Freedom to hold Political Ideology a fundamental right under Article 21, Kerala HC

Freedom to hold Political Ideology a fundamental right under Article 21, Kerala HC

Meera Emmanuel

A Division Bench of the Kerala High Court on Monday upheld a single judge order directing the State of Kerala to pay Rs. 1 lakh as compensation to a man wrongly detained on a suspicion that he had connections with illegal maoist outfits. The Court also stated that the freedom of an individual to hold a particular political ideology is an aspect of fundamental right to personal liberty under Article 21

The Bench of Chief Justice Hrishikesh Roy and Justice AK Jayasankaran Nambiar made pertinent observations about the need to respect personal liberty. The Court observed,

The framers of our Constitution believed that certain freedoms are essential to enjoy the fruits of liberty and that the State shall not be permitted to trample upon these freedoms save for the pursuit of objectives that are in the larger interest of Society. As a matter of fact, the worth of a State lies in the worth of the individuals composing it and a truly free State is one where the collective liberties of its citizens are duly recognised and respected…

The freedom of an individual to hold a particular political ideology is an aspect of his fundamental right to personal liberty under Article 21 of our Constitution in that he has the unfettered freedom to choose an ideology of his liking (See: K.S. Puttaswamy’s case (supra)).

Accordingly, merely on a suspicion that the petitioner has embraced the Maoist ideology, he cannot be persecuted by the State authorities.”

Case background

The detainee was a yoga researcher who practiced organic farming with his partner in Wayanad. In May 2014, police officers in plain clothes blocked his path while he was driving a bike belonging to a friend who had come to visit him. The police officers proceeded to arrest him in public view. He was told that they had been on the lookout for the persons driving the bike on suspicion that it belonged to a Maoist.

The detainee’s objection that the bike did not belong to him and that the police were free to confirm the veracity of their allegations with his friend at home, fell on deaf ears. The detainee was not allowed to make phone calls to inform his family of his arrest or to engage legal counsel. The same day, the police also carried out a search in his house and seized a few articles such as laptops and mobile phones.

After the arrest and detention was challenged, a single judge of the Kerala High Court eventually found that the police had made the arrest with no material whatsoever to back up their claim that the man belonged to any banned Maoist group. Consequently, the single judge ruled in the detainee’s favour and ordered the Kerala Government to pay Rs 1 lakh as compensation, in addition to litigation costs to the tune of Rs. 10, 000.

In the appeal filed against this verdict, State Attorney KV Sohan argued on behalf of the Kerala Government that the police had apprehended the detainee for his own safety after a section of agitated public first detained him. Thereafter, the police had only acted to rule out any possibility that the detainee had connections with Maoists who are known to commit illegalities in the area.

Defending the detainee, however, advocate P Chandrasekhar argued that the arrest was made on no material whatsoever and that in the process, the State had violated the detainee’s fundamental rights.

No basis for detention and arrest

The Division Bench of the High Court found merit in the detainee’s case, observing that,

“…we find that no material is produced by the State to show what the basis for harbouring a suspicion against the petitioner was when it is stated that the police authorities had reason to believe that the petitioner would commit an offence.

In our view, any action taken by the police authorities, that had the effect of restraining the petitioner from acting according to his own free will, had to be based on a reasonable belief that they had as regards the likelihood of him committing an offence. They had to have material that justified the entertainment of such belief. “

The Court also observed that the instant case denoted a violation of Article 21, as well as the interconnected fundamental rights under Article 19. It was emphasised that,

“The rights under Articles 19 and 21 are not to be treated as mutually exclusive but rather as parts of an integral scheme that is designed to protect a citizen against arbitrary State action…. 

… Accordingly, an action that deprives a citizen of his right to move freely simultaneous breaches both the fundamental rights under Articles 19 and 21, unless the restrictive action satisfies the requirement of being a procedure authorised by the law [Article 21], which law is a reasonable one [Article 19] that is not arbitrary [Article 14] “

Detention disproportional and wholly justified

The Court also dismissed the State’s arguments that the High Court must be circumspect in intervening in such cases which involve legitimate action by the State to maintain law and order. The Court responded that,

In the exercise of its powers of judicial review under Article 226 of our Constitution, while acting as a sentinel on the qui vive to protect the fundamental rights of our citizens, this Court exercises a primary review over State action with an emphasis on the doctrine of proportionality.

A charge that State action has violated the fundamental right of a citizen calls for a heightened scrutiny of the said action by the Constitutional Courts to determine whether the action of the State in restricting the liberty of the citizen was strictly required by the exigencies of the situation.” 

In this backdrop, the Court proceeded to examine whether the arrest and detention was a proportional response by the State in this case.

Placing reliance on the English cases of de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing, A (FC) and Others (FC) v. Secretary of State for the Home Department as well as the 19th report of the Appellate Committee of the House of Lords (2007), the High Court outlined four tests to be satisfied in determining whether State action restricting individual liberty is proportional i.e.

  • the legislative object is sufficiently important to justify limiting a fundamental right;
  • the measures designed to meet the legislative objective are rationally connected to it;
  • the means used to impair the right or freedom are no more than is necessary to accomplish the objective.
  • a fair balance must be struck between the rights of the individual and the interests of the community. The severity and consequences of the interference will call for careful assessment at this stage. 

Applying these principles, the Court held,

“… we have no hesitation in holding that, in view of the primacy that is accorded under our Constitution to a person’s fundamental right to privacy and personal liberty, the action of the police authorities in detaining and interrogating the petitioner and thereafter searching his residence, without following the procedure mandated under the Code of Criminal Procedure, was wholly unjustified.

It may be that the police entertained a suspicion and the action taken was to a good end, but it is fundamental in our law that the means which are adopted to this end are lawful means. A good end does not justify a bad means more so when the means adopted are such that violate the personal freedom and privacy of individuals.

Compensation should serve as a reminder that State must be cautious

The Court proceeded to dismiss the State’s appeal. It further upheld the order directing the State to pay the detainee Rs. 1 lakh as compensation, apart from Rs. 10, 000 as litigation costs, observing,

The compensation amount awarded whilst not exorbitant, is also, in our view, adequate to inform the State authorities of the importance that is attached in our Country and Constitution to the personal liberty of our citizens. It also serves to emphasize upon the caution that they must exercise in situations where, in the discharge of their lawful duties, they are confronted with issues relating to the personal liberty of citizens.”

[Read Judgment]

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