'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...

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

Athira Prasad

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