Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The Madras High Court held that the right to seek votes is a fundamental right. In the present case, the petitioner, Habeeb Mohamed, prevented one of the respondents, Muruganantham (“respondent”), from entering and canvassing in the Thanjavur constituency, alleging him to be “notorious character” against whom several criminal cases are pending. This led to physical violence. In response to these grievous events, the petitioner filed an application to the court requesting compensation. The court dismissed the petition since the order of compensation required consideration of factual matter, which was outside the purview of the petition. However, the court observed that “candidates/party cadre are entitled to engage in door-to-door campaigning. They can go to any locality or area for the purpose of peacefully canvassing for votes. No individual has the right to prevent or restrict the exercise of the said right. The right to campaign is traceable directly to Article 19(1)(a), (b) and (d) of the Constitution of India.” [p. 6]
On April 14, 2024, the respondent, contesting in the 2014 Lok Sabha elections under the banner of a political party – Bhartiya Janata Party (“BJP”) – accompanied by his supporters, was prevented from entering the Mallipattinam village, by a group of 50 Muslims under the leadership of one Rahmankhan. According to the petitioner, the respondent acted provocatively, including raising slogans against Muslims and resorting to physical violence. Their actions damaged mechanized boats owned by the petitioner and other villagers, vehicles set ablaze, and an attack on a petrol bunk.
Following these events, the petitioner submitted a formal representation to the State, seeking compensation for the damages suffered by the residents of Mallipattinam village. Additionally, the petitioner requested a judicial inquiry to investigate the matter thoroughly. As his request was not considered, he ultimately filed the current writ petition to the High Court, under Article 226 of the Constitution of India.
The petitioner argued that the incident occurred because the government and local authorities failed to maintain law and order. Therefore, he included the Home Secretary, Director General of Police, Superintendent of Police, District Collector, and others as respondents. [p. 1] He requested the court to direct the respondents to pay compensation. [p. 2] Additionally, the petitioner sought the court’s order to conduct a judicial inquiry, to be carried out by a team consisting of retired High Court judges, human rights activists, and “secular” journalists. [p. 2]
Justice G.R. Swaminathan of the Madurai Bench of Madras High Court delivered the order in the present case. The main issue before the court’s consideration was whether the petitioner should be awarded compensation for the damage he suffered. [p. 8]
While highlighting the importance of the right to seek votes, the court observed that while the right to vote may only be a statutory right, the right to seek votes is a fundamental right, and forms an essential part of democracy. The court observed that to exercise the right to seek votes, the parties and candidates could hold rallies and meetings, however, if they caused a disturbance, it would constitute an electoral offense under the Representation of the People Act, 1951.
The court relied on section 127 of the Representation of the People Act, 1951, which provides for the punishment for disturbances at election meetings, to rule that it would apply with equal force to electoral campaigns as well. [p. 6] The court observed that “candidates/party cadre are entitled to engage in door-to-door campaigning. They can go to any locality or area for the purpose of peacefully canvassing for votes. No individual has the right to prevent or restrict the exercise of the said right. The right to campaign is traceable directly to Article 19(1)(a), (b) and (d) of the Constitution of India.” [p. 6]
The court further emphasized that “this right is derivable from the right to freedom of speech and expression, the right to assemble peaceably and without arms, and the right to move throughout the territory of India freely”. While underscoring the government’s obligation to ensure that this right gets protected at all costs, the court noted that “the persons who attempt to restrain candidates and party cadre from exercising this right shall be dealt with an iron hand.” [p. 6]
The court also relied on the case of Kaushal Kishor v. State of UP [(2023) 4 SCC 1], wherein the Supreme Court of India ruled that fundamental rights under Article 19 can be enforced against individuals as well are not restricted to the State or its instrumentalities. Accordingly, the court ruled that the fundamental rights of the respondent were infringed by the acts of a section of villagers of Mallipattinam [p. 7], and called such conduct to be “anti-democratic.” [p. 9]
The court observed that the acts of destruction by the respondent might have been triggered by the petitioner’s act of preventing him from entering the village. However, the court held that it was not within its purview to delve into the factual details. [p. 9] Since the order of compensation required an analysis of factual aspects, therefore, the court granted the petitioner the liberty to file an application before the trial court for seeking compensation. The petition was dismissed.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This order significantly strengthens the freedom of expression within India’s democratic framework. It firmly establishes the right to seek votes as a fundamental right, aligning it with other core constitutional freedoms like freedom of speech and assembly. The court’s interpretation underscores the pivotal role of political campaigning in ensuring a robust democracy, emphasizing that without free and effective campaigning, elections lose their meaning.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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