The Communist Party of India (Marxist) has sent its reply to the Election Commission regarding the notice issued by the Commission as to why it should not be deregistered as a political party for calling a hartal. The Election Commission had issued this notice on the direction of the Kerala High Court which has declared enforcing of hartals as illegal and unconstitutional. The High Court had, in an unprecedented act, directed the Election Commission to entertain complaints against political parties for enforcing hartals and initiate proceedings for deregistration of parties, if necessary.
The CPI(M) has strongly refuted the characterisation of hartals as illegal and unconstitutional. It has argued that the Election Commission has no jurisdiction to deregister any political party under the provisions of the Representation of People Act.
Enclosed is the full text of the letter sent by the General Secretary of the CPI(M) to the Election Commission.
(for CPI(M) Central Committee office)
August 17, 2000
The Chief Election Commissioner
Election Commission of India
We have received your notice dated 29th June 2000. In accordance with the directive of the High Court of Kerala, you have issued notice to the Communist Party of India (Marxist) on the basis of a complaint made by the Institute of Social Welfare, Kochi about a hartal called by the Party. On behalf of the Communist Party of India (Marxist) we wish to state the following:
The right to protest is a fundamental right in a democratic system. The right of political parties to organise protest actions is inherent in a parliamentary democracy. The Constitution provides the fundamental right to "form associations or unions" under Article 19 (1) (c). Citizens have the right to respond to calls by any political party or a public organisation to protest against any policy of the government or a matter which is agitating public opinion. Abrogation of this right would have harmful consequences for the democratic political system.
The Kerala state committee of the CPI(M) did call for a hartal on 25th September, 1998 to protest against the use of Article 356 by the Central government to dismiss the elected Bihar state government. In giving this call, the CPI(M) had not in any manner instigated or prepared for a violent enforcement of the hartal. The CPI(M) maintains that it has a right to call hartals and will continue to exercise this right in the future. A party, which calls for a hartal, urges people to voluntarily observe it by withdrawing from normal activities such as going to work. Such a protest action cannot be based on coercion, intimidation or the use of violence.
The Kerala High Court judgement which has termed hartals illegal and unconstitutional, is flawed on many counts:
It does not differentiate between the hartal as a protest action, from any acts of intimidation or violence in the course of implementing and observing such protest actions.
It disallows hartals because of its alleged forcible nature. In sweeping terms hartals are therefore deemed to be illegal and unconstitutional.
Acts of intimidation or violence in the course of a hartal must be dealt with under the provisions of the law. Instead of directing the administration and the concerned authorities to enforce the provisions of the existing laws against, any infringement on the rights of citizens, the judgement does away with a basic right in a democracy.
The judgement has directed the Election Commission to initiate action against political parties about whom complaints are made for enforcing "forcible hartals". It assumes that the Election Commission is responsible to police political parties. The Court observed: "We feel that an active Election Commission can prevent indiscriminate calling for hartals enforced by threat and coercion and bunds by parties or associations registered by it under the Act, if it assumes an active role and initiates action whenever it comes across instances where the average citizen is held to ransom by a few organisations persons or members of a political party or organisation and the arm of the Government remains a mute spectator to such blatant violation of the rights of the citizens". The Election Commission is not empowered under the Constitution to undertake such a task.
Section 29A (5) of the Representation of People Act, 1951 gives the right to the Election Commission to register political parties which in its memorandum of association or rules "shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India."
This section has been invoked by the High Court to direct the Election Commission to entertain and dispose off petitions against political parties on complaints about hartals. The Communist Party of India (Marxist) is of the firm opinion that this section of the R.P.Act does not empower the Election Commission to interpret this clause to deregister a political party. There is no scope for the Election Commission to conduct enquiries into the conduct of parties and decide whether they can be deregistered.
The CPI(M) notes that the Election Commission took a correct stand in the High Court proceedings that by law it is not empowered to deregister any political party. Any move to deregister a political party as suggested by the High Court is in fact a ban on the party as it will not be able to contest elections as a political party. Such a draconian step cannot be even entertained by the Commission. We request the Election Commission to reiterate its inability to hear and act upon complaints such as the one submitted by the Institute of Social Welfare, Kochi.
Since this is a matter of vital importance which affects the very basis of political parties in a parliamentary democratic system under the Constitution, the CPI(M) has decided to appeal to the Supreme Court against the judgement of the Kerala High Court.
(Harkishan Singh Surjeet)
Communist Party of India (Marxist