The power of the Election Commission is not untrammeled and must be exercised for the purpose of pushing forward a free and fair election. The legality of an order depends on the competence of the person making the order and whether the order infringes legal rights guaranteed by the Constitution or other laws.

J. Chelameswar, J.

The appellant in W.A. No. 1745 of 2010 is a candidate aspiring to be a Municipal Counsellor contesting the election from ward No. 24 of the Muvattupuzha Municipality. The election is scheduled to be held on 25th October, 2010. The appellant in the other appeal is an association of persons and a Registered Society under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act. The said association claims that it has membership of 750. Each of the members of the Society/Association is a Small Scale Industry carrying on the business, what is popularly known as 'flex printing' and allied works. For the purpose of their business, the members of the petitioners' association use Poly Vinyl Chloride coated fabric.

2. The grievance of both the appellants is against certain directions issued by the sole respondent herein, the Kerala State Election commission. The respondent issued directions prohibiting the use of plastic, polythene and flex articles for election campaigning in the ongoing election process under the Kerala Panchayat Raj Act. Though the said order is not available on record, a press report regarding the issuance of such direction is published in one of the Malayalam newspaper, viz, Malayala Manorama dated 14.09.2010. The respondent does not dispute the fact that such directions were issued. The translation of the press report filed as Ext. P1 along with the writ Petition is:

"Kakkanad : Election Commission has directed not to use plastic, polythene, flex articles for election campaigning for the Panchayath, Municipality election.

Officers will confiscate things like this if found. Action will be taken against the candidates and political parties connected with it.

Collector Dr. Beena has told all sections to take care to fulfill the directions in this regard. Meeting presides by the Collector has assessed the preparation for the election. Since about twenty five thousand employees are required for the polling work appointment process has been started early.

Collector has cautioned strict actions against the office heads who does not submit the list of employees in time in the collectorate."

3. It is clear from the above extract that the first respondent prohibited the use of the various materials mentioned therein and also directed that if any such materials is used in the election process, the same be confiscated and action should be taken against the candidates, who are found using such materials.

4. In both the Writ Petitions a common ground raised is that the respondent is not authorised in law to impose such a prohibition. In the alternative, it is submitted that there is no justification for the prohibition in question.

5. Coming to the individual cases, it is the further submission of the appellants that the ban in question is violative of fundamental rights of the appellants herein under Article 19(1)(a), which guarantees freedom of speech to the appellant in W.A. No. 1745 of 2010, who is a contesting candidate in the election. On the other hand, the ban is violative of fundamental rights under Article 19(1)(g) and 21 of the Constitution of India of the other appellant.

6. The respondent as already mentioned clearly admits issuance of the directions which are impugned in these two appeals. The respondent had filed a statement in the Writ Petition No.30630 of 2010. The substance of the short statement is that in view of the powers conferred on the Election Commission under Article 243 K of the Constitution of India, the respondent is duly authorised under law to issue the impugned directions. It is further stated that the respondent issued such orders only with the intention of making the election process 'environmental friendly'. It further asserted that such a decision was taken in consultation with and based on a report of the Kerala State Pollution Control Board dated 20.09.2010. A copy of the said communication from the Kerala State Pollution Control Board is also p