[BREAKING] Kerala High Court quashes unlawful assembly, rioting case against Chief Minister Pinarayi Vijayan, 11 other CPI(M) leaders

The Kerala High Court on Thursday quashed the criminal proceedings against Chief Minister Pinarayi Vijayan and 11 other leaders of the Communist Party of India (Marxist), including former Chief Minister VS Achuthanandan, in a case alleging unlawful assembly and rioting as part of a 2009 human chain protest..Justice Bechu Kurian Thomas observed that the right to peaceful protest being an essential ingredient of the fundamental right under Article 19(1)(a) and 19(1)(b) of the Constitution of India, an assembly without arms or criminal force 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. In this context, it is appropriate to observe that 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. The right to dissent and the freedom to air views contrary to the views of the government is not an offensive conduct," the Court held..The right to dissent and the freedom to air views contrary to the views of the government is not an offensive conduct.Kerala High Court.Further, it opined that the right to dissent is at the core of every democratic establishment and that constitutional scheme of India 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," the Court said in its judgment..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.Kerala High Court.The protest in question occurred in 2009, against a trade agreement that the Central government entered into with the Association of South East Asian Nations (ASEAN).In a bid to compel the Union Government to withdraw from the ASEAN free trade agreement, the Communist Party of India (Marxist) decided to form a Statewide human chain in Kerala to be lined up on the sides of the National Highway. The human chain is alleged to have been created over a distance of 500 kilometres, from Kasaragode in the north to Thiruvananthapuram in the south..An advocate practicing before the courts at Thiruvananthapuram preferred a private complaint before the Judicial First Class Magistrate Court, Thiruvananthapuram alleging that the human chain formed on 2nd October 2009 between 5 pm to 8 pm at the behest of the 12 petitioners 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. 3. In the present case, twelve leaders of the Communist Party of India (Marxist) approached the 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.Advocate Gilbert George Correya, representing the petitioners, contended that the accused, including the present Chief Minister of Kerala, the former General Secretary of the Communist Party of India (Marxist), as well as the former Chief Minister of Kerala and other senior leaders of the Communist Party of India, never acted contrary to law. It was submitted 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). It was further contended that the human chain was formed in 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. .The Court noted that the complaint alleged that the obstruction in the form of constructing a stage or a pandal was carried out by ten other persons and not by the petitioners at all. There is no whisper of an allegation that petitioners 1 to 12 were involved in the construction of the stage or a pandal, the Court observed."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. In this context, it is relevant to notice that the complainant himself alleged," the Court said.As far as the offences under Sections 38 and 52 of the Kerala Police Act 1960 are concerned, the Court noted that there was no allegation that petitioners had failed to abide by any lawful directions of the police. Perceived from the angle of Section 95 of IPC also, the Court was of the view that the proceedings against the petitioners are liable to be quashed. Section 95 IPC, states that “Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm”. "The aforesaid section embodies the principle of ‘de minimis non curat lex’ meaning that “law does not take into account trifles”. 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 Court stated.Applying the principle in Section 95 IPC, the Court held that the allegations can at the most reveal some obstructions caused on the public way while the petitioner held their hands for a limited period of time. Pertinently, it noted that the allegations do not satisfy the requirement of criminal force required to establish a case of unlawful assembly as per Section 141 of the Indian Penal Code."An assembly of more than five persons gathered for a peaceful protest cannot fall within the term unlawful assembly," the Court said as it allowed the plea and quashed the proceedings against the petitioners..[Read Order]