In March this year, the Kerala Police arrayed the leaders of the Sabarimala Karma Samithi and the state leaders of BJP as co-accused in about 272 pending cases across the state. The cases had been registered earlier for the occurrences on 3rd March, during a hartal called in the state to protest against entry of two young women to Sabarimala Temple.
On 7th January, a Division Bench headed by the Chief Justice of Kerala passed an interim order in a PIL that no hartal should henceforth be called in the state without prior public notice of seven days. On the same date, a writ petition was filed by Sri. T N Mukundan, a known ruling party sympathizer, seeking initiation of action against thirteen respondents therein consisting of the leaders of the Sabarimala Karma Samithi, the BJP and the Rashtriya Swayamsevak Sangh(RSS), for the hartal of 3rd March. The Division Bench of the Chief Justice issued notice to the respondents on 8th March.
Three out of the thirteen leaders arrayed as respondents in the writ petition were BJP candidates in the Loksabha elections. The last date for filing of nominations in the state was 4th April. On 29th March, a memo was filed in the writ petition by the government pleader along with a 78-page chart listing out all the cases registered across the state pertaining to the hartal, including about 272 cases wherein the respondents had been arrayed as accused. It is difficult to ascertain the exact number and particulars of cases registered against each of the respondents from the chart.
It has now come out that the decision to add the leaders of the Sabarimala agitation and the BJP as co-accused in all the cases relating to the hartal was taken by the Additional Advocate General and the Director General of Prosecution of the state. The State Police Chief simply followed the instructions of the law officers and issued a letter on 5th March to all District Police Chiefs in the state to array the leaders as accused in all cases registered across the state in connection with the hartal.
The State Police Chief states in the letter, “In the letter dated 22.02.2019 the AAG (Additional Advocate General) informed the State Police Chief to array the leaders who called the hartals/flash hartal on 02.01.2019 – 03.01.2019 & 18.02.2019”. The letter concluded by saying that attached “opinions of the Law Officers shall be kept in personal custody of the DPCs (District Police Chiefs)”.
The leaders of Sabarimala Karma Samithi arrayed as respondents in the writ petition and accused in the cases are Smt. K.P. Sasikala, Sri. S.J.R. Kumar, Dr. K.S. Radhakrishnan, Dr. T.P. Senkumar and Senior Advocate Govindh K. Bharathan. Leaders of the BJP are Sri. P.S. Sreedharan Pillai, Sri. K. Surendran, Sri. M.T. Ramesh, Sri. A.N. Radhakrishnan, Sri. P.K. Krishnadas, Sri. O. Rajagopal and Sri. V. Muraleedharan. The state president (Pranth Sangh Chalak) of the RSS, Sri. P.E.B. Menon has also been arrayed as a respondent in the writ petition and accused in the criminal cases.
The letter of State Police Chief states that the Director General of Prosecution has given an advice that “it would be legal and proper to proceed with the direction of the Court and those responsible shall be made as co-accused in the cases registered in pursuance to violence on 02.01.2019, 03.01.2019.” It is not clear which ‘direction of the court’ is referred to by the DGP. The High Court has not directed the state to array all respondent as parties in all pending cases. None of the Judgments of the Supreme Court relied upon the petitioner in the writ petition contains any such direction. In fact, even the writ petitioner has not made any prayer to array the respondents as co-accused in all pending cases.
Interestingly, the Kerala Prevention of Damage to Private Property and Payment of Compensation Ordinance, 2019 brought out by the state government on 8th January to deal with damage to property does not contain any provision to array those who are alleged to have called for a hartal to be arrayed as accused in all cases.
It is clear from the letter of the State Police Chief that the leaders were arrayed as accused pursuant to a centralized decision taken by the State Police Chief, relying solely on the instructions of law officers. Such a procedure is not known to law. Moreover, it appears that the memo with the chart of cases was served upon the respondents on the eve of the deadline for filing nomination to create confusion as the candidates have to disclose all pending cases against them while filing nomination.
The state government appears to have made the most out of the fact that the Division Bench of the Chief Justice issued notice to all respondents in the writ petition, comprising of the entire top leadership of the BJP and the Sabarimala agitation, without considering their individual role in the hartal and without considering whether the petitioner has produced any material with respect to each of them.
The letter of 5th March of the Kerala State Police Chief:-