BHARAT KUMAR K PALICHA Vs. STATE OF KERALA

JUDGEMENT

(1.) These Original Petitions essentially seek the relief of a declaration that the calling for and the holding of what has come to be known as 'bundh' is unconstitutional and is hence illegal. O. P. 7551 of 1994 is filed by two citizens who are generally carrying on their avocation in Cochin. O. P. 12469 of 1995 is by the various Chambers of Commerce in the State. In O. P. 7551 of 1994, it is sought to be declared as especially violative of Articles 19 and 21 of the Constitution and also in contravention of the Directive Principles of State Policy embodied in the Constitution and the fundamental duties enumerated in the Constitution. Among the consequential reliefs sought for in the Original Petitions a declaration is also sought that the calling for and holding a bundh is also a penal offence under the Indian Penal Code and is liable to be declared as such. In O.P. 7551 of 1994 in addition to the State and the Director General of Police, live registered All India political parties are also impleaded as respondents. The respondents in O. P. 12469 of 1995 are also the political parties except that the Indian Union Muslim League is also impleaded therein as a respondent. The President of the National Organisation for Consumer Education and research was subsequently impleaded as an additional respondent in the Original Petition.

(2.) According to the petitioners calling for a bundh entails exhortion to violence and physically restraining others who are citizens of the country and hence it is an illegal activity and cannot be supported as a fundamental right of freedom of speech and expression or of assembling peaceably and without arms protected by article 19(1)(a) and (b) of the Constitution. The petitioners further complain that by the calling of the bundh and the holding of it, citizens are prevented from attending to their avocations and the traders are prevented from keeping open their shops or from carrying on their business activities. It is also contended that the workers are prevented from attending to work in the factories and other manufacturing establishments leading to loss in production leading to national loss. It is also contended that with a view to purvey terror, the organisers of the bundh also indulge in wanton acts of vandalism like destruction of Government property and transport vehicles and even private cars and two wheelers. These illegal acts cannot be recognised as part of the right of any person protected by Article 19(1) of the Constitution. It is also contended that the right of the political parties, if any, to hold demonstration or to show protest cannot extend to preventing the citizens of the country from exercising their fundamental rights of attending to their business, their studies and their avocations and in such a context, the calling for and the holding of 'bundhs' ought to be declared illegal. It is complained that neither the State nor the police force takes steps to prevent violence and to prevent coercion so that whenever a bundh is called, a citizen, out of fear for his life and his property, is forced to remain indoors. No person has a right to prevent a citizen from going to the hospital or from seeking medical aid and no person or organisation has a right to prevent the doctors from attending to their duties by attending on their patients and those who come to them for emergency treatment. The right to go to the railway station, the aerodrome and to the bus terminal could not be prevented in the guise of a protest at the instance of some of the political organisations and when such prevention is achieved by threat sometimes naked and visible and sometimes by psychological means and by the stalking menace the same has to be prevented. Since the State and its machinery has failed the citizen, by doing nothing to ensure that he is enabled to enjoy his fundamental freedom and his fundamental rights, the petitioners are compelled to approach this Court by invoking its jurisdiction under Article 226 of the Constitution. The petitioners submit that the Court in exercise of its jurisdiction under Article 226 of the Constitution has not only the right but the duty to protect the citizen and his fundamental rights and fundamental freedoms guaranteed to him under Articles 19 and 21 of the Constitution. The court is reminded that though it cannot direct the Legislature to legislate or the executive to introduce a legislaiton it has the duty to direct the executive to ensure that the rights of the citizens are not trampled upon by a political organisation or a violent minority and in that context to issue any appropriate direction that may be required in the circumstances of the case.

(3.) The Communist Party of India (Marxist) and the Communist Party of India have filed counter-affidavits in O.P. 7554 of 1994. In addition to questioning the entitlement of the peittioners to invoke the jurisdiction of this court under Article 226 of the Constitution and finding fault with the nature of the reliefs prayed for in the Original Petition, the essential contention raised is that the right to call for a bundh is a fundamental right of a political party and it is protected by Article 19(1)(a) and (b) of the Constitution. The Court is reminded that its duty is to protect fundamental rights and not to abridge them and any imposition of restriction on the right of a political party to call for a bundh would be the violation of the fundamental right of the political party or organisation. It is also sought to be disputed that the calling for a bundh includes either expressly or by implicaiton a call for violence and it is maintained that no threat is held out or coercion brought to bear on any citizen to participate in the bundh. It is attempted to be contended that the holding of a bundh is a spontaneous expression of protest against a national calamity or against the exploitation of the people. An attempt is made to deny the allegation that whenever a bundh is sponsored, it is accompanied by violence.