While allowing a writ petition filed seeking police protection for the functioning of an M-Sand Manufacturing unit, a Division Bench of the Kerala High Court stated that however justified an instance of protest is, it cannot hold the rule of law for ransom and negate the statutory mandate. The manufacturing unit in question was equipped with all requisite statutory licences and permits. Yet if faced difficulties in commencing operation, as several local residents started protests against its operation, constraining the proponents of the unit to approach the High Court seeking adequate police protection.
Manufacturing and industrial units rushing to High Court seeking police protection to secure their units from public protests is a recurring phenomenon in Kerala. Perhaps, the high population density and heightened political sensitivity in Kerala occasion people’s protests against such units on perceived notions of pollution and nuisance. The Court noticed that statutory authorities abdicating their statutory functions succumbing to public protests was a common theme running through numerous writ petitions. Two issues were discussed by the Court:-
The Bench of Justices Antony Dominic and Dama Sheshadri Naidu answered the first issue in affirmative, on the ground that the jurisdiction under Article 226 of Constitution was an equitable one, and that it was not akin to usual inter-se litigation between private parties where Court will open its eyes only to the issues raised by the suitor. However, on facts the Court refrained from such examination, as other proceedings were pending before Statutory Tribunals challenging the validity of licenses and permits.
While dealing with the second issue, the Court analysed the dualisms of protests and reasonable restrictions, as well as populism and rule of law. Justice Dama Sheshadri Naidu, who authored the judgment, invoked poetic imagery to describe the dynamics between protests and rule of law. It was observed that
The protest is free speech in motion. It is like a stream by the road, but not on the road. The road is the rule of law, and the stream the societal reservation embanking that road. The stream serves its purpose—draining out the road of the excessive legislative zeal—so long as it does not erode the very road.
It was also stated that public protest is a quasi-legal mechanism at the hands of the general populace for a policy change or even its nullification, but not statutory annihilation. It was reiterated that public protests have to be exercised within the reasonable restrictions prescribed under Article 19(2) of the Constitution of India. It was also stated that the core constitutional principle of a Republic is that a democratic government, paradoxical as it sounds, is a government of laws, not of men of the majority , necessarily implying that law was not a pure and simple majoritarian concept, though democracy was rule of the majority.
The upshot of the discussion was that populism cannot thwart rule of law, and that public protests cannot supplant statutory functions. The statutory authorities have to show their allegiance to law and not to popular sentiments
By directing the police to strictly ensure maintenance of law and order, and to act swiftly in the event of any complaint by petitioners, the writ petitions were disposed of.