Peaceful Protest Integral To Democracy, Not An Offence Merely Because It Is Unwelcome To Those In Authority: Calcutta High Court

The Calcutta High Court has quashed criminal proceedings against six School Service Commission (SSC) job aspirants who were booked for protesting against alleged irregularities in recruitment during the COVID-19 pandemic, holding that a peaceful demonstration does not become an offence merely because it is unwelcome to those in authority.

Justice Anuj Singh observed that the FIR did not disclose the essential ingredients of any of the offences invoked against the protesters, including unlawful assembly, wrongful restraint and acts likely to spread infection during the pandemic.

“It is an unavoidable inference that the Petitioners are being punished for the protest, making it a vexatious and frivolous proceeding,” the Court held.

The Court further observed that merely assembling and raising slogans could not constitute an unlawful assembly unless the common object of the gathering fell within the categories specified under Section 141 of the Indian Penal Code (IPC).

“Thus, mere protest and raising slogans cannot be said to be an unlawful common object under section 141,” the Court said.

The Court was hearing a writ petition filed by Trina Halder and others seeking the quashing of Bidhannagar North Police Station Case No. 169 of 2021, registered under Sections 143, 188, 341, 269 and 270 of the IPC and Section 51 of the Disaster Management Act, 2005.

The FIR was registered following a protest by SSC job aspirants on August 5, 2021, against alleged irregularities in recruitment. According to the complaint lodged by a police sub-inspector, the candidates had assembled near Mayukh Bhawan in Salt Lake and were proceeding towards Bikash Bhawan while raising slogans to press their demands.

The complaint alleged that the gathering violated COVID-19 protocols and an order under Section 144 of the Code of Criminal Procedure. It further alleged that the protesters did not disperse when asked to do so, obstructed public movement and prevented officials from discharging their duties. Thirteen persons, including the six petitioners, were arrested.

The petitioners contended that they had been exercising their fundamental rights to freedom of speech and expression and to assemble peacefully under Articles 19(1)(a) and 19(1)(b) of the Constitution. They argued that the FIR did not disclose a prima facie case and that continuing the investigation would prejudice their future employment prospects.

The State opposed the petition, arguing that it was not maintainable.

Examining the allegations in the FIR, the Court held that the prosecution had failed to establish the essential ingredients of the offences invoked against the petitioners.

On the charge of unlawful assembly under Section 143 IPC, the Court observed that the FIR did not disclose the common object with which the protesters had assembled. Under Section 141 IPC, an assembly of five or more persons constitutes an unlawful assembly only when its common object falls within one of the specified categories, including using criminal force against the government or a public servant, resisting the execution of law, or committing an offence.

Relying on an earlier decision of the Calcutta High Court in Association for Protection of Democratic Rights v. State of West Bengal, the Court reiterated that a large gathering of demonstrators was not inherently illegal or unconstitutional.

“Article 19(1)(b) of the Constitution of India confers upon all citizens of India to right to assemble peaceably. Therefore, any large assembly of demonstrator would not per se be either illegal or unconstitutional,” the Court quoted from the earlier judgment.

The Court also referred to the Supreme Court's decision in Javed Ahmad Hajam v. State of Maharashtra, observing that the right to dissent, criticise the government and peacefully protest in a legitimate and lawful manner was an integral part of democracy.

“Thus, a demonstration does not become an offence merely because it was unwelcome to those in authority,” the Court held.

On the charge under Section 188 IPC for disobedience of an order promulgated by a public servant, the Court noted that although the FIR referred to a prohibitory order issued under Section 144 CrPC, the order had not been placed on record. The complaint also failed to explain how the protesters' conduct had obstructed public movement or prevented officials from discharging their duties.

Referring to the Supreme Court's decision in Re: Ramlila Maidan Incident v. Home Secretary, Union of India, the Court observed that an order under Section 144 CrPC must set out the material facts justifying its issuance and could be used only in circumstances warranting urgent intervention.

The Court similarly found that the allegations did not make out an offence of wrongful restraint under Section 341 IPC. The FIR did not identify any person who had been prevented from proceeding in a direction in which they were entitled to move, or specify how or for how long such restraint had occurred.

With regard to Sections 269 and 270 IPC, which deal with negligent and malignant acts likely to spread infection of a disease dangerous to life, the Court held that the FIR did not disclose any specific act likely to spread COVID-19. It also did not allege that the petitioners were infected or had reason to believe that they were carrying the disease.

The Court further found that the FIR's general allegation of violation of COVID-19 protocols was insufficient to attract Section 51 of the Disaster Management Act. It did not specify which particular protocol had been violated, how the violation had occurred, or how the petitioners had obstructed an officer acting under the Act or refused to comply with a lawful direction.

Relying on the principles laid down by the Supreme Court in State of Haryana v. Bhajan Lal, the Court held that criminal proceedings could be quashed where the allegations, even if accepted in their entirety, failed to disclose an offence or where the proceedings were manifestly attended by mala fides.

The Court concluded that a meaningful reading of the FIR as a whole did not establish a prima facie case against the petitioners.

Accordingly, it quashed the FIR and all consequential proceedings, including G.R. Case No. 901 of 2021 pending before the Additional Chief Judicial Magistrate, Bidhannagar. 

Case: Trina Halder& Ors. v. The State of West Bengal & Ors.