lawyers. In other
words, courts must not be privy to strikes or
calls for boycotts. It is held that if a lawyer,
holding a vakalat of a client, abstains from
attending court due to a strike call, he shall
be personally liable to pay costs which shall
be in addition to damages which he might
W.P(C).No. 32529 of 2007 & connected cases
-: 100 :-
have to pay his client for loss suffered by
him."
The Constitution Bench in the above case was
examining the right of lawyers as officers of the Court
who has filed Vakalath on behalf of his client to appear
in Court has no right to go for strike except in rarest of
rare cases which may involve dignity, integrity and
independence of the Bar and judiciary. The Apex Court
in the above Constitution Bench decision laid down that
Strike in any field is a weapon which does more harm
than any justice and the sufferer is the Society, i.e.,
public at large. From the above discussion it is clear
that, protest, demonstration, speeches falls within the
right freedom of speech of expression under Art.19(1)
(a). Any restriction on calling for a protest, non-co-
operation and Hartal can be imposed only by law
framed within the meaning of Art.19(2) of the
Constitution of India.
W.P(C).No. 32529 of 2007 & connected cases
-: 101 :-
50. Learned counsel for the petitioners could not
point out or place before us any law under Art.19(2) on
the basis of which call for protest, Hartal/Strike can be
totally banned by this Court in exercise of the
jurisdiction under Article 226 of the Constitution of India.
We however, hasten to add that as laid down by the
Constitution Bench of the Apex Court in Kameshwar
Prasad's case (supra) as soon as the
demonstration/Hartal becomes disorderly and violent it
is not right under Art.19(1)(a) or (b) and on any such
act/offence the law shall takes its own course and the
guilty be punished.
51. A Full Bench of this Court in Peoples Council
for Social Justice v. State of Kerala (1997 [2] KLT
301 [FB]) has laid down that a right to conduct
demonstration on highways without causing obstruction
to others is a fundamental right.
Issue No.III: Regulation/Restriction on call for
W.P(C).No. 32529 of 2007 & connected cases
-: 102 :-
Hartal/Strike
52. The next issue to be considered is as to
whether the call for Hartal/Strike can be
regulated/restricted by the State. Learned counsel for
the petitioners have submitted that all call for
Hartal/Strike be routed through the District
Administration and political parties and organizations
who are giving the call should be directed to give prior
notice to the Administration, the details of the
organizers and should also deposit some amount as
security for payment of compensation caused for
destruction or damage to property and life. It is
submitted that unless the call for strike is not regulated,
the State cannot have any effective check on the
frequent calls made by various political parties and
organizations.
53. Regulation and check on the political parties
and organizations in calling Hartal/Strike is a laudable
W.P(C).No. 32529 of 2007 & connected cases
-: 103 :-
object. It serves the interest of Administration as well
as the interest of the general public, if details of
organizations, their office bearers are known who are
giving a call for Hartal/Strike. The Government Pleader
has brought on record before us, the details of Hartal
and Strike called for in different years including various
acts of obstruction to property and violence which took
place during the course of conduct of Hartal. In W.P(C)
No.2183 of 2008, petitioners have given details of the
Hartal conducted during the year 2007. In W.P(C)
No.34345 of 2007 details of Hartal held during
25.10.2007 to 3.11.2007 have been given. Certain
details regarding monetary loss caused on account of
Hartal have also been given. In the record of W.P(C)
No.34345 of 2007 certain more materials were brought
in the form of letter dated 11.07.2013 containing various
photographs sent by a senior citizen. Details regarding
act of violence with photographs have been brought on
record. News item issued by the Press Trust of India
dated July 13, 2013 has also been brought on record.
Photographs showing damage to public property and
causing death of a person have also been brought on
record. The above details depict a very pathetic and
sorry state of affairs. The events happened in carrying
out hartal by the so called organizations. It is in the
fitness of things that some restriction and regulations
be framed for finding out the responsible persons who
give the call and prosecute the Hartal and indulge in the
act of vandalism.
54. Learned counsel for the petitioners have also
brought to the notice of the court that a draft Bill by
name "an act for fair negation, salutary regulation and
special legitimation, in public interest, of hartals and
validation of workers right to strike bill" was provided
by the Law Commission of the State and a report was
submitted. It is useful to extract the Bill for ready
reference which is to the following effect:
"A
BILL
in order to prohibit and largely to
regulate the conduct of hartals, and
expressly to affirm the workers' right to
strike in our Socialist Republic.
Be it enacted in the 59th Year of the
Republic of India as follows:-
1. Short title, application and
commencement.-(1) This Act may be
called the Act For Fair negation, Salutary
Regulation and Special Legitimation, in
Public Interest, of Hartals and Validation of
Workers' Right to Strike Bill--
(2) It applies to whole of the
State of Kerala;
(3) It will come into force on such date
as may be notified by the Government of
Kerala in the Gazette.
2. Definition.-In this Act, unless the
context otherwise requires:-
(a) 'Hartal'
Hartal, by whatever nomenclature
expressed or vogue-word used, means and
includes any form of forced cessation of
activity or diversion of business or
occupation in its widest comprehension,
such cessation being at the instance of any
other person or organization, to create public
pressure, social tension, economic
intimidation or apprehension of violence to
advance a cause or campaign sponsored by
the organizers of the hartal:
Provided that Hartal, under this Act,
shall not include any strike by workers or
organized by any trade union or professional
body which otherwise complies with the
provisions of the Industrial Disputes Act, The
Trade Union Act and other law governing
trade union activity and workers' rights and
functions:
Provided further that the right of
workers to go on strike is confined to the
purpose of advancing a worker issue,
agitational demand, alleged grievance,
social welfare dispute, trade union problem,
without interfering with the freedom of any
other person's trade or business undertaking
or other lawful activity, other extraneous or
non-trade union violation shall not be eligible
for immunity under this Act.
3. Control of Hartals.-(a) On and
after the commencement of this Act, no
person, group or organization shall have a
right to call or conduct any hartal except in
the manner permitted by this Act.
(b) No person shall orgnize, or
abet the conduct of, a hartal for any person
whatever without ten days public notice
promulgated adequately through the media
and to the fair knowledge of public likely to
be affected by the proposed hartal.
4. Hartals to be conducted only
subject to conditions.- (1) (a) before 6 A.M
or after 6 P.M. or thwart the movement of
any person, agency, business or
instrumentality by use of force or threat
thereof or other means by which freedom of
action of another is in any manner forbidden
or obstructed.
(b) Directly or indirectly deter,
hamper or disable the normal functioning of
any public institutions or utility services
including any centre or organization,
education, charitable, pro bono or otherwise
giving relief to a human being or
compassionate succour to any living
creature.
(2) No trade, business or
undertaking, no transport vehicle or facility
shall be closed or stopped totally or partially
out of apprehension of or actual use of
violence caused or threatened by operation
of any hartal or strike by the organizers or
sympathizers thereof. The State shall in
every reasonable manner forbid or prevent
such behaviour or conduct adversely
affecting the fundamental rights of members
of the public.
5. Hartals to be prohibited by the
Government.--Hartals, when they cause
stoppage of business or activity essential for
the life of the community, shall be effectively
prohibited by the State Government directly
or through other delegated authority even
though 10 days notice has been given.
6. Police shall render all assistance
needed to exercise legal rights.- The State
police and other law and order authorities of
the State shall, on request by any person,
help him to exercise his lawful rights during
the hartal hours if any one prevents such
exercise using or threatening force for such
purpose.
7. Offences and Punishments.- It
shall be an offence punishable with
imprisonment upto 6 months if any one is
prevented by any other, on the ground of a
hartal, from visiting a hospital or hotel or
educational institution or fuel delivery
station or transport process. Free access in
such cases shall be provided by the police
and other state agencies. Failure to help
any person in such need shall be a
dereliction of duty by the State agency
punishable with fine upto Rs.10,000/-.
8. Abetment of Hartal and
consequence.- If the Government or any
administrative officer under the Government
in any manner connives at or abets hartals
which are an offence as defined in this Act
the affected person may move the court
having jurisdiction for ordering
compensation under Section 9.
Constitution of Compensatory Fund and
payment of compensation.- (1) A fund
shall be constituted by the Government for
the purpose of paying damages to persons
who are affected by any such hartal
conducted in spite of the prohibition, if so
ordered by judicial process.
10. Government shall frame Rules for
effectively implementing the provisions of
this Act.
Statement of Objects and Reasons
India has been passing through
developmental decades after winning
Independence and liberating itself from
imperialist inhibitions holding up national
progress. Kerala with its caste lunacy and
religious divisiveness is unable to advance
notwithstanding its educational status and
socialistic ethos. Unless the entire Kerala
people work hard with a developmental
dimension and vision a better tomorrow may
remain dream. Unfortunately, we have too
many holidays in the name of plurality of
religions. This situation is aggressively
aggravated by hartals and bandhs which
keep the community lazy doing no work and
keeping society in stagnancy. Therefore
hartals are a hindrance to human advance
and deserve to be regulated and even
prohibited although the right to strike by
workers may still remain. It is significant to
note that there has been considerable
expression of adverse opinion by the leading
media and vehicles of social justice in
support of the prohibition of hartals. It is in
this background the Bill has been drafted."
The above bill was drafted in the year 2008. We
however are informed that no legislation has yet been
enacted by the State covering all the aspects. It is for
W.P(C).No. 32529 of 2007 & connected cases
-: 112 :-
the Legislature to take into consideration other
relevant aspects which can be brought in the legislation
for regulating this exercise of calling and conducting of
Hartal. In fact all Hartals which are called alleging to be
only a peaceful Hartal turns out into forced Hartal
affecting normal life of the citizens and the menace is
to be contained and controlled in the interest of the
Society and Nation. Regulation by legislation is the
requirement of the day. We are aware that it is for the
legislature to consider and enact law and this Court in
exercise of Art.226 cannot issue any direction in that
regard. A comprehensive legislation with regard to
finding out mechanism for determination of claims
regarding loss suffered by public and private property
during Hartal is also the need of the day. A Division
Bench of this court in W.P(C) No.29734 of 2008 - The
Proper Channel v. The Managing Director, KSRTC,
have already emphasized the need for a proper
W.P(C).No. 32529 of 2007 & connected cases
-: 113 :-
legislation in this regard. The following observations
made in paragraph 12 are relevant and it is as follows:
".....It might also be true that, taking
into account the might of the organization
that calls for such hartals, the public at large
may not be in a position to initiate
appropriate action against the organization
calling and holding such 'hartals'. It is
therefore necessary that the Government
should step in and provide a simple and easy
method to any person including statutory
Corporations like KSRTC or a private
individual to claim compensation for any loss
they may suffer on account of such 'forced
hartals'. Appropriate legislation should be
enacted granting suo motu powers to a
competent authority to call for claims,
assessment of compensation, recovery, etc.
Unless such measures are taken, the menace
of 'forced hartals' cannot be curbed."
55. We thus are of the considered opinion that an
effective regulation/restriction on the call and conduct of
W.P(C).No. 32529 of 2007 & connected cases
-: 114 :-
Hartal is urgently required which is a need of the day. In
the legislation to be framed by the State, the State
should also consider the inclusion of a provision for
prior notice of minimum three days before proceeding
for any Hartal, details regarding office bearers of party
or organizations who are proceeding with Hartal,
territorial area of the proposed Hartal and the details of
the personnel belonging to the political parties and
organizations who are going to lead the protest and
demonstration, requirement of deposit of security
amount, if any, mechanism for determination of
compensation and damages for loss of life and property,
both public and private, provision for liability of
organizers. These are a few amongst many other facts
to be considered by the legislature to bring an effective
legislation and activate the law for enforcement of the
machinery to achieve the objects. We answer the
issue accordingly.
W.P(C).No. 32529 of 2007 & connected cases
-: 115 :-
Issue IV: Measure for protection for life and
property on day of hartal.
Issue V: Measures for prosecution of guilty
and mechanism for claiming
damages/compensation.
56. Since Issue Nos.IV and V are inter-connected,
they are taken together. Two Full Benches of this Court,
i.e.,in Bharath Kumar's case (supra) and George
Kurian's case (supra) have addressed on the above
issues. In Bharath Kumar's case (supra) the Full Bench
declared calling of bandh as illegal and unconstitutional.
After the judgment in Bharath Kumar's case (supra), a
Division Bench of this Court in Kerala Vyapari Vyavasayi
Ekopana Samithi v. State of Kerala (2000(2) KLT 430)
had again occasion to consider various aspects of
destruction of public and private properties causing loss to
society in the name of calling hartal. The Division Bench
issued various directions. Directions 2 and 3 were
subsequently set aside by the Apex Court in Indian
W.P(C).No. 32529 of 2007 & connected cases
-: 116 :-
National Congress(I) v. Institute of Social Welfare
(2002(2) KLT 548(SC)). It is useful to note the directions of
the Division Bench apart from directions 3 and 4, which
are to the following effect:
i. We declare that the enforcement
of a hartal call by force, intimation, physical
or mental and coercion would amount to an
unconstitutional act and party or association
or organization that calls for a hartal has no
right to enforce it by resorting to force or
intimidation.
ii. We direct the State, Chief
Secretary to the State, Director General of
Police and all the administrative authorities
and police officers in the State to implement
strictly the directives issued by the
directions given by the Director General of
Police dated 4.2.1999 and set out fully in the
earlier part of this judgment.
xxx xxx xxx
iv. We issue a writ of mandamus
directing the election commission to
consider and dispose of in accordance with
W.P(C).No. 32529 of 2007 & connected cases
-: 117 :-
law, the representation Ext.P9, in O.P.20641
of 1998, after giving all the affected parties
an opportunity of being heard.
xxx xxx xxx
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 property belonging to the Corporation is
damaged or destroyed, from the preparators
of the acts leading to destruction/damage
and those who have issued the call for
hartal.
57. The State Government, after the aforesaid
judgment, addressed various issues raised by this Court
W.P(C).No. 32529 of 2007 & connected cases
-: 118 :-
and the Apex Court and had issued Government order
dated 17.12.2003, issuing various directions to the
Government Departments, district administration and
Police administration. Although directions were issued
by the State Government on 17.12.2003, the directions
were not completely and faithfully followed by the
district administration and Police administration. The
matter was again taken up by a Full Bench of this Court
in George Kurian's case (supra). The Full Bench again
reiterated its earlier pronouncement inBharat
Kumar's case (supra) and Kerala Vyapari Vyavasayi
Ekopana Samithi (supra) as affirmed by the Apex
Court. The Full Bench in George Kurian's case (supra)
again issued various directions in paragraph 13, which
are extracted below:
"13. Already forced hartals and general
strikes were declared to be illegal and
unconstitutional by the Division Bench and
approved by the Apex Court and they are
W.P(C).No. 32529 of 2007 & connected cases
-: 119 :-
equated to bandh and bandh like situations.
But whatever name it is called, whether
general strike, hartal or any other name,
nobody can create a bandh like situation or
obstruct the fundamental rights of others.
The directions issued by the division Bench
and Full Bench as approved by the Supreme
Court shall be strictly adhered to. Apart from
the directions issued by the Full Bench in
Bharath Kumar's Case and Division Bench
quoted in paragraph 9 of this judgment as
modified by the Hon'ble Apex Court, we
issue the following directions also:
(1) Whenever a hartal or a general strike is
called, the government should take
adequate measures to see that normal
life of the citizens is not pralysed. That
is to be done not by declaring holidays
or postponing examinations; but, by
giving effective protection to those who
are not participating in such hartals or
strikes. Government should be able to
deal with the situation with strong
hands. Considering the past experience,
W.P(C).No. 32529 of 2007 & connected cases
-: 120 :-
if the Government is feeling that they
are unable to give adequate protection,
it should request the Centre for
deputing Army or para-military forces so
that there should not be any
constitutional breakdown and violation
of fundamental rights of the citizens;
(2) The District Administration should be
given sufficient direction to avail para-
military force as provided under
Chapter X of the Code of Criminal
Procedure to maintain public services if
law and order problem arises during the
hartal or general strike by unlawful
assembly of hartal or strike supporters;
(3) In cases of damage to public property,
action should be taken to recover the
damages from the persons who actually
cause damages and also from the
political parties, organizers and persons
who give actual call for such hartal or
general strikes. In view of the
happenings in the past, they cannot say
that they did not visualize such a
W.P(C).No. 32529 of 2007 & connected cases
-: 121 :-
situation which was created by anti-
social elements and directions issued in
this regard in paragraph 18 of Bharat
Kumar's case which is affirmed by the
Supreme Court shall be followed strictly
and if no proper action is taken, it
should be realized from the defaulting
officers and stern action should be
taken against such officers;
(4) Effective action should be taken under
the Prevention of Damages to Public
Property Act, 1984 and circular dated
17.12.2003 (produced as Ext.R1(d) in
W.P.(C)No.20078 of 2003) shall be
implemented strictly;
(5) Those who call for hartals or strikes by
whatever reason should make it clear in
their call that nobody will be compelled
to participate in the hartals or strikes,
that traffic will not be obstructed and
those who are willing can go for work
and that fundamental rights of others to
move about will not be affected. They
should also instruct their supporters to
see that no coercion or force is used for
compelling others to participate in the
strike or hartal;
(6) With regard to the injuries and damages
caused to the private persons and their
properties, government should
adequately compensate them
immediately as Government has failed
to fulfill its constitutional obligation to
protect lives and properties of the
citizens and the Government should
take steps to recover the same from the
persons who caused such damages or
injuries and also from the persons and
political parties or organizations who
called for such hartals or general
strikes. Criminal cases also should be
taken against the offenders as well as
the abettors to the offence. Such
criminal cases registered should be
pursued with enthusiasm and it should
not be withdrawn merely on political
pressure and investigation should be
conducted fairly not with a purpose of
filing a subsequent refer report as
undetected;
(7) Government should see that an
atmosphere is created so that citizens
can move about on the roads freely
without fear and vehicular traffic is not
obstructed and public transport can ply
without any hindrance;
(8) Damages caused to the public or private
properties etc. and recovery steps
initiated should be published by the
Government. Circular dated 17.12.2003
issued by the Government regarding
recovery of damages should be
implemented fully;
(9) Government should also take appropriate
action against the District
Administration and Police authorities if
effective steps are not taken by them
against the persons who use force or
who are trying to impose their will on
others to deprive the fundamental
rights of majority of the citizens in the
guise of hartals and general strikes."
58. Hartal, forced hartal, general strike and bandh
are not issues confined to the State of Kerala only.
Large scale destruction of public property in the wake of
protest claiming reservation was seen in the States of
Punjab, Hariyana, Rajasthan and Uthar Pradesh. The
Supreme Court had taken suo motu notice regarding
various instances, where large scale destruction of
private and public properties in the name of
agitation/bandh/hartal was done and an order was
passed on 5.6.2007 (reported in Destruction of Public
& Properties in Re [(2007)2 SCC (Crl.) 351]). While
initiating suo motu proceedings, the Apex Court also
noticed that prima facie it appears that no action was
taken to the offenders, who were responsible for the
destruction of properties. In the said proceedings the
Apex Court constituted two Committees to look into all
aspects of the matter. One of the Committees was
headed by retired Supreme Court Judge, Justice
K.T.Thomas (K.T.Thomas Committee). Another
Committee was headed by Mr.F.S.Nariman, a senior
member of the legal profession (Nariman Committee).
Both the Committees went through all the aspects of the
matter and submitted its reports to the Apex Court. The
report submitted by K.T.Thomas Committee, which is
relevant for the present case, is to be noted in detail.
The recommendations of the Committee have been
reproduced by the Apex Court in its judgment reported
in Destruction of Public and Private Properties, in
Re v. State of Andhra Pradesh and others [(2009)5
SCC 212]. In paragraphs 6, 7, 8, 9 and 10 of the
judgment the following was stated:
"6. The recommendations of the Justice
Thomas Committee have been made on the
basis of the following conclusions after taking
into consideration the materials.
7. "According to this Committee the
prosecution should be required to prove, first
that public property has been damaged in a
direct action called by an organisation and
that the accused also participated in such
direct action. From that stage the burden can
be shifted to the accused to prove his
innocence. Hence we are of the view that in
situations where prosecution succeeds in
proving that public property has been
damaged in direct actions in which the
accused also participated, the court should be
given the power to draw a presumption that
the accused is guilty of destroying public
property and that it is open to the accused to
rebut such presumption. The PDPP Act may
be amended to contain provisions to that
effect."
8. "Next we considered how far the
leaders of the organisations can also be
caught and brought to trial, when public
property is damaged in the direct actions
called at the behest of such organisations.
Destruction of public property has become so
rampant during such direct actions called by
organisations. In almost all such cases the
top leaders of such organisations who really
W.P(C).No. 32529 of 2007 & connected cases
-: 127 :-
instigate such direct actions will keep
themselves in the background and only the
ordinary or common members or grass root
level followers of the organisation would
directly participate in such direct actions and
they alone would be vulnerable to
prosecution proceedings. In many such cases,
the leaders would really be the main
offenders being the abettors of the crime. If
they are not caught in the dragnet and
allowed to be immune from prosecution
proceedings, such direct actions would
continue unabated, if not further escalated,
and will remain a constant or recurring affair.
Of course, it is normally difficult to prove
abetment of the offence with the help of
direct evidence. This flaw can be remedied to
a great extent by making an additional
provision in PDPP Act to the effect that
specified categories of leaders of the
organisation which make the call for direct
actions resulting in damage to public
property, shall be deemed to be guilty of
abetment of the offence. At the same time,
W.P(C).No. 32529 of 2007 & connected cases
-: 128 :-
no innocent person, in spite of his being a
leader of the organisation shall be made to
suffer for the actions done by others. This
requires the inclusion of a safeguard to
protect such innocent leaders."
9. "After considering various aspects to
this question we decided to recommend that
prosecution should be required to prove (i)
that those accused were the leaders or office-
bearers of the organisation which called out
for the direct actions and (ii) that public
property has been damaged in or during or in
the aftermath of such direct actions. At that
stage of trial it should be open to the court to
draw a presumption against such persons
who are arraigned in the case that they have
abetted the commission of offence. However,
the accused in such case shall not be liable to
conviction if he proves that (i) he was in no
way connected with the action called by his
political party or that (ii) he has taken all
reasonable measures to prevent causing
damage to public property in the direct action
called by his organisation."
10. "The Committee considered other
means of adducing evidence for averting
unmerited acquittals in trials involving
offences under PDPP Act. We felt that one of
the areas to be tapped is evidence through
videography in addition to contemporaneous
material that may be available through the
media, such as electronic media. With the
amendments brought in the Evidence Act,
through Act 21 of 2000 permitting evidence
collected through electronic devices as
admissible in evidence, we wish to
recommend the following:
(i) If the officer in charge of a police
station or other law enforcing agency is
of opinion that any direct action, either
declared or undeclared has the potential
of causing destruction or damage to
public property, he shall avail himself of
the services of video operators. For this
purpose each police station shall be
empowered to maintain a panel of local
video operators who could be made
available at short notices.
(ii) The police officer who has the
responsibility to act on the information
that a direct action is imminent and if he
has reason to apprehend that such direct
action has the potential of causing
destruction of public property, he shall
immediately avail himself of the services
of the videographer to accompany him
or any other police officer deputed by
him to the site or any other place
wherefrom video shooting can
conveniently be arranged concentrating
on the person/persons indulging in any
acts of violence or other acts causing
destruction or damage to any property.
(iii) No sooner than the direct action
subsides, the police officer concerned
shall authenticate the video by
producing the videographer before the
Sub-Divisional or Executive Magistrate
who shall record his statement regarding
what he did. The original tapes or CD or
other material capable of displaying the
recorded evidence shall be produced
before the said Magistrate. It is open to
the Magistrate to entrust such
CD/material to the custody of the police
officer or any other person to be
produced in court at the appropriate
stage or as and when called for.
The Committee felt that the offenders
arrested for damaging public property shall
be subjected to a still more stringent
provision for securing bail. The discretion of
the court in granting bail to such persons
should be restricted to cases where the court
feels that there are reasonable grounds to
presume that he is not guilty of the offence.
This is in tune with Section 437 of the Code of
Criminal Procedure, 1973 and certain other
modern criminal law statutes. So we
recommend that Section 5 may be amended
for carrying out the above restriction.
Thus we are of the view that discretion
to reduce the minimum sentence on condition
of recording special reasons need not be
diluted. But, instead of `reasons' the court
should record `special reasons' to reduce the
minimum sentence prescribed.
However, we felt that apart from the
penalty of imprisonment the court should be
empowered to impose a fine which is
equivalent to the market value of the
property damaged on the day of the incident.
In default of payment of fine, the offender
shall undergo imprisonment for a further
period which shall be sufficient enough to
deter him from opting in favour of the
alternative imprisonment."
59. The Apex Court accepted the report of
K.T.Thomas Committee and issued certain directions in
paragraph 12. Paragraphs 11, 12 and 16 of the
judgment read as under:
"11. The recommendations of the
Justice Thomas Committee according to us
are wholesome and need to be accepted.
12. To effectuate the modalities for
preventive action and adding teeth to the
enquiry/investigation, the following
guidelines are to be observed:
As soon as there is a demonstration
organised:
(I) The organiser shall meet the police to
review and revise the route to be taken
and to lay down conditions for a
peaceful march or protest;
(II) All weapons, including knives, lathis and
the like shall be prohibited;
(III) An undertaking is to be provided by the
organisers to ensure a peaceful march
with marshals at each relevant
junction;
(IV) The police and the State Government
shall ensure videography of such
protests to the maximum extent
possible;
(V) The person-in-charge to supervise the
demonstration shall be SP (if the
situation is confined to the district) and
the highest police officer in the State,
where the situation stretches beyond
one district;
(VI) In the event that demonstrations turn
violent, the officer-in-charge shall
ensure that the events are
videographed through private
operators and also request such further
information from the media and others
on the incidents in question;
(VII) The police shall immediately inform the
State Government with reports on the
events, including damage, if any,
caused by the police; and
(VIII) The State Government shall prepare a
report on the police reports and other
information that may be available to it
and shall file a petition including its
report in the High Court or the
Supreme Court as the case may be for
the Court in question to take suo motu
action.
16. The recommendations of Justice K.T.
Thomas Committee and Mr F.S. Nariman
Committee above which have the approval of
this Court shall immediately become
operative. They shall be operative as
guidelines."
60. It is relevant to note that an Act, namely,
Prevention of Damage to Public Property Act, 1984 has
already been enacted by the Parliament, where causing
damage to the public property has been declared to be
an offence punishable with imprisonment. 'Public
property' has been defined in Section 2(b) of the said
Act. Sub-clauses (iii) and (iv)of Section 2(b), which are
relevant, are quoted below:
"2(b) "public property" means any
property, whether immovable or movable
(including any machinery) which is owned
by, or in the possession of, or under the
control of-
(iii) any local authority; or
(iv) any corporation established by, or
under a Central, Provincial or State Act."
61. The Kerala Public Ways (Restriction of
Assemblies and Processions) Act, 2011 has been
enacted by the State Legislature to provide for
protection of public ways for unobstructed movement by
the public and for imposition of reasonable restrictions
on the rights of any section of the public to assemble
and collectively move thereon and to regulate
procession through public ways and for matters
connected therewith or incidental thereto. Legislation
has come up as a restriction envisaged under Article 19
of the Constitution of India on the exercise of
Fundamental Rights guaranteed under Article 19(1)(a)
and 19(1)(c). The The Kerala Public Ways (Restriction of
Assemblies and Processions) Act, 2011 declares certain
acts and offences and also provides for punishment for
offence. Section 5 provides for certain measures to
regulate and restrict the Fundamental Rights
guaranteed under Article 19(1)(a) and 19(1)(c).
62. Section 79 of the Kerala Police Act, 2011 also
provides for regulation of public assemblies, which is
another statutory restriction on the Fundamental Rights of
the citizens guaranteed under Article 19 of the
Constitution.
63. The enactment of Kerala Public Ways
(Restriction of Assemblies and Processions) Act, 2011 is
a step towards imposing some reasonable restrictions
on the Fundamental Rights. It is relevant to note that
the question as to whether Sections 5(1)(c), 5(1)(a)
and 5(1)(d) are unconstitutional came up for
consideration before the Division Bench of this Court in
Basil Attipetty v. State of Kerala (2012(2) KLT 143).
Section 5(1)(c) of the Kerala Public Ways (Restriction of
Assemblies and Processions) Act, 2011 has been held to
be unconstitutional by the Division Bench, whereas
constitutional validity of Section 5(1)(a) and 5(1)(d)
have been upheld. The legislation is only an indication
that as and when there is a will the appropriate
legislation is enacted for even restricting the
Fundamental Rights on the grounds as enumerated in
Article 19(2) to 19(6) of the Constitution. The Legislature
can very well also consider enacting of appropriate
legislation for appropriate regulation and restriction of
right of political parties and organizations to give call for
strike/hartal as well as in conducting strike/hartal. The
incidents and events as highlighted by the petitioners in
these Writ Petitions clearly indicate that so far the
menace of destruction of public and private property
and harm injury to the person of the citizens could not
be achieved in spite of various directions of this Court
and the guidelines issued by the State Government. The
need and necessity of appropriate legislation is, thus,
clearly felt and has been canvassed by learned counsel
for the petitioners. It is for the State Government and
the State Legislature to look into the matter and in this
regard no directions are required from the Court.
64. The submission, which has been pressed
repeatedly by learned counsel for the petitioners is that
since in spite of directions issued by two Full Benches of
this Court in Bharath Kumar's case (supra) and
George Kurian's case (supra) as well as the judgment
of the Apex Court, the menace of injury to person and
property of individuals and the Government has not
abetted.
65. It is also relevant to note that the Apex Court in
paragraph 19, as extracted above, in James Martin's
case (supra) has observed that unless such acts are
controlled with iron hands, innocent citizens are bound
to suffer.
66. The learned Special Government Pleader
Smt.Girija Gopal has placed before us details of various
cases registered in different districts of the State of
Kerala pertaining to hartals/bandhs/strikes. Several
cases have been registered under different Sections of
Indian Penal Code. It is noticeable that although large
scale destruction of public and private properties has
occurred during the bandhs/strikes, but there are very
few cases registered under the said Act. No details are
on record about the status of the said prosecution.
Large number of cases have also been registered in the
year 2013, details of which have been placed before us.
It has also been stated on behalf of the State
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Government that a direction has been issued to
Government Departments and Police authorities to
assess the damage caused to public property and sue
for recovery of damages. The mechanism of recovery of
damages/compensation by filing suit either by the
Government/Government Departments or individuals is
not giving any salutary result. Large number of persons,
who suffered physically and materially are not
approaching the Civil Court for redressal of their
grievances on account of delay, which is occurred in
deciding such cases. This is another reason for the
miscreants to continue with their illegal activities and
acts of damage and harm to individuals and
Government property.
67. We have already observed above that unless
comprehensive legislation covering all aspects of
hartals/general strikes, including its restrictions and
regulations as well as mechanism for obtaining
W.P(C).No. 32529 of 2007 & connected cases
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compensation for damages done directly, as action of
hartal and general strike is not enacted, the State shall
not be able to effectively check the menace. We have
already referred to State Law Commission Report,
2008, where draft of Bill has already been sent by the
Law Commission to the Government. We have not been
informed as to what steps have been taken in reference
to the Bill, if any. It is high time that the State
considers enacting appropriate legislation covering all
aspects of the matter, since it has miserably failed in
checking and controlling the menace. We are aware that
this Court cannot exercise the writ jurisdiction to issue
any direction to the Legislature to enact a law. But,
need of appropriate legislation has already been felt by
the Law Commission, which has also sent a report along
with the draft Bill and there are observations of this
court in earlier judgments emphasising about the need
for appropriate legislation. Thus, it is for the State to
W.P(C).No. 32529 of 2007 & connected cases
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consider and address the issue, so as to provide an
immediate and far reaching solution and relief to the
people of the State.
68. We also observe that in the legislation, which
may be proposed a mechanism for lodging claim for
damage to private and public property with designated
authority having necessary power to enquire a claim
and decide may be included. There have already been
directions issued by a Division Bench of this Court and
Full Bench to videograph the agitations and forceful
hartals by the police authorities, which may be both
deterrent as well as useful in identifying the culprits and
proving the charge both for prosecution of an offence as
well as recovery of compensation.
60. Electronic evidence now is fully advisable by
the amendment made in 2000 in the Indian Evidence
Act. We are, however, of the considered opinion that
the State has to enforce directions issued by the Full
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Bench of this Court in George Kurian's case (supra) as
well as the guidelines issued by the Supreme Court in
Destruction of Public and Private Properties, in
Re's case (supra), wherein the Supreme Court has
approved the report submitted by the K.T.Thomas
Committee and issued directions. The State should
revise its various directions issued from time to time to
contain a comprehensive and effective direction for
tackling the forceful hartals/demonstrations/agitations in
the State of Kerala. There having been direction by the
Supreme court in Destruction of Public and Private
Properties, in Re's case (supra) and there has been
two enactments, namely, Kerala Police Act, 2011 and
Kerala Public Ways (Restriction of Assemblies and
Processions) Act, 2011, earlier directions need to be
revisited and comprehensive directions be issued to the
district administration, Police administration and all
Departments of the Government, including different
W.P(C).No. 32529 of 2007 & connected cases
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organisations and political parties through an
appropriate authority.
Issue No.VI: Whether call of hartal/strike
violates the Prevention of Insults to National
Honour Act, 1971:
70. It has been submitted by the petitioner that
hartal/strike having been declared as unconstitutional
by this Court and the Apex Court, even giving a call of
hartal/strike by any political party or organisation
violates the provisions of the Prevention of Insults to
National Honour Act, 1971. For considering the above
submission, it is necessary to look into the provisions of
the 1971 Act. Section 2 of the Act deals with insult to
Indian National Flag and Constitution of India. Present is
the case where violation of the Act is confined to
allegations of insult to Constitution of India. Section 2 of
the Act is quoted as below:
"2. Insult to Indian National Flag and
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Constitution of India.--Whoever in any public
place or in any other place within public view
burns, mutilates, defaces, defiles, disfigures,
destroys, tramples upon or otherwise shows
disrespect to or brings into contempt (whether
by words, either spoken or written, or by acts)
the Indian National Flag or the Constitution of
India or any part thereof, shall be punished with
imprisonment for a term which may extend to
three years, or with fine, or with both.
Explanation 1.--Comments expressing
disapprobation or criticism of the Constitution or
of the Indian National Flag or of any measures of
the Government with a view to obtain an
amendment of the Constitution of India or an
alteration of the Indian National Flag by lawful
means do not constitute an offence under this
section.
Explanation 2.--The expression "Indian
National Flag" includes any picture, painting,
drawing or photograph, or other visible
representation of the Indian National Flag, or of
any part or parts thereof, made of any substance
or represented on any substance.
Explanation 3.--The expression "public
place" means any place intended for use by, or
accessible to, the public and includes any public
conveyance.
Explanation 4.--The disrespect to the
Indian National Flag means and includes--
(a) a gross affront or indignity offered to
the Indian National Flag; or
W.P(C).No. 32529 of 2007 & connected cases
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(b) dipping the Indian National Flag in
salute to any person or thing; or
(c) flying the Indian National Flag at half-
mast except on occasions on which the Indian
National Flag is flown at half-mast on public
buildings in accordance with the instructions
issued by the Government; or
(d) using the Indian National Flag as a
drapery in any form whatsoever except in State
funerals or armed forces or other para-military
forces funerals; or
(e) using the Indian National Flag,--
(i) as a portion of costume, uniform or
accessory of any description which is worn below
the waist of any person; or
(ii) by embroidering or printing it on
cushions, handkerchiefs, napkins,
undergarments or any dress material; or]
(f) putting any kind of inscription upon the
Indian National Flag; or
(g) using the Indian National Flag as a
receptacle for receiving, delivering or carrying
anything except flower petals before the Indian
National Flag is unfurled as part of celebrations
on special occasions including the Republic Day
or the Independence day; or
W.P(C).No. 32529 of 2007 & connected cases
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(h) using the Indian National Flag as
covering for a statute or a monument or a
speaker's desk or a speaker's platform; or
(i) allowing the Indian National Flag to
touch the ground or the floor or trail in water
intentionally; or
(j) draping the Indian National Flag over
the hood, top and sides or back or on a vehicle,
train, boat or an aircraft or any other similar
subject; or
(k) using the Indian National Flag as a
covering for a building; or
(l) intentionally displaying the Indian
National Flag with the "saffron" down.
71. Section 2 of the Act enumerates an offence,
which is punishable with imprisonment for a term, which
may extend to three years, or with fine, or with both. For
coming within the definition of Section 2, the ingredients
of the offence have to be found and proved. A mere call
for hartal/general strike cannot be held to be an offence
within the meaning of Section 2. The offence under
Section 2 may be found to have been committed in
W.P(C).No. 32529 of 2007 & connected cases
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carrying out the said hartal/strike. To find out as to
whether the act of any person is an offence within the
meaning of Section 2, other ingredients of offence has
to be there, which need to be proved. We have already
observed in preceding paragraphs that Article 19(1)(a)
of the Constitution also gives right to freedom of speech
and expression to every citizen. Demonstration is also
one form of speech and expression and unless the
demonstration becomes violent, the same is within the
constitutional right. Whether the constitutional rights
have been exceeded leading the act to offence is the
question of fact, which has to be examined and gone
into with regard to each individual acts.
72. In view of the foregoing discussion, we are of
the considered opinion that the mere call for
hartal/strike does not result in the commission of an
offence within the meaning of the Prevention of Insults
to National Honour Act, 1971. However, in carrying out
W.P(C).No. 32529 of 2007 & connected cases
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hartal/strike, an offence has to be found out by looking
into the particular actions of an individual which fulfills
the ingredients of offence under Section 2. Thus, to find
out an offence, the actual act of hartal/strike in each
case has to be examined on its own facts. The Issue
No.VI is decided accordingly.
Issue No.VII- Whether calling and carrying
out hartal/strike be declared offence punishable
under Section 503 IPC?:
73. The submission, which has been pressed by
learned counsel for the petitioners is that calling a
hartal/strike as well as carrying out hartal/strike is an
offence within the meaning of Section 503 IPC and this
Court may declare it to be an offence for the persons
calling and carrying out hartal be booked under Section
503 IPC. Section 503 IPC provides as follows:
"503. Criminal intimidation.- Whoever
threatens another with any injury to his
person, reputation or property, or to the
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person or reputation of any one in whom that
person is interested, with intent to cause
alarm to that person, or to cause that person
to do any act which he is not legally bound to
do, or to omit to do any act which that
person is legally entitled to do, as the means
of avoiding the execution of such threat,
commits criminal intimidation.
Explanation.- A threat to injure the
reputation of any deceased person in whom
the person threatened is interested, is within
this section."
74. According to Section 503 IPC, Whoever
threatens another with any injury to his person,
reputation or property, or to the person or reputation of
any one in whom that person is interested, with intent to
cause alarm to that person, or to cause that person to
do any act which he is not legally bound to do, or to
omit to do any act which that person is legally entitled
to do, as the means of avoiding the execution of such
threat, commits criminal intimidation. The definition of
W.P(C).No. 32529 of 2007 & connected cases
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'criminal intimidation' is wide enough and can improvise
in its various acts, including threats issued by a person
belonging to a political party or an organisation to any
person. To find out whether an offence under Section
503 IPC is committed or not, particular acts and events
have to be looked into whether an offence is made out
by calling a strike or hartal or carrying out a strike or
hartal by a political party or an organisation has to be
examined from set of facts and events in each case.
There cannot be any generalisation of offence as
submitted by learned counsel for the petitioners. Even
calling for hartal or strike which contains threat and
intimidation may amount to an offence under Section
503 IPC. Similarly, call given for observing non co-
operation and sympathise with the organiser may not
amount to offence under Section 503 IPC.
75. We are, thus, of the considered opinion that for
finding out whether an offence under Section 503 IPC
W.P(C).No. 32529 of 2007 & connected cases
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has been committed or not, an individual action and
attending circumstances have to be looked into and
there cannot be any generalisation of act of calling
hartal/strike or carrying out hartal/strike. Whether an
offence has been committed or not in particular case of
calling or carrying out hartal/strike depends on the facts
of each case. Issue No.VII is decided accordingly.
RELIEFS:
76. Now we come to the reliefs to which the
petitioners are found to be entitled to be given in these
eight Writ Petitions. In each Writ Petitions different
reliefs have been claimed as noted above.
77. In W.P.Nos.32529/2007, 21455/2012 and 2183/
2008 the principal relief claimed was that the press and
media be prohibited from publishing/ broadcasting and
telecasting any news for call of hartal/strike. We have
already held that in view of the constitutional provision
and statutory provisions regulating the subject as on
W.P(C).No. 32529 of 2007 & connected cases
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today, no such restriction can be imposed by this Court
in exercise of jurisdiction under Article 226 of the
Constitution of India. The said relief is, thus, refused.
78. In some of the Writ Petitions the main prayer
was to prohibit the political parties and organisations
from proceeding with the call for observing hartal on a
particular day. The dates for which prayer was made for
prohibiting hartal have already been over, so the said
relief has become infructuous.
79. In W.P(C).No.30778 of 2005 the petitioner has
also claimed direction to the 7th and 13th respondents,
who had called for hartal on 9.11.2004 and 15.11.2004,
to deposit an amount of `10,00,000/- each as
compensation for its illegal action of calling hartal.
Compensation can be claimed for damages/destructions
of public or private properties or any loss suffered by
individuals. It is open to the petitioner to raise the claim
in accordance with law by approaching the Civil Court
W.P(C).No. 32529 of 2007 & connected cases
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for appropriate measures, if so advised. The political
parties or organizations calling for hartal can be
directed to deposit any amount for compensation
provided there is some statutory provision for such
deposit. In the alternative, this Court in exercise of is
extraordinary jurisdiction under Article 226 of the
Constitution may deem it fit and proper to direct for
such deposit. Any political party or organization can
always be directed to pay compensation by competent
Civil Court or this Court exercising jurisdiction under
Article 226 of the Constitution. But, in the facts of the
present case, more so, when the alleged strikes were
called about ten years ago, we do not think it
appropriate to consider the above relief in these
proceedings.
80. In some other Writ Petitions various directions
have been sought. We have already noticed the above
prayers.
W.P(C).No. 32529 of 2007 & connected cases
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In view of the foregoing discussions, we dispose all
the Writ Petitions in the following manner:
i. The prayer to prohibit press and media
from publishing/broadcasting/telecasting
news for call of hartal/strike is refused.
ii. The prayer made for total banning of calls
for hartal/strike is also refused.
iii. The State is directed to revisit its earlier
directions issued to the district
administration and Police administration,
including Government order dated
17.12.2003 and issue comprehensive
directions for compliance of the
directions issued by the Full Bench of this
Court in Bharath Kumar's case (supra)
and George Kurian's case (supra) as
well as the directions and guidelines
issued by the Supreme Court in
W.P(C).No. 32529 of 2007 & connected cases
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Destruction of Public and Private
Properties, in Re v. State of Andhra
Pradesh and others [(2009)5 SCC 212]
and direct the district administration,
Police administration and all Government
Departments to strictly comply with the
said directions.
iv. The State Government shall monitor all
events/incidents of hartal and strike
henceforth calling reports from District
Magistrate and Police Commissioner from
each District and issue necessary
directions and monitor the same. The
State Government may also consider
framing of comprehensive legislation
covering all aspects of the matter with
due consideration of the State Law
Reforms Commission Report, 2008 by
W.P(C).No. 32529 of 2007 & connected cases
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which a Bill, in order to prohibit and
regulate the conduct of hartal, was
framed by Law Reforms Commission as
noted above.
v. The State Government shall also take
effective steps regarding providing of all
assistance for finalisation of prosecution
relating to cases registered during hartal
and strike as well as the suit filed for
compensation of private and public
property. The directions to be issued by
the State shall also include the directions
to all Police authorities and District
authorities to necessarily report and to
take necessary steps for registration of
cases pertaining to injury to life or
damage to property and also claims for
compensation for damages. The District
W.P(C).No. 32529 of 2007 & connected cases
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authorities may be directed to send
periodical reports to the State, so that
the criminal cases and claims may be
effectively monitored.
The parties shall bear their own cost.
Let a copy of this judgment be sent to the Chief
Secretary to the State to take necessary steps.
ASHOK BHUSHAN,
ACTING CHIEF JUSTICE.
A.M.SHAFFIQUE,
JUDGE.
A.K.JAYASANKARAN NAMBIAR,
JUDGE.
vsv/vgs
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