WA No. 1745 of 2010 & WA No. 1746 of 2010 (Sudheesh Soman vs The Kerala State Election Commission and The Kerala State Pollution Control Board)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 **WA.No. 1745 of 2010** **---------------------** (AGAINST THE JUDGEMENT IN WPC.30732/2010 DATED 06.10.2010) .................... APPELLANT/ PETITIONER ------------------------ SUDHEESH SOMAN, KANNAPARAMBIL VEEDU, EAST KADATHI, MUVATTUPUZHA MARKET P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.M.S.IMTHIYAZ AHAMMED RESPONDENTS/ RESPONDENTS ---------------------------------- 1. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. REPRESENTED BY ITS SECRETARY. 2. KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS CHAIRMAN, THIRUVANANTHAPURAM. 04. R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC, K.S.E.COMMISSION R2 BY ADV.SHRI M.K. CHANDRA MOHAN DAS, SC. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/10/2010, ALONG WITH WA NO. 1746 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **J. CHELAMESWAR, CJ & P.R. RAMACHANDRA MENON, J.** .............................................................................. **W.A. No. 1745 & 1746 OF 2010** ......................................................................... **Dated this the 11[th] October, 2010** ## **J U D G M E N T** ## **J. Chelameswar, CJ.** The appellant in W.A.No. 1745 of 2010 is a candidate aspiring to be a Municipal Counsellor contesting the election from ward No.24 of the Muvattupuzha Municipality . The election is scheduled to be held on 25[th] October, 2010. The appellant in the other appeal is an association of persons and a Registered Society under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act . The said association claims that it has membership of 750. Each of the members of the Society/Association is a Small Scale Industry carrying on the business, what is popularly known as 'flex printing' and allied works. For the purpose of their business, the members of the petitioners' association use Poly Vinyl Chloride coated fabric. 2. The grievance of both the appellants is against certain directions issued by the sole respondent herein, the Kerala State Election commission. The respondent issued directions **2** ## _**W.A. No. 1745 & 1746 OF 2010**_ . prohibiting the use of plastic, polythene and flex articles for election campaigning in the ongoing election process under the Kerala Panchayat Raj Act. Though the said order is not available on record, a press report regarding the issuance of such direction is published in one of the Malayalam newspaper, viz, Malayala Manorama dated 14.09.2010 . The respondent does not dispute the fact that such directions were issued. The translation of the press report filed as Ext. P1 along with the writ Petition is: “ _Kakkanad : Election Commission has directed not to use plastic, polythene, flex articles for election campaigning for the Panchayath, Municipality election._ _Officers will confiscate things like this if found. Action will be taken against the candidates and political parties connected with it._ _Collector Dr. Beena has told all sections to take care to fulfill the directions in this regard. Meeting presides by the Collector has assessed the preparation for the election. Since about twenty five thousand employees are required for the polling work appointment process has been started early._ _Collector has cautioned strict actions against the office heads who does not submit the list of_ **3** ## _**W.A. No. 1745 & 1746 OF 2010**_ . ## _employees in time in the collectorate.”_ **3.** It is clear from the above extract that the first respondent prohibited the use of the various materials mentioned therein and also directed that if any such materials is used in the election process, the same be confiscated and action should be taken against the candidates, who are found using such materials. 4. In both the Writ Petitions a common ground raised is that the respondent is not authorised in law to impose such a prohibition. In the alternative, it is submitted that there is no justification for the prohibition in question. 5. Coming to the individual cases, it is the further submission of the appellants that the ban in question is violative of fundamental rights of the appellants herein under Article 19(1)(a), which guarantees freedom of speech to the appellant in W.A.No. 1745 of 2010, who is a contesting candidate in the election. On the other hand, the ban is violative of fundamental rights under article 19(1)(g) and 21 of the constitution of India of the other appellant. 6. The respondent as already mentioned clearly admits issuance of the directions which are impugned in these two appeals. The respondent had filed a statement in the Writ Petition No.30630 of **4** ## _**W.A. No. 1745 & 1746 OF 2010**_ . 2010. The substance of the short statement is that in view of the powers conferred on the Election Commission under Article 243 K of the Constitution of India, the respondent is duly authorised under law to issue the impugned directions . It is further stated that the respondent issued such orders only with the intention of making the election process 'environmental friendly '. It further asserted that such a decision was taken in consultation with and based on a report of the Kerala State Pollution Control Board dated 20.09.2010. A copy of the said communication from the Kerala State Pollution Control Board is also placed on record. The relevant portion reads as follows: _“We welcome the direction not to use plastic and flex for the general election campaign, flex is also a type of plastic. Plastic carry bags are manufactured by using poly ethylene (C2H4)n, poly propylene (CC3H6)n. Flex are manufactured using poly vinyl chloride (C2H3cl)n. None of the above materials are bio degradable. These will not dissolve in the soil. Most harmful among is poly vinyl chloride. Since it contains chlorine with organic materials, it will produce poisonous gases like dioxin (tetra-new-octa-chlorinated. di benzo para dioxins), furan (Tetra-new-octa_ **5** ## _**W.A. No. 1745 & 1746 OF 2010**_ . _chlorinated di benzo furan) while burning. There is a possibility of relatively less harmful gases like carbon dioxide while burning poly ethylene, poly propylene. There is a possibility of burning of flex made out of PVC after its use if the flex is used for election campaigning. Hence using of flex for campaigning is not desirable.”_ 7. The learned Sr. Counsel Shri Ramakumar appearing for the appellant argued that the respondent is empowered to superintend, direct and control the preparation of the electoral rolls for, and conduct the election to the Panchayats under Article 243 K of the Constitution of India read with the relevant provisions of Kerala Panchayat Raj Act. Necessarily, such authority is required to be exercised only for discharging the constitutional and statutory obligations of the respondent. It is further submitted that while conducting elections, the respondent does not acquire or arrogate to itself any powers which are wholly unconnected with the performance of the constitutional obligations of the body. It is also argued that the impugned prohibition, has the effect of curtailing the fundamental rights guaranteed to the petitioners under article 19(1)(a) and 19(1) (g) respectively to the appellant in W.A.No. 1745 of 2010 and W.A.No. **6** ## _**W.A. No. 1745 & 1746 OF 2010**_ . 1746 of 2010. 8. In support of the first of the above submissions Shri Ramakumar relied on the following decisions _**A.C. Jose vs. Sivan Pillai**_ ( AIR 1984 SC 921), _**Election Commission of India vs. All India Anna DMK**_ ( _**1994 Suppl. (2) SCC 689** ,_ _**Madhusoodanan vs. Chief Election Commissioner** (1994 (2) KLT 867 )_ _**Election Commission of India vs. State Bank of India**_ (AIR 1995 SC 1078), _**Surendran vs, State of Kerala (**_ 1998 (1) KLT 626 ) _**Election Commission of India vs. St. Mary's School and others**_ [(2008 ) 2 SCC 390]. He also relied upon the following decision in _**Express News Papers vs. Union of India**_ ( AIR 1958 SC 578) , _**Hamdard Dawakhana vs. Union of India**_ (AIR 1960 SC 554) , _**V. Kamalam vs. V.A.S. Mohammed**_ (AIR 1978 SC 840) _**Secretary, Ministry of Information and Broad Casting Govt. of India vs. Cricket Association of West Bengal**_ (1995 (2) SCC 161 ), _**Zee Telefilms Ltd. vs. Union of India and others**_ ( 2005 (4) SCC 649 ) in support of his second submission. 9. On the other hand the learned Counsel for the respondent argued that the impugned decision was taken in the interest of the general public to make the ongoing election **7** ## _**W.A. No. 1745 & 1746 OF 2010**_ . process to the various local bodies under the Kerala Panchayat Raj Act 'environmental friendly'. It is submitted that in the process of campaigning for the election, huge volume of _flex materials/plastics_ would be used. Such materials are not biodegradable. At the end of the election, the materials would be dumped around creating hazard to the environment. The learned Counsel further submitted that the Election Commission took into consideration the above mentioned factors and in exercise of the authority conferred on it by Article 243K believed that it is justified in imposing such a prohibition. It may be stated here that the respondent in the statement dated 6[th] October 2010 submitted in W.A.No. 1746 of 2010 placed reliance on the observation made by the Supreme Court in _**Mohinder Sing Gill vs. Chief Election Commissioner**_ ( AIR 1978 SC 851), i.e., “ a reservoir of power for the Commission to act for the avowed purpose of pushing forward, but not divorced from, a free and fair election”. 10. We now proceed to examine the first question regarding the nature and ambit of the power of the respondent **8** ## _**W.A. No. 1745 & 1746 OF 2010**_ . ## under Article 243K[*] of the Constitution of India. It stipulates that ............................................................................................ ''243K. Election to Panchayats: The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. (2) Subject to the provisions of any law made by the Legislature of a State that conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine. Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). (4) Subject to the provisions of this constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to or in connection with, elections to the Panchayats.” ................................................................................................................ **9** ## _**W.A. No. 1745 & 1746 OF 2010**_ . superintendence, direction and control of the preparation of electoral rolls for and the conduct of all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. It is also provided that the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor and are prescribed by Legislature of a State. It further provides that the State Election Commissioner shall not be removed from the office except in the manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. Article 243 K is similar to the Article 324, which authorises superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President. Powers of the Election Commission functioning under Article 243K are held to be similar to those of the Election Commission functioning under Article ## _**W.A. No. 1745 & 1746 OF 2010**_ . ## **10** 324 of the Constitution of India. The Supreme Court held in _**Kishansing Tomar vs. Municipal**_ [(2006)8 SCC 352)] held as follows: _“25._ From a reading of the said provisions it is clear that the powers of the State Election Commission in respect of _conduct of elections_ is no less than that of the Election Commission of India in their respective domains. ” 11. No doubt that the powers of the Election Commission functioning either under Article 243K or 324 are sweeping in so far as they are concerned with superintendence and control of election process. But it does not mean that there are no limits to the powers of Election Commission functioning either under Article 243K or 324 of the Constitution of India. Under the provisions of the Constitution of India nobody is recognised as having such unlimited and untenable powers. The reliance upon the observation made by the Supreme Court in _**Mohinder**_ ## _**W.A. No. 1745 & 1746 OF 2010**_ . ## **11** ## _**Sing Gill vs. Chief Election Commissioner**_ ( **AIR 1978 SC** **851** ), that Article 324 is a reservoir of power, is because of the failure of the respondent to realise the true import of the statement. The respondent failed to realise the implication of latter part of the statement, i.e, such power is to be utilised for the avowed purpose of pushing forward but not divorced from, a free and fair election. The limits of the reservoir of powers of Commission were pointed out by the Supreme Court in the decisions in _**Election Commission of India vs. State Bank of India (**_ AIR 1995 SC 1078 ) and in _**Election Commission of India vs. St. Mary's School and others (**_ 2008 (2) SCC 390). ## 12. In _**Election Commission of India vs. State Bank**_ _**of India (**_ **AIR 1995 SC 1078** ), the question before the Court was whether the Election Commission can requisition the service of the employees of a Bank (no doubt a Nationalised Bank). The Supreme Court held that the Election Commission did not have such power. It took note of the fact that the Constitution and Representation of the People Act oblige both the President **12** ## _**W.A. No. 1745 & 1746 OF 2010**_ . and Governor of the State to make available such staff as requisitioned by the Election Commission. The Court held that the requisition must necessarily be of somebody who is employed either under the Union of India or under the State, in other words, popularly known as civil servants. At paragraph 18, the Supreme Court posed the question as follows: _“18. We assume that the powers of the Election Commission under Article 324 are plenary. Therefore, the Election Commission may issue any direction in the matter of conduct of elections. But the question is, in the garb of conduct of elections, can the Election Commission usurp the power not vested in it?”_ ## At paragraph 21, the query was answered as follows: _“21. Article 324 does not enable the Election Commission to exercise untrammelled powers. The Election Commission must trace its power either to the Constitution or the law made under Article 327 or Article 328. Otherwise as was held by this Court in Digvijay Mote's case (1993 AIR SCW 2895) (supra) (in which one of us, Mohan, J was a party) it would become an imperium in imperio which no one is under our constitutional order”_ and held that the requisition made by the Election Commission **13** ## _**W.A. No. 1745 & 1746 OF 2010**_ . was illegal. 13. Coming to the decision in _**Election Commission of India vs. St. Mary's School and others**_ (2008(2) SCC, 390), the question before the Supreme Court was whether the service of school teachers could be requisitioned by the Election Commission, when such requisitioning has the effect of hampering the normal educational process. Once again, it was argued before the Supreme Court that the authority of the Election Commission to requisition the service of the employees of the State cannot be restricted on the ground not only of the constitutional authority of the Election Commission but also having regard to the fact that the Election Commission discharges a constitutional obligation of conducting elections which is a basic feature of democracy under the Constitution of India. 14. The Supreme Court while recognising the importance of the obligations of the Election Commission to conduct election and also the need to provide the Election Commission with necessary infrastructural support by the State, held that **14** ## _**W.A. No. 1745 & 1746 OF 2010**_ . discharging of a constitutional obligation of the Election Commission shall not be in derogation of another constitutional imperative , ie., providing education to the children, which is a recognised fundamental right under Article 21A of the Constitution of India. Therefore the Supreme Court held that though the Election Commission has power to requisition the service of the teachers , it should be done , as far as possible in a manner not to hamper the normal educational process. The above decisions make it clear that the power of the Election Commission is not an untrammeled power. 15. In the light of the above judgment, the only query required to be answered is whether the impugned decision is a decision taken for the purpose of pushing forward the election process in a free and fair manner or for a purpose divorced from it. 16. The learned Counsel for the respondent placing reliance on the decision rendered in _**Common Cause vs. Union of**_ _**India**_ **(1996 (2) SCC 752** ) argued that the Election Commission has wide ranging powers, which cannot be likely to **15** ## _**W.A. No. 1745 & 1746 OF 2010**_ . be interfered with so long as the powers are exercised for public purposes. In the above mentioned case, the Supreme Court was considering obligation of the political parties to furnish returns of the income tax and the failure of the political parties to comply with such obligations and the inaction of various authorities under the Income Tax Act in implementing the law. While declaring the legal obligations of the political parties to submit periodic returns under Section 13A of the Income Tax Act, the Supreme Court took note of the fact that under the Scheme of the Representation of the People Act, candidates contesting the elections are required to maintain accounts of expenditure incurred by them. The Court also noted the declaration under the Representation of the People Act that the expenditure incurred by the political party in connection with the election of a candidate sponsored by that political party does not form part of the expenditure of the candidate. The Supreme Court opined that the periodic returns contemplated under the Income Tax Act would have evidently value in examining the truthfulness of the accounts maintained by the candidates. The **16** ## _**W.A. No. 1745 & 1746 OF 2010**_ . Supreme Court therefore observed that in the interest of maintaining purity of election process it is essential that the Election Commission of India should also be entitled to call for such information regarding the accounts of the political parties. We are of the opinion that this decision in no way supports the case of the impugned order. 17. We presume for the time being that the plastic materials such as the ones banned by the impugned proceedings are not environmental friendly. But the use or otherwise of such materials is not confined only to election process, i.e., in connection with the publicity by various candidates contesting in the election. Such material is used for innumerable other purposes, like commercial advertisements of Cinema etc. If the use of such materials in connection with other purpose is not prohibited by law, we do not understand the justification given for such prohibition when it comes to the case on hand, ie., use of such materials in the context of publicity for election. 18. The learned Counsel for the respondent, Mr. Murali Purushothaman attempted to justify the prohibition on the **17** ## _**W.A. No. 1745 & 1746 OF 2010**_ . ground that the volume of the material used in the short span of the election process would be much higher than the use of such materials compared to other purposes. We find it difficult to accept the said justification. If really the State or any other competent body who is entrusted to deal with the issue is of the opinion that the use of plastic materials is required to be prohibited or use of such materials beyond a particular limit is required to be regulated, it is for the competent body to make appropriate law in that regard but not for the Election Commission to prohibit the use by an executive order. In our opinion, the said justification is wholly unconnected with the responsibilities entrusted to the Election Commission . 19. In view of the conclusion on the first question, we are of the opinion that consideration of the other question as to whether the impugned decision of the respondent is violative of fundamental right of either or both of the writ petitioners under Article 19(1) (a) and (g) is unnecessary. Legality of an order depends upon various factors such as (i) competence of the person making the order ; (ii) whether the order has the effect **18** ## _**W.A. No. 1745 & 1746 OF 2010**_ . of infringing the legal rights either guaranteed by the Constitution or created by any other law. In view of our conclusion that the order is beyond competence of the respondent, we are of the opinion that a further enquiry whether it is also violative of the fundamental rights of the appellants is unnecessary. In the result, both the appeals are allowed. Consequently, the Writ Petitions are allowed as prayed for declaring the impugned prohibition as beyond the competence of the respondents. **J. CHELAMESWAR, CHIEF JUSTICE.** **P.R. RAMACHANDRA MENON, JUDGE.** lk