Kerala High Court Dismisses PIL Claiming Compensation For Transgender Persons Arrested For Waving Black Flag At CM Pinarayi Vijayan

The Kerala High Court recently dismissed a Public Interest Litigation that was filed for compensation for two transgender persons who were booked for obstructing the motorcade of Chief Minister Pinarayi Vijayan by waving black flags as a mark of protest, while he was attending an event in Ernakulam.

The PIL filed sought for an inquiry into the “professional misconduct of the officers” involved in the incident and for compensation for the transgender persons who were detained.

A bench of Chief Justice S Manikumar & Justice Murali Purushothaman while dismissing the PIL observed that the petitioner failed to make out a case for the prayers sought for.

The incident occurred when Chief Minister Pinarayi Vijayan was in Ernakulam for the inauguration of the Karikkinos Cancer Research Centre at the Kaloor Stadium Metro Station.

The petitioner contended that waving black flags or wearing a black mask or dress is a way to show dissent in a democracy and does not constitute any offence. The 'illegal detention' of transgender persons is violative of Articles 14, 19 and 21 of the Constitution and an offence under Section 220 (Commitment for trial or confinement by person having authority who knows that he is acting contrary to law) of the Indian Penal Code, 1860, the petitioner averred.

The petitioner also argued that the police officers were guilty of offences under sub-sections (b) & (d) of Section 18 of the Transgender Persons (Protection of Rights) Act, 2019. Section 18(b) of the Act prescribes penalty for any one who obstructs a transgender person from using or having access to a public place and Section 18(d) prescribes penalty for whoever causes injury to a transgender person either physical or mental.

The State Police Chief stated that the persons were not detained for wearing black dress, but because they were trying to intrude the Chief Minister’s motorcade that was parked in front of the Kaloor Stadium metro station. The Chief Minister being a 'Z+' category protectee, the police officers repeatedly asked them to go away but they refused to do so, according to the State Police Chief. “They willfully created a ruckus with an intention to seek attention from Media” and refused to disperse despite warnings of the police, the State Police Chief stated in his counter affidavit.

According to the statement of the State Police Chief, the police had no choice but to remove the transgender persons from the site of the incident due to the ruckus created by them, and they were arrested as preventive action. They were detained at the Ernakulam Vanitha Police Station and were released in 1 hour and 45 minutes according to the statement filed. The police stated that no rights of transgender persons were infringed in the incident.

The court held that there were no violations under sub-sections Section 18(b) and (d) of the Transgender Persons (Protection of Rights) Act, 2019 in the matter.

“Action which occasioned the police to arrest the transgenders does not fall within the ambit of any violation, as defined under the Act” the court observed.

The petitioner also contended that the requisites for attracting Section 151 of the CrPC (Arrest to prevent the commission of cognizable offences) were absent. However, as ascertaining the applicability of Section 151 CrPC involved questions of fact, it could not be adjudicated in a writ petition, the court concluded.

Counsel for Petitioner: Adv. Rajesh Vijayan 

Counsel for Respondent: Adv. V Tekchand, Senior Government Pleader 

Case Title: Sam Joseph V State of Kerala and Others

Citation: 2023 LiveLaw (Ker) 105

Click here to read/download judgment