No Fundamental Right To Protest Anywhere The Agitator Pleases: Kerala HC

It is definitely at least honestly speaking for me myself most refreshing, most rejuvenating and so also most reassuring to note that the Kerala High Court while according the paramount importance to the interests of the people at large and so also to dignity, discipline and decorum in public spaces in a most learned, laudable, landmark, logical and latest judgment titled The Federal Bank Ltd vs Federal Bank Officer’s Association in OP(C) NO. 2332 OF 2023 against the judgment dated 16/10/2023 in CMA No.25 of 2021 of Additional District Court North Paravur and cited in Neutral Citation No.: 2024/KER/42258 and so also in 2024 LiveLaw (Ker) 381 which came up for admission on 27.05.2024 and that was finally pronounced as recently as on June 18, 2024 has minced just no words to hold most unequivocally that there is no fundamental right to protest at any place the agitator pleases and reasonable restriction can be imposed on the exercise of such right. It must be mentioned here that the Federal Bank Officers Association is a trade union which held a dharna in front of its Aluva officer holding posters, banners, placards and shouting slogans. They (respondent) argued that their acts are guaranteed under Article 19(1)(a) and 19(1)(b) of the Constitution and any order prohibiting it would be violative of the fundamental rights.

We need to note that the Single Judge Bench of Hon’ble Mr Justice Dr Kauser Edappagath minced just no words to hold clearly that the right under Article 19 is not absolute and it must be exercised in a way as not to interfere with the right of the employer to carry on their lawful business. It was also very clearly maintained by the Bench that, “The right also cannot be exercised in such a way as to intimidate the employers into submission.” So it is really most heartening to note that the Kerala High Court restricted any demonstrations, dharnas, shouting slogans within 50 meters from the premises of the offices of the bank. No denying!

At the very outset, this remarkable, robust, rational and recent judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Dr Kauser Edappagath of Kerala High Court sets the ball in motion by first and foremost putting forth in para 1 that, “This original petition has been filed challenging Ext.P7 judgment passed by the Additional District Court, North Paravur (for short, the appellate court) in CMA No.25/2021, dated 16th October 2023.”

To put things in perspective, the Bench envisages in para 2 that, “The petitioner, the Federal Bank Ltd., is a banking company incorporated under the Indian Companies Act. The respondent is the Federal Bank Officers’ Association, a trade union which comprises officers in the cadre of Scale 1 to III (i.e., Assistant Managers, Managers and Senior Managers) of the petitioner’s Bank as its members. The petitioner instituted a suit as OS No.204/2020 before the Munsiff’s Court, Aluva (for short, ‘the trial court’) against the respondent for a permanent prohibitory injunction restraining the respondent, its members and supporters from obstructing the bank officials and customers from dealing with the bank, obstructing the ingress and egress of them, committing any acts of waste or damage to the bank’s property, holding any meeting or demonstration, dharna, erecting of tents, displaying posters and banners, shouting slogans within a radius of 200 metres from the premises of the head office, annex and nearby branches of the petitioner bank which are specifically described in the properties scheduled in the plaint and also for a mandatory injunction directing the respondent to remove the notice board, hoardings, banners and posters displayed in the plaint schedule properties.”

While elaborating on the facts of the case, the Bench enunciates in para 3 that, “Three items of properties are described in the plaint schedule. The plaint A schedule is the property where the head office of the petitioner’s bank is situated. The Plaint B schedule property is the property where the training centre of the petitioner’s bank functions, and the Plaint C schedule property is the property where the administrative office of the petitioner’s bank functions. According to the petitioner, the plaint A and B schedule properties are in its absolute possession and ownership, and the plaint C schedule property is in its possession under the lease agreement. It is alleged that on 3/6/2020, the respondent and a few of its office bearers, without any notice or intimation, held a surprise dharna in front of the head office of the petitioner’s bank at Aluva situated in the plaint A schedule property, holding posters, banners and placards in protest against the transfers of its employees and displayed a poster containing false and misleading contents in the notice board in the plaint A schedule property. The suit was immediately instituted apprehending further trespass and agitation in an intensified manner.”

As we see, the Bench then discloses in para 4 that, “Along with the suit, the petitioner filed Ext.P2 application for temporary injunction under Order XXXIX Rule 1 of CPC. The respondent filed Ext.P3 counter affidavit to the injunction application. After hearing both sides in detail, the trial court allowed Ext.P2 injunction application whereby, the respondent, its members and supporters were restrained from obstructing the bank officials and customers from dealing with the bank, obstructing their ingress and egress, and committing any act of waste or damage to the petitioner bank’s property. They were also restrained from holding any meeting, demonstration, dharna, erecting of tents, displaying posters, banners and shouting slogans within a radius of 200 metres from the premises of the head office and nearby branches of the petitioner’s bank at Aluva till the disposal of the suit. Ext.P5 is the said order. Assailing Ext.P5, the respondent preferred appeal before the appellate court as CMA No.25/2021. After hearing both sides, the appellate court allowed the appeal in part and modified Ext.P5 order as under:

“Restraining the respondent and its members from obstructing the ingress and egress of the officials and customers, from committing any act of waste or damage in the plaint schedule properties and in any manner conducting any protest or demonstration so as to cause obstruction to the peaceful functioning of the Banks and offices situated in the pliant schedule properties till the disposal of the suit.”

Ext.P7 is the said order. It is challenging the said order; this Original Petition has been preferred.”

It is worth noting that the Bench notes in para 8 postulating that, “The respondent association is a recognized trade union of the officers’ community of the petitioner bank, affiliated to the All-India Bank Officers’ Confederation, which is the apex organization of the Bank Officers of the Commercial Banks in the country. No doubt, the trade union has the right to protest and to carry on peaceful gatherings and demonstrations in the workplace as guaranteed under Article 19 of the Constitution of India. But the said right is not absolute. It must be exercised in such a way as not to interfere with the right of the employer to carry on their lawful business. The exercise of right stands terminated the moment it interferes with the right of someone else to enjoy property or to carry on business. The right also cannot be exercised in such a way as to intimidate the employer into submission (Sreekumar v. State of Kerala 1996 (1) KLT 25). In Railway Board, New Delhi and another v. Niranjan Singh (AIR 1969 SC 966), a trade union worker was charged with the misconduct of addressing meetings within the railway premises in contravention of the directions issued by the employer. When he sought protection under clauses (a), (b) and (c) of Article 19(1), this Court rejected the same by holding that the exercise of those freedoms would come to an end as soon as the right of someone else to hold his property intervenes. It was held that the fact that the citizens of this country have freedom of speech, freedom to assemble peacefully and freedom to form association or unions does not mean that they can exercise that freedom in whatever place they please. The exercise of that freedom will come to an end as soon as the right of someone else to hold the property intervenes. The Supreme Court went on to state that the validity of that limitation is not to be judged by the test prescribed in sub Articles (2) and (3) of Article 19.”

Most significantly, most remarkably and most forthrightly, the Bench while maintaining a fine balance and drawing clear red lines on right to protest mandates in para 11 propounding that, “The Supreme Court, as well as various High Courts, have devised methods to strike the balance between the conflicting and competing interests of the employer and employees by fixing the distance rule whereby restricting the dharna, picketing, holding demonstrations or gherao, shouting slogans, etc. to a certain distance from the employer’s premises [See Orchid Employees’ Union (supra), Standard Chartered Grindlays Bank Ltd. (supra), Punjab and Sind Bank (supra), Wings Pharmaceuticals Pvt. Ltd (supra), Food Corporation of India, Chennai (supra) and Maruti Udyog Ltd. (supra)]. By relying on these decisions, the trial court, through a well-reasoned order, regulated the activities of the respondent association in the plaint schedule properties by restraining them from holding protests in any form within a radius of 200 metres from the premises of the head office and nearby branches of the petitioner bank at Aluva. It is settled that the appellate court would not interfere with the exercise of discretion of the court at the first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. If the discretion has been exercised by the trial court reasonably and in a judicial manner, the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion [Punjab and Sind Bank v. Frontline Corporation Ltd. AIR 2023 SC 2786]. If the appellate court interferes without the existence of such grounds, it acts with material irregularity in the exercise of its jurisdiction; no doubt this court, under the exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, can interfere with the order of the appellate court. The appellate court erred in ruling contrary to the ratio laid down in the decisions of the Supreme Court and various High Courts mentioned above wherein dharna/demonstrations have been restricted to certain metres from the premises of the employer. The appellate court failed to recognize that there is no fundamental right to protest at any place the agitator pleases, and that reasonable restriction can be imposed upon the exercise of such rights if proved to exist. Hence, the judgment of the appellate court modifying the injunction order passed by the trial court taking away the distance rule restriction imposed by the trial court totally cannot be justified. Striking a balance between the rights of the petitioner bank as well as the rights of the respondent association, I am of the view that the respondent association should be restrained from making protests in any form within a radius of 50 metres from the premises of the head office and nearby branches of the petitioner bank more particularly described in the plaint schedule. By such modification, the constitutional right of the respondent association to protest and to form peaceful gatherings and form associations would not be curtailed.”

Finally, the Bench then concludes by holding in para 12 that, “For the reasons stated above, Ext.P5 injunction order passed by the trial court as modified by the appellate court in Ext.P7 is further modified as follows:

“The respondent association and its members are restrained by a temporary prohibitory injunction from obstructing the petitioner’s bank officials and customers from dealing with the bank, obstructing their ingress and egress, commit any act of waste or damage to the bank’s property, holding any protest meeting, dharna, demonstration, erecting tents or shouting slogans within a radius of 50 metres from the premises of the head office, annex and branches of the petitioner bank which are specifically described in the plaint schedule properties till the disposal of the suit”.

OP(C) is disposed of as above.”

In a nutshell, it is high time and Centre must enact a law prohibiting blocking of public spaces and public roads. It brooks no more delay any longer now! This definitely does not mean that citizens don’t have a right to protest. Of course, citizens have a right to protest but it cannot be at the cost of putting the other people at huge inconvenience by blocking public roads, rail tracks or any other public spaces putting others at huge inconveniences. It thus merits no reiteration that this Kerala High Court ruling must now definitely be applauded, adored and strictly followed in all such similar cases to send a loud and clear message that right to protest cannot be unfettered and those who protest have to accord respect to the public space to protest in the most disciplined manner and only then can they claim the right to protest as guaranteed in Article 19 of the Constitution!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.