PETITIONERS

1. SHRI.JOSE JACOB, S/O.JACOB,AGED 57 YEARS, INSPECTOR (RETD), KERALA STATE ROAD TRANSPORT CORPORATION, THODUPUZHA AND RESIDING AT OONNANAL HOUSE, VAZHAKULAM P.O., ERNAKULAM - 686 670.

2. C.K.RADHAKRISHNAN NAIR, S/O.KRISHNAN PANICKER, AGED 61 YEARS, INSPECTOR (RETD), KERALA STATE ROAD TRANSPORT CORPORATION, THODUPUZHA AND RESIDING AT CHEERANKUZHIYIL HOUSE, PUTHUPPARIYARAM P.O., ANGAMVETTI JUNCTION, THODUPUZHA - 685 684.

3. K.J.JOSEPH, S/O.JOSEPH,AGED 61 YEARS, INSPECTOR (RETD) KERALA STATE ROAD TRANSPORT CORPORATION, THODUPUZHA AND RESIDING AT KOCHUKAROOR HOUSE, KOLANI P.O., THODUPUZHA - 685 584.

4. K.M.AUGUSTINE,S/O.MATHAI, AGED 61 YEARS, INSPECTOR (RETD), KERALA STATE ROAD TRANSPORT CORPORATION, THODUPUZHA AND RESIDING AT KANJIRAKKATU HOUSE, PERUMPALLICHIRA P.O., THODUPUZHA - 685 608. 

BY ADV. SRI.N.UNNIKRISHNAN 

RESPONDENTS

1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, TRANSPORT (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

2. KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM - 695 023, REPRESENTED BY THE CHAIRMAN & MANAGING DIRECTOR.

3. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, THODUPUZHA DEPOT - 685 584. 

R1 BY GOVERNMENT PLEADER SRI.TOM K. THOMAS R2 & R3 BY SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC SMT.THUSHARA JAMES 

JUDGMENT 

Introduction: 

Microcosmically stated, numerous petitioners, in the autumn of their lives, have not been paid their pension. The employer, the Kerala State Road Transport Corporation (referred to as 'the Corporation'), proffers the reason of financial constraints faced by it on account of the burden imposed on it by the State, through one measure or another, in the name of socio-economic obligations required to be fulfilled by an instrumentality of the State - the introduction of statutory pension being one such measure. The State, in turn, states that it has no obligation to bail out the Corporation, which has to fend for itself, lest the other socio-economic measures of the State should suffer. The result: Deaths - at least going by the media reports - of exhausted, exasperated, and desperate destitutes, called retired employees.

2. Before undertaking macrocosmic adjudication of the issue, it is meat to make a reference to a study report on longevity and the economic ramifications on the constricted coffers of the nations, more particularly the emerging economies. "The world is on the cusp of a staggering rise in the number of old people, and they will live longer than ever before. Over the next 20 years the global population of those aged 65 or more will almost double, from 600m to 1.1 billion. The experience of the 20th century, when greater longevity translated into more years in retirement rather than more years at work, has persuaded many observers that this shift will lead to slower economic growth and "secular stagnation", while the swelling ranks of pensioners will bust government budgets. (A Billion Shades of Grey, The Economist, 24th April, 2014 issue) (emphasis added) When we examine the demographic profile of ageing India, in the years 2000-2050, the overall population of India will grow by 55%, whereas the population of people in their 60 years and above will increase by 326% and those in the age group of 80+ by 700% - the fastest growing group.

3. One eighth (1/8) of the World's Elderly Population lives in India. Most of them will never retire in the usual sense of the term and will continue to work as long as physically possible, inevitably though the disability to produce and earn will decline with age. The absence of savings will result in sharp decline in living standards, and for many it can mean destitution. Therefore, this is the challenge of old age income security in India. (National Policy for Senior Citizens, March 2011, Government of India) 

The Facts: 

4. When a batch of writ petitions has been filed by numerous retired employees, and in one instance the writ petition having been filed by an association of retired employees, after entering appearance, neither the Corporation nor the Government joined the issue disputing the claim of the petitioners. Both the entities, however, started passing the buck showing an accusing finger towards each other as to who should own up the responsibility to pay the pensionary benefits to a few thousands of retired employees of the Corporation. At any rate, both the entities maintained unanimity in one issue: the paucity of funds and the precarious financial position of the Corporation.

5. Having on one end of the scales the hapless retired employees, and the financial constraints of the state on the other, this Court, all along, has not deemed it desirable to issue any peremptory and precipitous directions. Instead, it has gone on till this day issuing interim directions intermittently, thus nudging the Corporation and the Government towards their discharging the statutory obligations. Today too, this Court took up the matter with a view to ensuring some more compliance with numerous earlier directions, thereafter issuing one more direction with another time frame, thereby facilitating progressive amelioration of the petitioners' hardship. It was not to be.

6. The learned Special Government Pleader, having filed an additional counter affidavit, without mincing words, declared before the Court that the Government has taken a decision not to provide any more financial assistance to the respondent Corporation, inasmuch as the Government's efforts to bail it out have been affecting other developmental activities of the state. According to the learned Special Government Pleader, so far the Government paid to the respondent Corporation ₹1263 crore in the last five years and that the Government is prepared to write off the interest. He has also submitted that a proposal is also pending to convert this financial assistance as equity of the Government in the Corporation.

7. When faced with a query regarding huge amounts it allegedly owed to the Corporation, the learned Special Government Pleader has submitted that so far the Corporation has not provided any accurate data or statements of account concerning the Government's dues on account of travel concessions et cetera. He has also submitted that, the earlier demand of the Corporation stood rejected on the ground that its claim was riddled with inaccuracies and infirmities.

8. With the stand of the Government thus declared, as the Corporation had all through been looking to the Government for funds, adjudication of the issue on merits became essential, thus putting quietus to this seemingly intractable issue.

9. Beginning with 12.02.2014, to ensure at least partial disbursement of the retirement benefits, this Court went on issuing interim directions on the following days: 18.03.2014, 22.042014, 29.05.2014, 16.06.2014, 30.06.2014, 18.07.2014, 24.07.2014, 07.08.2014, 25.08.2014 and 27.10.2014 - the interim directions given 07.08.2014, 25.08.2014 and 27.10.2014 being more elaborate than the other ones.

10. As I have already observed, there is not much of a factual matrix to refer to in all these writ petitions, save that all the petitioners have a common grievance that their pensionary benefits have not at all been paid to them or paid very irregularly, with a pronounced element of uncertainty, thus placing all of them in a state of perpetual anxiety and tension when they would be getting the next instalment of their pension.

11. Though there have been eighteen writ petitions, in a few of them arguments have been advanced by the learned counsel for the petitioners; in the rest of the matters, the same arguments have been adopted. 

W.P.(C)No.3893/2014 

12. To begin with, I may refer to the submission made by Sri.K.P.Rajeevan, the learned counsel for the petitioners in this writ petition. Since the submissions were advanced in the light of the statement made by the learned Special Government Government, the learned counsel for the petitioners has drawn my attention to the earlier counter affidavit filed by the Government in contra distinction with the additional counter affidavit which came to be filed just the other day. Taking this Court through both the counter affidavits, the learned counsel would contend that initially the Government undertook the burden of contributing the necessary funds at 1:1 ratio along with the respondent Corporation to ensure regular payment of pension. In that regard, he has also drawn my attention to Exhibit P12 notification, i.e., Ordinance 25 of 2014.

13. According to the learned counsel, the proposal made by the Government through Exhibit P5 for securing funds is in the process of being implemented, as could be seen from Exhibit P12. It is the particular contention of the learned counsel that in the light of the unequivocal undertaking given by the Government, it is estopped from negating not only its statutory but also its constitutional obligation towards retired employees of the Corporation, which in fact functions entirely under the control of the Government.

14. The learned counsel has further submitted that on an earlier occasion, a learned Division Bench of this Court issued a direction to earmark ten percent of the revenue generated by the Corporation for meeting the pension targets. He has also submitted that very recently a learned Division Bench of this Court has allowed an application filed by the Corporation permitting it to draw from the said funds and clear a portion of the pension arrears. 

15. The learned counsel, referring to Exhibit P9, states that the Government has owed more than ₹1,500 crores in dues to the respondent Corporation. If a specific direction is given to the Government to pay up its own debts to the Corporation, that will solve the problem for ever.

16. According to him, the Corporation, with an asset basis of fifty thousand crores, is expected to function strictly on the business principles in terms of Section 22 of the Road Transport Corporations Act 1950 ('the Act' for brevity).

17. It is the specific contention of the learned counsel for the petitioners that the Kerala Transport Development Finance Corporation Ltd., built huge structures on the basis of Build Operate Transfer (BOT) on the properties of the Corporation by forcing it to borrow from the Finance Corporation at exorbitant rates, the rate of interest being 14.5%, far in excess of what the commercial banks charge. Apart from referring to Exhibit P7 in that regard, the learned counsel has drawn my attention to Exhibit P11(b), which is the information the petitioners obtained from the Corporation by invoking the provisions of the Right to Information Act. According to the learned counsel, the information reveals that at no point of time has the Corporation, the very owner of the assets, been taken into confidence, leave alone getting its prior consent before either the loan was sanctioned or before the structures were raised. In other words, the learned counsel tries to underline the fact that the Corporation has been reduced to the state of a mere spectator in managing its own affairs, including its assets, and that it has been made to bear a lot of unwanted burden of debt. Had the loan been from any other source, contends the learned counsel, the Corporation would have saved at least about forty five crores of rupees monthly on account of the differential interest and that amount alone would have been sufficient to take care of the pension obligations of the respondent Corporation.

18. Eventually, elaborating on his submissions, the learned counsel, placing reliance on Exhibit P2, submits that the very pension scheme was introduced in the Corporation on the directive of the Government, and as such, the Government cannot be heard saying that it does not have an obligation towards the employees of the Corporation, more particularly those who retired. 

W.P.(C)No.4141/2014 

19. The learned Senior Counsel for the petitioners has submitted that in terms of Section 32 of the Act, the Government is duty bound to provide budgetary allocation to the Corporation. He has further submitted that on 07.08.2014 this Court issued a direction to the Government to explore the option of invoking Sections 37 and 38 of the Act if the Corporation was not in a position to perform its statutory obligations, thereby taking over the Corporation and re-structuring it, if necessary. According to the learned Senior Counsel, despite the said direction, though the Corporation continued committing defaults, the Government has not initiated any steps.

20. The learned Senior Counsel has stressed that this is the one case where this Court may have to press into service the continuous mandamus to ensure regular payment of pension to thousands of retired employees, inasmuch as it is a recurring problem. He has taken me through the entire gamut of the Act laying specific emphasis on Sections 3, 5, 19, 22, 32, 34 and 36 to 38. Further elaboration of these provisions, however, is avoided with a view to referring to them at appropriate stages of the discussion. The learned Senior Counsel has further submitted that in terms of Section 38 of the Act, the Government has every power to supersede the Corporation. He has also referred to Article 39B of the Constitution of India to underline that both the Government and the Corporation are the partners in this venture to sub-serve a socio-economic cause, and as such, they cannot claim to be independent of each other. He has further submitted that pension was introduced by the Government through Exhibit P1 in terms of Section 34 of the Act.

21. According to the learned Senior Counsel, the Government cannot go back on its obligation, more particularly in the light of Exhibit P1, and if the Government is of the opinion that the Corporation has not been managing its affairs properly, it can cause an enquiry under Section 36 of the Act. The learned Senior Counsel has placed reliance on 

State of T.N. v. Abu Kavur Bai ((1984) 1 SCC 515). 

W.P.(C)No.4287/2014 

22. This writ petition is filed by the former employees of the Transport Department of the Government who later were transferred into the ranks of the Corporation on its establishment. The learned counsel for the petitioners has submitted that now there are only 150 of those employees who have thus been transferred, one of them being 92 years old. All of them, in their advanced stage, have been facing severe hardship owing to uncertain and irregular disbursement of pension. W.P.(C)No.3808/2014 23. The learned counsel for the petitioners has submitted that unable to endure an uncertain future marked by destitution and deprivation, some of the employees have committed suicide. He has further submitted that unless immediate remedial measures are taken, the calamitous circumstances may further aggravate and more deaths may follow. In this regard, he has shown me certain news reports. 

W.P.(C)No.25244/2014 

24. Referring to Section 3 of the Act, the learned counsel for the petitioners has contended that neither the Corporation nor the Government can run the business in public transport on profit and loss basis. According to him, it is the solemn constitutional obligation of the State to run the services of public utility to subserve the common good. He contends that the Government is duty bound, both constitutionally and statutorily, to ensure that the Corporation functions properly and all its obligations of whatever nature are met. In this regard, the learned counsel has drawn my attention to the recommendations made by the Legislative Committee in State Public Sector Undertaking (2008-2011) in the year 2008, as could be seen from Exhibit P3.. 

W.P.(C)No.2644/2014 

25. The learned Senior Counsel contends that the issue of statutory obligation on the part of the Corporation to pay the pension to the retired employees without default already stands decided by this Court and that only its implementation remains. In this regard, the learned Senior Counsel has drawn my attention to Exhibit P5, the judgment dated 03.01.2012 rendered by this Court in W.P.(C)No. 29544/2008.

26. He has further submitted that though the respondent Corporation filed R.P.No.478/2012 against Exhibit P5 judgment, it was disposed of by this Court through Exhibit P6, holding that there was no error apparent on the face of the record to review the judgment. The Court, however, made it clear in Exhibit P6 that pensionary benefits shall also include pension which shall be paid on the first day of every month. The learned Senior Counsel has submitted that notwithstanding Exhibit P5 judgment, when the Corporation again committed default, the petitioners were constrained to issue Exhibit P7 notice dated 05.12.2013, but the Corporation remained unmoved.

27. The learned Senior Counsel has submitted that in so far as the payment of pension is concerned, the Corporation does not have any separate regulations. It has, in fact, adopted the provisions of the Kerala Service Rules (KSR). Referring to Rules 10 and 123 of Chapter III, the learned Senior Counsel would contend that pension is required to be paid on the first of every month. He has submitted that up to September 2014, after repeated prodding by this Court, the Corporation paid the retired employees at the rate of ₹8,600/- per month, though the monthly pension ranges from ₹10,000 - ₹30,000. According to him, it is neither permissible nor statutorily contemplated to take recourse to piece-meal payment of pension. Placing reliance on 

Deokinandan Prasad v. State of Bihar ((1971) 2 SCC 330)

the learned Senior Counsel has contended that the pension is not an unwanted liability; on the contrary, it is an obligation. He has further stressed that the Corporation is neither sick nor insolvent. 

Stand of the KSRTC 

28. The learned Standing Counsel for the Corporation, though not entirely denied the obligation of the Corporation to disburse the pension regularly, has submitted that there is no truth in the allegations of the petitioners that the Corporation has reneged on its commitment to pay pension. Expatiating on her submissions, the learned Standing Counsel has submitted that up to September 2014 the Corporation has paid to all the pensioners at the rate of ₹8,700/- per month, notwithstanding the fact that the monthly pension ranges from ₹6,000 - ₹30,000. According to her, in 1984 it was the Government that compelled the Corporation to implement the statutory pension scheme without a proper study and understanding of the future implications in that regard.

29. The learned Standing Counsel has submitted that when it was introduced, the amount required towards meeting the pension obligations was ₹3.84 crores, which now increased more than ten-fold. According to her, presently there are 37,000 pensioners. Statistically submitting, the learned Standing Counsel has contended that the Corporation generates monthly revenue of ₹165 crores, whereas its monthly payment amounts to ₹254 crores, thus having a deficit of ₹89 crores. She has further submitted that every month the respondent Corporation is required to pool up ₹43 crores towards pension liability alone. All along the Corporation has, contends the learned Standing Counsel, spared no efforts to ensure regular payment of pension and precisely to meet its commitment, it has gone on borrowing from various sources including the Government. Now, apart from having the obligation of paying pension, the Corporation is also required to ensure regular payment of interest on the amounts it borrowed. Thus underlines the learned Standing Counsel the fact that the Corporation has been caught in a debt trap, as it finds itself unable to come out of the vicious circle: unbridgeable gap between revenue and expenditure.

30. The learned Standing Counsel has further submitted that the Government in fact in consultation with the Corporation has introduced Exhibit R2(a) revival package (WPC 25244/2014). According to her, if the Government implements the revival package as has been originally conceived, the crisis can be tided over. 

Stand of the Government: In the First Phase: 

31. On the direction of this Court, one of the Deputy Secretaries to Government in the Transport Department, on 19.09.2014, filed the first counter affidavit, setting out the policy decision taken by the Government to find the solutions and remedial measures with respect to the problems faced by the Corporation.

32. The Government averred that though it occupies only 27% of the entire bus operations in the State, it effectively prevents the general public from getting exploited by the private sector, which is motivated only by profits. The stand of the Government concerning the role of the Corporation bears repetition, and is accordingly, to the extent relevant, reproduced: 

"[As] a state transport enterprise, it cannot depend only upon the profit centres, but have to take into account the needs of the people especially the lower class, by extending service to the under developed areas of the state, providing travel concessions to various sections of the public. The Kerala State Road Transport Corporation cannot keep away from the social commitments and as such it is forced to extend its service through unprofitable routes and at unprofitable times. If the entire service operation is transferred to the private sector, in case of the winding up of the Kerala State Road Transport Corporation as remarked b the Hon'ble High Court, consequence will be, utmost exploitation of the poor and the middle class by the private sector. The Government exercises its fare control mechanism effectively, only because of the existence of the State Transport undertaking. So, is the case with the social concessions allowed to various sections of the public." 

(emphasis added) 

33. Adverting to the problems faced by the Corporation regarding meeting its pension-payment targets, the Government places on record: 

"[D]uring 1965-1984, there was no pension allowed to the employees of the Corporation. As the organization grew and the number of employees retiring from the service of the Kerala State Road Transport Corporation increased exponentially, and the rates of pay and pension increased rapidly, Kerala State Road Transport Corporation found it very difficult to find its own resources to pay pension to its employees, in addition to meeting its operational expenses which also grew rapidly in short span of times. Government, having found the existence of the Corporation very important in the matters of extending service to the poor and middle class of the society, supported it financially by extending loans, grants and funds for capital expenditures." 

(emphasis added) 

34. Having said thus, the Government does acknowledge that through G.O.(MS) No.6/2014/Tran. dated 01.02.2014, it accorded sanction to implement a revival package in the Corporation for its financial uplift. According to the Government, with the implementation of this package, the Corporation is expected to get over its financial crunch within a certain span of time. 

In the Second Phase: 

35. Now, we may observe the stand of the Government in its additional statement filed on 26.11.2014. To begin with, it assures that it is monitoring implementation of Ext.R1(a) revival package submitted by the Corporation. Then goes on to add: 

"[T]hough there was a proposal to share pension liability by the State Government and K.S.R.T.C. at 1:1 ratio, the same was not accepted by the Government and as such the Government is not bound to pay the said amount to K.S.R.T.C. As of now, Government has already paid an amount of Rs. 150 Crores to K.S.R.T.C. during this financial year to meet the working capital requirements of the Corporation. During the last 5 years the Government paid an amount of Rs.1263,13,59,966/- for meeting the working capital requirement of the Corporation. The Government is considering the proposal of the Managing Director of the K.S.R.T.C. for converting the above loan amount into equities and also to write off the interest and penal interest thereon. Apart from the above, Government is not in a position to shoulder any further liability of the K.S.R.C., especially in view of the financial constraint faced by the State at present. 

(emphasis added) 

36. Having said that, the Government, however, acknowledges that it has already passed an Ordinance by name 'Kerala State Road Transport Corporation (Passenger Group Personal Accident Insurance, Improved Passenger Amenities, Employees Social Security and Cess on Passenger Ticket) Ordinance, 2014'. It also says that the scheme as contemplated in Section 3 of the Ordinance was submitted by the Corporation and is in the final stages of approval by the Government. Once the scheme is approved, the Corporation can collect the cess amount over and above the ticket fare which is expected to be around ₹160 crores per annum as additional income.

37. Adverting to the role the Corporation it expected to play, the Government states thus: 

"It is submitted that K.S.R.T.C. is a public sector undertaking which has to manage its own affairs without depending on the Government. There are several other public sector undertakings which are also catering the social obligations and public sector undertakings which are also catering the social obligations and public needs. The Government cannot extend financial help to the public sector undertakings merely on the ground that ground that they are doing some social obligation and catering to pubic needs. If such an attitude is taken, the Government will not be able to provide funds for other developmental works requiring more public interest and needs. 

(emphasis added) 

38. After reminding the Corporation that what it is doing is no charity and that, as an instrumentality of the State, it is obligated to do all that it is doing, the Government takes comfort in the fact that it is 'understood' that the Corporation has already initiated action for liquidating high interest rate loans by availing itself of loan from the Nationalised Banks with lower interest. If such an action is accomplished, an amount of ₹15-20 crores can be saved per month.

39. Heard the learned counsel for the petitioners and the learned Standing Counsel for the Corporation, apart from perusing the record. 

The Issue: 

40. Whose obligation is to pay regularly the pension due to the retired employees of the second respondent Corporation, and in what manner is the obligation required to be discharged? 

Discussion: 

41. To begin with, given the fact that the retirement age is 56 years, we cannot say all the petitioners, for that matter, all the retired employees of the Corporation are very old to be called senior citizens. Some of them are, though. Most of them, owing to the policy of superannuation, have been relegated to the realm of retired forces. Senile they are not, but senility hastens itself upon those who do not have a sense of self-worth. That is what precisely happens when a person is made to vegetate - nowhere to go, nothing to do and not much to fall back on. With ever increasing life expectancy and longevity, blissfully to some and banefully to some other, the issue of senescence has assumed importance. Geriatrics has become germane not only as a sociological issue, but also as an economic issue of enormous implications. 

International Efforts: 

42. The question of ageing was first debated at the United Nations in 1948 at the initiative of Argentina. The issue was again raised by Malta in 1969. In 1971, the General Assembly asked the Secretary-General to prepare a comprehensive report on the elderly and to suggest guideline for the national and international action. In 1978, it was decided to hold a World Conference on Ageing. Accordingly, the World Assembly on Ageing was held in Vienna from July 26 to August 6, 1982 wherein an International Plan of Action on Ageing was adopted. The International Plan of Action on Ageing was adopted by the General Assembly in 1982 and the Assembly in subsequent years called on the Governments to continue to implement its principles and recommendations. (i) In 1992, the U.N. General Assembly adopted the proclamation to observe the year 1999 as the International Year of the Older Persons. (ii) The U.N. General Assembly has declared "Ist October" as the International Day for the Elderly, later rechristened as the International Day of the Older Persons. (iii) The U.N.General Assembly on December 16, 1991 adopted eighteen principles which are organized into five clusters, namely-independence, participation, care, self-fulfillment, and dignity of the older persons (Rights of Senior Citizens, by Dr. Rakesh Kumar Singh, University of Lucknow. Source: legalserviceindia.com.).

43. Subsequent international efforts made an impact on the implementation of the National Policy on Older Persons. The Madrid Plan of Action and the United Nations Principles for Senior Citizens were adopted by the UN General Assembly in 2002. The Proclamation on Ageing and the global targets on ageing for the Year 2001 were adopted by the General Assembly in 1992. Later, the Shanghai Plan of Action 2002 and the Macau Outcome document 2007 adopted by UNESCAP formed the basis for the global policy guidelines to encourage the Governments to design and implement their own policies from time to time. The Government of India is a signatory to all these documents demonstrating its commitment to address the concerns of the elderly (vide National Policy for Senior Citizens, March 2011, Government of India).

44. As could be seen from the policy referred to above, the Union of India has spelt out that among other benefits are required to be provided to the elderly: pension, travel concessions, income tax relief, medical benefit, extra interest on savings, security of older persons through an integrated scheme of the Ministry of Social Justice and Empowerment. 

Constitutional Perspective: 

45. Though India practices monism, Article 51(c) of the Constitution exhorts the nation to respect the international covenants. Indeed, Article 253 empowers the Parliament to give effect to International conventions and covenants. Further, one of the directive principles, Article 41, exhorts that the State shall, within the limits of economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. 

The Earlier Adjudication: 

46. In 2008, some of the retired employees filed W.P. (C)No.29544/2008 and invited a judgment dated 03.01.2012. In that judgment, this Court, placing reliance on 

Society of Retire Forest Officers v. Uttar Pradesh (2008 (3) KLT 2788 (SC))

has observed that the respondents have not raised any objection regarding their obligation to pay pension and that the only reason stated in the counter affidavit is about the financial constrain faced by the Corporation. Eventually this Court concluded that the said contention would not enable the Corporation to withhold the pensionary benefits of the retired employees. Observing thus, the Court allowed the writ petition. The Right to Pension: 47. It is a clinched remark of repetition if I were to observe that the pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement. Indeed, they have become, under the decisions of the Courts, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment to the employees. [vide 

State of Kerala v. M. Padmanabhan Nair ((1985) 1 SCC 429) 

and 

D.D. Tewari v. Uttar Haryana Bijli Vitran Nigam Ltd., ((2014) 8 SCC 894)].

48. The grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. If the question whether the pension granted to a public servant is property attracting Article 31(1) [now Art.300-A] of the Constitution is examined, it is a right as constitutes "property" and any interference will be a breach of Article 31(1). The State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension (vide 

Deokinandan Prasad v. State of Bihar ((1971) 2 SCC 330).

49. Referring to the Constitution Bench decision of Deokinandan Prasad, a three judge Bench of the Supreme Court in 

D.S. Nakara v. Union of India ((1983) 1 SCC 305) 

has observed that the antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet. 50. In fact, in D.S. Nakara (supra), the Court posed unto itself the following questions: What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? Referring to Retirement Systems for Public Employees by Bleakney, their Lordships have held thus: 

"21. There are various kinds of pensions and there are equally various methods of funding pension programmes. The present enquiry is limited to non-contributory superannuation or retirement pension paid by Government to its erstwhile employee and the purpose and object underlying it. Initially this class of pension appears to have been introduced as a reward for loyal service. Probably the alien rulers who recruited employees in lower echelons of service from the colony and exported higher level employees from the seat of Empire, wanted to ensure in the case of former continued loyalty till death to the alien rulers and in the case of latter, an assured decent living standard in old age ensuring economic security at the cost of the colony.

22. In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability. State obligation to provide security in old age, an escape from undeserved want was recognised and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount. ...

29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio- economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey- day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon." 

51. Pension has been defined under Article 366(17) of the Constitution of India as follows: "pension" means a pension, whether contributory or not, of any kind whatsoever payable to or in respect of any person, and includes retired pay so payable; a gratuity so payable and any sum or sums so payable by way of the return, with or without interest thereon or any other addition thereto, of subscriptions to a provident fund. On the concept of pension, the need and compulsion to provide for and pay it, the role of the State, we need not look beyond 

PEPSU RTC v. Mangal Singh ((2011) 11 SCC 702)

wherein the Hon'ble Supreme Court has exhaustively dealt with the issue. Having comprehensively surveyed the precedential precincts of the issue, their Lordships have held thus: Apart from examining the definition of "pension" from standard works such as Corpus Juris Secundum and Halsbury's Laws of England, the Hon'ble Supreme Court has quoted with approval, the definition as has been provided in American Jurisprudence 2d, Vol. 60, at p. 879: 

"However, by modern usage, the `pension' is not restricted to pure gratuities. Thus, it has been held that a pension paid to a governmental employee for long and efficient service is not an emolument the payment of which is barred by a State constitutional provision, but is a deferred portion of the compensation earned for services rendered. ... A pension is closely akin to wages in that it consists of payments provided by an employer, is paid in consideration of past services, and serves the purpose of helping the recipient meet the expense of living." 

52. Summing up the precedential position obtaining till then, their Lordships have observed on the regulatory regime of pension thus: 

1. That the regulations made under the statute laying down the terms and conditions of service of the employees, including the grant of retirement benefits, have the force of law. 

2. That the statutory bodies as well as general public are bound to comply with the terms and conditions laid down in the regulations as a legal compulsion. Any action or order in breach of the terms and conditions of the regulations shall amount to violation of the regulations which are in the nature of statutory provisions and shall render such action or order illegal and invalid.

3. That the doctrine of ultra vires as applied to statutes, rules and orders should equally apply to the regulations and any other subordinate legislation.

4. That the employer Corporation is bound to comply with the mandatory provisions of the statute or the regulations framed under it.

5. That a subordinate legislation when validly framed becomes a part of the Act." 

6. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. 

53. Based on the above observations of the Hon'ble Supreme Court, we can as well deduce that pension is salary deferred and paid periodically on predictable intervals. It can be withheld only under an authority of law. In fact, earlier, more than one Constitution Bench of the Hon'ble Supreme Court has held that right to pension is a fundamental right protected under Articles 19(1)(f) and 31 (1) of the Constitution of India, neither of which now remains in the organic instrument of the nation, though. Any legislation concerning pensionary benefit passed prior to 42nd amendment still is required to pass constitutional muster under Articles 19(1)(f) and 31(1). All those legislations or statutory regulations passed subsequent thereto still are required to be tested on the anvil of Article 300-A of the Constitution, inasmuch as the right to pension though no longer remained a fundamental right, it, at least, remains still a constitutional right: right to property. 

Pension in the Corporation: 

54. The Corporation was formed on 01.04.1965, where after certain employees working in the State Transport Department were absorbed by the Corporation, protecting their service conditions through Notification No. 4936/TC4/64/PW dated 22.03.1965 in terms of the directions under Section 34 of the Act. On the basis of Conditions 11 and 12 of the notification, pension was paid to the erstwhile State Transport Department employees, in terms of Part III of KSR. In 1978, other employees who opted for pension were also granted pension on par with these employees.

55. Through proceedings dated 17.03.1984 the Government required the Corporation to introduce the General Provident Fund Scheme for its employees with effect from 01.04.1984. It is noteworthy that the respondent Corporation has not framed any regulation but is following Part III of KSR. The pension is being paid to the retired employees of the Corporation treating them on par with Government employees. Whose Money? 

56. In `Pension Policy: the Search for Better Solutions', the learned Author John A. Turner (2010, published by W.E. Upjohn Institute for Employment Research, Michigan2010) poses a question as to who is best able to bear the inherent financial and demographic risks in pension plans. He then answers that pension plans can involve five types of actors: employees, labor unions, employers and employers' organizations, financial service providers, and Government. Risks could be borne by any of these actors. The primary decision as to who bears risks is made when policymakers or the pension provider decides whether to offer defined benefit, defined contribution, or hybrid plans. With defined benefit plans, typically the provider bears the financial market risk, as well as the demographic risk that the participants will live longer on average than expected.

57. Further, the learned author speaks of the basic underlining factor of pension policy by posing a question: Who should pay for pension plans? He goes on to answer it by observing that ultimately, according to economic theory, regardless of whether the employer or employee makes the contribution, the employees bear the cost, either through reduced wages relative to what they would be without a pension plan or through direct contributions. This process is clearly visible in the trade-offs labour unions make in collective bargaining, but this tenet of economic theory is greeted with skepticism among non-economists. 

Policy Decisions and Judicial Review: 

58. The Courts may not have much to do with the executive wisdom of administrative policies or expediency of legislation, so long as they do not fall foul of the Constitutional mandate. Upon reflection, judicial duty may seem so basic as to be obvious. Remnants of the duty remain vaguely familiar, particularly to the extent it can be discerned from the logic of Marbury v. Madison. The duty, however, tends to get lost in Marshall's reasoning about the necessity of deciding cases, which was only a narrow slice of the duty of judges. This thin portion of the duty, moreover, is today characterized as "judicial review"--thus allowing the duty to be understood as a sort of power. As a result, judicial review largely obscures any substantial recognition of the traditional judicial duty. (P.101, Law and Judicial Duty by Philip Hamburger, Harvard University Press, 2008).

59. If indeed the law was doubtful or latitudinal, admitting one interpretation, which would be just, and another which would be unjust, it would become us to prefer the former, but the intent was all through clear. Thus, although "the policy of the Legislature seems to bear hard on the subject, we are not to judge, and determine on its propriety--that is a matter for the deliberation of those who made the law--and however unjust it seems, we must acquiesce, or there must be a dissolution of society. (Phile qui tam v. The Ship Anna (Court of Common Pleas, Philadelphia County, July 1787, as quoted in P.337 of Law and Judicial Duty).

60. Plainly the Framers refuse to make the judiciary "law-givers" even to the extent of allowing them to share in the legislative making of law, let alone finally to decide on policy, an exclusive legislative function. They drew a line between the judicial reviewing function, that is, policing grants of power to insure that there were no encroachments beyond the grants, and legislative policy making within those bounds. "Dangerous" and "destructive" as such policies might be, they were at to be the exclusive province of the legislature... their [judges] function, Marshall pointed out, was merely to "construe," to "interpret" laws, not to infuse them with moral content. Having rejected judicial participation in policy making, the Framers were little likely to embrace judicial supervision of morals. (Government by Judiciary by Raoul Berger (2nd Edn., 1997) (emphasis original).

61. There cannot be much cavil about the executive wisdom of policy making and the hands-off approach of the judiciary in that regard. The introduction of pensionary benefit is, indeed, a matter of policy of the Government, but its implementation, however, is a matter of regulation, of law. This Court proposes to adjudicate the issue within the four corners of the regulations and based on the statutory obligations cast on the Government on one hand and the Corporation on the other. 

Statutory Scheme: 

62. Though the Road Transport Corporation Act, 1950 is a central enactment, the State Governments, in terms of Section 3 of the Act, can establish a Road Transport Corporation for the whole or any part of the State with a view to offering to the public, trade and industry the facility of road transport. The Corporation thus established, as per Section 4, is a body corporate having perpetual succession and a common seal, and shall by the said name sue and be sued. It is to be managed by a Board of Directors. Sections 5 to 11 of the Act deal with the constitution, the composition and the meetings of the Board of the Corporation. Sections 12 and 13 speak of the Board's power to appoint committees and delegate functions, and the authentication of orders and other instruments by the Board. Sections 14 to 17-A of the Act deal with the internal management of the Corporation and appointment of Advisory Council, apart from the establishment of Subsidiary Corporation. Section 18 speaks of the general duty of the Corporation. Section 19 of the Act confers on the Corporation vast powers of varied nature. Clause (m) thereof confers residuary powers, however, with the prior approval of the State Government to do all other things to facilitate proper carrying on of the business of the Corporation. Leaving aside Sections 20 and 21, which deal with operational networks of the Corporation, we may refer to Section 22, which reads as follows: 

"22. General principle of Corporation's finance.--It shall be the general principle of a Corporation that in carrying on its undertaking it shall act on business principles." 

63. As per Section 23 of the Act, both the Central Government and the State Government may provide to a Corporation established by the State Government any capital that may be required by the Corporation. Section 24, on the other hand, deals with additional capital of the Corporation, whose shares shall be, as per Section 25, guaranteed by the State Government as to the payment of the principal and the payment of annual dividend, if any.

64. The scheme of the enactment further reveals that the Corporation has the power of borrowing, with the previous approval of the State Government, in terms of Section 26 of the Act. Even the fund of the Corporation is required to be maintained based on the directions of the Government, as could be seen from Section 27 of the Act. The interest and dividend on the capital contributions, as mandated in Section 28, are to be paid at the rate fixed by the State Government. The provisions for depreciation and reserve, as well as other funds, are to be made in terms of Section 29, based on the directions of the State Government. Section 30 deals with disposal of profits, again based on the guidelines to be fixed by the State Government. This disposal of profits takes into its fold the welfare of labour as well, yet with the supervision of the State. The power of the Corporation to spend is as per Section 31 of the Act.

65. It is pertinent to observe that while Section 32 deals with 'Budget', Section 33 deals with 'Accounts and Audit'. Given the nature of the issue raised in the writ petition, it is apposite to examine Section 32 of the Act, which reads thus: 

"32. Budget.--

(1) Every Corporation shall, by such date in each year as may be prescribed, prepare and submit to the State Government for approval a budget for the next financial year showing the estimated receipts and expenditure during that financial year in such form as may be prescribed. 

(2) Subject to the provisions of sub-sections (3) and (4), no sum shall be expended by or on behalf of a Corporation unless the expenditure of the same is covered by a current budget grant approved by the State Government. 

(3) [Subject to such conditions and restrictions as may be specified in this behalf by the State Government, a] Corporation may sanction any re-appropriation within the grant from one head of the expenditure to another or from a provision made for one scheme to that in respect of another, subject to the condition that the aggregate budget grant is not exceeded. 

(4) A Corporation may, within such limits and subject to such conditions as may be prescribed, incur expenditure in excess of the limit provided in the budget approved by the State Government under any head of expenditure or in connection with any particular scheme." 

66. The learned counsel for the petitioners in the batch of writ petitions have laid stress on the power of the Government to issue directions to the Corporation. In that regard reference may be had to Section 34 of the Act, which reads as follows: 

"34. Directions by the State Government.-- 

(1) The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks. 

(2) In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under sub-section (1) except with the previous permission of the State Government. 

(emphasis added) 

67. In terms of Section 35 of the Act, the Corporation is required to furnish to the State Government such returns, statistics, accounts and other information with respect to its property or activities or in regard to any proposed scheme as the State Government may from time to time require. In turn, the State Government shall cause the said annual report to be laid before the Legislature of the State. Further, under Section 36 of the Act, the State Government has the power to order enquiries into all or any of the activities of the Corporation and to report to the State Government the result of such inquiries. It is, in fact, well within the power of the Government, as per Section 37 of the Act, to take over from the Corporation and to administer any part of the undertaking of the Corporation, if Government, on receipt of the report under Section 36 is satisfied that it is necessary in the interest of the Corporation to do so.

68. The State Government, too, has the power to supersede the Corporation, as could be seen from Section 38, which reads as follows: 

"38. Power to supersede a Corporation.--

(1) If the State Government is of opinion that a Corporation established by that Government is unable to perform, or has persistently made default in the performance of the duties imposed on it by or under the provisions of this Act or has exceeded or abused its powers, the State Government may, with the previous approval of the Central Government, by notification in the Official Gazette, supersede the Corporation for such period as may be specified in the notification: 

Provided that before issuing a notification under this sub-section the State Government shall give a reasonable time to the Corporation to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Corporation. 

(2) Upon the publication of a notification under sub-section (1) superseding a Corporation-- 

(a) all the [Directors] of the Corporation shall, as from the date of supersession, vacate their offices as such [Directors]; 

(b) all the powers and duties which may, by or under the provisions of this Act or of any other law, be exercised or performed by or on behalf of the Corporation shall, during the period of supersession, be exercised and performed by such person or persons as the State Government may direct; 

(c) all property vested in the Corporation shall, during the period of supersession, vest in the State Government. 

(3) On the expiration of the period of supersession specified in the notification issued under sub-section (1), the State Government may-- 

(a) extend the period of supersession for such further term as it may consider necessary; or 

(b) reconstitute the Corporation in the manner provided in Section 5." 

69. As could be seen, in terms of Section 39, the Corporation can be placed in liquidation by the order of the State Government with previous approval of the Central Government. Section 44 of the Act confers on the State Government the rule-making power. 

The Role of the Government: 

70. Now, we may address the issues based on the above statutory provisions. Two things have to be observed here: In terms of Section 19 of the Act, the Corporation is expected to function on sound business principles. The Government, nevertheless, expects, nay compels, the Corporation to carry out its part of welfare measures. In Exhibit P11A, in response to the queries from one of the petitioners under the Right to Information Act, the Corporation informs that it has never been consulted on the issues of putting its own properties to use or raising loans from KTDFC for the said purpose. The Government, I am afraid, cannot expect, rather force, the respondent Corporation to run with the hare and hunt with the hounds, so to say.

71. On the issue of amounts due from the Government to the Corporation in respect of various travel concessions granted to the weaker sections of the public, the Government avers as follows: 

"[T]he K.S.R.T.C. has not so far submitted a proper and realistic set of accounts showing the actual usage of the passes and the amount of concession actually given by the K.S.R.T.C. The claim of the K.S.R.T.C. is on each and every day round the year, which is most irrational and erroneous. Therefore, the said claim was rejected by the Finance Department. As and when a proper claim is made in this regard, the same will be considered by the Government. It is submitted that the K.S.R.T.C., being a separate entity, has to find out resources by its own for meeting their liabilities and they cannot always depend on the Government for their working capital requirements including the liability to pay pension funds to its employees." 

(emphasis added) 

72. It is regrettable that the Government has taken such a plea as has been extracted above; it is not an ordinary debtor out to defeat the creditor with one stratagem or another. It, indeed, sets examples and expects others to follow. In 

State of Haryana v. Mukesh Kumar ((2011) 10 SCC 404) 

the Hon'ble Supreme Court has deprecated the plea of the adverse possession on the part of the State of Haryana. It has held that State, being a welfare state, cannot take the plea of adverse possession and acquire the property of a citizen without entitlement. Technically the plea of the Government cannot be found fault with that the Corporation has not pressed its demand for the recovery of its dues in a legally sustainable manner. In the same vein, it can be said that the Corporation, being a separate entity, could have taken recourse to the legal process of recovery. At the same time, one cannot, however, lose sight of the fact that the Corporation is nothing but an alter ego of the Government; its own creation and its own microcosmic image, the sustenance of which only comes from the State.

73. The Government is conscious that the Corporation has been struggling to meet its solemn statutory, and even constitutional, obligations. It is a party to all the proceedings and processes that have been initiated to bail out the Corporation. It was, therefore, all the more necessary for the Government to have resolved the issue of its dues to the Corporation with its own initiative. The Corporation says that from the Government more than one thousand crores is due; the Government only says that the claim suffers from contradictions. Nevertheless, there ought to be a middle ground. The Government could as well have seen what would be the admissible due, subject to the finalization of the dues and paid those admitted dues on its part. Every person, including the petitioners, and every entity, including the Corporation, looks to the Government as their or its saviour. There is no room for the Government to take shelter under a technical plea - it is against the constitutional morality of the nation, the State. 

The Fact-Sheet on Pension: 

74. Now, we may examine the fact-sheet as presented by the Corporation on the issue of pension dues. The Corporation offers the following reasons for its financial crises: 

1. Providing pension from operational revenue.

2. Unprofitable service operation (arising from operating in non-profitable routes, as part of social commitment).

3. Shorter repayment period of loans availed from KTDFC at high interest rate for payment of pension. 4. Repayment of loans taken from other banking and non banking institutions for payment of pension.

5. From 1990 onwards Central Govt has stopped contributing Capital to STUs, including KSRTC.

6. Nominal contribution of capital of State Govt.

7. Increase in price of diesel and spare parts, without corresponding increase in fares, and 

8. Cost of social obligation services provided by KSRTC are not reimbursed to KSRTC by Government.

75. Insofar as the pension payments are concerned, the Corporation contends that till 1984, the employees of the Corporation were not entitled to pension and thereby their pay scales were higher as compared to other Public Sector Undertakings. From 1984, the employees of the Corporation were also given pension on a par with Government employees, in accordance with the directions of the Government. This was, in fact, done without creating any corpus towards pension fund, nor was any assessment made on the future liability as well. 

76. Logistically, in 1984, the pension liability was around ₹3.4 crore per month; presently, the liability exceeds ₹42 crore, with the certainty of its increasing further. It is the specific contention of the Corporation that the decision for payment of pension was taken at the level of the Government in 1984 without any proposal from the Corporation. This assertion of the Corporation is, however, contested by the learned Special Government Pleader.

77. All is said and done, this Court does not desire to be uncharitable to the Government regarding its past efforts in extending financial assistance, treated as loan, to the Corporation. The loan assistance from the Government and the KTDFC during the last five years and during April - November 2014 is as follows:. 

----------------------------------------------------------------------------------------- (Figures Rs in crore) Fin. Govt. Plan Total Loan from Yr. Loans Fund KTDFC (working capital) (capital loans) ------------------------------------------------------------------------------------------------ 2009-10 105.00 15.00 120.00 262.00 2010-11 160.00 42.00 202.00 366.57 2011-12 140.00 42.00 182.00 291.00 2012-13 175.00 57.07 232.07 380.00 2013-14 425.00 59.00 484.00 461.00 2014-15 150.00 58.85 208.85 447.00 ----------------------------------------------------------------------------------------------- 78. As on 31.10.2014, the total liabilities of the Corporation are said to be to the tune of ` 2,758.50 crores. Almost the entire amount is owed to the Government and KTDFC in equal measure.

79. The Corporation tabulates the total number of pensioners and the range of their pensions as follows: 

----------------------------------------------------------------------------------------- Range of Monthly Pension Number of Pensioners: ----------------------------------------------------------------------------------------- Up to ₹10,000/- 18819 Up to ₹10,001/- to ₹15,000/- 9273 Up to ₹15,001/- to ₹20,000/- 6488 Up to ₹20,001/- to ₹25,000/- 2066 Up to ₹25,001/- to ₹30,000/- 99 Up to ₹30,001/- and above 2 ----------------------------------------------------------------------------------------- 

80. In a conspectus, it can be stated that the total number of pensioners are 35747; the monthly payments towards the pension disbursement is ₹40.22 crores. Though the Corporation has pleaded about the social commitments, such as travel concessions, imposed on it by the Government, it may not be relevant to refer to them.

81. At any rate, the Corporation is said to have proposed a revival package. Indisputably, the Government, initially, responded to the crisis and floated a revival package in G.O.(MS)No.06/2014/Tran. dated 01.02.2014, which is Exhibit P5 in W.P.(C)No.3893/2014. As per Annexure-IV of the revival package the liability of payment of pension is decided to be shared between the Government and the Corporation at 1:1 ratio in the following manner: 

A. By Government Direct contribution for pension payment ₹120 Crore Compensation for Social Obligation concessions ₹100 Crore 

B. By Corporation Pension Cess for ticket above ₹25/- ₹150 Crore A portion of the amount already set Apart for pension as per Supreme Court Direction ₹70 Crore  

82. It is further pertinent to observe that a learned Division Bench of this Court through an earlier order, dated 20.11.2002, in W.A.No.289/2001, directed the Corporation to earmark 10% of the daily collection to create a fund for disbursement of the pensionary benefits to its retired employees. It seems, the learned Division Bench has further ordered the Corporation to use the amounts in Provident Fund account only for satisfying the provident fund claims of the existing and retired employees. 

83. The other aspects of the revival package seem to be as follows: 

(a) Finding a solution for the burgeoning liability of pension and proposal of LIC submitted in March, 2014. 

(b) In order to improve the credit worthiness, revaluation of assets is proposed. 

(c) Swapping of existing loans with low interest rate and longer repayment period loans. 

(d) Conversion of Government Loans to Equity. 

(e) Introduction of Pension Cess for tickets above Rs.25 for creating a Pension Fund. 

(f) Rationalization of loss making schedules. 

(g) Modernization and introduction of customer satisfaction technologies. 

(h) Stopping of free passes to retired employees. Government's Assurance: 

84. It is worthwhile to take note of the Government's assurance, as could be gathered from its first counter affidavit, that the Government is closely monitoring the progress and implementation of the revival measures in the Corporation at regular intervals. There is no gainsaying the fact that the Government took, on the whole, a diametrically opposite stand in its additional counter affidavit. On that count, it is apt to observe that this Court is conscious of the fact that every Government elected on a popular mandate, in emerging economy, is faced with inexhaustible inventory of welfare measures and inelastic economic resources to meet the targets, the distance between both of them being, more or less, unbridgeable. But, at the same time, the Government cannot view the Corporation as its integral part in carrying the burden of socio-economic obligations and as a dispensable appendage when it comes to meeting its financial obligations. The Corporation owes its existence to the State, it draws sustenance from it and dies out, if the State does not want it. We cannot view the Corporation apart from the State, save for certain legal fictions. 

85. Leaving aside the statutorily subsuming character of the State, vis-a-vis, the Corporation, even operationally the Corporation is, more or less, a spectator in managing its affairs. To exemplify, we can refer to Exhibit P11B in W.P.(C)No.3893/2014. I have already adverted to the submissions of the learned counsel for the petitioners that KTDFC constructed shopping complexes on the properties of the Corporation on the basis of Built-Operate-Transfer (BOT). In this regard, it is worthwhile to observe the answers of the Corporation to the queries under Right to Information Act from some of its former employees: 

1. In which places owned by KSRTC agreement was signed with KTDFC for construction of shopping complexes on BOT basis? Furnish the area of each plan. Ans: KSRTC has not signed any agreement with KTDFC for construction of Shopping Compled on BOT basis. Only the Government Order is available.

2. Whether Board of Directors of the Corporation had accorded sanction for the above matters and if so furnish the copy? Ans: Implementation is based on the Government Order.

3. Whether there is any joint venture agreement between KSRTC and KTDFC for the above purpose and if so furnish the copy? Ans: Nil 4. Furnish the details in the above matter with regard to terms and conditions, rate of interest, period, details of contribution, repayment details and relevant rules for lending the property. Ans: KTDFC is to be contacted.

5. Inform whether any officers of KSRTC are authorized to supervise the work of the above buildings and if so furnish the name, designation and copy of relevant orders. Ans: KSRTC officers are not authorized to supervise the work based on BOT.

86. In tune with the above all embracing approach of the Government in the matters of the Corporation, it has, justifiably, issued Exhibit P12 Ordinance "the Kerala State Road Transport Corporation (Passenger Group Personal Accident Insurance, Improved Passenger Amenities, Employees Social Security and Cess on Passenger Ticket) Ordinance, 2014". It has further appreciably reported to the Court from time to time the progress of the revival package it has been executing along with the Corporation. So far so good. But, half way through, it cannot throw in the towel.

87. It is to be further appreciated that nobody can find fault with the Government's welfare measure of introducing statutory pension in the Corporation way back in 1984. Obligation or no obligation, to this day, Government, too, shouldered the burden of the Corporation. The issue is only with regard to carrying it on further. At this juncture, as has been indicated above, the Government cannot view itself different and distinct from the Corporation in discharging the statutory and constitutional obligations. Nor is the Government powerless either in reigning in the Corporation, if it is unruly or unmanageable.

88. This Court does not desire to have any reference to the alleged death of a couple of retired employees of the Corporation on account of non-payment of pension regularly. They are based on media reports. In the beginning, a reference has been made to it only with a view to underlining the importance of the issue, as has been strenuously canvassed by some of the learned counsel for the petitioners. In any event, we cannot and ought not to wait until something calamitous happens to galvanize ourselves into action.

89. Under the Act of 1950 powers are aplenty for the Government ` la State. Under Section 34 of the Act, the Government can issue suitable directions to the Corporation, thus exercising its supervisory powers; under Section 36, it has the power to order enquiries into all or any of the activities of the Corporation; under Section 37, it can take over from the Corporation and administer any part of the undertaking of the Corporation, if Government, on receipt of the report under Section 36 is satisfied that it is necessary in the interest of the Corporation so to do; it has the power to supersede the Corporation, as could be seen from Section 38; and, as could be seen, in terms of Section 39 of the Act, the Corporation can be placed in liquidation by the order of the State Government with the previous approval of the Central Government.

90. Under these facts and circumstances, any effort on the part of the Government to wriggle itself out of the onerous task of setting the Corporation right, if at all it is called for, in the public interest, cannot be countenanced. It cannot exonerate itself from it, as it otherwise becomes abdication of a solemn statutory and constitutional obligation. Difficulties notwithstanding, the State has to move on, and, ipso facto, the Government has to carry on.

91. Thus, the question of interfering with or interdicting the policy of the Government does not arise. All through, the Government has assured monitoring and successful execution of the scheme to ensure prompt and regular payment of pension to the retired employees of the Corporation. It needs no reiteration at this juncture that we cannot have any dichotomy of administration or State and Corporation schism in meeting the statutory and constitutional obligations. Thus, based on the revival package and the statutory scheme of things, this Court proposes to dispose of the writ petitions. 

Conclusion: 

For the reasons stated above, this Court disposes of the writ petitions with the following directions: 

a. The first respondent Government shall, in consultation with the second respondent Corporation, quantify, at least tentatively, subject to final settlement, its dues to the Corporation and pay within thirty days, not less than half of the amount so quantified to the Corporation to enable it to discharge its immediate pension obligations. 

b. The first respondent shall take all necessary steps, in a time bound manner, to execute and implement Ext.P5 revival package, which includes the measures of creating a corpus fund, exploring the options of finding a permanent solutions, involving PSUs like LIC, as has already been undertaken. 

c. The first respondent shall take all the necessary corrective steps administratively vis-`-vis the respondent Corporation, if the Government is of the opinion that it is the need of the hour, so as to put quietus to the recurrent issue of pension obligations, which+ are otherwise bound to persist. 

Dama Seshadri Naidu, Judge tkv   

APPELLANT(S)/APPELLANT

KERALA ARTS & SCIENCE UNAIDED COLLEGE MANAGEMENT ASSOCIATION REGN NO 84/2008, REPRESENTED BY ITS SECRETARY AL-AZHAR COLLEGE CAMPUS, PERUMPILICHIRA P O THODUPUZHA-565805 

BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.V.S.AFSAL KHAN 

RESPONDENT(S)/RESPONDENTS

1. STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY HIGHER EDUCATION DEPARTMENT THIRUVANANTHAPURAM-695001 

2. UNIVERSITY GRANTS COMMISSION, REPRESENTED BY ITS SECRETARY, BAHADUR SHAH ZAFAR MARG NEW DELHI-110002 

3. MAHATMA GANDHI(M.G) UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS, KOTTAYAM-686560 

4. CALICUT UNIVERSITY REPRESENTED BY ITS REGISTRAR, THENIPALAM, CALICUT-673634 

5. KANNUR UNIVERSITY REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM, 695034

6. KANNUR UNIVERSITY , REPRESENTED BY ITS REGISTRAR , KANNUR-570567 

7. ALL KERALA PRIVATE COLLEGE TEACHERS ASSOCIATION STATE COMMITTEE OFFICE, MATHRUBHOOMI ROAD, VANCHIYOOR THIRUVANANTHAPURAM-695035 

8. ANEESH K K, S/O.KHALID AGED 21 YEARS KUTTIMACKAL HOUSE, ERUMATHALA P O CHOONDI, ALUVA, 683105 

9. MANAGER NIRMALA COLLEGE, MUVATTUPUZHA-686661 

10. MANAGER DEVAMATHA COLLEGE, KURUVILANGAD-686633 

11. MANAGER PAVANATMA COLLEGE, MURRIKKACHERRY-685604 

12. MANAGER ST.STEPHEN'S COLLEGE, UZHAVOOR-686634 

13. MANAGER ST.GEIRGE COLLEGE, ARUVITHURA-686122 

14. MANAGER ST.DOMINIC'S COLLEGE, KANJIRAPPALLY-686512 

15. MANAGER ALPHONSA COLLEGE, PALA-686574 

16. MANAGER ASSUMPTION COLLEGE, CHANGANACHERRY-686101 

17. MANAGER, BISHOP CHULAPARAMBIL MEMORIAL COLLEGE, CHANGANACHERRY-686101 

18. SECRETARY CORPORATE MANAGEMENT OF M O COLLEGES, DEVALOKAM KOTTAYAM-686001 

19. MANAGER OF COLLEGES BISHOP'S HOUSE, KOTHAMANGALAM-6886691 

20. MANAGER CMC COLLEGE, KOTTAYAM-686001

21. THE PRINCIAPL ST.TEREASA'S COLLEGE, ERNAKULAM, KOCHI-682011 

22. MES COLLEGE MARAMPALLY, MARAMPALLY P O, ALUVA ERNAKULAM, REP BY BY ITS PRINCIPAL-683105 

23. THE PRINCIPAL, THEVARA, COCHIN-682013 

24. THE PRINCIPAL ST.BERCHMANS COLLEGE, CHANGANACHERRY-686101 

25. THE MANAGER AQUINAS COLLEGE, EDACOCHIN, COCHIN-682010 

26. THE MANAGER MORNING STAR HOME SCIENCE COLLEGE ANGAMALY SOUTH P O, PIN-683573 

27. MANAGER ST.PAULS COLLEGE, KALAMASSERY-683503 

28. ST.MARY'S COLLEGE OF COMMERCE AND MANAGEMENT STUDIES, THRUTHIPILLAY, PERUMBAVOOR, ERNAKULAM DIST REPRESENTED BY ITS MANAGER T T JOY, AGED 60 YEARS, S/O.THARU, THOMBRA HOUSE PULLUVAZHY P O, PERUMBAVOOR 

• R28 BY ADV. SRI.ALEXANDER JOSEPH 
• R22 BY ADV. SMT.M.A.VAHEEDA BABU 
• R22 BY ADV. SRI.K.A.NOUSHAD 
• R22 BY ADV. SRI.P.U.VINOD KUMAR 
• R22 BY ADV. SRI.KANDAMPULLY RAHUL 
• R22 BY ADV. SRI.MITHUN BABY JOHN 
• R8 BY ADV. SRI.K.JAJU BABU 
• R8 BY ADV. SMT.M.U.VIJAYALAKSHMI 
• R8 BY ADV. SRI.BRIJESH MOHAN 
• R25,R26 BY ADV. SRI.N.JAMES KOSHY 
• R5 BY ADV. SRI.GEORGE POONTHOTTAM,SC,KERALA UTY. 
• R9,R10,R12,R13,R14,R15,R16,R17,R18,R19,R20,R27 BY ADV. SRI.BABY ISSAC ILLICKAL 
• R11 BY ADV. SRI.V.M.KURIAN 
• R21,R 23 & 24 BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.) 
• R21,R 23 & 24 BY ADV. SRI.TONY GEORGE KANNANTHANAM 
• R-R3 BY ADV. SRI.P.JACOB VARGHESE (SR.) 
• R-R3 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY 
• R-R3 BY ADV. SRI.VIVEK VARGHESE P.J., SC, M.G.UNIVERSITY 
• R2 BY ADV. SRI.BECHU KURIAN THOMAS, SC, UNIVERSITY OF KERALA BY SRI.ALEXANDER JOSEPH 
• R1 BY GOVERNMENT PLEADER SHRI P.I. DAVIS BY SRI.P.SANJAY BY SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERS BY SRI.V.A.MUHAMMED, SC, KANNUR UNIVERSITY 

J U D G M E N T

Ashok Bhushan, Ag. C.J. 

These four Writ appeals have been filed against the common judgment dated 02.08.2013 of a learned Single Judge by which judgment all the Writ Petitions were dismissed. W.A. No.1265 of 2013 is being treated as the leading Writ Appeal and reference to the pleadings in the above Writ Appeal shall suffice to decide all the Writ Appeals.

2. Brief facts giving rise to the Writ Appeals need to be noted are: 

The appellants shall hereinafter be referred to as the Writ Petitioners and the respondents as respondents to the Writ Petitions. Writ Petition No.7361 of 2013 giving rise to W.A. No.1265 of 2013 was filed by the Kerala Arts and Science Unaided College Management Association impleading the State of Kerala as respondent No.1, University Grant Commission as respondent No.2, Mahatma Gandhi University as respondent No.3, Calicut University as respondent No.4, Kerala University as respondent No.5 and the Kannur University as respondent No.6. Respondent Nos.9 to 28 are the different private colleges affiliated to Universities. The Writ Petition was filed by the petitioner aggrieved by the action of respondents 3 to 6, Universities in permitting the aided colleges receiving aid from the Government to conduct unaided courses. The petitioner in W.P(C) No.7361 of 2013 claimed to be the Association of unaided College Management whereas petitioner in Writ Petition No.18120 of 2013, giving rise to W.A. No.1243 of 2013, is the CET College of Management & Science and Technology, Ernakulam, Kerala, through its Secretary. Petitioner in Writ Petition No.8554 of 2013, giving rise to W.A. No.1259 of 2013, is a student of St.Pauls Arts and Science College, Kalamassery, Aluva studying in B.A (Economics) whereas the petitioner in W.P(C) No.18124 of 2013, giving rise to W.A. No.1472 of 2013, is the Ilahia College of Arts & Science and Technology, through its Manager.

3. Management of different private colleges who have come up in the Writ Petitions objects to the affiliation granted by the University to different unaided/self financing courses in the aided colleges. Petitioner's case in the Writ Petition is that the University cannot grant permission to run self financing courses in an existing aided college. Petitioner's case further is that aided institutions are using the infrastructure, teaching and non-teaching staff for the purpose of running the self-financing courses which has never been the intention of the University Act or Statute. It is the further case that the State Government ought not have granted no objection certificate to these colleges to run self-financing courses. Reliance on a Division Bench judgment of this Court in W.A. No.2096 of 2009 dated 01.02.2011 in Calicut University and another v. Christ College, Irinjalakuda has been referred to. Reference has also been made to a letter dated 08.06.2011 of the University of Calicut where decision of the Syndicate has been communicated to the Principal that the Syndicate has resolved that no aided colleges be permitted to admit students for self-financing UG and PG programmes from the academic year 2011-2012. Further letter dated 16.06.2011 has been brought on record as Ext.P3 by which the decision of the Syndicate dated 07.05.2011 referred to in the letter dated 08.06.2011 was kept in abeyance until further orders. In the Writ Petition Ext.P4 was filed, which is a letter dated 17.10.2012 issued by the Mahatma Gandhi University where enhancement of fee related to granting of affiliation to colleges has been notified. Petitioner in Writ Petition No.7361 of 2013 claimed to have submitted a detailed representation dated 20.12.2013 before the Principal Secretary, Higher Education Department, Government of Kerala praying that aided colleges be prohibited to take up self-financing courses. In the above background Writ Petition No.7361 of 2013 was filed praying for the following reliefs: 

(i) to issue a writ in the nature of mandamus or any other writ or order directing respondents 1 to 6 to take steps forthwith to prohibit aided colleges from running self financing UG & PG degree courses in the same building or in any other manner by utilizing the infrastructure, staff strength, library, etc and such other facilities meant for students admitted in the aided stream. 

(ii) to issue a writ in the nature of mandamus or any other writ or order directing respondents 1 and 3 to 6 to take urgent measures to delink self-financing courses from the aided colleges in the State of Kerala taking note of the view expressed by the Division Bench of this Hounourable Court in Ext.P1. 

(iii) to declare that students of the aided colleges cannot be compelled to share the facilities meant for them with the students admitted under self-financing sector in the light of the view taken by the Division Bench of this Honourable Court in Ext.P1. 

(iv) to issue a writ in the nature of mandamus or any other writ or order directing the 4th respondent University to revive Ext.P2 forthwith and further direct respondents 3, 5 & 6 to issue orders similar to Ext.P2 to prohibit aided colleges from admitting students for self-financing UG & PG degree programmes from the academic year 2013-2014. 

(v) to issue a writ in the nature of mandamus or order directing the 1st respondent to dispose of Ext.P5 petition after affording opportunity to the petitioner." 

4. Similarly Writ Petition Nos.18120 and 18124 of 2013 have been filed by two private aided colleges on almost similar pleadings. In Writ Petition No.18124 of 2013, challenge was also raised to order dated 31.05.2013 issued by the Mahatma Gandhi University granting affiliation to new courses/increase in intake/additional batch for the academic year 2013-14. Names of Colleges and the scheme of programmes have been detailed in Ext.P3. In Writ Petition No.7361 of 2013 Interlocutory applications were filed by the petitioner bringing on record orders issued on 31.05.2013 by the Mahatma Gandhi University with a prayer to stay the operation of the further proceedings pursuant to Ext.P6 order dated 31.05.2013.

5. Counter affidavits were filed in the Writ Petition by several private colleges which were arrayed as respondents as well as by the 3rd respondent- Mahatma Gandhi University. In the counter filed by the 3rd respondent it is stated that unaided courses in aided colleges are being sanctioned only on the basis of no objection certificate issued by the Government of Kerala with specific direction not to utilize the services of teaching and non-teaching staff of the aided stream for unaided courses. It is further pleaded that policy of the Government is not to sanction additional aided courses in aided Colleges, hence the Government sanctions only self-financing courses in aided colleges. It is further stated that the University periodically conducts inspection, assesses the performance of the unaided courses in aided colleges and checks if there is any violation of norms on the part of the management. It is submitted that the fee structure of aided and unaided steams is different. It is submitted that the Mahatma Gandhi University Statutes, 1997, Chapter 23 enables the University to give affiliation to new colleges and also new courses in existing colleges. It was pleaded that the said chapter did not make any distinction in affiliation between aided colleges and unaided colleges. A counter affidavit by the 5th respondent, i.e., Kerala University, has also been filed by its Registrar in which it is stated that the Kerala University is against the practice of granting of unaided courses in the aided sector and a resolution to that effect was taken on 02.08.2002 and 03.08.2003 by the Senate. It was further pleaded that the University was constrained to grant provisional affiliation to some of the unaided courses in aided colleges in compliance of the judgments passed by this Court. It was ensured that the educational agencies had complied with the statutory and academic requirements stipulated for conducting the courses and that the existing infrastructural and instructional facilities in the aided sector were not being used in the running of unaided courses. Details of various courses which were permitted to be conducted in the aided colleges have also been mentioned in paragraph 4 of the counter affidavit. The University has further pleaded that it requested the Government to change its policy in granting no objection certificates to the aided colleges for running unaided courses but no decision by the Government was communicated in the above regard.

6. We have heard Shri Ramakumar, Senior Advocate, Shri Devan Ramachandran, Shri C.A. Majeed, Shri Alias M.Cherian for appellants. We have heard Shri Jacob Varghese, Senor Advocate for the Mahatma Gandhi University, Shri V.A.Muhammed, Standing Counsel for Kannur University and Shri Bechu Kurian, Standing Counsel for the Kerala University. Shri S.Krishnamoorthy has appeared for the University Grant Commission. We have also heard the learned counsel appearing for the respondents-private Colleges, Shri P.I.Davis, learned Government Pleader and Smt.M.A. Vahida, learned counsel for the 22nd respondent.

7. Submission which has been pressed by the learned counsel for the appellant in support of the appeal is that in the scheme of various University Acts prevailing in the State of Kerala aided and unaided colleges are two separate entities with separate Principals, separate laboratory and separate affiliation. No aided colleges can run within its premises both aided and unaided courses with the same staff and infrastructure. The aided institutions are running unaided self financing Courses as part of the aided institution after receiving huge financial aid from the University Grant Commission and other agencies. Students are subjected to discrimination in the matter of collection of fee and staff are also subjected to discrimination in the matter of payment of salary. It is impermissible in law to make use of service of teachers in aided colleges to conduct teaching in unaided colleges. Learned Single Judge also did not appreciate the precedential value of the Division Bench judgment dated 01.02.2011 in W.A. No.2096 of 2009 - Calicut University and another v. Christ College, Irinjalakuda which was binding on the learned Single Judge. Learned Single Judge also erred in holding that the petitioner in W.P(C) No.7361 of 2013 had no locus to file the Writ Petition. Permitting self-finance course in the aided institutions is not in accordance with the scheme as was envisaged in the different University Acts and Statutes. It is submitted that the State Government has been granting no objection certificate to the aided institutions which is not in the interest of education or interest of students.

8. Learned counsel appearing for the Mahatma Gandhi University refuting the submission of the learned counsel for the appellant submitted that affiliation granted to unaided courses in the aided colleges is fully permissible as per the Mahatma Gandhi University Act and Statutes. It is submitted that there is no statutory restriction in any provision of the Act or Statutes from granting affiliation to new courses in aided institutions under the self-financing scheme. It is submitted that for granting affiliation there is no distinction between aided or unaided institutions. Only condition for grant of affiliation is that the educational agency should be able to fulfill various requirement and pre-conditions for grant of affiliation of unaided courses. Learned counsel appearing for the Kerala University, Shri Bechu Kurian submitted that although the University's resolution is that no unaided courses be affiliated to the aided colleges but in view of the no objection certificate granted by the State Government, the University has to grant affiliation of unaided courses in aided Colleges. Learned counsel for the Private Colleges have also supported the action of the University granting affiliation of unaided courses in aided colleges. It is submitted that each college fulfills all conditions of affiliation including having sufficient infrastructure, staff for running unaided courses, hence there was no impediment in granting affiliation to unaided or self financing courses. It is submitted that had the colleges violated any of the conditions or failed to provide infrastructure facilities for running unaided courses, the University ought to have taken action for disaffiliation which has never been done. It is true that they are complying all the conditions in running unaided courses in the aided colleges. It is submitted that for running unaided courses colleges are not utilizing services of teaching or non-teaching staff of the aided college which is the condition for granting affiliation of unaided courses. It is submitted that separate staff has been recruited for teaching self financing courses. Learned counsel for the private institutions further submitted that there is no restriction in utilizing various common facilities which are provided by institutions to the students. It is submitted that there cannot be any distinction between students of unaided and aided streams with regard to utilization of playground of the institutions. It is submitted that there is no restriction in the University Act or Statutes in granting affiliation to self-financing courses in an aided college. It is submitted that petitioners which are private unaided Colleges have no locus to challenge the grant of affiliation of self- financing courses to the aided colleges. It is submitted that none of the rights of the petitioners have been infringed by the grant of permission to run self-financing courses and the Writ Petitions at their instance were liable to be dismissed on the ground of lack of locus. 

9. Learned counsel for the parties have also placed reliance on the various judgments of this Court and the Apex Court which shall be referred to while considering the respective submissions.

10. From the pleadings and submissions raised by learned counsel for the parties, the following are main issues, which arise for consideration in these Writ Appeals: 

(i) Whether various University Acts and its Statutes framed thereunder do not permit/prohibit running of unaided courses/subjects in aided private colleges? 

(ii) Whether running of unaided courses/subjects in aided private colleges is discriminatory and arbitrary for the students taking education in two different types of courses, i.e., aided and unaided ? 

(iii) Whether the Division Bench judgment in W.A.No. 2096 of 2009 (Calicut University and another v. Christ College) lays down the ratio 

(i) that in an aided private college no self financing course/subject can be permitted; 

(ii) permitting self-financing course/subject in an aided private college shall lead to utilisation of services of teaching and non-teaching staff and also the infrastructure? 

(iv) Whether the petitioners/appellants had no locus standi to file the Writ Petitions? 

Issue No.(i): 

11. The importance of education especially professional education is increasing every day in the modern times. Ever increasing population in the State and the country demands more and more avenues of vocation and employment, which has led to introduction of various professional courses in the field of education. The importance of education has been emphasized time and again by Saints, Scholars and Courts of Law. 

In 

Brown v. Board of Education [347 US 483(1954)] 

the following was observed: 

"Today, education is perhaps the most important function of State and Local Governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment." 

12. A well educated and orderly society is the object of all democratic Governments. The State to fulfill its constitutional obligation have taken measures to establish Colleges and Universities in the State. Since the issue in these batch of Writ Appeals is as to whether in an aided private College self financing courses/subjects are not permitted by Act or Statutes, it is necessary for us to look into the statutory scheme delineated by the Act and the Statutes.

13. The State legislature by different enactments has established several teaching and affiliating Universities in the State of Kerala. The enactments establishing different Universities in the State of Kerala are the 

Kerala University Act, 1974

Calicut University Act, 1975

Mahatma Gandhi University Act, 1985 

and 

Kannur University Act, 1996, 

which are respondent- Universities in these batch of Writ Appeals. The orders affiliating different private Colleges, which have been challenged in different Writ Petitions relate to the order issued by the Mahatma Gandhi University, hence it shall be sufficient to refer to the provisions of Mahatma Gandhi University Act, 1985 (hereinafter referred to as 'the Act, 1985') and the Statutes framed thereunder to examine the scheme of affiliation of Colleges and grant of permission to run new subjects and courses. Whether the scheme delineated by the Act, 1985 and the Statutes indicate a statutory scheme prohibiting affiliation of self-financing courses/subjects in an aided institution, is the question, which is to be answered, hence the statutory scheme has to be scrutinized in the above light.

14. Section 2 of the Act, 1985 contains definition clauses. Section 2(2) defines 'affiliated college', Section 2(7) defines 'college', Section 2(17) defines 'private college' and Section 2(30A) refers to 'Un-aided College', which are quoted below: 

"2(2) 'affiliated college' means a college affiliated to the University in accordance with the provisions of this Act and the Statutes and in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations; 

xx xx xx 

2(7) "College" means an institution maintained by, or affiliated to the University, in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations; 

xx xx xx 

2(17) "private college" means a college maintained by an educational agency other than the Government or the University and affiliated to the University; 

xx xx xx 

2(30A) "Un-aided College" means a private college which is not entitled to any financial assistance from the Government or the University;" 

15. Section 5 of the Act, 1985 enumerated various powers of the University, which also include power to affiliate to its Colleges in accordance with the provisions of the Act, Statutes, Ordinances and Regulations and to withdraw affiliation of Colleges. Section 23 enumerates powers of the Syndicate. Section 23(i) of the Act, 1985 is quoted as follows: 

"23. Powers of Syndicate.- 

Subject to the provisions of this Act and the Statutes, the executive powers of the University including the general superintendence and control over the institutions of the University shall be vested in the Syndicate and subject likewise the Syndicate shall have the following powers,namely:- 

(i) to affiliate institutions in accordance with the terms and conditions of such affiliation prescribed in this Act and the Statutes;" 

16. Section 35 of the Act, 1985 provides that the Statutes may provide for all or any of the various matters enumerated therein, which also include "the conditions and procedure for affiliation of colleges". Chapter VIII of the Act, 1985 deals with "private colleges and affiliation of colleges". Sub-sections (1) to (3) of Section 58 are relevant for the present case, which are quoted as under: 

"58. Affiliation of colleges.- 

(1) An application for affiliation to the University of any college or for affiliation in new courses in any affiliated college shall be sent by the educational agency to the Registrar within such time and in such manner as may be prescribed by the Statutes. 

(2) The terms and conditions of affiliation of a college or of affiliation in new courses in an affiliated college and the procedure to be followed by the Syndicate in granting such affiliation, including the period within which the Syndicate shall consider an application under sub-section (1), shall be prescribed by the Statutes: 

Provided that the Chancellor may, by notification in the gazette, for reasons to be specified in the notification, extend the period within which the Syndicate shall consider any application under sub-section (1), whether such period has already expired or not by such further period, not exceeding one year, as may be specified in such notification. 

Provided further that where an application for affiliation in a new course in an affiliated college could not be considered by the Syndicate within the time prescribed by the Statutes on the ground that the application was not sent by the Educational Agency in time and that the period could not also be extended under the preceding proviso, the Chancellor may, in public interest, by notification in the Gazette, direct that the Syndicate shall consider the application within such period as may be specified in the notification not exceeding one year from the date of commencement of the University Laws (Amendment) Act, 1989. 

(3) Without prejudice to the generality of the provisions of sub section (2), such Statutes may provide for the pattern of staff, scales of pay and terms and conditions of service of members of the staff and admission and selection of students for courses and examinations." 

17. Section 73A of the Act, 1985 has been added in the Act by Act 9 of 1995, which is to the following effect: 

"73A. Special Provisions in respect of un-aided colleges.- 

Not withstanding anything contained in this Act or Statutes, ordinances, Regulations, rules, bye-laws, or orders. 

(a) the scale of pay and other conditions of service of the teaching and non-teaching staff of unaided colleges; and 

(b) the admission and selection of, and the fees payable by, students in such colleges, shall be determined, from time to time, by the Government on the basis of the recommendations of a committee by the Government consisting of - 

(i) one of the vice-chancellors of the Universities in the State nominated by the Government; 

(ii) the Secretary to Government, Higher Education Department (who shall be the convenor of the committee and 

(iii) the Director of Collegiate Education." 

18. The definition clause of the Act, 1985 as noted above defines 'affiliated college', 'college', 'private college' as well as 'unaided college'. In the present case we are concerned with 'private colleges', i.e., colleges maintained by an educational agency other than the Government or University and affiliated to the University. Private Colleges can both be aided and unaided. Definition of "Un-aided College" has been inserted by Act 9 of 1995, which means, private college is not entitled to any financial assistance from Government or University. In the present case, the private Colleges in which affiliation of new course/subject has been granted are all aided Colleges, which in one or other form are receiving aid from the government or University.

19. "College" is defined under Section 2(7) of the Act, 1985, which means an institution maintained by, or affiliated to the University, in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations. Section 58 of the Act, 1985 provides for affiliation of colleges. Section 58 (1) uses the phrase "an application for affiliation to the University of any college or for affiliation in new courses in any affiliated college......". Taking a plain and grammatical meaning of the above provision indicates that an application for affiliation to the University by any College can be made for affiliation in new courses in any affiliated college. Use of words "any College" in Section 58(1) of the Act, 1985 indicates that application for affiliation in new courses can be made both by aided or un-aided Colleges. There is no restriction with regard to nature of "new courses" sought to be applied. Sub- section (2) of Section 58 provides that the terms and conditions of an affiliation shall be prescribed by the Statutes. If the submission of learned counsel for the petitioner is accepted that in an aided College un-aided course cannot be affiliated, we have to read some more words in the Statutes, which on the principle of statutory interpretation has to be disapproved. Neither any word can be added or any word can be subtracted in a Statute and the Statute has to be read in a manner to have a full play. It is also relevant to look into the provisions of the 

Mahatma Gandhi University Statutes, 1997 

(hereinafter referred to as 'the Statutes, 1997') to further examine the statutory scheme for affiliation of new courses and subjects. Chapter 23 of the Statutes, 1997 deals with 'affiliation of Colleges'. Statute 6 lays down power of the Syndicate to grant affiliation, which reads as under: 

"6. Power of the Syndicate to grant affiliation etc.: 

(1) All applications seeking affiliation shall be considered by the Syndicate not later than 31st May preceding the academic year in which the courses are proposed to be started. 

(2) The Syndicate shall have power to affiliate any college within the territorial jurisdiction of the University preparing students for degree, titles or diplomas of the University which satisfies conditions prescribed in the laws of the University." 

Chapter 23 provides details of procedure after receipt of the application, including appointment of a Commission to inspect the proposed site of a new college or to make a physical verification of the facilities that may exist for starting the new college/course. Statute 22 deals with 'financial stability', which is quoted as below: 

"22. Financial Stability: 

Every college shall satisfy the syndicate that adequate financial provision is available for its continued and efficient maintenance either in the form of an endowment or in the form of bona fide financial security." 

20. Chapter 23 does not indicate any restriction of affiliating a new course/subject without aid in an aided institution. To provide education is an obligation of the State by making effective provisions therefor as was laid down by the Apex Court in 

P.A. Inamdar v. State of Maharashtra [(2005)6 SCC 537]. 

Paragraph 87 of the said decision is quoted blow: 

"87. Under Article 41 of the Constitution, right to education, amongst others, is obligated to be secured by the State by making effective provision therefor. Fundamental duties recognised by Article 51- A include, amongst others: Article 51-A(h) to develop scientific temper, humanism and the spirit of inquiry and reform; and Article 51-A(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. None can be achieved or ensured except by means of education. It is well accepted by the thinkers, philosophers and academicians that if JUSTICE, LIBERTY, EQUALITY and FRATERNITY, including social, economic and political justice, the golden goals set out in the preamble to the Constitution are to be achieved, the Indian polity has to be educated and educated with excellence. Education is a National wealth which must be distributed equally and widely, as far as possible, in the interest of creating an egalitarian society, to enable the country to rise high and face global competition. "Tireless striving stretching its arms towards perfection" (to borrow the expression from Rabindranath Tagore) would not be successful unless strengthened by education." 

21. The provisions of Act, 1985 and the Statutes framed thereunder have to be read to give full meaning, which may achieve the object and obligation of the State. Whether the State permit opening of new subject/course with finance or without finance is the policy matter, which depends on the economic capacity of the State. 

22. Providing higher education especially professional education requires infrastructure and finances, which is an accepted position. Providing higher education calls on availability of heavy economic resources. The Apex Court in 

Unnikrishnan v. State of A.P's case [(1993)1 SCC 645] 

made the following observations in paragraph 49: 

"49. Higher education calls heavily on national economic resources. The right to it must necessarily be limited in any given country by its economic and social circumstances. The State's obligation to provide it is, therefore, not absolute and immediate but relative and progressive. It has to take steps to the maximum of its available resources with a view to achieving progressively the full realisation of the right of education by all appropriate means. But, with regard to the general obligation to provide education, the State is bound to provide the same if it deliberately starved its educational system by resources that it manifestly had available unless it could show that it was allocating them to some even more pressing programme. Therefore, by holding education as a fundamental right up to the age of 14 years this Court is not determining the priorities. On the contrary, reminding it of the solemn endeavour, it had to take, under Article 45, within a prescribed time, which time-limit has expired long ago." 

23. It is on account of the financial constraints that the State has been permitting different private Colleges both aided and un-aided to run new courses/subjects by generating finances by the institutions/private Colleges themselves. The fact that the State Government is not ready to permit aided courses in the aided Colleges on account of not having adequate finance by itself cannot be read as a fetter in right of aided institutions to grow and create more and more avenues of education to meet the ever increasing requirements of students to have more and more courses including professional courses for their learning knowledge and getting an employment. In the event the submission of petitioner is accepted that aided Colleges cannot run new unaided courses even if they are ready to generate finance by themselves, the said view will be a fetter in increase and proliferation of the education, which shall run counter to the object of University Act and Statutes.

24. The Government, while giving no-objection for running unaided/self-financing courses in aided institutions, is well aware that it is sanctioning unaided course in an aided institution. The Government insist the management to enter into an agreement with the Government before obtaining a no-objection for running an unaided course. Copies of few of the agreements entered into between the management and the Government are on record. Exhibit R9(a) is an agreement dated 1st July, 2013 entered into between the Government and an educational agency, namely, MES College, Manampally, Aluva. Relevant portion of Exhibit R9(a) agreement reads as under: 

"WHEREAS the Educational Agency has established an aided College by name MES College, Marampally, Aluva, Ernakulam Dist. (hereinafter referred as the 'College') in the year 1994. 

AND WHEREAS the Educational Agency has requested No Objection Certificate (NOC)/ sanction from the Government for conducting the following unaided and self-financing courses in the college for the academic year 2013-14 viz.

1. B.Sc. Psychology - 30 seats 

2. M.Sc. Computer Science - 15 seats 

3. M.H.R.M. - 15 seats 

AND WHEREAS the Educational Agency hereby agrees that it would conduct the course only in accordance with such conditions as may be prescribed by the Government of Kerala from time to time." 

25. The agreement further provides that services of teaching and non-teaching staff of the aided sector shall not be utlised for the proposed unaided courses. Clause 14 of the agreement is as follows: 

"14. The services of teaching and non- teaching staff of the aided sector shall not be utilised for the proposed unaided courses." 

26. Various orders of the Government issuing no- objection certificate also contain the same condition, including clause 14 as quoted, above reference is made to the Government order dated 25th July, 2009, Exhibit R9(b). The Government, thus, have conscientiously decided to permit running of aided courses in aided Colleges, which is noted in the orders referred to above and the agreement entered into between the management and the Government. It is a matter of policy of the Government to grant any unaided course in aided Colleges. Reasoning is obvious, i.e., the Government have no sufficient finances to permit running of new aided courses in aided Colleges. The Academic Councils of the Universities have sanctioned various modern courses, which are useful to the students for obtaining employment and for equipping themselves with the modern science and technology, which is another aspect of the matter. The Government is free to frame its educational policy and change the policy from time to time. In this context, the learned Single Judge has rightly relied on the Apex Court judgment in 

State of Himachal Pradesh and others v. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh [(2011)6 SCC 597]. 

The Apex Court in the said judgment has laid down in paragraphs 21 and 22 as follows: 

"21. Mr.Mridul further contended that the respondent was considered for selection to the post of Principal Scientist on the basis of his work and performance from 1985 to 1998. According to him, the nature, work, duties and responsibilities of a Senior Scientist and Principal Scientist are almost identical in nature, but in order to remove stagnation, the promotion is envisaged under the Career Advancement Scheme.

22. Mr Mridul submitted that the stand of the respondent is fortified, reinforced and strengthened by the Career Advancement Schemes, 2004 and 2005 of the appellalnts. According to the Information, Handbook of Agricultural Scientists' Recruitment Board under the Right to Information act, 2005, the criteria for promotion is that the Board evaluates the contribution made by the Scientist concerned in academic research. The Board also evaluates the confidential reports for the last eight years while granting benefit of the Scheme. According to the procedure of the Career Advancement Scheme of 2004, the allocation of marks for personal interview has been reduced from 50% to 10% because the appellants themselves realised that allocation of 50% marks was highly excessive and in clear contravention of a series of judgments of this Court." 

27. The Government have conscientiously taken decision to permit running of unaided self- financing courses in aided institutions. Unless the action of the Government and the University violates the Act or statutory provision or is mala fide, this Court in its exercise of judicial review shall not substitute its decision. We have already observed that in the University Act and the Statutes there is no statutory provision, which may expressly or impliedly be read creating any fetter in granting affiliation of new self- financing courses/subjects in an aided private College. Rather, statutory scheme delineates that statutory provisions permitted granting of affiliation in new courses/subjects in any College. 'Any College' includes aided, unaided, private or Government Colleges.

28. We, thus, conclude that there is no statutory restriction on the power of the University and the State Government to sanction new courses/subjects in unaided stream in an existing aided College.

Issue No.(ii): 

29. We come to the second issue, i.e., whether running of unaided courses/subjects in aided private Colleges is discriminatory and arbitrary for the students taking education in two different types of institutions. Elaborating the submission learned counsel for the petitioners have contended that the fee structure in unaided courses is on higher side, whereas fee structure in aided institution is on lower side. Hence, in one institution itself there shall be discrimination among the students regarding payment of fee. It is further submitted that admission procedure for filling the seats in aided institution as well as seats in unaided institution is also different, which is discriminatory, arbitrary and violative of Article 14 of the Constitution of India. Participation of private institution in advancement and imparting of higher education in different States in the country has now become accepted factors and necessity. Fee structure and admission procedure in private institutions has been subject consideration before the Apex Court in several judgments. Charging of the capitation fee by the private institutions has already been disapproved by the Apex Court in 

T.M.A.Pai Foundation v. State of Karnataka [(2002)8 SCC 481]. 

The question of fee structure to be charged in the institution was considered in T.M.A.Pai Foundation's case (supra) as well as 

Islamic Academy of Education and another v. State of Karnataka and others [(2003)6 SCC 697]. 

In subsequent judgment of the Apex Court in P.A. Inamdar's case (supra) with regard to fee to be charged in private institution has laid down in paragraph 144 of the judgment as follows: 

"144. The two Committees for monitoring admission procedure and determining fee structure in the judgment of Islamic academy are in our view, permissible as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non-exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30 (1) or the right of minorities and non- minorities under article 19(1)(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution." 

30. In so far as the State of Kerala is concerned, amendments have been brought in the Mahatma Gandhi University Act, 1985 by Act 9 of 1995 by which, Section 73A has been added. Similar amendment has been made in other University Act.

31. As per Section 73A fee payable by students in un-aided Colleges is to be determined from time to time by the Government on the basis of the recommendation of a committee consisting of Vice-Chancellors of the Universities in the State nominated by the Government, Secretary to Government, Higher Education Department and the Director of Collegiate Education. In the agreement between the management and the Government by sanctioning self-financing course in the aided institution there is already necessary condition for payment of fee. Copy of the agreement is on record as Exhibit R9(a). Conditions 4 and 5 of Exhibit R9(a) agreement are relevant, which read as under: 

"4. The Educational Agency agrees to collect only such fees as determined by the Government from time to time from the students admitted to the college for the course.

5. The Educational Agency agrees to institute adequate number of scholarships on merit-cum-means basis as determined by the Government from time to time to the students admitted to the courses." 

32. It is to be noted that the above agreement was entered for conducting unaided self-financing courses in an aided College, namely, MES College, Marampally, Aluva. When the fee structure is controlled by the Government with regard to an unaided course, the argument cannot be accepted that charging of fee on the student is arbitrary. In so far as alleged discrimination between fee to be paid in an aided College and, for a student studying in unaided course, the submission cannot be accepted that different fee scale for the above two categories of courses/subjects is violative of Article 14 of the Constitution of India. Admission in Government Colleges and aided institutions is merit based and is based on a procedure known to everyone. Admission in unaided course in different categories is also based on merit and as per the procedure prescribed. Every student is free to compete and apply against a course best suited to him/her. The mere fact that a student could secure admission only in unaided course and is required to pay a different scale of fee as compared to aided course cannot be said to be discriminatory, since there is intelligible differentia between the two streams of admissions.

33. We are, thus, not inclined to accept the submission of learned counsel for the petitioners that there being different fee structures for unaided course and aided course, there is discrimination. It is further relevant to note that in these Writ Petitions the main challenge is that affiliation of unaided/self financing courses be not granted in aided institutions. There is no specific challenge to fee structure, nor petitioners can be said to be persons aggrieved with regard to payment of fee in unaided courses. 

34. We, thus, conclude that on the above submission, no fault can be found with affiliation of unaided/self-financing courses in unaided institutions.

35. Now we come to issue No.3, i.e., what is the ratio of the Division Bench judgment in W.A. No.2096 of 2009 - Calicut University and Another v. Christ College, Irinjalakuda. Learned counsel for the petitioner submitted that the Division Bench laid down that the infrastructural facilities of an aided college should not be shared by another institution started in the self financed sector because if it is permitted, the students in the aided college will have to share the facilities which may lead to lack of required facilities for such students leading to the aided college loosing affiliation already enjoyed. For appreciating the above observation of the Division Bench it is necessary to note the facts of the above case. The respondent college had applied for affiliation of degree course in Physical Education. The University recommended commencement of B.P.Ed. Course. The Course however could not be started in the aided sector because of the non-approval from the Government. The college applied for approval from the N.C.T.E for starting a self financed college for Physical Education and the NCTE granted approval for starting the institution with an intake of 50 students. The Division Bench itself has noted the various conditions subject to which approval was granted by the NCTE. The Division bench stated the following in the above context. 

"...The approval granted by NCTE is subject to various conditions which includes affiliation of the University on Universities being satisfied about the facilities available for granting affiliation. What is not clear from Ext.P5 is whether the respondent was permitted to start the course in the existing facilities within a period of three years thereafter. However, it is made clear in sub- clause (iii) of Clause 3 of Ext.P5 that the respondent should shift the institution to its own premises in a separate building within a period of three years from the date of recognition. The case of the University is that it cannot grant affiliation of any self financed institution within the premises of an aided college affiliated to it. The case of the University is that, if the respondent wants to start self financed college for starting the B.P.Ed. Course, it must have separate land and building of its own or in other words, separate infrastructure facilities independent of the facilities of the aided college presently being run by the respondent should be there.." 

Learned Single Judge has directed the University to grant affiliation against which the University has filed appeal. The Division Bench noted the contention of the college that respondents have set up separate building and infrastructural facilities for starting self financing college for Physical Education. Following was stated in paragraph 3 of the judgment. 

"After hearing both sides and after going through the orders, particularly Ext.P5 and the order impugned before the learned single Judge issued by the University namely Ext.P8, we are of the view that the University is entitled to verify availability of infrastructure for the self financed college before granting affiliation because, even according to the respondent, they are bound to comply with the conditions of approval granted by NCTE which inter alia provides for construction of building and establishment of separate infrastructure facilities within a period of three years from the date of their order. Further, the counsel for the respondent also submitted that the respondent has set up separate building and infrastructure facilities for starting self financed college for Physical Education. In the circumstances, we direct the respondent to complete construction of the building and provide the facilities, appoint the Principal and faculty members in terms of Ext.P5 approval granted by NCTE and then approach the University with fresh application and if the University, on inspection, finds that the facilities are available, then the University is bound to grant affiliation for the degree course being started by the respondent. In our view, even if the building and other infrastructure facilities are not fully arranged, the respondent has still time to finish the constructions and for making arrangement of facilities by the end of this academic year, so that at least for the next academic year 2011-12 the respondent can start the Physical Education course in the self financed college..." 

The ultimate direction issued by the Division Bench is to the following effect: 

"For the reasons stated above, we allow the writ appeal by vacating the judgment of the learned single Judge but with direction to the appellant University to grant affiliation to the self financed educational institution being started by the respondent for the degree course in Physical Education in terms of Ext.P5 approval, provided, the respondent establishes separate infrastructure facilities and provide instructional facilities including Principal and faculty members in terms of the approval granted by NCTE before the end of 31.03.2011 and the affiliation so granted should be for the next academic year, that is, 2011-12." 

From the facts of the aforesaid case and the observations made by the Division Bench it is clear that in the above case the college contended before the court that they are starting a separate self financing educational institution for the degree course in Physical Education in terms of Ext.P5, approval. In the above context observations were made by the Division Bench that infrastructural facilities of an aided college should not be shared by another institution started in the self financing sector. The said observations were made by the Division Bench in the context of a case where the college claimed that they are going to establish self financing institution separately for degree course in Physical Education. The above was not a case where additional courses/subjects were sought to be opened in an existing aided college and affiliation in that regard was asked for.

36. It is well established principle of statutory interpretation that judgments of courts are not to be treated as statutes. Observations in the judgments of courts are made for the purpose of explaining the case and not the purpose of defining. It is in this context observations of the Apex Court in 

Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani ([2004] 8 SCC 579) 

are relevant which are quoted below: 

"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In 

London Graving Dock Co. Ltd. v. Horton (AC at page 761) 

Lord MacDermott observed: (All ER p.14 C-D) 

"The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as they were part of an Act of Parliament and applying the rules of interpretation appropriate thereon. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge..." 

10. In 

Home Office v. Dorset Yacht Co. (All ER p.297 g-h) 

Lord Reid said, 

"Lord Atkin's speech.... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances". 

Megarry, J., in 

Shepherd Homes Ltd. v. Sandham (No.2) ([1971] 2 All ER 1267) 

observed: 

"One must not, of course, construe even a reserved judgment of Russel, L.J. As if it were an Act of Parliament." 

And, in 

Herrington v. British Railways Board ([1972] 1 All ER 749 (HL) 

Lord Morris said: (All ER p.76f1c) 

"There is a always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case." 

11. Circumstances flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

12. The following words of Lord Denning in the matter of applying precedents have become locus classicus "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. 

* * * * 

Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it." 

37. It is further relevant to note that in the present cases copy of the order of the State Government granting no objection certificate as well as agreement entered between the Government and institutions has brought on record which specifically provided in clause 14 that services of teaching and non- teaching staff shall not be utilized for the proposed unaided courses. Orders and agreements further stipulate that the educational agencies shall obtain and comply with the terms and conditions set out by the affiliating University. There is a specific prohibition of not utilizing the services of teaching and non-teaching staff of aided college. It cannot be read into conditions of the orders and agreement of the Government entered that it is impermissible to use any infrastructure of aided college provided it is not so contemplated in the orders and agreement. Thus the Division Bench judgment in W.A. No.2096 of 2009 - Calicut University and Another v. Christ College, Irinjalakuda cannot be read to lay down any ratio that in an aided institution no new course/subject in unaided stream can be opened. The Division Bench judgment thus does not prohibit the University to grant affiliation in new unaided course/subject in an aided institution.

38. Now we come to the last issue, i.e., the locus of the petitioner to file the Writ Petition.

39. As noted above, out of the four Writ Petitions, 2 Writ Petitions have been filed by private Colleges, one has been filed by the Association of Private Colleges and one has been filed by a student, studying for B.A degree course. Learned Single Judge in the impugned judgment relying on an earlier judgment reported in 

Dr.Pournami Mohan and Others v. State of Kerala and Others (2012 [1] KLT 686) 

has observed that it is doubtful as to whether a management association could maintain a writ petition. Dr.Pournami Mohan's case was a case where the issue regarding sharing of seats between the management of various self financing medical colleges and the Government for the Post Graduate Medical courses was under consideration. One of the Writ Petitions was filed by the Kerala Christian Professional College Managements' Federation. In the above context following was laid down in paragraph 12: 

"The practice of filing Writ Petitions by 'Associations' and 'Federations' of Managements of Colleges without the individual managements figuring as petitioners has also to be deprecated. Such practice is prevalent only in industrial parlance wherein the cause of numerous employees is espoused by Trade Unions and Associations to strengthen their bargaining power. The law makers of the Constitution had advisedly made a clear distinction between a fundamental right available to 'any person' and those guaranteed to 'all citizens'. Part III of the Constitution of India deals with the same and all citizens are persons even though all persons are not citizens. A registered Federation might be a person entitled to file a Writ Petition and is not a citizen who alone can complain of violation of Art.19(1)(g) of the Constitution of India." 

40. From the observations made above it is clear that the learned Single Judge has not held that the Writ Petition cannot be entertained. Observation, however, was that a registered Federation might be a person entitled to file a Writ Petition and is not a citizen who alone can complain of violation of Article 19(1)(g) of the Constitution of India. In the present batch of Writ Petitions, Writ Petitions are not only by Management Federations but two Writ Petitions are by Private Colleges and one by a student. 

41. Learned counsel appearing for the Private Colleges, Advocate Smt.Vaheeda has strenuously contended that there is no locus to file the Writ Petitions and the Writ Petitions be thrown out on the ground of lack of locus alone. Learned counsel has placed reliance on the decision reported in 

J.M. Desai v. Roshan Kumar (AIR 1976 SC 578). 

In the above case question which arose for consideration was as to whether the proprietor of a cinema theatre holding a licence for exhibiting cinematograph films is not entitled to invoke the certiorari jurisdiction to get no objection certificate granted by the District Magistrate in favour of a rival trade. The Apex Court in the said case held that the Writ Petition at the instance of the holder of a cinema theatre licence was not maintainable. Reliance was further placed by Advocate Smt. Vaheeda on a judgment of the Apex Court in 

Ayaaubkhan Noorkhan Pathan v. The State of Maharashtra & Ors. (JT 2012 [11] SC 95). 

In the said case the Apex Court had occasion to consider the phrase "person aggrieved" and locus of respondent to file Writ Petition challenging the Caste Certificate issued to the appellant. Paragraph 7.1 which is relevant is quoted as below: 

"7.1 Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same.(Vide : 

State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12

Saghir Ahmad and Anr. v. State of U.P., AIR 1954 SC 728

Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal and Ors., AIR 1962 SC 1044

Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736 : (1996 AIR SCW3424); 

and 

Tamil Nadu Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar and Ors., (2009) 2 SCC 784)." 

42. Learned counsel appearing for one of the Writ Petitioners in the Writ Petitions, Shri Devan Ramachandran, refuting the submission of learned counsel for the respondents submitted that petitioner had sufficient locus to file the Writ Petition. It is submitted that petitioners are private unaided colleges who are imparting education. It is submitted that imparting education of aided and unaided institutions are regulated by the University Act and statutes and in any event when the University and the Government act contrary to the statutory provisions of the State, Writ can be filed. Petitioner who is also an educational institution can ask the court to issue appropriate writ for enforcement of statutory duty which is cast upon the University and State. Learned counsel for the petitioners placed reliance on the decision reported in 

M.S.Jayraj v. Commissioner of Excise ([2000] 7 SCC 552. 

In the above case the Commissioner of Excise has permitted the appellant to locate the shop outside the range. The third respondent who was running a hotel and restaurant had obtained FL-3 licence to supply foreign liquor in peg measurements to patrons visiting the hotel filed the Writ Petition challenging the permission granted by the Excise Commissioner. One of the issues raised before the court was as to whether the third respondent had locus to challenge. The Apex Court after noticing the earlier judgments including the judgment in J.M. Desai's case (supra) repelled the objection regarding locus. It was held that when the order of Excise Commissioner was passed in violation of statutory provision the same could have been complained of in a Writ Petition. The court proceeded to examine the issues on merit. Following was laid down in paragraphs 11, 12, 13 and 14. 

"11. It is not discernible from the Judgment of the learned single Judge whether appellant had raised the issue of locus standi before him. But appellant did raise it before the Division Bench. In this appeal also he endeavoured to contend that the right of the third respondent is not affected by the order passed by the Excise Commissioner as the licence granted to her is only for selling liquor in small quantity and that too only to those persons who visit the hotel and restaurant, whereas the appellant is not permitted to sell it like that. We too feel that if the business of the third respondent is to be carried on in accordance with the rules such business cannot affect the business of the appellant. In that view of the matter appellant would not be a rival trader or a rival business contender for the third respondent. Perhaps bearing in mind this aspect the third respondent maintained the stand in the counter-affidavit filed in this Court that her objection against the order of the Excise Commissioner is as a citizen of Karukachal Panchayat and she is entitled to raise such objection.

12. In this context we noticed that this Court has changed from the earlier strict interpretation regarding locus standi as adopted in 

Nagar Rice and Flour Mills v. N. Teekappa Gowda and Bros., (1970) 1 SCC 575 : (AIR 1971 SC 246) 

and 

Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed, (1976) 1 SCC 671 : (AIR 1976 SC 578) 

and a much wider canvass has been adopted in later years regarding a person's entitlement to move the High Court involving writ jurisdiction. A four Judge Bench in Jasbhai Motibhai Desai (AIR 1976 SC 578) (supra) pointed out three categories of persons vis-a- vis the locus standi : 

(1) a person aggrieved; 

(2) a stranger; 

(3) a busybody or a meddlesome interloper. 

Learned Judges in that decision pointed out that any one belonging to the third category is easily distinguishable and such person interferes in things which do not concern him as he masquerades to be a crusader of justice. The Judgment has cautioned that the High Court should do well to reject the petitions of such busybody at the threshold itself. Then their Lordships observed the following (SCC p.683, para 38): 

"38. The distinction between the first and second categories of applicants, though real, is not always well demarcated. The first category has as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved'. In the grey outer circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be persons aggrieved." 

13. A recent decision delivered by a two Judge Bench of this Court (of which one of us is a party - Sethi, J.) in 

Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465 : (2000 AIR SCW 649 : AIR 2000 SC 988 : 2000 Cri LJ 1473) 

after making a survey of the later decisions held thus (para 17 of AIR, Cri LJ) : 

"17. In the context of public interest litigation, however, the Court in its various judgments has given the widest amplitude and meaning to the concept of locus standi. In 

People's Union for Democratic Rights v. Union of India (1982) 3 SCC 235 : (AIR 1982 SC 1473 : 1982 Lab IC 1646) 

it was laid down that public interest litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to Court. (See also 

Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : (AIR 1984 SC 802 : 1984 Lab IC 560) 

and State of H. P. v. A Parent of a Student of Medical College, (1985) 3 SCC 169 : (AIR 1985 SC 910) on the right to approach the Court in the realm of public interest litigation. In 

Bangalore Medical Trust v. B. S. Muddappa (1991) 4 SCC 54 : (1991 AIR SCW 2082 : AIR 1991 SC 1902) 

the Court held that the restricted meaning of aggrieved person and the narrow outlook of a specific injury has yielded in favour of a broad and wide construction in the wake of public interest litigation. The Court further observed that public spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of publc nature. They cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi of the absence of personal loss or injury. There has, thus, been a spectacular expansion of the concept of locus standi. The concept is much wider and it takes in its stride anyone who is not a mere "busybody." 

14. In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground oflocus standi.If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range (for which auction was held) and have his business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits." 

The above judgment of the Apex Court fully supports the contention raised by the learned counsel for the petitioners.

43. Petitioners in the Writ Petitions have come up with a case that the University and Government are acting against the statutory provisions in affiliating unaided course in aided colleges. Petitioners were themselves private unaided colleges who were granted affiliation. In the facts of the present case and especially the fact that the issue raised relate to imparting of education in different private aided and unaided colleges, we are satisfied that the challenge in the Writ Petition could not be thrown on the ground of lack of locus. We thus proceeded to examine the contention on merits.

44. In view of the forgoing discussion we do not find any error in the judgment of the learned Single Judge dismissing all the Writ Petitions. We affirm the judgment of the learned Single Judge dismissing the Writ Petitions. All the Writ Appeals are dismissed. Parties shall suffer their costs. 

ASHOK BHUSHAN ACTING CHIEF JUSTICE. 

A.M.SHAFFIQUE, JUDGE. 

vsv/vgs20/9/14   

PRESENT: THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN 

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE 

& 

THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR 

WEDNESDAY, THE 29TH DAY OF OCTOBER 2014/7TH KARTHIKA, 1936 

W.P(C).No. 32529 of 2007, W.P(C).No. 21455 of 2012, W.P(C).No. 2183 of 2008, W.P(C).No. 31985 of 2007, W.P(C).No. 30778 of 2005, W.P(C).No. 32086 of 2007, W.P(C).No. 34345 of 2007, & W.P(C).No. 36376 of 2007

PETITIONER(S):

S.SUDIN PADIPURAYIL HOUSING COLONY, KEEZHATTINGAL, ATTINGAL THIRUVANANTHAPURAM DISTRICT. 

BY ADVS.SRI.R.MANOJ SMT.SINDHU MANOJ 

RESPONDENT(S)

1. THE UNION OF INDIA AND OTHERS ITS SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING, NEW DELHI.

2. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, STATE SECRETARIAT THIRUVANANTHAPURAM.

3. THE PRASAR BHARATHI (BROADCASTING CORPORATION OF INDIA), NEW DELHI, REPRESENTED BY ITS CHAIRMAN.

4. THE PRESS COUNCIL OF INDIA, REPRESENTED BY ITS CHAIRMAN, NEW DELHI.

5. THE MATHRUBHUMI DAILY, REPRESENTED BY ITS EDITOR, CALICUT, KERALA STATE.

6. THE MALAYALA MANORAMA DAILY, REPRESENTED BY ITS EDITOR, KOTTAYAM, KERALA STATE. 

7. THE KERALA KAUMUDI DAILY REPRESENTED BY ITS EDITOR, THIRUVANANTHAPURAM, KERALA STATE.

8. THE DESHABHIMANI DAILY, REPRESENTED BY ITS EDITOR, ERNAKULAM, KERALA STATE.

9. THE INDIAN EXPRESS DAILY, REPRESENTED BY ITS EDITOR, ERNAKULAM, KERALA STATE.

10. THE MANGALAM DAILY, REPRESENTED BY ITS EDITOR, KOTTAYAM, KERALA STATE.

11. THE MADHYAMAM DAILY, REPRESENTED BY ITS EDITOR, THIRUVANANTHAPURAM, KERALA STATE.

12. THE ASIANET TELEVISION, REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM.

13. THE SURYA TELEVISION, REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM.

14. THE KAIRALI TELEVISION, REPRESENTED BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM.

15. THE INDIAVISION TELEVISION, REPRESENTED BY ITS MANAGING DIRECTOR, ERNAKULAM.

16. THE JEEVAN TELEVISION, REPRESENTED BY ITS MANAGING DIRECTOR, ERNAKULAM.

17. THE AMRITHA TELEVISION, REPRESENTED BY ITS MANAGING DIRECTOR, ERNAKULAM.

18. THE COMMUNIST PARTY OF INDIA, (MARXIST), REPRESENTED BY ITS GENERAL SECRETARY (KERALA) PALAYAM, THIRUVANANTHAPURAM.

19. THE COMMUNIST PARTY OF INDIA, REPRESENTED BY ITS SECRETARY, NEAR MODEL SCHOOL THIRUVANANTHAPURAM.

20. THE INDIAN NATIONAL CONGRESS, REPRESENTED BY ITS PRESIDENT (KERALA) THIRUVANANTHAPURAM. WP(C).NO. 32529 OF 2007 (S) 21. THE BHARATHEEYA JANATHA PARTY, REPRESENTED BY ITS SECRETARY (KERALA) THIRUVANANTHAPURAM.

22. THE VISHWA HINDU PARISHAD, REPRESENTED BY ITS SECRETARY, KALOOR, KOCHI.

23. THE INDIAN UNION MUSLIM LEAGUE, REPRESENTED BY ITS SECRETARY, KOZHIKODE. 

• R,R1 & 4 BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR 
• R,R8,18 BY ADV. SRI.M.K.DAMODARAN (SR.) 
• R,R8 BY ADV. SRI.P.K.VIJAYAMOHANAN 
• R,R8, 18 BY ADV. SRI.GILBERT GEORGE CORREYA 
• R,R19 BY ADV. SMT.AYSHA YOUSEFF 
• R,R19 BY ADV. SMT.MOLLY JACOB 
• R,R6 BY ADV. SRI.MILLU DANDAPANI 
• R,R21 BY ADV. SRI.P.S.SREEDHARAN PILLAI 
• R,R21 BY ADV. SMT.C.G.PREETHA 
• R,R21 BY ADV. SMT.P.RANI DIOTHIMA 
• R,R.10 BY ADV. SRI.GEORGEKUTTY MATHEW 
• R,R.9 BY ADV. SRI.U.K.RAMAKRISHNAN (SR.) 
• R,R.9 BY ADV. SRI.E.K.MADHAVAN 
• R,R.9 BY ADV. SMT.P.VIJAYAMMA 
• R,R.9 BY ADV. SRI.V.KRISHNA MENON 
• R,R5 BY ADV. SRI.T.G.RAJENDRAN 
• R,R16 BY ADV. SRI.C.J.JOY 
• R,R12 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR 
• R,R11 BY ADV. SRI.M.ASOKAN 
• R,R11 BY ADV. SRI.DEVAPRASANTH.P.J. 
• R,R15 BY ADV. SMT.R.RANJINI 
• R,R1,3 BY ADV. SRI.S.SUJIN, SC, IHRD 
• R,R13 BY ADV. SRI.NAGARAJ NARAYANAN 
• R,R13 BY ADV. SRI.SAIJO HASSAN 
• R,R18 BY ADV. SRI.ALAN PAPALI 
• R,R2 BY ADV. ADVOCATE GENERAL 
• R,R2 BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA GOPAL 
• R1 BY ADV. SRI.N.NAGARESH,ASG OF INDIA ( NO MEMO) 
• R19 BY ADV. SRI.T.M.MOHAMMED YOUSUFF(SR.)

JUDGMENT 

Ashok Bhushan, Ag.CJ. 

This bunch of Writ Petitions have been listed before the Full Bench on a reference made by a Division Bench of this Court. The Division Bench took the view that the issues raised in the Writ Petitions are of public importance, hence they require to be heard by a Full Bench.

2. This bunch of Writ Petitions highlights the grievance and suffering by common people of the State, on whom by the call of observing hartal by different political parties and organizations forces closure of all their activities, including respective businesses and vocations. The petitioners' grievances are compounded by not taking appropriate action and measures by the State, who is obliged to secure lives and properties of members of the society. The grievance is that in spite of two Full Benches of this Court having declared 'bandh' and 'forced hartal' unconstitutional, the political parties and various organizations are giving call for hartals and prosecuting their calls, which are nothing but forced hartals. Some of the petitioners, for example, petitioners in W.P(C).No.32529 of 2007, W.P(C).No.2183 of 2008 and W.P(C).No.21455 of 2012, who are aggrieved by failure of the State authorities to ensure normal functioning of the people in bandhs and forced hartals, have come with the prayer for restraining the print and electronic media from publishing any news regarding call of hartals given by political parties and different organizations.

3. In bunch of these Writ Petitions several prayers have been made by different petitioners giving relevant facts and details. Counter affidavits by some political parties, the State Government and other respondents have been filed. For noticing the issues raised before the Full Bench and the pleadings of the parties it is sufficient to note the pleadings and reliefs in all the Writ Petitions. We now proceed to note the facts and issues brought on record in above Writ Petitions for deciding the bunch of Writ Petitions.

4. W.P(C).No.32529 of 2007 has been filed by the petitioner, who claims to be working as the Principal of an educational institution affiliated to the Central Board of Secondary Education. The Writ Petition has been instituted seeking orders restraining publication or broadcasting of calls for bandh or hartal by political parties and other organizations. The petitioner by referring to two Full Bench judgments of this Court as noted above pleaded that in spite of various directions issued by the Full Bench of this Court, the State Government machinery did not do anything to mitigate the sufferings of the common people on the day of bandh/hartal. It is pleaded that on the days of hartal, an uncontrollable situation had arisen wherein self proclaimed violators of law, started holding the public to ransom in the name of hartal and bandh. The petitioner pleads that the root cause of enforcing a call for bandh/hartal is the wide circulation, propaganda and importance given to the same by news papers, television and radio. This is so, in view of the fact that once political party decides to call for a bandh/hartal, all they have to do is to convey the decision to the respective newspaper/television and once the news is flashed, people remain within their homes, fearing adverse consequences, if they violate the call for bandh, as is proved by past experiences, which inter alia amounts to aiding/abetting the call for bandh/hartal. The petitioner has impleaded representatives of television channels and newspapers operating in the State of Kerala. Representatives of political parties are also impleaded in the Writ Petition. The petitioner has also pleaded that Norms of Journalistic Conduct have been framed under the Press Council Act, 1978 and going by the said Regulation, vis-a-vis, the declarations of this Court and the Supreme Court, the petitioner pleads that newspapers ought not publish any call for bandh/hartal by any political party or group, since such action would directly infringe the rights guaranteed to a citizen under Articles 19(1)d and 21 of the Constitution of India. It is pleaded that the third respondent, Prasar Bharathi (Broadcasting Corporation of India), is obliged under the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 to discharge various obligations, including promoting social justice and advance the welfare of the weaker sections of the society, which refrain from broadcasting/telecasting any call for bandh/hartal made by the political parties. Similar pleadings have been made that Cable Television Networks ought not broadcast any news relating to call for bandh/hartal. The petitioner in the Writ Petition has prayed for the following reliefs: 

"i) declare that broadcasting/publishing/ telecasting news/call for hartal/bandh/ general strike by respondents 3 to 17 would amount to enforcing such call and hence un-constitutional and violative of the rights guaranteed under Article 21 of the Constitution of India. 

ii) issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1 to 4 to adopt effective measures to ensure that respondents 5 to 17 do not broadcast/publish/telecast any news or call for hartal/bandh/strike, which acts have been declared to be unconstitutional by the Full Bench of this Honourable Court in Bharat Kumar v. Union of India, 1997(2) KLT 287 and K.V.V.E. Samithi v. State of Kerala 2002 (2) KLT 430." 

5. W.P(C).No.31985 of 2007 has been filed by an organization, which has been formed for achieving overall welfare of the common people and to assist them in the matter of attaining protection whenever there is violation of human rights and impediments. The organization claims to have noted the recent trend among the political parties to call hartals/bandhs frequently, only to impose their political image forcefully on the public. The Writ Petition was filed in the wake of two prominent political parties in the State giving call of hartals to be observed on 27.10.2007 and 01.11.2007. The petitioners plead that calling of hartal causes lot of inconveniences to the public and many a time unlawful things are happening on the hartal days created by both political supporters and antisocial elements under the guise of political reactions. The leaders who call on hartals often declare that distribution of milk, newspapers and medical shops will be spared on the hartal day, which statement itself shows that they will sabotage the other routine activities of the public, such as travelling, opening of shops for business etc. and these activities will be hindered. People are forced to remain at home on the hartal day, thereby not attending their workplace and refrain from travelling, because of the hidden threat and danger to their lives. The reason for observing hartal on 27.10.2007 in the Malabar region was to protest against the indifferent attitude of Air India for the overall development of Calicut Airport. It was further pleaded that even though the Chief Minister of Kerala made request to refrain from observing hartal on 01.11.2007, since the arrival of His Excellency the President of India to Kerala was scheduled on that day, but the fourth respondent reiterated that they will proceed with observing hartal on 01.11.2007. It is further pleaded that a Full Bench of this Court in Bharth Kumar v. State of Kerala (1997(2) KLT 287 (FB) had held that no political party or organization can claim that it is entitled to paralyse the industry and commerce in the entire State or Nation and is entitled to prevent the citizen not in sympathy with its view point from exercising their Fundamental Rights or from performing their duties for their own benefit or for the benefit of the State or the Nation. The Full Bench has declared that calling bandh is illegal and unconstitutional. The judgment of the Full Bench was confirmed by the Supreme Court in Communist Party of India (M) v. Bharat Kumar (1997(2) KLT 1007(SC). Reference and reliance has been placed on George Kurian v. State of Kerala (2004(2) KLT 758). It is submitted that the petitioner had issued legal notice on earlier occasion and reference to legal notice dated 5.8.2007 Exhibit P2 has been made. It is further pleaded that by noticing the call made by the second respondent to observe hartal in Malabar region on 27.10.2007, the petitioner organization had issued legal notice on 24.10.2007. The petitioner filed the Writ Petition on 26.10.2007 seeking the following reliefs (as amended): 

"i) issue a writ of prohibitory, prohibiting/restraining the 2nd respondent proceeding with the call for observing Harthal on 27.10.2007 in Malabar region (Palakkad to Calicut), as it is illegal and unconstitutional. 

ii) issue a writ of prohibitory prohibiting/restraining the 4th respondent proceeding with the call for observing hartal on 1-11-2007 as the same is illegal and unconstitutional. 

iii) issue a writ of mandamus or any other appropriate writ, order or direction directing the 7th respondent to recover and realize compensation for the damage if any caused to the public/private property, from the respondents 1 to 6 as per Prevention of Damages to Public Property Act, 1984. 

Counter affidavits by some of the political parties, i.e., 6th respondent, Communist Party of India (Marxist) CPM and 11th respondent Communist Party of India (CPI) have been filed.

6. W.P(C).No.21455 of 2012 has been filed by the petitioner, who is a practicing lawyer of the Kozhikode Bar, who also claims to be a social worker. The Writ Petition has been filed in the wake of a call for hartal on 15.9.2012. Writ of prohibition has been prayed for banning the hartal declared on 15.9.2012. A prayer has also been made for restraining the members of the print and electronic media from publishing any news regarding the announcement of hartal by any political parties or organization in State of Kerala.

7. W.P(C).No.2183 of 2008 has been filed by the petitioner, who claims to be a retired school teacher and a social worker. He has shown his concern for protection of rights of the children and proper running of educational institutions. The petitioner pleads that in spite of bandh and hartal having been declared as unconstitutional by this Court as well as the Supreme Court, frequent forced hartal calls are made and such illegal calls are being published in various medias. The petitioner has given details of hartals conducted in the year 2007 in Exhibit P1. It is pleaded that those details are uploaded in the website "www.harthal.com". The petitioner pleaded that making of such calls, including publishing of it, with the intention to cause fear or alarm in the mind of the public is an offence under Section 503 of the Indian Penal Code. It is pleaded that the worst affected by such calls of hartals are the children. The schools will not be able to complete their lessons in view of such frequent hartals. Examinations in Universities in the State getting postponed. It is further pleaded that various all India examinations are conducted on all India basis and on days when examinations are scheduled if call of hartal is given, students of Kerala shall be deprived from participating in such examinations. The petitioner has prayed for the following reliefs: 

"i. To issue a writ, direction or order in the nature of mandamus or such other appropriate writ, direction or order commanding the respondent to take immediate steps to see that no call for bundh or forced hartals, as prohibited by this Hon'ble Court in Bharat Kumar vs State of Kerala 1997(2) KLT 287 and Peoples council for Social Justice vs State, 2002(2) KLT 548 are published in any media and appropriate action is taken against the violators under the Indian Penal Code, 1860 and Prevention of Insults to National Honour Act, 1971; 

ii. To issue a writ, direction or order in the nature of mandamus or such other appropriate writ, direction or order commanding the respondent to create a separate fund for the purpose of paying compensation to the victims of the hartals and bundhs, forthwith and to recover the same from the concerned persons by invoking the provisions of the Kerala Revenue Recovery Act, 1968, who make such illegal calls;" 

8. W.P(C).No. 30778 of 2005 has been filed by an association registered under the provisions of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act. The members of the association are mainly wholesale distributors of Kottayam District. The members are distributing various products to retailers. The petitioner's case is that because of the frequent calls of bandhs, hartals and general strikes by political parties, organizations, trade unions etc., citizens are threatened from travelling for attending to their duties. The members of the petitioner association are unable to transact their business. It is pleaded that although the members of the petitioner association are ready to carry out business on the days on which hartal or bandh is called, if given sufficient police protection by the police. In spite of requests by the members of the petitioner association to give adequate police protection to carry out business on bandh or hartal days, sufficient police protection to carry out the business has not been given. It is pleaded that the members of the petitioner association are suffering huge loss in the business. The following prayers are made in the Writ Petition: 

"i) Declare that the bandh called by the BJP on 9.11.2004 and the Hindu Aikyavedi on 15.11.2004 are unconstitutional and violative of Articles 19 and 21 of the Constitution of India. 

ii) Direct the 7th respondent BJP as well as 13th respondent Hindu Aikyavedi to deposit an amount of 10 lakhs each as compensation for the illegal action of calling harthal on 9.11.2004 and 15.11.2004 and to keep the said amount in a special fund and to disburse the same to the members of the petitioner association and other persons who have suffered loss or damage due to the above bandh; 

iii) To declare that the bandh or harthal or general strike called or enforcement of bandh or harthal or general strike will amount to an unconstitutional act; 

iv) Direct the police authorities and the district administration to give effective and adequate protection for members of the association to carry out their business; 

v) Direct the police authorities to take video photos during the call of a bandh/harthal/general strike etc. so as to identify the miscreants and to book them under law;" 

9. W.P(C).No.32086 of 2007 has been filed by a voluntary organization, which is aggrieved by the action of the respondents in calling hartals in the State as well as in Malabar region. Following are the prayers made in the Writ Petition: 

"a) Issue a writ of mandamus, directing the respondents 1 to 2 to take immediate and effective steps to ensure the safety of the citizens who disagree with the hartal, protect their right to work and travel and to protect public property on the days of hartals called for by respondents 3 and 4. 

b) Issue a writ of mandamus, directing the respondents 1 to 2 to maintain visible police presence throughout the State especially outside railway stations, bus depots, main roads, main junctions, hospitals, courts, schools, colleges, market and business places for taking effective and prompt action against the violence on the days of hartals called for by respondents 3 and 4. 

c) Issue a writ of mandamus, directing the respondents 1 and 2 to assess the loss caused to the State due to the destruction of public property by the organizers of the bandhs and hartals and to recover the same from the culprits. 

d) Issue a writ of mandamus, directing the respondents 1 and 2 to take immediate and effective steps to complete the investigations and to finalize all pending criminal cases registered against the organizers of the Bandhs and hartals, if necessary by constituting special court." 

10. W.P(C).No.34345 of 2007 has been filed pleading that frequently bandhs and hartals are called by political parties without caring the hardships and difficulties faced by the general public. The petitioner claims to be running a business, which suffers huge loss on the date of hartals. It is pleaded that examinations are indefinitely adjourned on account of hartals and bandhs, causing great loss to the students. The KSRTC are also suffering loss on account of the hartals, as they are not able to operate bus services on hartal days. In a month the loss suffered by the Corporation is more than several crores. The petitioner has come up praying for the following reliefs in the Writ Petition: 

"i) Issue a writ of mandamus directing respondents 5 to 7 to take adequate measures to see that normal life of the citizens is not paralysed and that is to be done not by declaring holidays or postponing examinations but by giving effective protection to those who are not participating any such harthals or bunds or strikes called by respondents 1 to 4; 

ii) Issue a writ of mandamus directing respondents 5 to 7 to recover damages from the persons who actually cause damages and also from political parties, organizers and persons who actually cause damages and also from political parties, organizers and persons who call for such harthals or general strike; 

iii) Issue a writ of mandamus directing respondents 5 to 7 to take action under the Prevention of Damages to Public Property Act, 1984 against the organizers of harthals and bundhs; 

iv. Issue a writ of mandamus directing respondents 5 to 7 to adequately compensate persons who have suffered losses immediately as the government has failed to fulfill its constitutional obligations to protect life and property of the citizens and to direct the government to take steps to recover the same from the persons who cause such damages or injuries and also from persons and political parties or organizers who call for such harthals or general strikes; 

v) Issue a writ of mandamus directing respondents 5 to 7 to see that public transport system including KSRTC and private buses and private vehicles are not prevented from running on roads on harthal and bundh days; 

vi) Issue a writ of Prohibition prohibiting 5th respondent or any of the Universities in Kerala from postponing or adjourning public examinations and tests on the ground of harthals and bundhs; vii) Issue a declaration declaring that calling and holding of harthal or bundh is an act of criminal intimidation which affect public order and security of the nation and is punishable u/s.503 I.P.C".

11. W.P(C) No.36376 of 2007 has been filed by State President of the Senior Citizens Welfare Association of India. The petitioner prays for a writ of mandamus directing the respondents to totally ban the call for hartal and blockade of roads by organizations such as political parties or otherwise. A counter affidavit on behalf of Government of Kerala has been filed stating that this Court has not banned a hartal in toto. Following is pleaded in paragraphs 2, 3, 5 and 6: 

"2. It is submitted that this Hon'ble Court has not banned a hartal in toto. However, as and when political parties declared hartal the Government is duty bound to ensure that it does not cause hindrance to normal life of the general public. It is submitted that the Government are taking immediate action in such instances so as to ensure that public and private property is protected, besides the safety of the citizen. Detailed instruction in this regard is being given to all subordinate officers and bandobust arrangements with visible police presence will be made whenever necessary. Action will be taken for proper patrolling at important places like Railway Stations, Airports etc. Whenever complaints of violence are received, cases were promptly registered and such cases will be expeditiously investigated. Action will also be initiated to recover damages from those who cause damages to public properties.

3. It is submitted that with regard to damages to properties, provisions are available to realize the damages caused during hartals. Every effort is being made to register cases, whenever complaints are received by Police. Action is also being taken to charge the cases expeditiously.

5. It is submitted that when political parties are declaring Harthals, instructions are being given to subordinate officers to file Civil Suits claiming damages from the agitations in the case of destruction of property besides registering criminal cases.

6. It is submitted that as and when information regarding declaration of harthal is received, the Government used to take adequate precautions so that the rights of citizens are sufficiently protected. During Hartals proper and adequate Police Bandobust arrangements are being made. Forceful closure of shops and obstruction of employees are prevented. During the entire Harthal period, the Police force in the State will stand mobilized. The Government are taking all possible steps to ensure that the general public is not deprived of their rights and claims." 

12. The main reliefs, which have been claimed in different Writ Petitions has been noted as above. 

The reliefs claimed in different Writ Petitions can be summarized to the following effect: 

"i) Writ or direction directing the State authorities to adopt effective measures to ensure that various news papers/TV channels do not broadcast/publish/ telecast any news of hartal/bandh/strike; 

ii) Issue a writ or order directing the State to totally ban calling for bandh/hartal/general strike; 

iii) Issue a writ or direction directing the State authorities to recover and realize compensation for the damages caused to the public/private property from the political parties/organization calling hartal/strike/bandh as per the Prevention of Damages to Public Property Act, 1984; 

iv) Issue a direction directing the political parties/ organizations calling for bandh/strike to deposit an amount for payment of compensation for illegal action of calling hartal; 

v) Issue a direction to the State as well as the police authorities to take effective measures as already directed by two Full Bench of this Court in Bharat Kumar v. Union of India (1997(2) KLT 287) and George Kurian v. State of Kerala (2004(2) KLT 758); 

vi) Direct the police authorities to take video/ photos during the call of a bandh/harthal/general strike etc. so as to identify the miscreants who can be booked under law; 

vii) Issue a direction to the State to create a fund for payment of compensation to the victims of hartals/bandhs, who suffer physical injury as well as destruction of their property; and viii) Issue a direction to the State administrative authorities to take steps expeditiously to get all criminal cases registered consequent to hartal/bandh decided at an early date.

13. We have heard Sri.P.B.Sahasranaman, Sri.T.S.Harikumar, Sri.M.J.Thomas, Sri.R.Manoj, Smt.Daisy Philipose, Sri.Philip J.Vettickattu, learned counsel appearing for the petitioners and Senior Counsel Sri.T.M.Mohammed Youseff, Sri.Swathy Kumar, Sri.Gilbert Correya, Sri.Devaprasanth, Sri.Millu Dandapani, Sri.Nandagopal Nambiar and Smt.Girija Gopal, Special Government Pleader appearing for the respondents.

14. From the submissions raised by learned counsel for the parties an d pleadings on record, the following are the main issues, which arise for consideration before this Full Bench: 

I. Whether the print and electronic media can be prohibited from publishing/ broadcasting/ telecasting any news for call of hartal/strike by a political party or an organization? 

II. Whether call for hartal/strike deserves to be totally banned? 

III. What are measures which can be taken by State for regulating/restricting call for hartal/strike given by political parties/different organizations? 

IV. What measures have to be taken by State/District Administration/police administration on day of hartal/strike to ensure that every person is able to attend his normal duty/business and life and property both private and public is protected? 

V. What are the measures for prosecution of guilty and mechanism for claiming damages/compensation for damage/ destruction of private and public properties during hartal/strike? 

VI. Whether call of hartal/strike violates the Prevention of Insults to National Honour Act, 1971? 

VII. Whether calling and carrying out hartal/strike is to be declared an offence punishable under Section 503 IPC. 

VIII. To what relief the petitioners are entitled? Issue No.I: Prohibiting the Print and Electronic media.

15. The first issue, which is the principal relief in first three Writ Petitions is with regard to prohibiting broadcasting/telecasting news/call for hartal/bandh/ general strike by print media, press, radio and televisions. The prayers made in the above first three Writ Petitions have already been quoted above.

16. Learned counsel for the petitioners, in support of the above prayers, submits that Full Benches of this Court as well as Apex Court, as noted above, have already declared calling bandh and forced hartal as unconstitutional. Printing news of above bandh and hartal and giving publicity by media is nothing but an illegal and unconstitutional act. It is submitted that the root cause of enforcing a call for bandh/hartal is the wide circulation, propaganda and importance given to the same by news papers, televisions and radio. It is submitted that once a political party decides to call for a bandh/hartal, all they have to do is to convey the decision to the respective newspaper/television and once the news is flashed, people remain within their homes, fearing adverse consequences. This inter alia amounts to aiding/abetting the call for bandh/hartal by media. It is further submitted that under the Press Council Act, 1978, the Council has framed Norms of Journalistic Conduct, which direct the newspapers to exercise due restraint and caution in presenting any news, comment or information, which is likely to jeopardize, endanger or harm the paramount interests of the State and Society. It is submitted that publicising news of hartal and bandh is nothing but to endanger or cause harm to the interests of the society and public in general. Similarly, it is contended that Prasar Bharati Corporation established under Section 3 of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 is obliged to discharge its functions in a manner to promote social justice and combat exploitations and evils which may damage the weaker sections of the society. It is submitted that the Corporation ought not to broadcast such news or publish information, which is likely to endanger and harm the people in general. It is submitted that in view of the declaration of law by the Full Bench of this Court and Apex Court, as noted above, as well as the statutory provisions, this Court may issue a direction prohibiting the press and media from printing and publishing any news for call for bandh/hartal.

17. Learned counsel for some of the respondents, i.e., political parties, have submitted that no prohibition can be imposed on press and media from publishing any news regarding call for bandh/hartal. It is submitted that it is the Fundamental Right of press guaranteed under Article 19(1)(a) of the Constitution of India to print/publish the views of the press and media, which is necessary for a healthy democracy. It is further submitted that the public in general has also a right to know about all events happening in the State and blacking out any such information from the public in general shall again violate the rights of the people guaranteed under the Constitution of India. The role of media is to function as a constructive opposition in a democracy and they are supposed to oppose what is bad and to support what is good.

18. Before we proceed to examine the rival contentions of learned counsel for the parties as noted above, it is useful to note relevant constitutional provisions as well as law on the subject as declared by the Supreme Court.

19. Our Constitution is the documentation of the founding faiths of a nation and the fundamental directions for their fulfillment. The Constitution is not just a document in solemn form, but a living framework for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends upon the democratic spirit underlined therein. The founding fathers of the Constitution, cognizant of the reality of life wisely engrafted the Fundamental Rights and Directive Principles in Chapters III and IV for a democratic way of life. The fundamental rights have in fact proved to be the most significant constitutional control on the Government, particularly legislative power. Article 19 of the Constitution is an arch on which edifice, i.e., the basic structure has been built and developed. In the present case, we mainly are concerned with the right guaranteed under the Constitution to "freedom of speech and expression". Article 19(1) and 19(2), which are relevant for the present case, are quoted as follows: "19. Protection of certain rights regarding freedom of speech, etc.--(1) All citizens shall have the right-- (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions [co- operative societies]; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; [and] (f) [* * *] (g) to practise any profession, or to carry on any occupation, trade or business. (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of [the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence." 20. Although Article 19(1)(a) does not specifically refers to the "freedom of press", but it is now well established that right of freedom of press is inherent and ingrained in the right of speech and expression guaranteed under Article 19(1)(a) of the Constitution.

21. Patanjali Sastri, J speaking for majority in one of the earliest cases of the Supreme Court has recognized and propounded the freedom of press. In Romesh Thappar v. State of Madras (AIR 1950 SC 124) the Supreme Court considered Article 19(1)(a) as well as Article 19(2) of the Constitution. In the above case, the petitioner was a printer, publisher and editor of a weekly journal in English. The Government of Madras, in exercise of their powers under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, issued an order imposing a ban upon the entry and circulation of the journal in the State of Madras. The said order was challenged before the Apex Court. Following was laid down in paragraphs 11, 13 and 14 of the judgment: 11. ".....Thus, very narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression and this was doubtless due to the realization that freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible. A freedom of such amplitude might involve risks of a abuse. But the framers of the Constitution may well have reflected with Madison who was 'the leading spirit in the preparation of the First Amendment of the Federal Constitution", that "it is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigour of those yielding the proper fruits" (Quoted in Near v. Minnesotta283 U. S 607 at 717-8 ). xx xx xx 13. It was, however, argued that S.9 (IA) could not be considered wholly void, as, under Art. 13(1) an existing law inconsistent with a fundamental right as void only to the extent of the inconsistency and no more. In so far as the securing of the public safety or the maintenance of public order would include the security of the State, the impugned provisions was covered by cl.(2) of Art. 19 and must, it was said, be held to be valid. We are unable to accede to this contention. Where a law purposes to authorize the imposition of restrictions on a fundamental right in language made enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and viod. In other words cl.(2) of Art. 19 having allowed the imposition of restriction on the freedom of speech and expression only in cases where danger to public security is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent.

14. The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioner's journal in the State of Madras in hereby quashed." 

22. In another case, which was decided by the Supreme Court on the same day, i.e., Brij Bhushan v. state of Delhi (AIR 1950 SC 129) speaking for the majority, Patajali Shastri, J. has laid down following in paragraph 25: "25.There can be little doubt that the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by Art.19 (1) (a).As pointed out by Blackstone in his Commentaries, "the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has all undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press." Blackstone's Commentaries, Vol. IV. pp. 151, 152. The only question therefore is whether S. 7 (1) (c) which authorizes the imposition of such a restriction falls within the reservation of cl. (2) of Art. 19" 

23. The Constitution Bench of this Court in Express Newspaper Ltd. v. Union of India (AIR 1958 SC 578) had occasion to consider Article 19(1)(a) of the Constitution in context of freedom of press. The Apex Court in the said case examined the Constitutional Law as well as American Law on the freedom of speech and expression. The Apex Court in the above case has laid down the following in paragraphs 131, 132, 142 and 143: 131. These are the only two decisions of this Court which involve the interpretation of Art. 19 (1) (a) and they only lay down that the freedom of speech and expression includes freedom of propagation of ideas which freedom is ensured by the freedom of circulation and that the liberty of the press is an essential part of the right to freedom of speech and expression and that liberty of the press consists in allowing no previous restraint upon publication.

132. There is however, a considerable body of authority to be found in the decisions of the Supreme Court of the United States of America bearing on this concept of the freedom of speech and expression. Amendment I of that Constitution lays down : "Congress shall make no law....abridging the freedom of speech or of the press....." xx xx xx 142. It is clear from the above that in the United States of America : (a) the freedom of speech comprehends the freedom of press and the freedom of speech and press are fundamental personal right of the citizens; (b) the freedom of the press rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public; (c) Such freedom is the foundation of free Government of a free people; (d) the purpose of such a guarantee is to prevent public authorities from assuming the guardianship of the public mind ; and (e) freedom of press involves freedom of employment or non-employment of the necessary means of exercising this right or in other words, freedom from restriction in respect of employment in the editorial force.

143.This is the concept of the freedom of speech and expression as it obtains in the United States of America and the necessary corollary thereof is that no measure can be enacted which would have the effect of imposing a pre-censorship curtailing the circulation or restricting the choice of employment or unemployment in the editorial force. Such a measure would certainly tend to infringe the freedom of speech and expression and would therefore be liable to be struck down as unconstitutional." 

24. In today's free world freedom of press is the heart of social and political intermingling. The press has now assumed the role of the public educator making formal and non-formal education possible in large scale particularly in the developing world where television and other kind of modern communications are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which democratic electorate cannot make responsible judgments. The Apex Court in its several judgments have explained and elaborated the right of freedom of press. In Bennett Coleman Co. v. Union of India [(1972)2 SCC 788] Justice A.N.Ray speaking for Constitution Bench has laid down following in paragraphs 45 and 80: 

"45. It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express. 

xx xx xx 

80. The faith of a citizen is that political wisdom and virtue will sustain themselves in the free market of ideas so long as the channels of communication are left open. The faith in the popular Government rests on the old dictum, "let the people have the truth and the freedom to discuss it and all will go well." The liberty of the press remains an "Art of the Covenant" in every democracy. Steel will yield products of steel. Newsprint will manifest whatever is thought of by man. The newspapers give ideas. The newspapers give the people the freedom to find out what ideas are correct. Therefore, the freedom of the press is to be enriched by removing the restrictions on page limit and allowing them to have new editions or new papers. It need not be stressed that if the quantity of newsprint available does not permit grant of additional quota for new papers that is a different matter. The restrictions are to be removed. Newspapers have to be left free to determine their pages, their circulation and their new editions within their quota of that has been fixed fairly." 

25. Justice Beg in his concurrent judgment has laid down in paragraph 98 as follows: 

"98. Although, our Constitution does not contain a separate guarantee of Freedom of the Press, apart from the freedom of expression and opinion contained in Article 19 (1)(a) of the Constitution, yet, it is well recognized that the Press provides the principal vehicle of expression of their views to citizens. It has been said: "Freedom of the Press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions. Never has criticism been more necessary than today, when the weapons of propaganda are so strong and so subtle. But, like other liberties, this also must be limited"." 

26. In Express Newspapers Pvt. Ltd. and others v. Union of India and others [(1986)1 SCC 133] the Supreme Court again emphasized that freedom of press is not only valuable freedom in themselves but are basic to a democratic form of Government. The following was laid down by the Supreme Court in paragraph 75 of the judgment: 

"75. I would only like to stress that the freedom of thought and expression, and the freedom of the press are not only valuable freedoms in themselves but are basic to a democratic form of Government which proceeds on the theory that problems of the Government can be solved by the free exchange of thought and by public discussion of the various issues facing the nation. It is necessary to emphasize and one must not forget that the vital importance of freedom of speech and expression involves the freedom to dissent to a free democracy like ours. Democracy relies on the freedom of the press. It is the inalienable right of everyone to comment freely upon any matter of public importance. This right is one of the pillars of individual liberty--freedom of speech, which our Court has always unfailingly guarded. I wish to add that however precious and cherished the freedom of speech is under Article 19(1)(a), this freedom is not absolute and unlimited at all times and under all circumstances but is subject to the restrictions contained in Article 19(2). That must be so because unrestricted freedom of speech and expression which includes the freedom of the press and is wholly free from restraints, amounts to uncontrolled licence which would lead to disorder and anarchy and it would be hazardous to ignore the vital importance of our social and national interest in public order and security of the State." 

27. The right to express one's views by words of mouth or in writing or through audio-visual instrumentalities is not a right guaranteed only to every citizen, but is a right guaranteed to newspapers, radios and television channels also. The Apex Court in Life Insurance Corporation of India v. Manubhai D.Shah [(1992)3 SCC 637] has laid down the following in paragraphs 6, 7 and 8: 

"6. A constitutional provision is never static, it is ever-evolving and ever-changing and, therefore, does not admit of a narrow, pedantic or syllogistic approach. If such an approach had been adopted by the American Courts, the First Amendment -- (1791) -- "Congress shall make no law abridging the freedom of speech, or of the press" -- would have been restricted in its application to the situation then obtaining and would not have catered to the changed situation arising on account of the transformation of the print media. It was the broad approach adopted by the Court which enabled them to chart out the contours of ever-expanding notions of press freedom. In Dennis v. United States Justice Frankfurter observed: 

"... The language of the First Amendment is to be read not as barren words found in a dictionary but as symbols of historic experience illuminated by the presuppositions of those who employed them." Adopting this approach in Joseph Burstyn, Inc. v. Wilson the Court rejected its earlier determination to the contrary in Mutual Film Corporation v. Industrial Commission of Ohio and concluded that expression through motion pictures is included within the protection of the First Amendment. The Court thus expanded the reach of the First Amendment by placing a liberal construction on the language of that provision. It will thus be seen that the American Supreme Court has always placed a broad interpretation on the constitutional provisions for the obvious reason that the Constitution has to serve the needs of an ever-changing society.

7. The same trend is discernible from the decisions of the Indian courts also. It must be appreciated that the Indian Constitution has separately enshrined the fundamental rights in Part III of the Constitution since they represent the basic values which the people of India cherished when they gave unto themselves the Constitution for free India. That was with a view to ensuring that their honour, dignity and self respect will be protected in free India. They had learnt a bitter lesson from the behaviour of those in authority during the colonial rule. They were, therefore, not prepared to leave anything to chance. They, therefore, considered it of importance to protect specific basic human rights by incorporating a Bill of Rights in the Constitution in the form of fundamental rights. These fundamental rights were intended to serve generation after generation. They had to be stated in broad terms leaving scope for expansion by courts. Such an intention must be ascribed to the Constitution-makers since they had themselves made provisions in the Constitution to bring about a socio-economic transformation. That being so, it is reasonable to infer that the Constitution- makers employed a broad phraseology while drafting the fundamental rights so that they may be able to cater to the needs of a changing society. It, therefore, does not need any elaborate argument to uphold the contention that constitutional provisions in general and fundamental rights in particular must be broadly construed unless the context otherwise requires. It seems well settled from the decisions referred to at the Bar that constitutional provisions must receive a broad interpretation and the scope and ambit of such provisions, in particular the fundamental rights, should not be cut down by too astute or too restricted an approach. See Sakal Papers (P) Ltd. v. Union of India.

8. The words "freedom of speech and expression" must, therefore, be broadly construed to include the freedom to circulate one's views by words of mouth or in writing or through audio-visual instrumentalities. It, therefore, includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this free country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. The print media, the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy. Freedom to air one's views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship. It cannot be gainsaid that modern communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution. It follows that a citizen for propagation of his or her ideas has a right to publish for circulation his views in periodicals, magazines and journals or through the electronic media since it is well known that these communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance. Once it is conceded, and it cannot indeed be disputed, that freedom of speech and expression includes freedom of circulation and propagation of ideas, there can be no doubt that the right extends to the citizen being permitted to use the media to answer the criticism levelled against the view propagated by him. Every free citizen has an undoubted right to lay what sentiments he pleases before the public; to forbid this, except to the extent permitted by Article 19 (2), would be an inroad on his freedom. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest. It is manifest from Article 19(2) that the right conferred by Article 19(1)(a) is subject to imposition of reasonable restrictions in the interest of, amongst others, public order, decency or morality or in relation to defamation or incitement to an offence. It is, therefore, obvious that subject to reasonable restrictions placed under Article 19(2) a citizen has a right to publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Article 19(1)(a)." 

28. The Apex Court had occasion to consider all earlier cases of the Supreme Court in Secretary, Ministry of Information & Broadcasting, Govt. of India and others v. Cricket Association of Bengal and others [(1995)2 SCC 161]. Article 19(1)(a) of the Constitution of India was elaborately considered and explained after noticing the earlier cases of the Supreme Court in paragraphs 43, 44 and 45 of the judgment: 

"43. We may now summarize the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2). The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self-expression which is an important means of free conscience and self-fulfillment. It enables people to contribute to debates on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one's opinion without interference to as large a population in the country, as well as abroad, as is possible to reach.

44. This fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2) of the Constitution.

45. The burden is on the authority to justify the restrictions. Public order is not the same thing as public safety and hence no restrictions can be placed on the right to freedom of speech and expression on the ground that public safety is endangered. Unlike in the American Constitution, limitations on fundamental rights are specifically spelt out under Article 19(2) of our Constitution. Hence no restrictions can be placed on the right to freedom of speech and expression on grounds other than those specified under Article 19(2)." 

Explaining Article 19(2) of the Constitution, the following was laid down in paragraph 151 of the judgment: 

"151. Article 19(1)(a) declares that all citizens shall have the right of freedom of speech and expression. Clause (2) of Article 19, at the same time, provides that nothing in sub-clause (i) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with the foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence. The grounds upon which reasonable restrictions can be placed upon the freedom of speech and expression are designed firstly to ensure that the said right is not exercised in such a manner as to threaten the sovereignty and integrity of India, security of the State, friendly relations with the foreign States, public order, decency or morality. Similarly, the said right cannot be so exercised as to amount to contempt of court, defamation or incitement of an offence. Existing laws providing such restrictions are saved and the State is free to make laws in future imposing such restrictions. The grounds aforesaid are conceived in the interest of ensuring and maintaining conditions in which the said right can meaningfully and peacefully be exercised by the citizens of this country." 

29. In Sahara India Real Estate Corporation Ltd. v. SEBI [(2012)10 SCC 603] the Apex Court had occasion to consider Press and Media Law. It was submitted before the Apex Court that freedom of press guaranteed in Article 19(1)(a) of the Constitution is not only for the benefit of the owners or proprietors of the newspapers or of the editors or journalists, in essence, it embodies the people's right to know about the working of administration and about the alleged malfeasance of Government authorities. The Apex Court, speaking through Justice S.H.Kapadia, C.J., has laid down the following in paragraph 25: 

"25. ....Freedom of expression is one of the most cherished values of a free democratic society. It is indispensable to the operation of a democratic society whose basic postulate is that the Government shall be based on the consent of the governed. But, such a consent implies not only that the consent shall be free but also that it shall be grounded on adequate information, discussion and aided by the widest possible dissemination of information and opinions from diverse and antagonistic sources. Freedom of expression which includes freedom of the press has a capacious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock any section of the population. It also includes the right to receive information and ideas of all kinds from different sources. In essence, the freedom of expression embodies the right to know. However, under our Constitution no right in Part III is absolute. Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government. Underlying our constitutional system are a number of important values, all of which help to guarantee our liberties, but in ways which sometimes conflict. Under our Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against other important, and often competing, values. This process of definition, qualification and balancing is as much required with respect to the value of freedom of expression as it is for other values. Consequently, free speech, in appropriate cases, has got to correlate with fair trial. It also follows that in an appropriate case one right (say freedom of expression) may have to yield to the other right like right to a fair trial. Further, even Articles 14 and 21 are subject to the test of reasonableness after the judgment of this Court in Maneka Gandhi v. Union of India.

30. From the foregoing discussion, it is abundantly clear that freedom of press is one of the cherished constitutional values of our democracy. Any restriction on the right of freedom of press cannot be imposed except by a law under Article 19(2) of the Constitution. As noted above, right under Article 19(1)(a) of the Constitution is subject to reasonable restriction imposed by law in the interest of sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order decency or morality or in relation to contempt of court, defamation or incitement to an offence. Thus, the restriction, if any, can be imposed by a law. Learned counsel for the petitioners have referred to the provisions of the Press Council Act, 1978, specifically Section 13. Sub Sections (1) and (2) of Section 13 on which reliance has been placed is to the following effect: "13. Objects and functions of the Council.--(1) The objects of the Council shall be to preserve the freedom of the Press and to maintain and improve the standards of newspapers and news agencies in India. (2) The Council may, in furtherance of its objects, perform the following functions, namely: (a) to help newspapers and news agencies to maintain their independence; (b) to build up a code of conduct for newspapers, news agencies and journalists in accordance with high professional standards; (c) to ensure on the part of newspapers, news agencies and journalists, the maintenance of high standards of public taste and foster a due sense of both the rights and responsibilities of citizenship; (d) to encourage the growth of a sense of responsibility and public service among all those engaged in the profession of journalism; (e) to keep under review any development likely to restrict the supply and dissemination of news of public interest and importance; (f) to keep under review cases of assistance received by any newspaper or news agency in India from any foreign source including such cases as are referred to it by the Central Government or are brought to its notice by any individual, association of persons or any other organisation: Provided that nothing in this clause shall preclude the Central Government from dealing with any case of assistance received by a newspaper or news agency in India from any foreign source in any other manner it thinks fit; (g) to undertake studies of foreign newspapers, including those brought out by any embassy or other representative in India of a foreign State, their circulation and impact. Explanation.--For the purposes of this clause, the expression "foreign State" has the meaning assigned to it in Section 87-A of the Code of Civil Procedure, 1908 (5 of 1908); (h) to promote a proper functional relationship among all classes of persons engaged in the production or publication of newspapers or in news agencies: Provided that nothing in this clause shall be deemed to confer on the Council any functions in regard to disputes to which the Industrial Disputes Act, 1947 (14 of 1947), applies; (i) to concern itself with developments such as concentration of or other aspects of ownership of newspapers and news agencies which may affect the independence of the Press; (j) to undertake such studies as may be entrusted to the Council and to express its opinion in regard to any matter referred to it by the Central Government; (k) to do such other acts as may be incidental or conducive to the discharge of the above functions." 

31. The above provision cannot be read as containing any prohibition or restriction on print media. Press Council has been given power to censure under Section 14, which cannot be read as any restriction on the right of press. Learned counsel has referred to the Norms of Journalistic Conduct framed by the Press Council of India. Norm 23 has been relied, which is to the following effect: 

"23. Paramount National Interest: Newspapers shall, as a matter of self regulation exercise due restraint and caution in presenting any news, comment or information, which is likely to jeopardize, endanger or harm the paramount interests of the State and Society, or the rights of individuals with respect to which reasonable restrictions may be imposed by law on the right to freedom of speech and expression, under clause (2) of Article 19 of the Constitution of India." 

32. The above norm is a measure of self regulation by newspaper by which newspaper has to exercise due restraint and caution in presenting news, comment or information, which is likely to jeopardize, endanger or harm the paramount interests of the State and society. The above clause also refers to reasonable restrictions under clause (2) of Article 19 of the Constitution of India. The said norm has to be read as measure of self regulation and restraint by the newspapers itself, but from the above clause, no right of prohibition from publishing a news can be read. The provisions of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 have also been referred to, especially Section 12 (2)(h). Section 12 enumerates the functions and powers of Corporation. Section 12(2)(h) reads as under: 

"12. Functions and powers of Corporation.- xx xx xx (2)(h). Promoting social justice and combating exploitation, inequality and such evils as untouchability and advancing the welfare of the weaker sections of the society." 

33. The above provision incorporates the objects of the Corporation, which has to be followed in the discharge of its function. There cannot be any dispute that the Corporation has to follow the objective of the Corporation while discharging various obligations, including promoting social justice and advancing the welfare of the weaker sections of the society. The said provision cannot be read to meet any kind of restriction on the Broadcasting Corporation in giving information regarding call for bandh or hartal by media.

34. One more aspect, which has been highlighted by learned counsel appearing for the respondents, political parties, is that putting any kind of restriction on press and media shall be denying right guaranteed to an individual, namely, right to know. Right of information, i.e., right to know has also been read as one of the Fundamental Rights. The Apex Court in Dinesh Trivedi v. Union of India [(1997)4 SCC 306] has laid down the following in paragraph 16: "16. In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare. However, like all other rights, even this right has recognized limitations; it is, by no means, absolute. This Court has had many an opportunity to express itself upon this issue. In the case of State of U.P. v. Raj Narain, Mathew, J. eloquently expressed this proposition in the following words: (SCC p. 453, para 74) 

"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption." 

35. The Apex Court again in People's Union for Civil Liberties v. Union of India [(2004)2 SCC 476] has emphasized that right of information is the facet of the freedom of speech and expression.

36. There cannot be any dispute that people have right to know all events and incidents, which take place around them and around the world. Suppression of any information from the people shall be negation of their right to know and right of information.

37. We, thus, fully subscribe to the submission made by learned counsel for the respondents that any prohibition on press and media from publishing any call for bandh or hartal shall be violative of the right of the people to know and receive information.

38. Before we conclude our discussion on the above subject, we deem it fit and proper to make certain observations regarding self restraint and self regulation on press and media, which have been emphasized by the Supreme Court time and again. As noted above, the Code of Conduct framed by the Press Council of India, i.e., Clause 23 emphasises about the self regulation and restraint in presenting any news, which is likely to jeopardize and endanger or harm the paramount interests of the society.

39. The media now-a-days is all pervasive and covering all aspects of life, good or bad. The object of media has been and is to bring to the notice of the people in general information or news, which may help the society to educate and to use the information to unearth any offence, crime or illegality. It is common knowledge that any call for bandh or hartal widespread violence and destruction of property, both public and private, takes place, which facts and figures have been brought on record before us by both the parties. Now after amendments are made in the Indian Evidence Act, evidence in electronic form is also admissible. Media can be utilised to book those culprits who indulge in destruction of public and private properties and cause physical harm to the members of the society. Bringing relevant materials with the above objectives before the administration shall be beneficial and felicitate the administration and Courts of Law to punish wrong doers. The role of press has been noted and explained by the Apex Court in several judgments in Harijai Singh, Re [(1996)6 SCC 466]. The following was laid down in paragraphs 9 and 10 of the judgment: 

"9. It is thus needless to emphasise that a free and healthy press is indispensable to the functioning of a true democracy. In a democratic set-up, there has to be an active and intelligent participation of the people in all spheres and affairs of their community as well as the State. It is their right to be kept informed about current political, social, economic and cultural life as well as the burning topics and important issues of the day in order to enable them to consider and form broad opinion about the same and the way in which they are being managed, tackled and administered by the Government and its functionaries. To achieve this objective the people need a clear and truthful account of events, so that they may form their own opinion and offer their own comments and viewpoints on such matters and issues and select their further course of action. The primary function, therefore, of the press is to provide comprehensive and objective information of all aspects of the country's political, social, economic and cultural life. It has an educative and mobilising role to play. It plays an important role in moulding public opinion and can be an instrument of social change. It may be pointed out here that Mahatma Gandhi in his autobiography has stated that one of the objectives of the newspaper is to understand the proper feelings of the people and give expression to it; another is to arouse among the people certain desirable sentiments; and the third is to fearlessly express popular defects. It, therefore, turns out that the press should have the right to present anything which it thinks fit for publication.

10. But it has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving an unrestricted freedom of speech and expression would amount to an uncontrolled licence. If it were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be misunderstood as to be a press free to disregard its duty to be responsible. In fact, the element of responsibility must be present in the conscience of the journalists. In an organized society, the rights of the press have to be recognized with its duties and responsibilities towards the society. Public order, decency, morality and such other things must be safeguarded. The protective cover of press freedom must not be thrown open for wrong doings. If a newspaper publishes what is improper, mischievously false or illegal and abuses its liberty it must be punished by court of law. The editor of a newspaper or a journal has a greater responsibility to guard against untruthful news and publications for the simple reason that his utterances have a far greater circulation and impact than the utterances of an individual and by reason of their appearing in print, they are likely to be believed by the ignorant. That being so, certain restrictions are essential even for preservation of the freedom of the press itself. To quote from the report of Mons Lopez to the Economic and Social Council of the United Nations "If it is true that human progress is impossible without freedom, then it is no less true that ordinary human progress is impossible without a measure of regulation and discipline". It is the duty of a true and responsible journalist to strive to inform the people with accurate and impartial presentation of news and their views after dispassionate evaluation of the facts and information received by them and to be published as a news item. The presentation of the news should be truthful, objective and comprehensive without any false and distorted expression." 

40. The Apex Court in Hindustan Times v. High Court Allahabad [(2011)13 SCC 155] had noted that with the immense power, lot of responsibilities are also on the shoulders of the press. The Apex Court in the said case has observed that the press has responsibility also not to provide any information that is factually wrong or biased information. The following was laid down in paragraphs 4 and 6 of the judgment: 

"4. With this immense power, comes the burden of responsibility. With the huge amount of information that they process, it is the responsibility of the media to ensure that they are not providing the public with information that is factually wrong, biased or simply unverified information. xx xx xx 6. The unbridled power of the media can become dangerous if checks and balances are not inherent in it. The role of the media is to provide to the readers and the public in general with information and views tested and found as true and correct. This power must be carefully regulated and must reconcile with a person's fundamental right to privacy. Any wrong or biased information that is put forth can potentially damage the otherwise clean and good reputation of the person or institution against whom something adverse is reported. Pre-judging the issues and rushing to conclusions must be avoided." 

41. From the foregoing discussion, we conclude that this Court, in exercise of writ jurisdiction, cannot issue any writ restraining from publishing/broadcasting any information regarding call of hartal/strike.

42. We observe that in the context of hartal and forced hartal/strike, information and details collected by press and media can be shared with administration and Courts for purpose of identifying wrong doers, so that people, who suffer any kind of injury of life and property should get an early justice.

43. As observed above, media has also to enforce self regulation and restraint on itself in publishing/ broadcasting information and news, which may not advance the interest of the society. The act of violence and destruction of public and private property has to be strongly condemned and those who indulge any such act have to be brought before the law. Issue No.2. Hartal/Strike whether can be totally banned.

44. The second issue which falls for our consideration is as to whether Hartal/Strike can be totally banned. Petitioners in the Writ Petition have submitted that Hartal having been declared as unconstitutional by a Full Bench of this Court as well as the Supreme Court, political parties and various organizations are still calling for Hartal/total Strike which is nothing but Bundh organized by them disrupting the entire normal life of the common man. It is submitted that people who resort to barbaric methods of achieving their objects damage public and private property causing national loss. On one day of Hartal there is substantial loss of production which cannot be compensated. It is submitted that only alternate to deal with such unconstitutional act is to totally ban the call and conduct of Hartal.

45. Learned Senior counsel appearing for the Communist Party of India who has filed counter affidavit in W.P(C) No.31985 of 2007 has refuted the submission and submitted that the Apex Court in Communist Party of India's case (supra) has approved the general strike or call for Hartal. It is denied that by the call of Hartal all shops are forced to shut down and the people are compelled to remain home thereby not attending their work place. Hartal is voluntary and there is no restrain from attending normal duties and no force or violence is used to enforce Hartal.

46. Before we proceed to answer the above issue, it is relevant to refer to the Full Bench decision of this Court reported in Bharath Kumar v. State of Kerala (1997[2] KLT 287 (FB). The Full Bench in the aforesaid case heard the writ petitions praying for declaration that calling for or holding of Bundh is unconstitutional and illegal. It was pleaded in the Writ Petitions before this Court that Bundh is violative of articles 19 and 21 of the Constitution of India and violated the State Policy embodied in the Constitution and the fundamental duties. The Full Bench laid down the following in paragraphs 12, 13, 17 and 18: 

"12. It is true that there is no legislative definition of the expression `bundh' and such a definition could not be tested in the crucible of constitutionality. But does the absence of a definition deprive the citizen of a right to approach this court to seek relief against the bundh if he is able to establish before the court that his fundamental rights are curtailed or destroyed by the calling of and the holding of a bundh? When Art. 19(1) of the Constitution guarantees to a citizen the fundamental rights referred to therein and when Art. 21 confers a right on any person - not necessarily a citizen - not to be deprived of his life or personal liberty except according to procedure established by law, would it be proper for the court to throw up its hands on despair on the ground that in the absence of any law curtailing such rights, it cannot test the constitutionality of the action? We think not. When properly understood, the calling of a bundh entails the restriction of the free movement of the citizen and his right to carry on his avocation and if the legislature does not make any law either prohibiting it or curtailing it or regulating it, we think that it is the duty of the court to step in to protect the rights of the citizen so as to ensure that the freedom available to him are not curtailed by any person or any political organization. The way in this respect to the courts has been shown by the Supreme Court in Bandhua Mukti Morcha v. Union of lndia (AIR 1984 SC 802).

13. It is argued on behalf of the respondents that a bundh could be peaceful or violent and even if the court were to act, it could act only to curtail violent bundhs and not peaceful bundhs. It is contended that the court cannot presume or generalize that the calling of a bundh always entails, actual violence or the threat of violence in not participating in or acquiescing in the bundh. The decision in Kameshwar Prasad v. State of Bihar (AIR 1962 SC 1166) is referred to in that context. This theoretical aspects expounded by counsel for the respondents does not appeal to us especially since as understood in our country and certainly in our State, the calling for a bundh is clearly different from a call for a general strike or a hartal. We have already noticed that a call for a bundh holds out a warning to the citizen that if he were to go out for his work or to open his shop, he would be prevented and his attempt to take his vehicle on to the road will also be dealt with. It is true that theoretically it is for the State to control any possible violence or to ensure that a bundh is not accompanied by violence. But our present set up, the reluctance and sometimes the political subservience of the law enforcing agencies and the absence of political will exhibited by those in power at the relevant time, has really led to a situation where there is no effective attempt made by the law enforcing agencies either to prevent violence or to ensure that those citizens who do not want to participate in the bundh are given the opportunity to exercise their right to work, their right to trade or their right to study. We cannot also ignore the increasing frequency in the calling, holding and enforcing of the bundhs in the State and the destruction of public and private property. In the face of this reality, we think that when we consider the impact of a bundh on the freedom of a citizen, we are not merely theorising but are only taking note of what happens around us when a bundh is called and a citizen attempts either to defy it or seeks to ignore it. We are not in a position to agree with counsel for the respondents that there are no sufficient allegations either in O.P. 7551 of 1994 or in O.P. 12469 of 1995 which would enable us to come to such a conclusion. In fact, the uncontroverted allegations in O.P. No.12469 of 1995 are specific and are also supported by some news paper clippings which though could not be relied on as primary material, could be taken note of as supporting material for the allegations in the Original Petition.

17. No political party or organization can claim that it is entitled to paralyse the industry and commerce in the entire State or Nation and is entitled to prevent the citizens not in sympathy with its view point, from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the Nation. Such a claim would be unreasonable and could not be accepted as a legitimate exercise of a fundamental right by a political party or those comprising it. The claim for relief by the petitioners in these Original Petitions will have to be considered in this background.

18. The contention that no relief can be granted against the political parties in these proceedings under Art. 226 of the Constitution cannot be accepted in its entirety. As indicated already, this court has ample jurisdiction to grant a declaratory relief to the petitioners in the presence of the political party respondents. This is all the more so since the case of the petitioners is based on their fundamental rights guaranteed by the Constitution. The State has not taken any steps to control or regulate the bundhs. The stand adopted by the Advocate General is that the Court cannot compel the State or the Legislature to issue orders or make law in that regard. As we find that organized bodies or Associations of registered political parties, by their act of calling and holding bundhs, trample upon the rights of the citizens of the country protected by the Constitution, we are of the view that this court has sufficient jurisdiction to declare that the calling of a `bundh' and the holding of it, is unconstitutional especially since, it is undoubted, that the holding of `bundhs' are not in the interests of the Nation, but tend to retard the progress of the Nation by leading to national loss of production. We cannot also ignore the destruction of public and private property when a bundh is enforced by the political parties or other organizations. We are inclined to the view that the political parties and the organizations which call for such bundhs and enforce them are really liable to compensate the Government, the public and the private citizen for the loss suffered by them for such destruction. The State cannot shirk its responsibility of taking steps to recoup and of recouping the loss from the sponsors and organizers of such bundhs. We think, that these aspects justify our intervention under Art. 226 of the Constitution. In view of our discussion above, we allow these Original Petitions to the extent of declaring that the calling for a bundh by any association, organization 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." The Full Bench thus declared that calling of Bundh and conducting of it is unconstitutional which is not in the interest of nation and tend to retard the progress of the nation. The matter was taken to the Supreme Court by the Communist Party of India (M) and the Apex Court vide its judgment reported in Communist Party of India (M) v. Bharat Kumar (1997 (2) KLT 1007 (SC) had referred the judgment of this Court. The following was laid down by the Apex Court in paragraph 3: 

"3. On a perusal of the impugned judgment of the Court, referring to which learned counsel for the appellant pointed out certain portions, particularly in paras 13 and 18 including the operative part in support of their submissions, we find that the judgment does not call for any interference. We are satisfied that the distinction drawn by the High Court between a "Bandh" and a call for general strike or "Hartal" is well made out with reference to the effect of a "Bandh" on the fundamental rights of other citizens. 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 an 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 many 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 he view taken by the Court."

 The Apex Court has approved the judgment of this Court by which judgment a distinction was drawn between Bundh and Hartal, i.e., general strike. The Full Bench noted in paragraph 13 of the judgment that calling for a Bundh is entirely different from calling for a general Strike or Hartal. Again in paragraph 14, the Full Bench laid down the following: 

"...It may be true that the political and organizers may have a right to call for non- co-operation or to call for a general strike as a form of protest against what they believe to be either an erroneous policy or exploitation...." 

As noted above, the above distinction has been approved by the Apex Court in Communist Party of India (M)'s case (supra).

47. The right guaranteed under Arts.19(1)(a) and 19(1)(b) of the Constitution India entitled every citizen to express his views in public and assemble without arms. Article 19(1)(c) also gives fundamental rights to citizens to form Associations or Unions. It has been held by the Supreme Court that the freedom of thought and expression guaranteed by Art.19(1)(a) are basic to a democratic form of Government which proceeds on the principle that the problems of the Government can be solved by the free exchange of thoughts and by public discussion as has been laid down in paragraph 75 by the Supreme Court in Express Newspapers pvt. Ltd. & Others v. Union of India and Others ([1986] 1 SCC 133) as quoted above.

48. A Constitution Bench of the Apex Court in Kameshwar Prasad v. State of Bihar (AIR 1962 SC 1166) had occasion to consider the ambit and scope of Arts.19(1)(a) and (b). Before the Apex Court, the validity of Rule 4-A introduced into the Bihar Government Servants' Conduct Rules, 1986 was under challenge. Rule 4-A which came for consideration is to the following effect: 

"4-A. - Demonstrations and strikes.- No Government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service." 

The Apex Court in the above context examined whether demonstration is covered by Art.19(1)(a) or (b) of the Constitution. The Apex Court laid down that demonstration is a means of communication and so long it is demonstration which is the form of speech and expression, the same is protected by Art.19(1)(a) or (b). However, it was laid down in the same judgment that when demonstration becomes disorderly and violent, the same shall not be within Art.19(1)(a) or (b). Following was laid down in paragraph 13. "13. The first question that falls to be considered is whether the right to make a "demonstration" is covered by either or both of the two freedoms guaranteed by Art. 19 (1)(a) and 19(1)(b). A "demonstration'" is defined in the Concise Oxford Dictionary as "an outward exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession". In Webster it is defined as "a public exhibition by a party, sect or society . . . . . .. . . . as by a parade or mass-meeting'. Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Art. 19(1)(a) or 19 (1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Art. 19(1)(a) and 19 (1)(b). It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art. 19(1)(a) or (b). If can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances." 

The Apex Court, however laid down that there is no fundamental right to resort to strike and the rule was only partly struck down to the extent it prohibited "any form of demonstration". The following was laid down in paragraph 20: 

"20. We would therefore allow the appeal in part and grant the appellants a declaration that R.4-A in the form in which it now stands prohibiting "any form of demonstration" is violative of the appellants' rights under Art.19(1)(a) and (b) and should therefore be struck down. It is only necessary to add that the rule, in so far as it prohibits a strike, cannot be struck down since there is no fundamental right to resort to strike." 

A Full Bench of this Court in George Kurian v. State of Kerala (2004 [2] KLT 758 (FB) also has reiterated that forced Hartal and general Strike are illegal and unconstitutional. The Apex Court in James Martin v. State of Kerala (2004 [1] KLT 513) had laid down 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. The Apex Court further observed that such cases are to be controlled with iron hands. Following was laid down in paragraph 19: 

"19. Before we part with the case it needs to be noted 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. It is high time that the authorities concerned take serious note of this requirement while dealing with those who destroy public property in the name of strike, hartal or bandh. Those who at times may have even genuine demands to make should not loose sight of the overall situation eluding control and reaching unmanageable bounds endangering life, liberty and property of citizens and public, enabling anti-social forces to gain control resulting in all around destruction with counter productive results at the expense of public order and public peace. No person has any right to destroy another's property in the guise of bandh or hartal or strike, irrespective of the proclaimed reasonableness of the cause or the question whether there is or was any legal sanction for the same. The case at hand is one which led to the destruction of property and loss of lives, because of irresponsible and illegal acts of some in the name of bandh or hartal or strike. Unless those who organize can be confident of enforcing effective control over any possible turn of events, they should think twice to hazard themselves into such risk prone ventures endangering public peace and public order. The question whether bandh or hartal or strike has any legal sanctity is of little consequence in such matters. All the more so when the days are such where even law-enforcing authorities/those in power also precipitate to gain political advantage at the risk and cost of their opponents. Unless such acts are controlled with iron hands, innocent citizens are bound to suffer and they shall be the victims of the highhanded acts of some fanatics with queer notions of democracy and freedom of speech or association. That provides for no license to take law into their own hands. Any soft or lenient approach for such offenders would be an affront to rule of law and challenge to public order and peace." 

49. The Apex Court again in Ex.Capt. Harish Uppal v. Union of India and Another ([2003] 2 SCC 45) (a Constitution Bench) while dealing with strike by Advocates has laid down the following in paragraphs 31 and 35. 

"31. It must immediately be mentioned that one understands and sympathises with the Bar wanting to vent their grievances. But as has been pointed out there are other methods e.g. giving press statements, TV interviews, carrying out of court premises banners and/or placards, wearing black or white or any colour armbands, peaceful protest marches outside and away from court premises, going on dharnas or relay fasts etc. More importantly in many instances legal remedies are always available. A lawyer being part and parcel of the legal system is instrumental in upholding the rule of law. A person cast with the legal and moral obligation of upholding law can hardly be heard to say that he will take the law in his own hands. It is therefore time that self-restraint be exercised.

35. In conclusion, it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of court premises banners and/or placards, wearing black or white or any colour armbands, peaceful protest marches outside and away from court premises, going on dharnas or relay fasts etc. It is held that lawyers holding vakalats on behalf of their clients cannot refuse to attend courts in pursuance of a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before advocates decide to absent themselves from court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all courts to go on with matters on their boards even in the absence of lawyers. In other words, courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a vakalat of a client, abstains from attending court due to a strike call, he shall be personally liable to pay costs which shall be in addition to damages which he might have to pay his client for loss suffered by him." 

The Constitution Bench in the above case was examining the right of lawyers as officers of the Court who has filed Vakalath on behalf of his client to appear in Court has no right to go for strike except in rarest of rare cases which may involve dignity, integrity and independence of the Bar and judiciary. The Apex Court in the above Constitution Bench decision laid down that Strike in any field is a weapon which does more harm than any justice and the sufferer is the Society, i.e., public at large. From the above discussion it is clear that, protest, demonstration, speeches falls within the right freedom of speech of expression under Art.19(1) (a). Any restriction on calling for a protest, non-co- operation and Hartal can be imposed only by law framed within the meaning of Art.19(2) of the Constitution of India. 50. Learned counsel for the petitioners could not point out or place before us any law under Art.19(2) on the basis of which call for protest, Hartal/Strike can be totally banned by this Court in exercise of the jurisdiction under Article 226 of the Constitution of India. We however, hasten to add that as laid down by the Constitution Bench of the Apex Court in Kameshwar Prasad's case (supra) as soon as the demonstration/Hartal becomes disorderly and violent it is not right under Art.19(1)(a) or (b) and on any such act/offence the law shall takes its own course and the guilty be punished.

51. A Full Bench of this Court in Peoples Council for Social Justice v. State of Kerala (1997 [2] KLT 301 [FB]) has laid down that a right to conduct demonstration on highways without causing obstruction to others is a fundamental right. 

Issue No.III: Regulation/Restriction on call for Hartal/Strike 

52. The next issue to be considered is as to whether the call for Hartal/Strike can be regulated/restricted by the State. Learned counsel for the petitioners have submitted that all call for Hartal/Strike be routed through the District Administration and political parties and organizations who are giving the call should be directed to give prior notice to the Administration, the details of the organizers and should also deposit some amount as security for payment of compensation caused for destruction or damage to property and life. It is submitted that unless the call for strike is not regulated, the State cannot have any effective check on the frequent calls made by various political parties and organizations.

53. Regulation and check on the political parties and organizations in calling Hartal/Strike is a laudable object. It serves the interest of Administration as well as the interest of the general public, if details of organizations, their office bearers are known who are giving a call for Hartal/Strike. The Government Pleader has brought on record before us, the details of Hartal and Strike called for in different years including various acts of obstruction to property and violence which took place during the course of conduct of Hartal. In W.P(C) No.2183 of 2008, petitioners have given details of the Hartal conducted during the year 2007. In W.P(C) No.34345 of 2007 details of Hartal held during 25.10.2007 to 3.11.2007 have been given. Certain details regarding monetary loss caused on account of Hartal have also been given. In the record of W.P(C) No.34345 of 2007 certain more materials were brought in the form of letter dated 11.07.2013 containing various photographs sent by a senior citizen. Details regarding act of violence with photographs have been brought on record. News item issued by the Press Trust of India dated July 13, 2013 has also been brought on record. Photographs showing damage to public property and causing death of a person have also been brought on record. The above details depict a very pathetic and sorry state of affairs. The events happened in carrying out hartal by the so called organizations. It is in the fitness of things that some restriction and regulations be framed for finding out the responsible persons who give the call and prosecute the Hartal and indulge in the act of vandalism.

54. Learned counsel for the petitioners have also brought to the notice of the court that a draft Bill by name "an act for fair negation, salutary regulation and special legitimation, in public interest, of hartals and validation of workers right to strike bill" was provided by the Law Commission of the State and a report was submitted. It is useful to extract the Bill for ready reference which is to the following effect: 

"A BILL in order to prohibit and largely to regulate the conduct of hartals, and expressly to affirm the workers' right to strike in our Socialist Republic. Be it enacted in the 59th Year of the Republic of India as follows:- 

1. Short title, application and commencement.-(1) This Act may be called the Act For Fair negation, Salutary Regulation and Special Legitimation, in Public Interest, of Hartals and Validation of Workers' Right to Strike Bill-- (2) It applies to whole of the State of Kerala; (3) It will come into force on such date as may be notified by the Government of Kerala in the Gazette.

2. Definition.-In this Act, unless the context otherwise requires:- (a) 'Hartal' Hartal, by whatever nomenclature expressed or vogue-word used, means and includes any form of forced cessation of activity or diversion of business or occupation in its widest comprehension, such cessation being at the instance of any other person or organization, to create public pressure, social tension, economic intimidation or apprehension of violence to advance a cause or campaign sponsored by the organizers of the hartal: Provided that Hartal, under this Act, shall not include any strike by workers or organized by any trade union or professional body which otherwise complies with the provisions of the Industrial Disputes Act, The Trade Union Act and other law governing trade union activity and workers' rights and functions: Provided further that the right of workers to go on strike is confined to the purpose of advancing a worker issue, agitational demand, alleged grievance, social welfare dispute, trade union problem, without interfering with the freedom of any other person's trade or business undertaking or other lawful activity, other extraneous or non-trade union violation shall not be eligible for immunity under this Act.

3. Control of Hartals.-(a) On and after the commencement of this Act, no person, group or organization shall have a right to call or conduct any hartal except in the manner permitted by this Act. (b) No person shall orgnize, or abet the conduct of, a hartal for any person whatever without ten days public notice promulgated adequately through the media and to the fair knowledge of public likely to be affected by the proposed hartal.

4. Hartals to be conducted only subject to conditions.- (1) (a) before 6 A.M or after 6 P.M. or thwart the movement of any person, agency, business or instrumentality by use of force or threat thereof or other means by which freedom of action of another is in any manner forbidden or obstructed. (b) Directly or indirectly deter, hamper or disable the normal functioning of any public institutions or utility services including any centre or organization, education, charitable, pro bono or otherwise giving relief to a human being or compassionate succour to any living creature. 

(2) No trade, business or undertaking, no transport vehicle or facility shall be closed or stopped totally or partially out of apprehension of or actual use of violence caused or threatened by operation of any hartal or strike by the organizers or sympathizers thereof. The State shall in every reasonable manner forbid or prevent such behaviour or conduct adversely affecting the fundamental rights of members of the public.

5. Hartals to be prohibited by the Government.--Hartals, when they cause stoppage of business or activity essential for the life of the community, shall be effectively prohibited by the State Government directly or through other delegated authority even though 10 days notice has been given.

6. Police shall render all assistance needed to exercise legal rights.- The State police and other law and order authorities of the State shall, on request by any person, help him to exercise his lawful rights during the hartal hours if any one prevents such exercise using or threatening force for such purpose.

7. Offences and Punishments.- It shall be an offence punishable with imprisonment upto 6 months if any one is prevented by any other, on the ground of a hartal, from visiting a hospital or hotel or educational institution or fuel delivery station or transport process. Free access in such cases shall be provided by the police and other state agencies. Failure to help any person in such need shall be a dereliction of duty by the State agency punishable with fine upto Rs.10,000/-.

8. Abetment of Hartal and consequence.- If the Government or any administrative officer under the Government in any manner connives at or abets hartals which are an offence as defined in this Act the affected person may move the court having jurisdiction for ordering compensation under Section 9. Constitution of Compensatory Fund and payment of compensation.- (1) A fund shall be constituted by the Government for the purpose of paying damages to persons who are affected by any such hartal conducted in spite of the prohibition, if so ordered by judicial process.

10. Government shall frame Rules for effectively implementing the provisions of this Act. Statement of Objects and Reasons India has been passing through developmental decades after winning Independence and liberating itself from imperialist inhibitions holding up national progress. Kerala with its caste lunacy and religious divisiveness is unable to advance notwithstanding its educational status and socialistic ethos. Unless the entire Kerala people work hard with a developmental dimension and vision a better tomorrow may remain dream. Unfortunately, we have too many holidays in the name of plurality of religions. This situation is aggressively aggravated by hartals and bandhs which keep the community lazy doing no work and keeping society in stagnancy. Therefore hartals are a hindrance to human advance and deserve to be regulated and even prohibited although the right to strike by workers may still remain. It is significant to note that there has been considerable expression of adverse opinion by the leading media and vehicles of social justice in support of the prohibition of hartals. It is in this background the Bill has been drafted." 

The above bill was drafted in the year 2008. We however are informed that no legislation has yet been enacted by the State covering all the aspects. It is for the Legislature to take into consideration other relevant aspects which can be brought in the legislation for regulating this exercise of calling and conducting of Hartal. In fact all Hartals which are called alleging to be only a peaceful Hartal turns out into forced Hartal affecting normal life of the citizens and the menace is to be contained and controlled in the interest of the Society and Nation. Regulation by legislation is the requirement of the day. We are aware that it is for the legislature to consider and enact law and this Court in exercise of Art.226 cannot issue any direction in that regard. A comprehensive legislation with regard to finding out mechanism for determination of claims regarding loss suffered by public and private property during Hartal is also the need of the day. A Division Bench of this court in W.P(C) No.29734 of 2008 - The Proper Channel v. The Managing Director, KSRTC, have already emphasized the need for a proper legislation in this regard. The following observations made in paragraph 12 are relevant and it is as follows: 

".....It might also be true that, taking into account the might of the organization that calls for such hartals, the public at large may not be in a position to initiate appropriate action against the organization calling and holding such 'hartals'. 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." 

55. We thus are of the considered opinion that an effective regulation/restriction on the call and conduct of Hartal is urgently required which is a need of the day. In the legislation to be framed by the State, the State should also consider the inclusion of a provision for prior notice of minimum three days before proceeding for any Hartal, details regarding office bearers of party or organizations who are proceeding with Hartal, territorial area of the proposed Hartal and the details of the personnel belonging to the political parties and organizations who are going to lead the protest and demonstration, requirement of deposit of security amount, if any, mechanism for determination of compensation and damages for loss of life and property, both public and private, provision for liability of organizers. These are a few amongst many other facts to be considered by the legislature to bring an effective legislation and activate the law for enforcement of the machinery to achieve the objects. We answer the issue accordingly. Issue IV: Measure for protection for life and property on day of hartal. Issue V: Measures for prosecution of guilty and mechanism for claiming damages/compensation.

56. Since Issue Nos.IV and V are inter-connected, they are taken together. Two Full Benches of this Court, i.e.,in Bharath Kumar's case (supra) and George Kurian's case (supra) have addressed on the above issues. In Bharath Kumar's case (supra) the Full Bench declared calling of bandh as illegal and unconstitutional. After the judgment in Bharath Kumar's case (supra), a Division Bench of this Court in Kerala Vyapari Vyavasayi Ekopana Samithi v. State of Kerala (2000(2) KLT 430) had again occasion to consider various aspects of destruction of public and private properties causing loss to society in the name of calling hartal. The Division Bench issued various directions. Directions 2 and 3 were subsequently set aside by the Apex Court in Indian National Congress(I) v. Institute of Social Welfare (2002(2) KLT 548(SC)). It is useful to note the directions of the Division Bench apart from directions 3 and 4, which are to the following effect: i. We declare that the enforcement of a hartal call by force, intimation, physical or mental and coercion would amount to an unconstitutional act and party or association or organization that calls for a hartal has no right to enforce it by resorting to force or intimidation. ii. We direct the State, Chief Secretary to the State, Director General of Police and all the administrative authorities and police officers in the State to implement strictly the directives issued by the directions given by the Director General of Police dated 4.2.1999 and set out fully in the earlier part of this judgment. xxx xxx xxx iv. We issue a writ of mandamus directing the election commission to consider and dispose of in accordance with law, the representation Ext.P9, in O.P.20641 of 1998, after giving all the affected parties an opportunity of being heard. xxx xxx xxx v. We direct the State of Kerala, the Chief Secretary to the Government, the Director General of Police and all other officers of the State to take all necessary steps at all necessary times, to give effect to this judgment. vi. We direct the State, District Collectors, all other officers of the State and Corporations owned or controlled by the State to take immediate and prompt action, for recovery of damages in cases where pursuant to a call for hartal, public property or property belonging to the Corporation is damaged or destroyed, from the preparators of the acts leading to destruction/damage and those who have issued the call for hartal.

57. The State Government, after the aforesaid judgment, addressed various issues raised by this Court and the Apex Court and had issued Government order dated 17.12.2003, issuing various directions to the Government Departments, district administration and Police administration. Although directions were issued by the State Government on 17.12.2003, the directions were not completely and faithfully followed by the district administration and Police administration. The matter was again taken up by a Full Bench of this Court in George Kurian's case (supra). The Full Bench again reiterated its earlier pronouncement inBharat Kumar's case (supra) and Kerala Vyapari Vyavasayi Ekopana Samithi (supra) as affirmed by the Apex Court. The Full Bench in George Kurian's case (supra) again issued various directions in paragraph 13, which are extracted below: 

"13. Already forced hartals and general strikes were declared to be illegal and unconstitutional by the Division Bench and approved by the Apex Court and they are equated to bandh and bandh like situations. 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. The directions issued by the division Bench and Full Bench as approved by the Supreme Court shall be strictly adhered to. Apart from the directions issued by the Full Bench in Bharath Kumar's Case and Division Bench quoted in paragraph 9 of this judgment as modified by the Hon'ble Apex Court, we issue the following directions also: 

(1) Whenever a hartal or a general strike is called, the government should take adequate measures to see that normal life of the citizens is not pralysed. That is to be done not by declaring holidays or postponing examinations; but, by giving effective protection to those who are not participating in such hartals or strikes. Government should be able to deal with the situation with strong hands. Considering the past experience, if the Government is feeling that they are unable to give adequate protection, it should request the Centre for deputing Army or para-military forces so that there should not be any constitutional breakdown and violation of fundamental rights of the citizens; 

(2) The District Administration should be given sufficient direction to avail para- military force as provided under Chapter X of the Code of Criminal Procedure to maintain public services if law and order problem arises during the hartal or general strike by unlawful assembly of hartal or strike supporters; 

(3) In cases of damage to public property, action should be taken to recover the damages from the persons who actually cause damages and also from the political parties, organizers and persons who give actual call for such hartal or general strikes. In view of the happenings in the past, they cannot say that they did not visualize such a situation which was created by anti- social elements and directions issued in this regard in paragraph 18 of Bharat Kumar's case which is affirmed by the Supreme Court shall be followed strictly and if no proper action is taken, it should be realized from the defaulting officers and stern action should be taken against such officers; 

(4) Effective action should be taken under the Prevention of Damages to Public Property Act, 1984 and circular dated 17.12.2003 (produced as Ext.R1(d) in W.P.(C)No.20078 of 2003) shall be implemented strictly; 

(5) Those who call for hartals or strikes by whatever reason should 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 can go for work and that fundamental rights of others to move about will not be affected. They should also instruct their supporters to see that no coercion or force is used for compelling others to participate in the strike or hartal; 

(6) With regard to the injuries and damages caused to the private persons and their properties, government should adequately compensate them immediately as Government has failed to fulfill its constitutional obligation to protect lives and properties of the citizens and the Government should take steps to recover the same from the persons who caused such damages or injuries and also from the persons and political parties or organizations who called for such hartals or general strikes. Criminal cases also should be taken against the offenders as well as the abettors to the offence. Such criminal cases registered should be pursued with enthusiasm and it should not be withdrawn merely on political pressure and investigation should be conducted fairly not with a purpose of filing a subsequent refer report as undetected; 

(7) Government should see that an atmosphere is created so that citizens can move about on the roads freely without fear and vehicular traffic is not obstructed and public transport can ply without any hindrance; 

(8) Damages caused to the public or private properties etc. and recovery steps initiated should be published by the Government. Circular dated 17.12.2003 issued by the Government regarding recovery of damages should be implemented fully; 

(9) Government should also take appropriate action against the District Administration and Police authorities if effective steps are not taken by them against the persons who use force or who are trying to impose their will on others to deprive the fundamental rights of majority of the citizens in the guise of hartals and general strikes." 

58. Hartal, forced hartal, general strike and bandh are not issues confined to the State of Kerala only. Large scale destruction of public property in the wake of protest claiming reservation was seen in the States of Punjab, Hariyana, Rajasthan and Uthar Pradesh. The Supreme Court had taken suo motu notice regarding various instances, where large scale destruction of private and public properties in the name of agitation/bandh/hartal was done and an order was passed on 5.6.2007 (reported in Destruction of Public & Properties in Re [(2007)2 SCC (Crl.) 351]). While initiating suo motu proceedings, the Apex Court also noticed that prima facie it appears that no action was taken to the offenders, who were responsible for the destruction of properties. In the said proceedings the Apex Court constituted two Committees to look into all aspects of the matter. One of the Committees was headed by retired Supreme Court Judge, Justice K.T.Thomas (K.T.Thomas Committee). Another Committee was headed by Mr.F.S.Nariman, a senior member of the legal profession (Nariman Committee). Both the Committees went through all the aspects of the matter and submitted its reports to the Apex Court. The report submitted by K.T.Thomas Committee, which is relevant for the present case, is to be noted in detail. The recommendations of the Committee have been reproduced by the Apex Court in its judgment reported in Destruction of Public and Private Properties, in Re v. State of Andhra Pradesh and others [(2009)5 SCC 212]. In paragraphs 6, 7, 8, 9 and 10 of the judgment the following was stated: 

"6. The recommendations of the Justice Thomas Committee have been made on the basis of the following conclusions after taking into consideration the materials.

7. "According to this Committee the prosecution should be required to prove, first that public property has been damaged in a direct action called by an organisation and that the accused also participated in such direct action. From that stage the burden can be shifted to the accused to prove his innocence. Hence we are of the view that in situations where prosecution succeeds in proving that public property has been damaged in direct actions in which the accused also participated, the court should be given the power to draw a presumption that the accused is guilty of destroying public property and that it is open to the accused to rebut such presumption. The PDPP Act may be amended to contain provisions to that effect." 

8. "Next we considered how far the leaders of the organisations can also be caught and brought to trial, when public property is damaged in the direct actions called at the behest of such organisations. Destruction of public property has become so rampant during such direct actions called by organisations. In almost all such cases the top leaders of such organisations who really instigate such direct actions will keep themselves in the background and only the ordinary or common members or grass root level followers of the organisation would directly participate in such direct actions and they alone would be vulnerable to prosecution proceedings. In many such cases, the leaders would really be the main offenders being the abettors of the crime. If they are not caught in the dragnet and allowed to be immune from prosecution proceedings, such direct actions would continue unabated, if not further escalated, and will remain a constant or recurring affair. Of course, it is normally difficult to prove abetment of the offence with the help of direct evidence. This flaw can be remedied to a great extent by making an additional provision in PDPP Act to the effect that specified categories of leaders of the organisation which make the call for direct actions resulting in damage to public property, shall be deemed to be guilty of abetment of the offence. At the same time, no innocent person, in spite of his being a leader of the organisation shall be made to suffer for the actions done by others. This requires the inclusion of a safeguard to protect such innocent leaders." 

9. "After considering various aspects to this question we decided to recommend that prosecution should be required to prove (i) that those accused were the leaders or office- bearers of the organisation which called out for the direct actions and (ii) that public property has been damaged in or during or in the aftermath of such direct actions. At that stage of trial it should be open to the court to draw a presumption against such persons who are arraigned in the case that they have abetted the commission of offence. However, the accused in such case shall not be liable to conviction if he proves that (i) he was in no way connected with the action called by his political party or that (ii) he has taken all reasonable measures to prevent causing damage to public property in the direct action called by his organisation." 

10. "The Committee considered other means of adducing evidence for averting unmerited acquittals in trials involving offences under PDPP Act. We felt that one of the areas to be tapped is evidence through videography in addition to contemporaneous material that may be available through the media, such as electronic media. With the amendments brought in the Evidence Act, through Act 21 of 2000 permitting evidence collected through electronic devices as admissible in evidence, we wish to recommend the following: 

(i) If the officer in charge of a police station or other law enforcing agency is of opinion that any direct action, either declared or undeclared has the potential of causing destruction or damage to public property, he shall avail himself of the services of video operators. For this purpose each police station shall be empowered to maintain a panel of local video operators who could be made available at short notices. 

(ii) The police officer who has the responsibility to act on the information that a direct action is imminent and if he has reason to apprehend that such direct action has the potential of causing destruction of public property, he shall immediately avail himself of the services of the videographer to accompany him or any other police officer deputed by him to the site or any other place wherefrom video shooting can conveniently be arranged concentrating on the person/persons indulging in any acts of violence or other acts causing destruction or damage to any property. 

(iii) No sooner than the direct action subsides, the police officer concerned shall authenticate the video by producing the videographer before the Sub-Divisional or Executive Magistrate who shall record his statement regarding what he did. The original tapes or CD or other material capable of displaying the recorded evidence shall be produced before the said Magistrate. It is open to the Magistrate to entrust such CD/material to the custody of the police officer or any other person to be produced in court at the appropriate stage or as and when called for. The Committee felt that the offenders arrested for damaging public property shall be subjected to a still more stringent provision for securing bail. The discretion of the court in granting bail to such persons should be restricted to cases where the court feels that there are reasonable grounds to presume that he is not guilty of the offence. This is in tune with Section 437 of the Code of Criminal Procedure, 1973 and certain other modern criminal law statutes. So we recommend that Section 5 may be amended for carrying out the above restriction. Thus we are of the view that discretion to reduce the minimum sentence on condition of recording special reasons need not be diluted. But, instead of `reasons' the court should record `special reasons' to reduce the minimum sentence prescribed. However, we felt that apart from the penalty of imprisonment the court should be empowered to impose a fine which is equivalent to the market value of the property damaged on the day of the incident. In default of payment of fine, the offender shall undergo imprisonment for a further period which shall be sufficient enough to deter him from opting in favour of the alternative imprisonment." 

59. The Apex Court accepted the report of K.T.Thomas Committee and issued certain directions in paragraph 12. Paragraphs 11, 12 and 16 of the judgment read as under: 

"11. The recommendations of the Justice Thomas Committee according to us are wholesome and need to be accepted.

12. To effectuate the modalities for preventive action and adding teeth to the enquiry/investigation, the following guidelines are to be observed: As soon as there is a demonstration organised: 

(I) The organiser shall meet the police to review and revise the route to be taken and to lay down conditions for a peaceful march or protest; 

(II) All weapons, including knives, lathis and the like shall be prohibited; 

(III) An undertaking is to be provided by the organisers to ensure a peaceful march with marshals at each relevant junction; 

(IV) The police and the State Government shall ensure videography of such protests to the maximum extent possible; 

(V) The person-in-charge to supervise the demonstration shall be SP (if the situation is confined to the district) and the highest police officer in the State, where the situation stretches beyond one district; 

(VI) In the event that demonstrations turn violent, the officer-in-charge shall ensure that the events are videographed through private operators and also request such further information from the media and others on the incidents in question; 

(VII) The police shall immediately inform the State Government with reports on the events, including damage, if any, caused by the police; and 

(VIII) The State Government shall prepare a report on the police reports and other information that may be available to it and shall file a petition including its report in the High Court or the Supreme Court as the case may be for the Court in question to take suo motu action. 

Xx xx xx 

16. The recommendations of Justice K.T. Thomas Committee and Mr F.S. Nariman Committee above which have the approval of this Court shall immediately become operative. They shall be operative as guidelines." 

60. It is relevant to note that an Act, namely, Prevention of Damage to Public Property Act, 1984 has already been enacted by the Parliament, where causing damage to the public property has been declared to be an offence punishable with imprisonment. 'Public property' has been defined in Section 2(b) of the said Act. Sub-clauses (iii) and (iv)of Section 2(b), which are relevant, are quoted below: 

"2(b) "public property" means any property, whether immovable or movable (including any machinery) which is owned by, or in the possession of, or under the control of- 

xx xx xx 

(iii) any local authority; or 

(iv) any corporation established by, or under a Central, Provincial or State Act." 

61. The Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 has been enacted by the State Legislature to provide for protection of public ways for unobstructed movement by the public and for imposition of reasonable restrictions on the rights of any section of the public to assemble and collectively move thereon and to regulate procession through public ways and for matters connected therewith or incidental thereto. Legislation has come up as a restriction envisaged under Article 19 of the Constitution of India on the exercise of Fundamental Rights guaranteed under Article 19(1)(a) and 19(1)(c). The The Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 declares certain acts and offences and also provides for punishment for offence. Section 5 provides for certain measures to regulate and restrict the Fundamental Rights guaranteed under Article 19(1)(a) and 19(1)(c).

62. Section 79 of the Kerala Police Act, 2011 also provides for regulation of public assemblies, which is another statutory restriction on the Fundamental Rights of the citizens guaranteed under Article 19 of the Constitution.

63. The enactment of Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 is a step towards imposing some reasonable restrictions on the Fundamental Rights. It is relevant to note that the question as to whether Sections 5(1)(c), 5(1)(a) and 5(1)(d) are unconstitutional came up for consideration before the Division Bench of this Court in Basil Attipetty v. State of Kerala (2012(2) KLT 143). Section 5(1)(c) of the Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011 has been held to be unconstitutional by the Division Bench, whereas constitutional validity of Section 5(1)(a) and 5(1)(d) have been upheld. The legislation is only an indication that as and when there is a will the appropriate legislation is enacted for even restricting the Fundamental Rights on the grounds as enumerated in Article 19(2) to 19(6) of the Constitution. The Legislature can very well also consider enacting of appropriate legislation for appropriate regulation and restriction of right of political parties and organizations to give call for strike/hartal as well as in conducting strike/hartal. The incidents and events as highlighted by the petitioners in these Writ Petitions clearly indicate that so far the menace of destruction of public and private property and harm injury to the person of the citizens could not be achieved in spite of various directions of this Court and the guidelines issued by the State Government. The need and necessity of appropriate legislation is, thus, clearly felt and has been canvassed by learned counsel for the petitioners. It is for the State Government and the State Legislature to look into the matter and in this regard no directions are required from the Court.

64. The submission, which has been pressed repeatedly by learned counsel for the petitioners is that since in spite of directions issued by two Full Benches of this Court in Bharath Kumar's case (supra) and George Kurian's case (supra) as well as the judgment of the Apex Court, the menace of injury to person and property of individuals and the Government has not abetted. 

65. It is also relevant to note that the Apex Court in paragraph 19, as extracted above, in James Martin's case (supra) has observed that unless such acts are controlled with iron hands, innocent citizens are bound to suffer.

66. The learned Special Government Pleader Smt.Girija Gopal has placed before us details of various cases registered in different districts of the State of Kerala pertaining to hartals/bandhs/strikes. Several cases have been registered under different Sections of Indian Penal Code. It is noticeable that although large scale destruction of public and private properties has occurred during the bandhs/strikes, but there are very few cases registered under the said Act. No details are on record about the status of the said prosecution. Large number of cases have also been registered in the year 2013, details of which have been placed before us. It has also been stated on behalf of the State Government that a direction has been issued to Government Departments and Police authorities to assess the damage caused to public property and sue for recovery of damages. The mechanism of recovery of damages/compensation by filing suit either by the Government/Government Departments or individuals is not giving any salutary result. Large number of persons, who suffered physically and materially are not approaching the Civil Court for redressal of their grievances on account of delay, which is occurred in deciding such cases. This is another reason for the miscreants to continue with their illegal activities and acts of damage and harm to individuals and Government property.

67. We have already observed above that unless comprehensive legislation covering all aspects of hartals/general strikes, including its restrictions and regulations as well as mechanism for obtaining compensation for damages done directly, as action of hartal and general strike is not enacted, the State shall not be able to effectively check the menace. We have already referred to State Law Commission Report, 2008, where draft of Bill has already been sent by the Law Commission to the Government. We have not been informed as to what steps have been taken in reference to the Bill, if any. It is high time that the State considers enacting appropriate legislation covering all aspects of the matter, since it has miserably failed in checking and controlling the menace. We are aware that this Court cannot exercise the writ jurisdiction to issue any direction to the Legislature to enact a law. But, need of appropriate legislation has already been felt by the Law Commission, which has also sent a report along with the draft Bill and there are observations of this court in earlier judgments emphasising about the need for appropriate legislation. Thus, it is for the State to consider and address the issue, so as to provide an immediate and far reaching solution and relief to the people of the State.

68. We also observe that in the legislation, which may be proposed a mechanism for lodging claim for damage to private and public property with designated authority having necessary power to enquire a claim and decide may be included. There have already been directions issued by a Division Bench of this Court and Full Bench to videograph the agitations and forceful hartals by the police authorities, which may be both deterrent as well as useful in identifying the culprits and proving the charge both for prosecution of an offence as well as recovery of compensation.

69. Electronic evidence now is fully advisable by the amendment made in 2000 in the Indian Evidence Act. We are, however, of the considered opinion that the State has to enforce directions issued by the Full Bench of this Court in George Kurian's case (supra) as well as the guidelines issued by the Supreme Court in Destruction of Public and Private Properties, in Re's case (supra), wherein the Supreme Court has approved the report submitted by the K.T.Thomas Committee and issued directions. The State should revise its various directions issued from time to time to contain a comprehensive and effective direction for tackling the forceful hartals/demonstrations/agitations in the State of Kerala. There having been direction by the Supreme court in Destruction of Public and Private Properties, in Re's case (supra) and there has been two enactments, namely, Kerala Police Act, 2011 and Kerala Public Ways (Restriction of Assemblies and Processions) Act, 2011, earlier directions need to be revisited and comprehensive directions be issued to the district administration, Police administration and all Departments of the Government, including different organisations and political parties through an appropriate authority. 

Issue No.VI: Whether call of hartal/strike violates the Prevention of Insults to National Honour Act, 1971: 

70. It has been submitted by the petitioner that hartal/strike having been declared as unconstitutional by this Court and the Apex Court, even giving a call of hartal/strike by any political party or organisation violates the provisions of the Prevention of Insults to National Honour Act, 1971. For considering the above submission, it is necessary to look into the provisions of the 1971 Act. Section 2 of the Act deals with insult to Indian National Flag and Constitution of India. Present is the case where violation of the Act is confined to allegations of insult to Constitution of India. Section 2 of the Act is quoted as below: 

"2. Insult to Indian National Flag and Constitution of India.--Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. 

Explanation 1.--Comments expressing disapprobation or criticism of the Constitution or of the Indian National Flag or of any measures of the Government with a view to obtain an amendment of the Constitution of India or an alteration of the Indian National Flag by lawful means do not constitute an offence under this section. 

Explanation 2.--The expression "Indian National Flag" includes any picture, painting, drawing or photograph, or other visible representation of the Indian National Flag, or of any part or parts thereof, made of any substance or represented on any substance. 

Explanation 3.--The expression "public place" means any place intended for use by, or accessible to, the public and includes any public conveyance. 

Explanation 4.--The disrespect to the Indian National Flag means and includes-- 

(a) a gross affront or indignity offered to the Indian National Flag; or 

(b) dipping the Indian National Flag in salute to any person or thing; or 

(c) flying the Indian National Flag at half- mast except on occasions on which the Indian National Flag is flown at half-mast on public buildings in accordance with the instructions issued by the Government; or 

(d) using the Indian National Flag as a drapery in any form whatsoever except in State funerals or armed forces or other para-military forces funerals; or 

(e) using the Indian National Flag,-- 

(i) as a portion of costume, uniform or accessory of any description which is worn below the waist of any person; or 

(ii) by embroidering or printing it on cushions, handkerchiefs, napkins, undergarments or any dress material; or] 

(f) putting any kind of inscription upon the Indian National Flag; or 

(g) using the Indian National Flag as a receptacle for receiving, delivering or carrying anything except flower petals before the Indian National Flag is unfurled as part of celebrations on special occasions including the Republic Day or the Independence day; or 

(h) using the Indian National Flag as covering for a statute or a monument or a speaker's desk or a speaker's platform; or 

(i) allowing the Indian National Flag to touch the ground or the floor or trail in water intentionally; or 

(j) draping the Indian National Flag over the hood, top and sides or back or on a vehicle, train, boat or an aircraft or any other similar subject; or 

(k) using the Indian National Flag as a covering for a building; or 

(l) intentionally displaying the Indian National Flag with the "saffron" down.

71. Section 2 of the Act enumerates an offence, which is punishable with imprisonment for a term, which may extend to three years, or with fine, or with both. For coming within the definition of Section 2, the ingredients of the offence have to be found and proved. A mere call for hartal/general strike cannot be held to be an offence within the meaning of Section 2. The offence under Section 2 may be found to have been committed in carrying out the said hartal/strike. To find out as to whether the act of any person is an offence within the meaning of Section 2, other ingredients of offence has to be there, which need to be proved. We have already observed in preceding paragraphs that Article 19(1)(a) of the Constitution also gives right to freedom of speech and expression to every citizen. Demonstration is also one form of speech and expression and unless the demonstration becomes violent, the same is within the constitutional right. Whether the constitutional rights have been exceeded leading the act to offence is the question of fact, which has to be examined and gone into with regard to each individual acts.

72. In view of the foregoing discussion, we are of the considered opinion that the mere call for hartal/strike does not result in the commission of an offence within the meaning of the Prevention of Insults to National Honour Act, 1971. However, in carrying out hartal/strike, an offence has to be found out by looking into the particular actions of an individual which fulfills the ingredients of offence under Section 2. Thus, to find out an offence, the actual act of hartal/strike in each case has to be examined on its own facts. The Issue No.VI is decided accordingly. 

Issue No.VII- Whether calling and carrying out hartal/strike be declared offence punishable under Section 503 IPC?:

73. The submission, which has been pressed by learned counsel for the petitioners is that calling a hartal/strike as well as carrying out hartal/strike is an offence within the meaning of Section 503 IPC and this Court may declare it to be an offence for the persons calling and carrying out hartal be booked under Section 503 IPC. Section 503 IPC provides as follows: 

"503. Criminal intimidation.- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. 

Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section." 

74. According to Section 503 IPC, Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. The definition of 'criminal intimidation' is wide enough and can improvise in its various acts, including threats issued by a person belonging to a political party or an organisation to any person. To find out whether an offence under Section 503 IPC is committed or not, particular acts and events have to be looked into whether an offence is made out by calling a strike or hartal or carrying out a strike or hartal by a political party or an organisation has to be examined from set of facts and events in each case. There cannot be any generalisation of offence as submitted by learned counsel for the petitioners. Even calling for hartal or strike which contains threat and intimidation may amount to an offence under Section 503 IPC. Similarly, call given for observing non co- operation and sympathise with the organiser may not amount to offence under Section 503 IPC.

75. We are, thus, of the considered opinion that for finding out whether an offence under Section 503 IPC has been committed or not, an individual action and attending circumstances have to be looked into and there cannot be any generalisation of act of calling hartal/strike or carrying out hartal/strike. Whether an offence has been committed or not in particular case of calling or carrying out hartal/strike depends on the facts of each case. Issue No.VII is decided accordingly. 

RELIEFS: 

76. Now we come to the reliefs to which the petitioners are found to be entitled to be given in these eight Writ Petitions. In each Writ Petitions different reliefs have been claimed as noted above.

77. In W.P.Nos.32529/2007, 21455/2012 and 2183/ 2008 the principal relief claimed was that the press and media be prohibited from publishing/ broadcasting and telecasting any news for call of hartal/strike. We have already held that in view of the constitutional provision and statutory provisions regulating the subject as on today, no such restriction can be imposed by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. The said relief is, thus, refused.

78. In some of the Writ Petitions the main prayer was to prohibit the political parties and organisations from proceeding with the call for observing hartal on a particular day. The dates for which prayer was made for prohibiting hartal have already been over, so the said relief has become infructuous.

79. In W.P(C).No.30778 of 2005 the petitioner has also claimed direction to the 7th and 13th respondents, who had called for hartal on 9.11.2004 and 15.11.2004, to deposit an amount of `10,00,000/- each as compensation for its illegal action of calling hartal. Compensation can be claimed for damages/destructions of public or private properties or any loss suffered by individuals. It is open to the petitioner to raise the claim in accordance with law by approaching the Civil Court for appropriate measures, if so advised. The political parties or organizations calling for hartal can be directed to deposit any amount for compensation provided there is some statutory provision for such deposit. In the alternative, this Court in exercise of is extraordinary jurisdiction under Article 226 of the Constitution may deem it fit and proper to direct for such deposit. Any political party or organization can always be directed to pay compensation by competent Civil Court or this Court exercising jurisdiction under Article 226 of the Constitution. But, in the facts of the present case, more so, when the alleged strikes were called about ten years ago, we do not think it appropriate to consider the above relief in these proceedings.

80. In some other Writ Petitions various directions have been sought. We have already noticed the above prayers. 

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 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 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. 

Let a copy of this judgment be sent to the Chief Secretary to the State to take necessary steps. 

ASHOK BHUSHAN, ACTING CHIEF JUSTICE. 

A.M.SHAFFIQUE, JUDGE. 

A.K.JAYASANKARAN NAMBIAR, JUDGE. 

vsv/vgs 

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON 

WEDNESDAY, THE 29TH DAY OF OCTOBER 2014/7TH KARTHIKA, 1936 

WP(C).No. 28319 of 2014 (L)

PETITIONER(S)

M/S. BHAGYODAYAM COMPANY, CHATHIATH, KOCHI-682012, REPRESENTED BY ITS MANAGING DIRECTOR, PAUL JOSEPH. 

BY ADVS.SRI.N.J.MATHEWS SRI.MADHU N.NAMBOOTHIRIPAD SMT.SUSAN MATHEW 

RESPONDENT(S)

1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, STATE SECRETARIAT, THIRUVANANTHAPURAM-695001.

2. THE VILLAGE OFFICER, ERNAKULAM VILLAGE, ERENAKULAM, KOCHI-682011.

3. THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM, KOCHI-682011.

4. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANADU, KOCHI-682030. 

BY SENIOR GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPEN

JUDGMENT 

The petitioner, M/s Bhagyodayam Company, incorporated in 1927 in the erstwhile State of Cochin, under the relevant provisions of the then existing Companies Act, is before this Court, challenging the correctness and sustainability of Ext.P7 order passed by the Government; whereby the claim for exemption mooted from the part of the petitioner has been declined, holding that the building owned and possessed by the petitioner is not principally made use for any 'charitable purpose'.

2. The petitioner claims to be a charitable institution as certified by the Income Tax authorities and also as disclosed from Ext.P1 Memorandum and Articles of Association of the Company. It is stated that Ext.P2 communication has been issued by the authorities of the Income Tax Department to the effect that, the income derived by the petitioner is being utilized for charitable activities and that, it is an institution recognized by the Income Tax Department. When the assessment was finalized in respect of the building owned by the petitioner under the Kerala Building  Tax Act, the petitioner filed a revision petition as envisaged under Section 13 of the Kerala Building Tax Act before the 4th respondent. In view of the coercive proceedings, the petitioner approached this Court by filing O.P No. 5921 of 1998, which was disposed of as per Ext.P5 judgment dated 8.9.2005, directing the revisional authority to consider and pass appropriate orders on the revision petition. The case of the petitioner is that, instead of complying with the direction, the course pursued by the fourth respondent was by simply passing the ball from his court to the first respondent seeking for interference and it was accordingly that, Ext. P7 order was passed by the 1st respondent, rejecting the relief, which in turn is under challenge.

3. Heard the learned counsel for the petitioner as well as the learned Government Pleader appearing for the respondents in detail.

4. During the course of hearing, the learned counsel for the petitioner points out that, the Government is absolutely having no power under Section 14 of the 'Act', to have dealt with the issue, by virtue of the scheme of the statute. Reference is made  to Section 14 of the Kerala Building Tax Act, which reads as follows: 

"Sec.14. Power of revision of the Government:- The Government may, on application by any person aggrieved, call for and examine the record of any order passed by the District Collector suo motu under Section 13, for the purpose of satisfying themselves as to the propriety or regularity of such order and pass such order in reference thereto as they think fit: 

Provided that the Government shall not revise any order under this section after the expiry of sixty days from the date on which that order was communicated to the applicant: 

Provided further that an order to the prejudice of any person shall not be passed under this section unless that person has been given a reasonable opportunity to show cause against such order." 

The learned counsel for the petitioner also places reliance on the decision rendered by another learned Judge of this Court as per the decision reported in Karunakaran v Tahsildar (1990 (1) KLT 869) holding that, the power of the Government under Section 14 is very limited, which is only in respect of the orders passed by the District Collector, 'suo moto' invoking the power under Section 13, which is not the position in the instant case.

5. After hearing the learned counsel and after going through the materials on record, this Court finds that, when the proceedings were pending consideration before the District Collector by way of revision, a claim for exemption was admittedly put forth by the petitioner, with regard to the nature of the petitioner's institution as a charitable organization, since the amount derived from the building was allegedly being used for charity. Exemption from the purview of the Kerala Building Tax Act is provided under Section 3(1) of the Act, which reads as follows: 

"Sec.3. Exemptions:- (1) Nothing in the Act shall apply to - 

(a) buildings owned by the Government of Kerala or the Government of India or any local authority; and 

(b) building used principally for religious, charitable or educational purpose or as factories or workshops. 

Explanation- For the propose of this sub-section, "charitable purpose" includes relief of the poor and free medical relief." 

6. If any claim is put forth for exemption with reference to Section 3(1), it is always obligatory for the concerned authority before whom such claim is raised, to have the matter referred to  the Government for final decision as provided under Section 3(2). The said provision reads as follows: 

"Sec.3 (2) If any question arises as to whether a building falls Under sub-section (1) or under Section 3A, it shall be referred to the Government and the Government shall decide the question after giving the interested parties an opportunity to present their case." 

It was pursuant to such a claim raised by the petitioner, that the matter was referred to by the 4th respondent by virtue of the mandate of Section 3(2), to be considered by the Government and it was accordingly, that the matter was considered by the Government who passed Ext.P7 order. The idea and understanding of the petitioner that, Ext.P7 order has been passed by the Government under 'Section 14' of the Act is thoroughly wrong and misconceived. The relevant provision has been referred to in the very same order, in the penultimate paragraph, making a reference to the claim under Section 3(1) (b). This being the position, this Court does not find it as a fit case to call for interference.

7. Even otherwise, the factual position disclosed from Ext.P7 shows that the petitioner is the owner of the building  having different floors and different extents/plinth area in the concerned floors. Utilization of the building has been dealt with in detail in Ext.P7. It is seen that, substantial portion is given on rent to Federal Bank, KSEB and such other institutions. Similarly, considerable portion of the building is also being used for considerable purpose. In another portion, the petitioner themselves are running an office in connection with 'chitty transactions' and is generating income from such activities. It is true, that the petitioner has been certified by the Income Tax Department as a charitable institution under the relevant provision of the Income Tax Act. But that by itself cannot be a green card for getting exemption under the Kerala Building Tax Act as the relevant consideration under the two enactments are entirely different. As far as the Kerala Building Tax Act is concerned, it is not with reference to the nature of the institution, but with reference to the activity that is being pursued in the building. So as to get exemption under Section 3(1) (b), it is necessary that the petitioner's building should be principally used either for religious, charitable or educational purpose. The  factual particulars and the split up figures as given in Ext.P7 clearly reveal, that the building belonging to the petitioner is not being 'principally used' for charitable activities. It may be true that the petitioner is making use of a portion the income being generated from the building for the purpose of charitable activities. That will not exonerate the petitioner from the liability under the Kerala Building Tax Act, in view of the law declared by the Apex Court on the point as per the the decision reported in S.H. Medical Centre Hospital v. State of Kerala 2014 (1) KLT 316 (SC) 

8. In the above circumstance, interference is declined and the writ petition is dismissed. However, considering the persuasive submission made by the learned counsel for the petitioner, this Court finds it fit and proper to grant a chance to the petitioner to liquidate the liability in a phased manner. Accordingly, the petitioner is permitted to satisfy the entire outstanding liability by way of 'three' equal monthly instalments, the first of which shall be effected on or before 30.11.2014, followed by the next two instalments to be effected on or before  the 30th of the succeeding months. Subject to this, the recovery proceedings, if, any, shall be kept in abeyance for the time being. It is also made clear that, if any default is committed in satisfying the liability as above, it will be open of the respondents to pursue such steps for realization of the entire amount in a lump, by pursuing such steps from the stage where it stands now. 

P.R. RAMACHANDRA MENON, JUDGE. 

kp/- 

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE 

THURSDAY, THE 16TH DAY OF OCTOBER 2014/24TH ASWINA, 1936 

WP(C).No. 29694 of 2012 (J)

PETITIONER :

NIZAR, S/O. ABDUL AZEEZ,AGED 37 YEARS, PALACHUVAD, KAKANAD P.O., PADAMUGAL, ERNAKULAM-682 030. 

BY ADVS.SRI.NIDHI BALACHANDRAN SRI.SABU GEORGE 

RESPONDENT(S):

1. THE UNION OF INDIA, REPRESENTED BY IT'S SECRETARY TO GOVERNMENT, DEPARTMENT OF MINISTRY OF EXTERNAL AFFAIRS, PATIALA HOUSE, NEW DELHI-110 001.

2. THE PASSPORT OFFICER, REGIONAL PASSPORT OFFICE, PANAMPALLINAGAR, ERNAKULAM-682 036. 

R1 & R2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA

J U D G M E N T

These batch of writ petitions are filed aggrieved by the refusal on the part of the Passport Issuing Authorities to correct the date of birth in the Passport on account of the circular dated 29.10.2007, issued by the Ministry of External Affairs, wherein the power given to the Passport Issuing Authorities to correct date of birth in the Passport in genuine cases, is only if the difference is in months (not more than two years). In W.P.(C) No.17322, which is the lead case of this batch, the circular is challenged to the above extent alleging that it is in violation of Article 14 of the Constitution of India.

2. This Court in Swapna Siju v. Union of India [2012 (4) KLT 419] held that for applicants who have born before 26.1.1989, it is not necessary to produce an extract from the Register of Births, generally called the 'birth certificate'. The judgment of the Hon'ble Supreme Court in Nazar v. Union of India [2013 KHC 3665], wherein it is held that, it is always open for the Passport Issuing Authorities to ascertain the correctness/genuineness of the certificate relied by the applicants for satisfying the genuineness put forward by them for correction of the date of birth in the Passport. In Abida v. Government of India [2011 (1) KLT 34], the Hon'ble Supreme Court held that Passport Act, 1967 do not specify the nature of documents to be produced in proof of the date of birth of an applicant. It is upon the authority to decide the nature of the document required for correcting the date of birth in the passport.

3. The above judgments would clearly indicate that genuineness of the claim is important in making correction of date of birth in the Passport. The question therefore, arises is whether the Passport Issuing Authorities have the power to correct the date of birth, if the difference is more than two years. The relevant clause in the circular issued by the Ministry of External Affairs is reproduced here under: 

"Where files have already been destroyed, PIAs could use their discretion in correction of date of birth without a Court Order, where such correction is only in months (not more than two years) and applicants provide satisfactory explanation that the same document(s) was provided at the time of initial passport application. Fresh fees will be charged." 

4. The learned Additional Solicitor General of India relying on the decision of this Court in Raveendran Pillai G. v. Vice Consulate General of India [2011 (3) KLT 652], submits that correction beyond two years can only be done through a declaratory order passed by a competent Civil Court.

5. The power to correct the entry related to the date of birth in the passport is no more res integra in view of the decisions as above.

6. In the counter affidavit filed by the 2nd respondent, it is stated that the provisions regarding the power to effect changes in the entries in the Passport were introduced so as to help genuine applicants and in cases where there was vast difference, the power of the authorities are restricted by fixing the cut off of two years difference. It is further stated that there is no illegality or irregularity in fixing the cut off of two years in exercising the discretionary power of the Passport Issuing Authorities. It seems that the restriction in effecting changes in the date of birth is based on the assumption that if there is a vast difference in the age, Passport Issuing Authorities cannot act upon such application.

7. In my view, the Passport Issuing Authorities are not effecting changes in date of birth. They are only correcting the mistakes occurred in the Passport. No one can change date of birth of a person. Therefore, any vast disparity in correcting the actual date of birth comparing to the original, does not make any difference for the purpose of correcting date of birth in the Passport. For eg. If a person's Passport bears the date of birth as 1.1.1986, instead of 1.1.1996, the Passport Issuing Authorities will refuse to exercise the power. However if the difference is only to the effect of 1.1.1987 as against the year 1.1.1986, the Passport Issuing Authorities will effect changes. There is no rationale in restricting exercise of power for correcting date of birth beyond two years in difference. If corrections are liable to be effected on genuine reasons, necessarily, it apply in all circumstances, irrespective of the fact that difference is beyond two years or less. The fixation of the outer limit of two years is fixed as though application is seeking to effect change in date of birth. The Passport Issuing Authorities have to bear in mind that they are correcting the date of birth and not changing the date of birth. Thus, the classification for exercising of the power for effecting correction of the date of birth has no nexus with the object sought to be achieved. If the objective of classification is illogical and lacks rationality, necessarily, the classifications will have to be held unreasonable. Thus, restricting the power of the authorities of passport, in correcting the date of birth as imposed in the circular is unsustainable and liable to be struck down. Therefore, the prescription of two different sets of procedures for correcting the date of birth in the Passport for same class of persons has no basis. In State of West Bengal v. Anwar Ali Sarkar and another [AIR (39) 1952 (SC) 75] it was held by the Hon'ble Supreme Court as follows: 

"A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated are able to avail themselves of the same procedural rights for relief".

8. Accordingly, based on the challenge in W.P.(C) No.17322/2014, it is declared that Clause C of Circular dated 29.10.2007, restricting the power of the Passport Issuing Authorities correcting difference in date of birth beyond two years is declared void and inoperative.

9. It is pointed out by the learned Assistant Solicitor General of India, that in large number of cases, applications for corrections are filed after a decade or more and it is also submitted that in many of the cases the files have been destroyed and it is not possible for the Passport Issuing Authorities to trace out such files.

10. As have been declared by this Court in the judgments referred as above, the genuineness of the claim of the applicant is the basis for entertaining the application for correction. It is for the Passport Issuing Authorities to come out with regulations prescribing an outer limit for entertaining application for correction of the date of birth in the Passport. The Passport Issuing Authorities may fix such outer limit for entertaining application for correction of the passport and also in exceptional cases for relaxation of the outer limit. This Court need not direct the Passport Issuing Authorities to prescribe the outer limit to entertain such applications. 

Therefore, these writ petitions are allowed by directing the Passport Issuing Authorities concerned to consider the application for correction of date of birth in the Passport in the light of the decisions of this Court referred as above. The applications shall be considered within six weeks in accordance with the relevant provisions. It is made clear that the Passport Issuing Authorities need to correct the date of birth only if the authority is satisfied with the genuineness of the claim of the applicants. 

The writ petitions are disposed of as above.