WP(C).No.32502 of 2017 (S)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941 ## WP(C).No.32502 OF 2017 (S) ## PETITIONER (PARTY IN PERSON): ADVOCATE SOJAN PAVIYANOSE, AGED 43 YEARS MULAVANA HOUSE MAMMOODU.P.O., CHANGANASSERY, KOTTAYAM- 686 553 BY ADV. SOJAN PAVIYANOSE (PARTY IN PERSON) ## RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001 2 RAMESH CHENNITHALA OPPOSITION LEADER, CANTONMENT HOUSE, PALAYAM.P.O., THIRUVANANTHAPURAM- 695 033 3 STATE POLICE CHIEF POLICE HEAD QUARTERS, THIRUVANANTHAPURAM- 695 010. R1, R3 BY SENIOR GOVERNMENT PLEADER SRI.P.NARAYANAN R2 BY ADV. SRI.T.ASAFALI R2 BY ADV. LALIZA T.Y THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.32502 of 2017 : 2 : ## JUDGMENT Dated this the 10th day of February 2020 ## S. Manikumar, CJ Mr.Sojan Paviyanose, a practicing lawyer, as party in person, has filed the instant public interest writ petition, seeking for a declaration that the opposition leader of Kerala Legislative Assembly Mr.Ramesh Chennithala is a public servant and that his call for hartal on 16.10.2017 is punishable under Section 166 of the Indian Penal Code, 1860. 2. Party in person has further sought for a direction to the State Police Chief, Police Head Quarters, Thiruvananthapuram, respondent No.3 herein, to register an FIR against the opposition leader, Thiruvananthapuram (respondent No.2), for making a call for hartal on 16.10.2017, and investigate. 3. Party in person has also sought for a declaration that the 2[nd] respondent should be personally liable for all the loss, including financial loss to the State, caused due to hartal on 16.10.2017 and to direct the Chief Secretary, State of Kerala, Thiruvananthapuram (respondent No.1), to recover the same from the 2[nd] respondent. 4. On this day, when the matter came up for hearing, Mr.Sojan Paviyanose as party in person submitted that he is not pressing the prayer W.P.(C) No.32502 of 2017 : 3 : Nos.1 and 2 in the writ petition. He has made submissions relating to the third prayer namely, to declare that the opposition leader, Thiruvananthapuram (respondent No.2) should be personally liable for all the loss, including the financial loss to the State, caused due to hartal on 16.10.2017 and to direct the Chief Secretary, Government of Kerala (respondent No.1), to recover the same from the 2[nd] respondent. 5. A detailed counter affidavit has been filed by the 2[nd] respondent, wherein it is contended that a peaceful voluntary participation opposing antipeople policies of the Central and State Governments was called for. Reliance has been made on a newspaper report [Exhibit-R2(b)], which reads thus: “Announcing that the hartal called by the UDF on Monday against the ‘anti-people policies of Central and State Governments’ would be held as planned, opposition leader Ramesh Chennithala said the front was expecting only ‘voluntary participation’ by the people in the hartal. In a statement issued here on Friday Chennithala urged UDF workers not to use force or resort to any sort of violence to make the hartal a success. Party workers should not disrupt normal life or infringe upon the constitutional rights of citizens, including their freedom of movement”. 6. Apart from that, the following contentions were raised by the 2[nd] respondent in his counter: W.P.(C) No.32502 of 2017 : 4 : (A) From the above, the bonafide of calling for a peaceful agitation is very evident and that the call for a peaceful hartal made by UDF without using any force, compulsion or coercion and the appeal made to the people urging them participate in the hartal voluntarily by abstaining from work cannot be branded as an unconstitutional or illegal act. The intention of UDF by calling for a peaceful hartal was only to demonstrate the collective indignation of the people against the skyrocketing fuel prices and other anti-people policies of governments at the state and centre. By publishing Exts.R2(a) and R2(b) on the preceding day of the hartal and also by publishing a detailed articles in all important dailies it had given clear message to the people in an unambiguous terms that there was no compulsion to participate in the hartal by closing down the shops or by abstaining from work, but only a voluntary participation alone was solicited that too in a total peaceful manner without indulging in any violent methods. By publishing such an appeal in the medias party workers were cautioned not to disrupt normal life or infringe upon any of the constitutional rights of citizens including their freedom of movement of those who are not co-operating with hartal. From the past experience of hartals and bandhs held in the state, it is very relevant to note that no political party or association which called for hartals or bandhs in the history of the state had never issued any statements calling upon their workers not to force or compel people to shut down their shops or keep vehicles off the road and the calls for hartals were only for voluntary abstinence from work. W.P.(C) No.32502 of 2017 : 5 : B) It is true that in catena of decisions Hon’ble Supreme Court and this Hon’ble Court had deprecated the practice of calling for violent Bandhs and Hartals which paralyzed the normal life of people causing untold hardship and miseries to them and hence those violent hartals and bandhs were declared as illegal and unconstitutional by constitutional courts. It is very significant to note that in all those hartals and bandhs there were no appeals to their workers and people made by the political parties or organizers in advance to the effect that it was only a voluntary abstinence solicited and no case may be. Absence of such appeals would indicate that the call was for forceful closing of shops and keeping the vehicles off the road on the day of bandh or hartals, as the case may be, which would definitely infringe the constitutional rights of the citizens. UDF is totally against such type of violent agitations for which no political party or organizations have any such right to do so. In order to make clear that the aim of UDF was nothing but a peaceful and non-violent mode of people’s voluntary abstinence from work and not an act of compulsion or coercion. C) Reliance has been made to a decision of this Court in **George Kurian v. State of Kerala** (2004 KHC 660 : 2004 (2) KLT 758), wherein it was declared “..that the enforcement of a hartal call by force, intimidation, physical or mental and coercion would amount to an unconstitutional act and a party or association or organization that call for a hartal has no right to enforce it by resorting to force of intimidation..” The law laid down by this Hon’ble Court in the judgment (supra) and other similar judgments on the subject which were approved by the Apex Court cannot be construed that any appeal for W.P.(C) No.32502 of 2017 : 6 : observing peaceful hartals, that too for upholding a public cause and urging the people for voluntary abstinence from Work Without indulging in any sort of violent methods, force or compulsion as mark of protest against government is an illegal act. D) Respondent No.2 has further contended that he has committed disobedience of law and thus committed an offence punishable under Section 166 of IPC is not correct. Reliance has been placed on the decision of a Hon'ble Full Bench of this Hon’ble Court in **Sudin S.** v. **Union of India** (2015 (2) KLT 296: AIR 2015 Ker. 49), wherein it is held that the act of calling for hartal or strike cannot be termed as an offence and this Hon’ble Court vide judgment (supra) refused the prayer for total banning of calls for hartals/ strike. E) Respondent No.2 has further contended that people voluntarily abstained from work and demonstrated their ire and indignation against the anti-people policies of and State Governments, especially in the matter of fuel price hike. For the abovesaid reasons, the 2[nd] respondent sought for dismissal of the writ petition. 7. Referring to the counter affidavit filed by the 2[nd] respondent, against whom reliefs were sought for, Mr. T.Asaf Ali, learned counsel for the 2[nd] respondent, submitted that call given was to conduct a peaceful hartal. He further submitted that as there was no call for forceful obstruction of people from work or for any other illegal activity, question of fastening civil or criminal W.P.(C) No.32502 of 2017 : 7 : liabilities on the 2[nd] respondent does not arise. He relied on the Full Bench decision in **Sudin S.** (cited supra) and a decision of the Hon'ble Supreme Court in **Superintendent, Central Prison Fatehgarh and Another** v. **Dr. Ram Manohar Lohia** reported in AIR 1960 SC 633. 8. The Additional Director General of Police (HQ), on behalf of the 3[rd] respondent, has filed a statement contending as follows: “A. On 12/10/2017, this Court had directed the State to file a statement as to the actions taken to avert untoward incident due to Harthal called on 16/10/2017 by the second respondent and also the action taken in compliance with the directions of the Hon'ble Full Bench of this Court in the matter. B. By order dated 12/10/2017, this Court directed the 3[rd] respondent to publicize steps proposed to be taken by the Government to protect a life and property of the people so as to dispel the fear psychosis instilled in the public. This Court also directed the State of Police Chief to advertise in print media of the steps proposed to be taken so that the public will be aware of the steps that are being taken by the Government to protect the life and property of the people. In compliance of the abovesaid interim order, press release was issued by this respondent vide communication No.196/PR/PIC/PHQ/2017 dated 5/10/2017 and the same was publicized in print media and also in electronic media vividly explaining the security measures taken by the police to W.P.(C) No.32502 of 2017 : 8 : maintain law and order and to dispel the fear of the public with respect to the disruption of normal activity on the Harthal day. C. Police had taken strict action against those who attempted to disrupt the normal public life on the Harthal day and altogether 89 cases were registered throughout the State with hundreds of Harthalers as accused. The details of the crime registered are tabulated hereunder. |SI.<br>N0|Districts|No.of<br>crime|Brif of the case|Losses/<br>Damages<br>caused| |---|---|---|---|---| |1|Thiruvananthapuram|6|The cases include trespassed into<br>Nemom Post Office and causing<br>obstructions to the public,<br>squatting in public road and<br>causing damage to KSRTC buses<br>etc. by pelting stones|Rs.11,700| |2|Kollam|14|The cases includes trespassing<br>into Thevalakkara Post Office and<br>causing damages to computers,<br>UPS, Window glasses and Doors<br>and obstructing the public<br>servants from discharging their<br>duties, squatting in public road<br>and causing obstructions, pelting<br>stones and causing damage to<br>KSRTC buses, and private<br>vehicles bearing Nos. KL 02-AK--<br>1261, KL 16-B No.7375 etc.|Rs.2,69,000| |3|Alappuzha|11|Against pelting stones and<br>breaking the front glass of KSRTC<br>bus in front of PWD guest house,<br>Kayamkulam, pelted stones and<br>broken the rare emergency exit<br>glass of KSRTC bus at Madhava<br>Junction, Harippad, forcefully|Rs.1,12,000| : 9 : ## W.P.(C) No.32502 of 2017 ||||closed down ESAF bank at<br>Ambalapuzha, squatted on public<br>road and caused obstruction to<br>public.|| |---|---|---|---|---| |4|Kottayam|2|Against forcefully closing INDUS<br>IND Bank at Changanachery<br>squatting on Public road and<br>causing obstruction to public.|Nil| |5|ldukki|2|Against squatting on public road<br>and causing obstruction to public.|Nil| |6|Ernakulam|9|Against pelting stones on KSRTC<br>bus at Padivattom and damaging<br>front glass, trespassed into<br>standard<br>chartered<br>bank,<br>Palarivattom|Rs. 10,000| |7|Thrissur|4|Against forcefully pulled down<br>shutters of Erumapetty Service<br>Co-operative Bank, squatted on<br>public <br>road <br>and <br>caused<br>obstruction to public.|Nil| |8|Palakkad|1|Against pelting stones and<br>caused damaging to KSRTC bus<br>at Nomikode, Kasaba Police<br>Station Limits|Rs.50,000| |9|Malappuram|22|Unlawfully assembled at Tanur<br>Town and blocked the vehicle KL<br>41 D 2908 and assaulted the<br>driver and caused damage to<br>vehicle. At Kottakkal, KL- 10- AK-<br>9603 auto rickshaw was damaged<br>and the driver was assaulted and<br>squatted on public road and<br>caused obstruction to public.|Rs.28,500| |10|Wayanad|3|Against squatting on public road<br>and causing obstruction to public|Nil| |11|Kozhikode|7|Against squatting on public road<br>and causing obstruction to public|Nil| |12|Kannur|2|Against squatting on public road<br>and causing obstruction to public|Nil| W.P.(C) No.32502 of 2017 : 10 : |13|Kasargod|6|Against squatting on public road<br>and causing obstruction to public|Nil| |---|---|---|---|---| D. There were incidents of the Harthal supporters obstructing public offices like post office and KSRTC Depots and had pelted sinned and caused damages to KSRTC buses, squatted on public road causing obstruction of vehicular traffic. KSRTC had to avoid some services due to the obstruction caused by the Harthal supporters and had incurred loss on-that account also. A total loss of Rs.5,32,000/- were caused to various departments due to the damages by the Harthal. There were some incidents of Harthalers obstructing and causing damage to private vehicles at Kollam and Malappuram districts. Police had intervened in all incidents and had provided adequate protection to the public and had removed the obstructions caused by the Harthal supporters. A total of 89 crimes had been registered in the State and the final reports are being filed in these matters and the police seriously prosecuting the cases. E. The 3[rd] respondent had given instructions to the Director General of Police, North Zone, Additional director General of Police, South Zone, Range Inspector General's of Police and District Police Chief to provide adequate protection to KSRTC, other public transport vehicles and important/vital installation of KSEB and various officers throughout the State and also to curb forceful closure of shops and establishments. It is submitted that instructions were issued to mobilize adequate force and to deploy them in law and order duty in connection with Harthal. The losses sustained due to the violent W.P.(C) No.32502 of 2017 : 11 : incidents in Hathal have been quantified and have also been reported to the jurisdictional Courts for taking cognizance of the offence. It is submitted that the state had taken all possible measures to comply with the directions issued by the full bench of this Hon'ble Court and the interim order passed by this Court on 12/10/2017. The State will ensure that prosecution will be seriously pursued and the culprits will be brought before law and losses sustained by the State and public will be realized through appropriate legal proceedings.” 9. On the aspect of payment of compensation, Mr. P.Narayanan, the learned Senior Government Pleader, also invited our attention to paragraph 79 of the Full Bench decision in **Sudin S.** (cited supra). 10. Heard learned counsel for the parties and perused the materials available on record. 11. In **Dr. Ram Manohar Lohia** (cited supra), there was a call by a political leader, who alleged to have made speeches instigating the audience not to pay enhanced irrigation rates to the Government. He was arrested. A writ of Habeas Corpus was filed. As there was difference of opinion, there was reference to a third Judge, on the following two points: - (i) Was the provision of Section 3 of the U. P. Special Powers Act of - 1932 making it penal for a person by spoken words to instigate a class of W.P.(C) No.32502 of 2017 : 12 : persons not to pay dues recoverable as arrears of land revenue, inconsistent with Art.19(1)(a) of the Constitution on the 26[th] of January, 1950? and (ii) If so, was it in the interest of public order?. Learned single Judge, answered the questions as hereunder: Question No.(i) “The provision of Section 3 of the U. P. Special Powers Act, 1932, making it penal for a person by spoken words to instigate a class of persons not to pay dues recoverable as arrears of land revenue, was inconsistent with Art.19(1)(a) of the Constitution on the 26[th] January, 1950.” Question No.(ii). “The restrictions imposed by Section 3 of the U. P. Special Powers Act, 1932, were not in the interest of public order.” 12. Thereafter, Habeas Corpus petition was allowed and the detenue was released. Superintendent, Central Prison, Fatehgarh, went on appeal to the Hon'ble Supreme Court. Section 3 of the U. P. Special Powers Act, 1932, the subject matter of the appeal, is reproduced: “S.3: Whoever, by word, either spoken or written, or by signs or by visible representations, or otherwise, instigates, expressly or by implication, any person or class of persons not to pay or to defer payment of any liability, and whoever does any act, with intent or knowing it to be likely that any words, signs or visible representations containing such instigation shall thereby be communicated directly or indirectly to any person or class of persons, in any manner whatsoever, shall be punishable W.P.(C) No.32502 of 2017 : 13 : with imprisonment which may extend to six months, or with fine, extending to Rs.250, or with both.” ## 13. On the validity of the said Section, at paragraph 14 of the abovesaid judgment, the Hon'ble Apex Court held thus: “We shall now test the impugned section, having regard to the aforesaid principles. Have the acts prohibited under S.3 any proximate connection with public safety or tranquility? We have already analysed the provisions of S.3 of the Act. In an attempt to indicate its wide sweep, we pointed out that any instigation by word or visible representation not to pay or defer payment of any exaction or even contractual dues to Government, authority or a landowner is made an offence. Even innocuous speeches are prohibited by threat of punishment. There is no proximate or even foreseeable connection between such instigation and the public order sought to be protected under this section. We cannot accept the argument of the learned Advocate General that instigation of a single individual not to pay tax or dues is a spark which may in the long run ignite a revolutionary movement destroying public order. We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations. It is said that in a democratic set up there is no scope for agitational approach and that if a law is bad the only course is to get it modified by democratic process and that any instigation to break the law is W.P.(C) No.32502 of 2017 : 14 : in itself a disturbance of, the public order. If this argument without obvious limitations be accepted, it would destroy the right to freedom of speech which is the very foundation of democratic way of life. Unless there is a proximate connection between the instigation and the public order, the restriction, in our view, is neither reasonable nor is it in the interest of public order. In this view, we must strike down s. 3 of the Act as infringing the fundamental right guaranteed under Art. 19(1)(a) of the Constitution.” ## 14. In **Sudin S. v. Union of India** (cited supra), the Hon'ble Full Bench of this Court held thus: - “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 W.P.(C) No.32502 of 2017 : 15 : directions and guidelines issued by the Supreme Court in 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 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 authorities may be W.P.(C) No.32502 of 2017 : 16 : 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. “ Petitioner has given up prayers 1 and 2. In the light of the above discussion and the decision in **Sudin S.** (cited supra), we cannot grant the third prayer sought for by the petitioner under Article 226 of the Constitution of India. Writ petition fails and it is dismissed. All pending interlocutory applications shall stand closed. sd/- **S.MANIKUMAR CHIEF JUSTICE** sd/- **SHAJI P. CHALY JUDGE** jes W.P.(C) No.32502 of 2017 : 17 : ## APPENDIX ## PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE NEWS REPORT DATED 5.10.2017 PUBLISHED IN THE HINDU. ## RESPONDENTS' EXHIBITS: EXHIBIT R2(a) A TRUE PHOTOCOPY OF THE CLIPPINGS PUBLISHED IN THE NEW INDIAN EXPRESS DAILY DT.15.10.2017 EXHIBIT R2(b) A TRUE PHOTOCOPY OF THE PRESS NOTE RELEASED ON 14TH OCTOBER 2017 WAS PUBLISHED BY THE TIMES OF INDIA DAILY ON 14TH OCT.2017. ANNEXURE R3(a) TRUE COPY OF THE PRESS RELEASE ISSUED BY THIS RESPONDENT ON 15.10.2017. ANNEXURE R3(a1) TRUE COPY OF THE ENGLISH TRANSLATION. // TRUE COPY // P.S. TO JUDGE