Kochouseph Chittilappilly v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2015/4TH AGRAHAYANA, 1937** ## **WP(C).No. 1459 of 2014 (S)** **--------------------------------------** ## **PETITIONER(S):** ## **----------------------** **KOCHOUSEPH CHITTILAPPILLY, AGED 62 YEARS, S/O.LATE C.O THOMAS, RESIDING AT CHITTILAPPILLY HOUSE, BYE-PASS ROAD,VENNALA P.O, KOCHI 682 028.** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT(S):** - **-------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2. STATE OF KERALA,** - **REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, DEPARTMENT OF PUBLIC WORKS, SECRETARIAST,THIRUVANANTHAPURAM 695 001.** **3. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT,THIRUVANANTHAPURAM 695 001.** **4. STATE POLICE CHIEF,THIRUVANANTHAPURAM 695001.** **5. DISTRICT POLICE CHIEF THIRUVANANTHAPURAM 695001.** **6. DISTRICT POLICE CHIEF, KOLLAM 691001.** **7. DISTRICT POLICE CHIEF, PATHANAMTHITTA 689 001.** **8. DISTRICT POLICE CHIEF, ALAPPUZHA 689 001.** **9. DISTRICT POLICE CHIEF, KOTTAYAM 686 001.** **10. DISTRICT POLICE CHIEF, IDUKKI 685 001.** **PJ** **....2/-** **..2..** ## **WP(C).No. 1459 of 2014 (S)** **--------------------------------------** **11. DISTRICT POLICE CHIEF, ERNAKULAM 682 001.** **12. DISTRICT POLICE CHIEF,THRISSUR 680001.** **13. DISTRICT POLICE CHIEF, PALAKKAD 678001.** **14. DISTRICT POLICE CHIEF, MALAPPURAM 676 001.** **15. DISTRICT POLICE CHIEF, KOZHIKODE 673001.** **16. DISTRICT POLICE CHIEF, WAYANAD 673 001.** **17. DISTRICT POLICE CHIEF, KANNUR 670001.** **18. DISTRICT POLICE CHIEF, KASARAGOD 671 001.** **BY SENIOR GOVERNMENT PLEADER SRI.P.I.DAVIS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 1459 of 2014 (S)** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **EXHIBIT P1 TRUE COPIES OF THE NEWS REPORTS** - **EXHIBIT P2 TRUE COPY OF THE TABULATION CONTAINING THE LIST OF AGITATIONS ORGANIZED BY THE VARIOUS POLITICAL AND OTHER OUTFITS DURING 2012 AND 2013** **EXHIBIT P3 TRUE COPIES OF THE NEWS REPORTS ABOUT THE PUBLIC WAYS AND TO MOVE FREELY** **EXHIBIT P4 TRUE COPY OF THE QUESTIONNAIRE AND REPLY OBTAINED FROM THE DISTRICT POLICE CHIEF, KASARAGOD TOGTHER WITH THE TABULATION PREPARED BY THE PETITOINER ALONG WITH TRUE ENGLISH TRANSLATION OF PAGE 13** - **EXHIBIT P5 TRUE COPY OF THE QUESTIONNAIRE AND REPLY OBTAINED FROM THE DISTRICT POLICE CHIEF, KANNUR TOGTHER WITH THE TABULATION PREPARED BY THE PETITOINER** - **EXHIBIT P6 TRUE COPY OF THE QUESTIONNAIRE AND REPLY OBTAINED FROM THE DISTRICT POLICE CHIEF, WAYANAD TOGTHER WITH THE TABULATION PREPARED BY THE PETITOINER ALONG WITH TRUE ENGLISH TRANSLATION OF PAGE 22,23** - **EXHIBIT P7 TRUE COPY OF THE QUESTIONNAIRE AND REPLY OBTAINED FROM THE DISTRICT POLICE CHIEF, KOZHIKODE TOGTHER WITH THE TABULATION PREPARED BY THE PETITOINER ALONG WITH TRUE ENGLISH TRANSLATION OF PAGE 28,30,31** - **EXHIBIT P8 TRUE COPY OF THE QUESTIONNAIRE AND REPLY OBTAINED FROM THE DISTRICT POLICE CHIEF, MALAPPURAM TOGTHER WITH THE TABULATION PREPARED BY THE PETITOINER ALONG WITH TRUE ENGLISH TRANSLATION OF PAGE 46 TO 55** - **EXHIBIT P9 TRUE COPY OF THE QUESTIONNAIRE AND REPLY OBTAINED FROM THE DISTRICT POLICE CHIEF, PALAKKAD TOGTHER WITH THE TABULATION PREPARED BY THE PETITOINER ALONG WITH TRUE ENGLISH TRANSLATION OF PAGE 22,23** - **EXHIBIT P10 TRUE COPY OF THE QUESTIONNAIRE AND REPLY OBTAINED FROM THE DISTRICT POLICE CHIEF, ERNAKULAM TOGTHER WITH THE TABULATION PREPARED BY THE PETITOINER** - **EXHIBIT P11 TRUE COPY OF THE QUESTIONNAIRE AND REPLY OBTAINED FROM THE DISTRICT POLICE CHIEF, ALAPPUZHA TOGTHER WITH THE TABULATION PREPARED BY THE PETITOINER ALONG WITH TRUE ENGLISH TRANSLATION** **PJ** **....2/-** **..2..** **WP(C).No. 1459 of 2014 (S)** **--------------------------------------** **EXHIBIT P12 RUE COPY OF THE QUESTIONNAIRE AND REPLY OBTAINED FROM THE DISTRICT POLICE CHIEF, KOTTAYAM TOGTHER WITH THE TABULATION PREPARED BY THE PETITOINER ALONG WITH TRUE ENGLISH TRANSLATION** **EXHIBIT P13 RUE COPY OF THE QUESTIONNAIRE AND REPLY OBTAINED FROM THE DISTRICT POLICE CHIEF, PATHANAMTHITTA TOGTHER WITH THE TABULATION PREPARED BY THE PETITOINER** **EXHIBIT P14 RUE COPY OF THE QUESTIONNAIRE AND REPLY OBTAINED FROM THE DISTRICT POLICE CHIEF, KOLLAM TOGTHER WITH THE TABULATION PREPARED BY THE PETITOINER** **EXHIBIT P15 RUE COPY OF THE QUESTIONNAIRE AND REPLY OBTAINED FROM THE DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM TOGTHER WITH THE TABULATION PREPARED BY THE PETITOINER** - **EXHIBIT P16 TRUE COPY OF THE INFORMATION FROM THE POLICE HEAD QUARTERS, THIRUVANANTHAPURAM** - **EXHIBIT P17 TRUE COPY OF THE REPRESENTATION DATED 17/3/14 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS 1 AND 4.** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **ASHOK BHUSHAN, C.J. & A.M. SHAFFIQUE, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 1459 OF 2014 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of November, 2015 ## **JUDGMENT** ## **Shaffique, J.** This Public Interest Litigation has been filed _inter alia_ seeking for the following reliefs: “i) To issue a writ of mandamus directing the respondents to constitute a body/wing to ensure that no public road/streets/places are totally blocked during the public protests/agitations convened either by the political parties or by the religious groups. ii) To issue a writ of mandamus directing the respondents to constitute police wings headed by an appropriate officer at the District and Taluk levels who shall be vested with the responsibility to ensure that the public roads and pathways are not completely blocked in the event of public meetings protests/demonstrations in public place including public roads and pathways iii) To issue a writ of mandamus directing the respondents to constitute a district level body in all the 14 Districts in Kerala State to quantify damages to the public and private properties caused by the political parties and other groups/action groups during the agitations and protests and to recover the same from the persons responsible for the same; iv) To issue a writ of mandamus directing the respondents to take appropriate actions against the concerned police officers and other officials who fail to implement the WP(C) No. 1459 of 2014 ## -:2:- directives contained in Peoples Council for Social Justice v. State of Kerala [1997(2) KLT 301 and such other similar judgments; v) To issue a writ of mandamus directing the respondents to ensure that certain specified leaders proposed, selected or nominated and assets guaranteed of the party/group seeking permission for public protests/agitations will be held liable for the damages/loss caused during agitations and protests against whom the State Government would be entitled to and liable to proceed against legally, for recovery of damages; vi) To issue a writ of mandamus directing the respondents to ensure that the political parties and such other groups seeking permission for procession and public agitations are furnishing sufficient securities for the purpose of recovery of damages before,carrying out public protests and agitations which carry the risk of destruction to private and public properties; vii) To promulgate a scheme to ensure that the roads of the public are not adversely affected while granting permission for public meetings/protests/demonstrations along the public places including public roads; viii) To issue a writ of mandamus directing the respondents to implement the directions contained in the Public Ways (Restriction of Assemblies and Professions) Act 2011 (Kerala) subject to the judgments on the said Act in **Basil Attipetty v. State of Kerala** [2012 (2) KLT 143] and subject to the Full Bench judgment in People's Council for Social Justice v. State of Kerala [1997 (2) KLT 301] supra;” 2. In fact appropriate directions had already been issued by this Court in a Full Bench decision reported in **Sudin v.** WP(C) No. 1459 of 2014 -:3:- **Union of India** [2015 (2) KLT 296] wherein we have held in paragraphs 54 and 55 as follows: “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: **==> picture [20 x 11] intentionally omitted <==** **==> picture [26 x 8] intentionally omitted <==** _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 59[th] 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:-_ WP(C) No. 1459 of 2014 ## -:4:- _(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_ WP(C) No. 1459 of 2014 ## -:5:- _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._ WP(C) No. 1459 of 2014 -:6:- _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_ WP(C) No. 1459 of 2014 ## -:7:- _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 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 WP(C) No. 1459 of 2014 ## -:8:- 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 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 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 WP(C) No. 1459 of 2014 ## -:9:- 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.” 3. Learned counsel for the petitioner would submit that since appropriate directions had already been issued by this Court, now the only relief sought is a permission to place all necessary materials, which have been collected by him under the Right to Information Act, before the Government. In Ext.P18 newspaper report it is indicated that the Government is planning to introduce a Bill to control 'Harthals'. It is always open for the petitioner to place such materials in terms of Ext.P17 before the Government and it shall be open for the Government WP(C) No. 1459 of 2014 -:10:- to take into consideration such materials as well while finalising the Bill. With the above observation, the Writ Petition is closed. **Ashok Bhushan, Chief Justice.** **A.M. Shaffique, Judge.** ttb/25/11