'Right To Dissent Core Of Democracy': High Court Quashes 2009 Case Against Kerala CM, CPM Leadership Over 2009 Protest

Quashing the criminal proceedings against 12 CPI(M) Leaders, including the state Chief Minister Pinarayi Vijayan, Former CM V S Achuthanandan and Polit Bureau member Prakash Karat in a case alleging unlawful assembly and rioting, the Kerala High Court on Thursday said the right to dissent and the freedom of expression which is contrary to the views of the government is not an offensive conduct.

"The right to freedom of speech and expression and the right to form an assembly guaranteed under the Constitution will be a dead letter if every assembly is regarded as offensive conduct," said the court.

Justice Bechu Kurian Thomas, while quashing the private complaint filed by a lawyer before trial court against the CPI(M) leaders, observed that the constitutional scheme of India embodies the salutary principle of the right to dissent, and when the dissent is expressed without causing any harm or even a significant inconvenience, it would be too puerile to proceed criminally against the dissenters.

The right to dissent and the freedom to air views contrary to the views of the government is not an offensive conduct. In fact, the right to dissent is the core of every democratic establishment. The constitutional scheme of our Country embodies the salutary principle of the right to dissent. When the dissent is expressed without causing any harm or even a significant inconvenience, it would be too puerile to proceed criminally against the dissenters. Merely because the dissent is not acceptable to the majority, that is not a reason to initiate criminal action unless the dissent was coupled with violent, disorderly or damaging conduct by any member of the assembly.

In 2009, in an attempt to compel the Union Government to withdraw from the Association of South East Asian Nations (ASEAN) free trade agreement, the CPM party formed a Statewide human chain on the sides of the National Highway. The human chain was created allegedly over a distance of 500 Kilometres, from Kasargode to Thiruvananthapuram.

A private complaint before the Judicial First Class Magistrate Court, Thiruvananthapuram, by a lawyer, alleged that the human chain formed at the behest of accused and 10,000 other identifiable persons resulted in the commission of offences under sections 143, 147, 149 and 283 of the Indian Penal Code,1860 apart from section 38 r/w section 52 of the Kerala Police Act, 1960. A magistrate took cognizance of the offences in 2012.

The CPM leaders then approached the High Court under Section 482 of CrPC, alleging that the complaint was filed with malafide intentions and for oblique motives and that the offences alleged are not made out.

Counsel appearing for the petitioners, Advocate Gilbert Goerge Correya, contended that the accused, which include the current Chief Minister of Kerala, the former General Secretary of the Communist Party of India (Marxist), as well as a former Chief Minister of Kerala and other senior leaders of the party, have never acted contrary to law.

It was submitted by the Counsel that the human chain was formed in the exercise of their right under Article 19 of the Constitution of India as a measure of showing their protest against an act that they presumed to be contrary to their beliefs.

It was also argued that no one had come forward with any personal grievance or inconvenience, or even prejudice that was caused on account of the human chain programme organised by the Communist Party of India (Marxist). The Counsel, thereby, contended that the offence alleged against the petitioners is not made, and the private complaint is liable to be quashed.

Director General of Prosecution, Advocate T. A. Shaji and Public Prosecutor Advocate K A Noushad, also submitted before the Court that the offences alleged against the accused were not made out. They also submitted that the allegations are politically motivated.

"Even if the entire proceedings are continued, the trial cannot end in the conviction of the accused for more reasons than one. This is a fit case where the jurisdiction of this Court under section 482 ought to be invoked to quash the proceedings," they submitted.

When considering the matter, the Court emphasised that the leadership of a political party is not immune from prosecution, and if an offence is made out from the complaint, they are liable to face prosecution.

True that the accused are the leaders of a political party. However, the leadership of a political party is not an immunity against prosecution. Even if the accused are leaders of the society, if an offence is made out from the complaint, they are liable to face prosecution. But on the other hand, if the offences alleged are not made out from the complaint, the position of the accused shall not deter the Court from interfering in an unnecessary prosecution.

The Court said that out of the offences alleged, one of the main allegations related to unlawful assembly, which is the basis for the offences under Sections 143, 147 and 149 of the IPC. It added that the term is defined in Section 141 IPC.

"A reading of the section indicates that every assembly of five or more persons by itself will not become an unlawful assembly. An assembly of five or more persons will become unlawful only when they have a common object and the said object falls within the categories mentioned as first to fifth in section 141 IPC," said the court.

It added that when the common object of the assembly does not fall within any of the five categories specified in the provision, even if the number of assembly is more than five, the act alleged will not attract the offence of unlawful assembly.

"Thus the essence of the offence of unlawful assembly lies in the consensus of purpose of more than five persons to commit an act specified in section 141 of IPC," said the court.

The bench further observed that there is no allegation of use of criminal force by any of the accused or any of the members of the said assembly, nor is there any allegation of any common object for committing an offence or that the human chain lasted indefinitely.

"There is not even a whisper in the complaint about any resistance to the execution of any law or legal process. There is also no allegation of any mischief or criminal trespass committed by any member of the assembly or even any deprivation of the right of way by the use of criminal force. There is also no allegation of compelling any person to do that which he is not legally bound to do by use of criminal force," it noted.

Referring to Section 141 IPC, the court said a protest or an assembly of persons without any criminal force or show of criminal force would not make the assembly unlawful.

"An assembly of more than five persons gathered for a peaceful protest cannot fall within the term unlawful assembly. The right to protest peacefully is an essential ingredient of the fundamental right under Article 19(1)(a) and 19(1)(b) of the Constitution of India. An assembly of persons without arms or without criminal force or without any intent to commit an offence can only be a lawful assembly, which is not prohibited. Such an assembly is a formation in the exercise of the right to freedom of every citizen guaranteed under Article 19(1) of the Constitution," it added.

The court also noted that in the case against CPI(M) leadership, there is no allegation of any common object for committing an offence or that the human chain lasted indefinitely. There is also no case that there was any inconvenience or obstruction to the public for an extended period of time, it added.

"The complainant has not alleged that the normal life of the community was crippled or paralysed. There is not even an allegation that the complainant was obstructed. In such circumstances, I am of the view that the conduct alleged against the petitioners does not satisfy the ingredients of section 141, IPC, i.e. unlawful assembly," said the court.

On the allegation that obstruction was created by constructing a stage on the road, the court said there is no whisper that the 12 petitioners were involved in it.

"The complainant has not alleged any role for the petitioners in constructing the open stage/platform. The allegation is that petitioners had sat and spoken from inside the pandal. Merely because petitioners sat in the open stage/platform, they cannot be attributed with any overt act in the construction of the said stage/platform," said the bench.

The court further noted that the complainant himself has said that Museum police Station had registered a case against ten persons found to be constructing and supervising the construction of the stage.

"It was submitted across the Bar that the said crime was investigated, and a report was submitted referring to the crime as 'undetected'. In the absence of any allegation against petitioners 1 to 12, proceeding in a criminal action against them for the offence under section 283 IPC is an abuse of the process of law," it added.

Regarding offences under sections 38 and 52 of the Kerala Police Act 1960, the court said there is no allegation that petitioners had failed to abide by any lawful directions of the police. Analysing the case from the angle of Section 95 IPC, the court said:

"The intention behind the aforesaid provision is to avoid penalising negligible wrongs or trivial offences. There are innumerable acts in our daily life which may amount to crimes in the strict sense of the language employed in the statute. However, if prosecution is initiated for every such triviality, the system will crumble. Section 95 comes to the aid in such instances."

The allegations at the most reveal that some obstructions were caused on the public way while the petitioners "held their hands" for a limited period of time, said the court.

"Even if it is assumed that any slight obstruction was caused to the public, the same was only a trifle. This is evident from the fact that, no one other than the complainant had any grievance. In this context, the cost of adjudication, the time required to be spent for prosecution, the absence of any harm caused to the complainant or on any other person, absence of any violence and the intention of engaging in a peaceful protest are factors that cannot be lost sight of," it said.

The Court opined that the continuance of proceedings against the petitioners in the Chief Judicial Magistrate Court, Thiruvananthapuram, is an abuse of the process of court and is liable to be interfered with. The proceedings were accordingly quashed.

Case Title: Prakash Karat & Ors. v. State of Kerala & Anr.

Citation: 2022 LiveLaw(Ker) 523

Click Here To Read/Download The Order