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In a refreshing order, Justices M. Duraiswamy and K. Muralishankar of the Madurai bench of the Madras high court have held that there is a colossal difference between complaining that a person is acting against the government and that person is protesting the policies of the government.
The court was hearing a petition filed by K Siva, a law graduate. When he tried to apply to the Bar Council of Tamil Nadu and Pondicherry as a member, he was informed that he would not be permitted. A police verification report against Siva had mentioned that 88 criminal cases were registered against him between 2017 and 2019.
Most of these cases were lodged after the demonstrations held at Thoothukudi on May 22, 2018 demanding the closure of Vedanta’s Sterlite copper plant for the reason that it had polluted the air and water and caused health hazards to the people. Thirteen persons died during the protests on that day, as police opened fire at them.
Following the protests, the Tamil Nadu government order the closure of the plant. The Madras high court had on August 18, 2020 upheld the state government’s closure order. Though appeals were preferred, the Supreme Court has refused to grant any interim order to reopen the plant.
The Madurai bench has reasoned that the duties of the state in protecting the environment are basically the rights of the people. The bench relied on Article 51-A (g) of Part IV-A (Fundamental Duties), which deals with the duty to protect and improve the natural environment, including forests, lakes, rivers and wildlife and to have compassion for living creatures. A liberal interpretation of Article 21 (protection of life and personal liberty) of the constitution enabled the bench to hold that right to environment, free of danger of disease and infection is inherent in it.
The bench took note of the fact that the petitioner is not an accused in the chargesheets filed by the CBI in connection with the 88 FIRs after the Thoothukudi incident. The petitioner was also involved in another students’ protest in Chennai, demanding the closure of the Sterlite plant. This protest incited the charge that the students prevented the police from discharging their public duty. In paragraph 22 of the order, the bench held that the protest or demonstration organised by students was actually towards fulfilment of their fundamental duty under Article 48A of the constitution.
The bench relied on the Supreme Court’s observation in a case that the mere fact that the petitioner was a part of a group and stood in front of a liquor shop and shouted slogans cannot make him guilty of an offence, as the group was only impressing upon the state the need to follow the Directive Principles of State Policy enshrined in Article 47 of the constitution.
In another case registered by the Tirunelveli Junction police station, the petitioner was accused of assembling without any prior permission along with 18 others under the banner of “People Power” to protest against the Union government for banning the sale of beef. The bench reminded the police that every citizen has the right to comment on the policies of governments and to have their own views with respect to such policies. The bench noted that even the prosecution has not alleged that the petitioner indulged in violence.
The bench referred to the high court’s previous order in the R. Nagendiran case, in which another division bench refused to consider burning the effigy of a political leader and defamation complaints as actions which could make persons as criminally liable, barring their entry into the legal profession. In K. Divya v Bar Council of Tamil Nadu and Pondicherry (2018), yet another division bench of the high court had held that registration of cases for offences under Section 153(A) and 505(1)(b) of the Indian Penal Code (IPC), read with Section 66(F) of the Information Technology Act, 2000 could not render the petitioner ineligible for enrolment as an advocate.
The bench noted that 81 cases in connection with the Thoothukudi incident have been referred to the CBI, which is not a party before the court, and the respondents have denied the petitioner enrolment as an advocate without getting any report from the CBI. The bench, therefore, held that enrolment as an advocate was unjustly being denied to the petitioner, and directed the respondents to enrol him at the next available opportunity.
The respondents in this case defended the denial of enrolment to the petitioner on the ground that the high court, in an earlier case, had directed them to verify the criminal antecedents of the candidates who apply for enrolment because the nobility and purity of the profession cannot be allowed to be sullied by the entry of anti-social elements. The bench, however, asked whether it is possible for a person to be present and involved in the commission of offences at 88 places on the same day in the absence of any charge for criminal conspiracy, as the petitioner’s name does not find a place in any of the 88 FIRs registered for the May 22, 2018 incidents. The Thoothukudi police failed to substantiate how the petitioner was implicated in the 88 cases, the bench noted.
The high court’s order, by emphasising that the right to protest is inextricably linked with the fundamental duties of a citizen, will have considerable value as a legal precedent.