Freedom of Association and Assembly / Protests, Public Order, Political Expression
Şahin v. Turkey
Closed Expands Expression
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Several residents and local organizations of the State of Kerala, India filed writ petitions before the state’s highest court i.e. the High Court, alleging that the local authorities had failed to take appropriate measures against forced hartals or general strikes called by political parties and various organizations. These grievances were filed after the High Court of Kelara had declared forced or obligatory hartals unconstitutional. The petitioners argued that the call to observe general strikes disrupts their routine activities, and if they are forced to remain in their homes, they can be found guilty of aiding and abetting a call for forced mass protest. The Petitioners inter alia sought to prohibit the media from publishing any calls for general strike issued by political parties and organizations, alleging that such action would infringe their rights to personal liberty and freedom of movement respectively guaranteed under Articles 21 and 19(1)(d) of India’s Constitution.
The Court rejected the prayer to ban the media from publishing or broadcasting any news related to calls for mass protests mainly on the grounds that such prohibition would violate the free press and the public’s fundamental right to know. It also dismissed the petitioners’ demand to place a total ban on general strikes. Yet the Court addressed the need for creation of effective regulatory mechanisms on the call and conduct of hartals and ways to compensate or restore losses suffered by the general public during mass protests.
The petitions were a cumulative result of a series of calls for mass protests and subsequent hartals in the State of Kerala. In particular, they were filed in the wake of general strikes, called by two prominent political parties in the state, between October and November, 2007. The reason for observing the hartal in October was to protest against the indifferent attitude of Air India for the overall development of Calicut Airport. One petitioner pleaded that making such calls and their subsequent publications by the media cause fear or alarm in the mind of the public, which can amount to criminal intimidation under Section 503 of the Indian Penal Code, 1860.
Another petitioner, a local nonprofit organization, noted that the recent trend among political parties or groups to call for general strikes is only to forcefully impose their political image on the public; it claimed that such imposition substantially hinders the routine activities of the public, such as traveling, opening shops, and businesses.
The writ petitions sought the High Court of Kerala to: (1) direct the state government to adopt effective measures to ensure that the media, including newspapers and TV channels are prevented from publishing or broadcasting any calls for hartal; (2) order the government to completely ban any calls for hartal; (3) direct the government to fully compensate the public for damages caused by mass strikes; (4) direct the political parties and organizations calling for strike to deposit a payment for purpose of compensating their illegal actions; and (5) order the local law enforcement to fully implement the directions of the Court set out in Kumar v. Union of India, 1997 (2) KLT (287) and George Kurian v. State of Kerala, 2004 (2) KLT 758.
The Court first addressed the question whether the print and electronic media can be prohibited from broadcasting or publishing any news that call for hartal or strike by political parties or organizations.The petitioners argued that because forced mass strikes were previously declared unconstitutional, the media’s act of giving publicity to such calls is illegal. They further argued that pursuant to the Press Council Act of 1978, the media has a duty to restrain from any conducts capable of endangering the society. And publishing news of hartal “is nothing but to endanger or cause harm to the interests of the society and public in general.” [para. 16] The state government, on the other hand, contended that Article 19(1)(a) of the Constitution on freedom of expression entitles the public the right to know about all events happening in the society, and therefore prohibiting the media from publishing news on strikes would amount to a clear violation of the Constitution.
Placing heavy reliance on a series of precedents, the Court emphasized the importance of free press in the country in the following terms:
“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.” [para. 24]
The Court relied on the decision in Express Newspapers v. UOI, [(1986)1 SCC 133], wherein the Supreme Court of India expressly noted that the freedom of press “consists in allowing no previous restraint upon publication.” The High Court, however, reiterated that free press can be limited by reasonable restrictions for purposes specified under Article 19(2) of the Constitution, including the need to maintain public order or to protect decency or morality. Dependent upon free press, the Court also underlined the public’s right to know: “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.” [para. 34] In particular, “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.” Applied to the present case, the Court was of the opinion that the media can play an instrumental role in sharing information with authorities for purpose of identifying wrongdoers behind forced mass protests. Additionally, there are already regulations in place that refrain journalists from advancing information that are perceived to endanger the public. The Court thus, quashed the petitioners’ request for prohibiting the media from publishing or broadcasting any calls for hartals.
The Court then addressed the prayer for the second common relief of the petitioners to totally ban all hartals or general strikes. The Court rejected the request based on the relevant case laws, which have ruled that the right to participate and conduct nonviolent demonstrations is a fundamental right. However, the Court reflected on the alarming need for effective regulatory mechanisms on the call and conduct of hartals. Finally, deciding the issue of compensatory measures for restoring damaged properties during mass protests, the Court called for effective government actions under the Prevention of Damages to Public Property Act of 1984. It also issued directives to ensure that political parties or groups are refrained from compelling the public to participate in mass strikes.
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