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Youth Congress Hartal: Kerala HC Initiates Suo Motu Proceedings [Read Order]

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18 Feb 2019 8:25 AM GMT
Youth Congress Hartal: Kerala HC Initiates Suo Motu Proceedings [Read Order]
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The High Court of Kerala has initiated suo motu proceedings against the state wide Hartal announced by Youth congress today. 

State wide Hartal was announced after two Youth Congress workers, Kripesh and Sarath Lal were hacked to death in Kasargod by unidentified assailants. The bench observed that those who called the Hartal would face severe consequences as it is in sheer violation of the court order. The bench has also issued notice to three youth congress office bearers including its state president Dean Kuriakose. The court also enquired about the steps taken by the state against Hartals. 

  • The key directions are :

    • The police establishment in the state shall ensure that adequate measures are put in place to prevent any damage/destruction to public/private property of Government/citizens who do not support the call for hartal. In particular, the police shall also take steps to monitor any such activity by the supporters of illegal hartal and shall place before this curt a report giving details of such instances and the extent of damage if any, caused to public/private property. 
    • Police establishment shall also keep in mind the provisions of relevant penal laws, including provisions of Kerala Prevention Of Damage To Private Property And Payment Of Compensation Ordinance, 2019 as also provisions of Section 188 of IPC while registering cases against those found to flouting the law.
    • Adequate police protection shall be granted to all public utility services that apprehend violence at the hands of those supporting illegal hartal.
    • Any person who acts/refuses to act out of deference to a call of an illegal hartal, in effect abets the illegal act and therefore, cannot cite the call for hartal as a justification for their action/inaction.
    • Inaction on part of transport operators in not operating their vehicles or the educational authorities in not holding examinations on the scheduled dates, apart from being viewed as a contumacious act, will also expose them to adverse consequences under the respective statutes by which their actions are regulated.

    Last month, the Bench of Chief Justice Hrishikesh Roy and Justice A K Jayasankaran Nambiar ordered that hartals can be declared only after giving prior notice of seven days. The Court had held that within the 7 days, any citizen can challenge the declaration of hartal.

    The Court had also added that the damages to public and private properties caused during hartals will be realized from the party or association which called for it and the Government was also directed to explore the option of regulating hartals by appropriate legislation.

    Some HC/SC Judgments on 'Hartal'

    1997: Bharat Kumar K. Palicha and Anr. Vs. State Of Kerala

    In this case, the High court held: "Calling for a bandh by any association, organisation 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."

    1997: Communist Party Of India (M) vs Bharat Kumar {Kerala HC) 

    Later, the Supreme Court confirmed the HC Judgment and held "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 a n 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 may ways. We may 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 the view taken by the High Court".

    2004: James Martin v. State of Kerala (SC)

    In this case, it was observed 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.

    2004: George Kurian vs State Of Kerala

    In this case, it was observed that hartal should not obstruct others' fundamental rights A Full Bench observed: 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….Those who call for 'hartals' or strikes by whatever reason must 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 may go for work and that fundamental right of others to move about will not be affected. They must also instruct their supporters to see that no coercion or force is used for compelling others to participate in the strike or 'hartal'."

    2008: The Proper Channel vs. Managing Director, KSRTC

    The Kerala HC called for appropriate legislation to curb hartal and observed:"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."

    2018: State of Kerala vs. Chandra Bose

    Last year, while upholding the payment of compensation of Rs. 7 lakhs to a driver who lost his eye in stone- pelting by an agitating mob owing allegiance to a political party which called for a hartal, the High court said: "As to the State's liability, indeed, it goes without saying that the State ought to, as a matter of primary responsibility, protect lives of citizens. And its failure to reign in those political parties that take public to ransom amounts to culpable omission in its sovereign function- protecting the citizens." 

    Read Order

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