The Kerala High Court recently quashed criminal charges filed against three persons for waving black flags at Chief Minister Pinarayi Vijayan’s convoy as a mark of protest in 2017 [Simil & ors v State of Kerala].

Justice Bechu Kurian Thomas also highlighted that peaceful protests are a vital part of a functioning democracy and cannot be suppressed through unnecessary legal actions.

"Protests are essential for an effective democracy as they are the external manifestations of democratic sentience. Peaceful protests aid in strengthening such governance rather than weakening it. Petitioners marked their protests by waving black flags on a matter that they perceived to be unjust," the judge observed.

The judge added that the act of waving a black flag at the Chief Minister's convoy cannot, by any stretch, be viewed as amounting to the criminal offence of defamation.

"Though signs and visible representations can be a mode of defaming a person, still, showing or waving a black flag to a person cannot amount to defamation nor is it an illegal act. Even if a black flag was shown to the Chief Minister’s convoy, such conduct cannot by any stretch of the language of section 499 IPC be perceived as defamatory," he observed.

The three protestors - Simil, Phijo and Sumesh - had been booked for various offences including defamation, obstruction of public way, and assaulting police officers after they allegedly attempted to obstruct the Chief Minister’s convoy by waving black flags. They were also accused of pushing police officers who tried to restrain them.

The three accused eventually approached the High Court with a petition to quash the criminal prosecution against them, contending that the charges against them were baseless.

The Court observed that the charge under Section 188 of the Indian Penal Code (disobedience to a public servant) was not valid since it had not been filed by an authorised person as per the law.

The Court further found that the charge of defamation would also not stand.

"A black flag can depict different things depending on the context. Waving a flag can be a sign of support or a sign of protest. It is a matter of perception. Generally, a black flag is shown as a mark of protest. If a flag of a particular colour is shown, whatever the reason, including as a mark of protest, as long as there is no law which prohibits the waving of a flag simpliciter, such conduct cannot be mulcted with the offence of defamation," the Court said.

The Court proceeded to opine that allegations of the accused pushing and pulling police officers who tried to restrain them was too trivial to warrant a criminal prosecution. In this regard, the Court invoked the principle of 'de minimis non curat lex', meaning that the law does not concern itself with trivial matters.

It, therefore and concluded that the charges under Sections 283 (obstruction of way) and 353 (preventing public servant from doing duty) IPC were also unsubstantiated.

The Court proceeded to quash the entire criminal case against the three accused, stating that the charges against them were without merit.

The petitioners were represented by advocates M Vivek and Reneeta Vinu.

Public Prosecutor CN Prabhkaran appeared for the State.

[Read Order]