‘Waving black flag not illegal, doesn’t amount to defamation’: Kerala HC on case against 3 young men who protested against Pinarayi Vijayan convoy

Police had submitted a chargesheet against them at a magistrate court in Paravur in 2020. They were booked under IPC sections that deal with defamation, obstructing a public servant from discharging duties, and others.

The accused then moved the High Court, challenging the case.

The court said, “…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.”

“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 charged with the offence of defamation,” said the court.

Besides, the court said a police report cannot be the basis for taking cognizance of the offence of defamation as it can be taken only on a complaint made by the person aggrieved.

The court also observed that prosecution cannot be initiated against the accused for “mere push and pull of police personnel”. The final report does not indicate that obstruction was caused to the Chief Minister’s convoy, even temporarily, as the police party had blocked and removed the protesters immediately, the court observed.

In 2023, police in Kerala had registered hundreds of cases against workers of Opposition parties for waving black flags at a bus in which CM Vijayan and his Cabinet colleagues were travelling as part of a yatra to all 140 Assembly constituencies in the state.

Moreover, CPI(M) workers have been accused of attacking protesters who waved black flags at Vijayan’s convoy. Before this, there had also been several other incidents in which police had banned black face masks and even black clothes at Vijayan’s events.

Kerala Governor Arif Mohammed Khan had also been shown a black flag by SFI activists in January. Irked by the incident, Khan got down from his car and held a sit-in on the road in Kollam district. Later, police booked the SFI activists.