Case BriefsHigh Courts

Kerala High Court: The Bench of Sunil Thomas, J. dismissed a bail application filed by an individual under Section 438 CrPC, for being involved in acts of vandalism during hartal called by a political party.

Facts of the case were that a political party had declared a hartal in Kerala. The uncle of de facto complainant opened his shop despite the call for hartal. Defacto complainant went to the shop in the morning. Petitioner along with other persons abused him and caused damage to the movables in the shop. When the defacto complainant intervened, petitioner hit him on the head injuring his right eye. A case was registered against petitioner for offences punishable under Sections 143, 147, 294(b), 308, 323, 324 and 427 read with Section 149 of the Penal Code, 1860. Apprehending arrest, petitioner approached this court seeking anticipatory bail.

The Court noted that the aforesaid criminal acts were done by the petitioner under the cover of hartal called by a political party. Petitioner and his group’s act was nothing but sheer vandalism, under the guise of hartal. Call for hartal by any political party only gives the right to the members of that political party to withdraw themselves from their work as a protest. They may also persuade their fellow workers to withdraw from their work. But that does not empower them to commit criminal acts, much less, any act intended to interfere in the exercise of the fundamental right of any person to move freely anywhere in India and to carry on his trade or business anywhere in India. Reliance was placed on Full Bench decision of this Court in George Kurian v. State of Kerala, 2004 SCC OnLine Ker 42 where it was held that nobody can be compelled to participate in hartal and general strike.

Further, the Court also relied on the decision of the Supreme Court in Kodungallur Film Society v. Union of India, (2018) 10 SCC 713 where it was held that any mob violence and crime by self-appointed keepers of public morality, terrorizing common man without legal sanction and causing loss of life and destruction of property, should be dealt with seriously. It was opined that bail applications filed by persons charged with such offence should be dealt with circumspection.

In view of the above, anticipatory bail was rejected.[Vinod. P v. State of Kerala, 2019 SCC OnLine Ker 1012, Order dated 20-02-2019]

Case BriefsSupreme Court

Supreme Court: In the writ petition filed by Amar Singh where he asked the Court to declare that Para 2 of the 10th Schedule to the Constitution does not apply to an elected member of a House who has been expelled by his/her political party, the Bench of Dipak Misra and A.M. Khanwilkar, JJ placed the matter before the Chief Justice of India for constitution of a larger Bench. Amar Singh, having been expelled by the Samajwadi Party, had sought for a direction that his conduct would no longer fall within the acts that constitute a disqualification within the meaning of para 2(1)(a) and para 2(1)(b) of the Tenth Schedule to the Constitution. The larger Bench will be deciding the question as to the status in either House of Parliament or the State Legislatures of a Member who is expelled from the party which set him/ her up as a candidate for election.

Para 2 of the 10th Schedule to the Constitution provides for disqualification on ground of defection but does not specifically mention the expelled members, Hence, an important question had came before the Court in Amar Singh v. Union of India(2011) 1 SCC 210,  for consideration as to whether the members who are expelled from the membership of the parties which had set them up as candidates in the election, must be deemed to continue to belong to such party in view of Explanation (a) to paragraph 2(1) of the 10th Schedule. Also, when a Member of either House of Parliament is expelled by the party which had set him up as a candidate for election and he either joins another political party or forms his own party, can it be said that he had voluntarily given up his membership of the party in view of the legal fiction created by Explanation (a) to paragraph 2 (1) of the Tenth Schedule. The bench in that case had referred the case to a larger bench and the consequently, the larger bench had kept the questions open for decision in an appropriate case.

Earlier, in G. Viswanathan v. Tamil Nadu Legislative Assembly(1996) 2 SCC 353, the Court had held that even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as `unattached’. [Amar Singh v. Union of India, 2017 SCC OnLine SC 405, order dated 17.04.2017]

Case BriefsHigh Courts

Delhi High Court: Disposing of a petition which sought freezing of the symbol “elephant” as the reserved symbol of  Bahujan Samaj Party, the Court held that there is no power in the Election Commission of India under the Election Symbols (Reservation and Allotment) Order, 1968 to withdraw/freeze an election symbol once allotted and/or reserved for a recognised political party and the only manner in which the symbol once allotted/reserved is lost, is on loss of recognition.

The petitioner had sought to draw the attention of the EC to the practice of erecting at public places and at State expense, statutes of political functionaries and symbols of the the ruling party, especially in Uttar Pradesh and to freeze the symbol “elephant” under Clauses 6 and 6-A of the Symbols Order.

Observing that recognition as a political party carries a right to a reserved symbol, the Court held that it appears that a symbol once reserved for a recognised political party under the prevalent laws, cannot be taken away. This is certainly a lacuna and which, if the averments of the petitioner are correct, has indeed been exploited by BSP. The Court held that a political party in power cannot use development activities carried out by it and which the government in any case is expected to perform, to propagate its symbol or its leaders so as to come in the way of a free and fair election. The performance of a political party in governance should be allowed to speak for itself.

The Bench of Rajiv Sahai Endlaw, J.  issued the following directions to the EC:

  • within a period of three months, consider issuing appropriate direction/guideline within the meaning of Clause 16-A(b) of the Symbols Order preventing recognised political party in power from using public places and public funds for propagating its reserve symbol and/or its leaders, so as to come in the way of conducting of free, fair and peaceful election and to safeguard the interest of the general public and the electorate in future; and,
  • after issuing the said direction/guideline, within a further period of three months therefrom, consider whether the actions already done by the respondent BSP and as complained of by the petitioner are in violation of the said guideline and if finds so, to give an opportunity to the respondent BSP to undo the same, so as to in future not obstruct free and fair election and if the respondent BSP does not avail of the said opportunity, to initiate proceedings under Clause 16-A of the Symbols Order for withdrawal of recognition thereof.

[Common  Cause v. Bahujan Samaj Party, 2016 SCC OnLine Del 3787, decided on July 7, 2016]