Right to protest against government does not confer right to obstruct: Kerala High Court orders police protection for Adani Ports at Vizhinjam

The Kerala High Court on Thursday held that the right to protest against government apathy or neglect does not confer a right to obstruct a legally permitted project [M/s Adani Vizhinjam Port Pvt. Ltd. & Ors. v State of Kerala & Ors.]..Justice Anu Sivaraman underscored that the right to protest can only mean a right to protect peacefully."I have no doubt in my mind that the right to agitate or protest any matter, including the apathy or neglect of the government, cannot confer any right, either on respondents 11-25 or any of the protesters, to contend that they have the right to obstruct the activities which have due permissions or to trespass into the construction site and cause damage to public property...This Court has time and again considered the issue of competing interests in the grant of police protection and has held that a right to protests can only mean a right to protest peacefully and that there can be no right to obstruct a legally permitted project or activity in the guise of a protest, whatever be the reason for the protest" the order stated.The Court, therefore, ordered police protection for workers and other officials of Adani Ports engaged in the construction of Vizhinjam port in Kerala. .The Court passed the order on two petitions moved by Adani Ports and by its contracting partner Howe Engineering Projects, seeking police protection in light of the ongoing protests by fisherfolk against the construction of the port at Vizhinjam in Kerala. M/s Adani Vizhinjam Port Pvt. Ltd. was selected as the concessionaire for the Vizhinjam Seaport Project and construction began on December 5, 2015. The port is being currently developed in landlord model with a Public Private Partnership component on a design, build, finance, operate and transfer (“DBFOT”) basis.However, the project has been opposed by the fisherfolk community which, under the leadership of the Catholic Archdiocese of Trivandrum are demanding, among other things, proper environmental impact studies, rehabilitation of families who lost their homes to coastal erosion and rectifying coastal damages.The petitions claimed that recently, the protesters have been blocking the entry and exit points to the construction site and that on some occasions, thousands of protestors actually managed to enter the site which is a High Security Zone.The petitioners submitted that all construction work has been stalled since August 17 due to the protests.According to the petitioners, the environmental clearance for the project was granted in 2014, before Adani Ports entered the fray, after several environment impact studies were conducted and that the same showed that the coast near the construction site are stable with little possibility of erosion.It was pointed out the same was challenged before the National Green Tribunal which held that all the apprehensions raised about the project were without basis. The order of the NGT was later confirmed by the Supreme Court, he submitted.The protestors are holding the project for ransom, the petitioners alleged as they pressed for the government and the police to take action to ensure that the project, which is of national importance, continues without any further hinderance.They also alleged that several members of the clergy were organising the protests and even bringing protestors from their own parishes to Vizhinjam to disrupt the work.The Government Pleader asserted that the completion of the project is indeed important to the State government as well and that it is taking all steps to amicably settle the issues with the protesting groups.The petitioners had also sought a direction to the Central government to provide adequate protection by the Central Reserve Police Force (CRPF) since the Government of India is also contributing to the project through Viability Gap Fund (VGF).However, the Government Pleader assured the Court that the CRPF would not be needed to ensure law and order in the locality at present.The party respondents, including members of the clergy and the community around Vizhinjam opposed the plea claiming that the environmental clearance certificate obtained by the petitioners was itself improper and illegal. They also alleged malpractice on the part of the petitioners..However, the Court noted that the question raised in the petitions is not with regard to the validity of the permission granted to the project. "The only aspect which requires consideration is the breach of peace and illegal obstruction caused by the protesters. The respondents cannot be heard to contend that they or any the protesters have a right to violate the law or create a situation where the project is disabled from going forward", the Court said.Therefore, it stated that the public protests in which respondents 11-25 are admittedly involved, at least in an advisory capacity, cannot extend to obstructing ingress and egress of the petitioners, its subcontractors, employees or officials to and from the project site, or obstruct the activities of the project without any authority of law.Accordingly, it directed the State government and police to ensure that necessary police protection is granted to the petitioners to carry out the activities permitted in accordance with the contracts entered into by them."All necessary protection for providing free ingress and egress to such persons for carrying out the activities in accordance with the law shall be afforded by the police. The public protest can go on peacefully but without causing any obstruction and without any trespass into the project area," the Court stated.It further ordered that in case the State government and police are unable to see that law and order is maintained in the locality, necessary steps shall be taken to seek appropriate assistance from the Central government..Adani Ports and Howe Engineering were represented by Senior Advocates S Sreekumar and G Sreekumar respectively, as well as by advocates Roshen D Alexander, Tina Alex Thomas and Harimohan.Vizhinjam Seaport was represented by Senior Advocate VJ Mathew and advocates Vipin P Varghese, Adarsh Mathew, Kevin Mathew George, Merlin Mathew and Meera Elsa Jose.The other respondents were represented by Senior Advocate D Sreekumar and advocates Sherry J Thomas, Johnson P John, and the Assistant Solicitor General of India .[Read Order]