Introduction
The Madras High Court bench of Justices SM Subramaniam and V Sivagnanam on August 9 came out strongly against the conduct of Chennai Police, where the latter had preventatively detained YouTuber Savukku Shankar under the stringent Tamil Nadu Goondas Act, 1982, accusing him of spreading false documents on social media against the government regarding the tender process for construction of new bus terminus at Kilambakkam.
The court observed that Shankar was arrested on May 10, 2024, while the video attached in detention order was broadcasted only on May 11, and the same order mentions that passengers protested against the non-availability of buses at New Bus Terminus in Kilambakkam on May 10. Therefore, if the controversial material was published a day after the protest took place, there is an apparent contradiction in the face of it, and the “element of breach of public order has not been established”, the bench noted. It further said that in the absence of any satisfactory ground to show that the act caused public disorder, mere publication of false information cannot constitute an offence under Section 3(1) of the Goondas Act, 1982.
The writ of Habeas Corpus was filed by the mother of the detenue, A.Kamala, wherein 4 respondents were named in the petition, namely, the State, the Commissioner of Police, Greater Chennai, the Inspector of Police, Chennai City CCD-I, and the Superintendent, Central Prison, Coimbatore.
Brief Background
Savukku Shankar, a YouTuber who runs Savukku Media channel, was first arrested on May 4, 2024 by the Coimbatore City Cyber Crime police in Crime No. 123 of 2024, wherein he was charged under Section 509 (outraging modesty of a woman) of Indian Penal Code (IPC), Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998, Section 67 (publishing obscene material) of the Information Technology Act, 2000. Since his arrest he was put in Central Prison at Coimbatore. Two more cases that were relied upon by the police to issue detention order were filed on May 7, with Crime Nos. 154 and 155. Notably, the FIR in Crime No. 154 was registered after a lapse of nearly 6 years since the date of original complaint which involved allegation against Shankar of making derogatory comments against a woman journalist. In the FIR in Crime No. 155, the complaint pertained to making derogatory comments against Women Police Officers in his YouTube video. Later, the Chennai Police filed another case on him on May 8, with an FIR Crime No. 158 of 2024 under Sections 465 (forgery), 466, 471, 474, 420 (cheating) of Indian Penal Code (IPC) based on the complaint received from Superintendent Engineer in Construction Wing, Chennai Metropolitan Development Authority (CMDA). Interestingly, the complaint followed 3 months after the passengers protested against the unavailability of public transport buses at New Bus Terminus in Kilambakkam, and it charged Shankar of stealing government data and spreading false information through his social media posts, which it said instigated the public.
The detention order was issued on May 12 by the Commissioner of the Police, Greater Chennai, and the State Government approved the order by publishing the same on May 22. The police had justified issuing the detention order based on Crime No. 158 and further relied on Crime Nos. 154 and 155 to argue that on previous occasions the accused had secured relief against his remand and therefore it took precautionary measure this time by issuing the detention order.
Judgement
The HC bench questioned the need to arrest Shankar under stringent Goondas Act by the authorities and held that his social media posts did not lead to public disorder and further explained that public disorder cannot include all law and order situations. The verdict notes that “The criticism made against the Government and its officials prompted them to invoke preventive detention to stop the detenu from publishing any such criticism, opinions about the Government or its officials.” The court also did not take the public protests as a threat to public disorder and said that no untoward incident or element of breach of public order has been established in the detention order.
Importantly, the High Court was quick to note that the past two adverse cases registered against the accused vide Crime Nos. 154 and 155 does not form a sufficient ground to culminate into a case of Preventive detention under the Goondas Act, 1982. It held that “Offences disclosed in the adverse cases and the ground case do not disclose any serious threat to ‘Public Order’ and does not meet the threshold.” Furthermore, the judges took cognisance of the delay in filing couple of complaints, and remarked that “unexplained delay raises suspicion.” Moreover, the verdict reiterated the basic principle of criminal law and said that “in case of Preventive detention, if there is any doubt, whether rules have been strictly observed, that doubt must be resolved in favour of the detenu.”
The bench said that both cases (Crime Nos. 154 and 155) can be addressed through normal course of legal action under relevant provisions of laws without any need to invoke the Goondas Act, 1982. Additionally, the judges held that the accused was deprived effective representation in the case, as his representation was received on May 22, 2024, the same day on which the state government approved his detention order.
Emphasis on Freedom of Speech
The court relied on a plethora of judicial precedents concerning personal liberty and free speech jurisprudence, including Ram Manohar Lohia v. State of Bihar (1966 (1) SCR 709) , Anuradha Bhasin vs. Union of India and Others (AIR 2020 SC 1308), Pramod Singla vs. Union of India (2023 SCC Online 374), Ameena Begum vs. State of Telangana and Others [(2023) 9 SCC 587)], Rekha v. State of T.N [(2011) 5 SCC 244] and A.K. Roy v. Union of India (1982 SCC (Cri) 152).
Noting that selective detentions and false information both are equal threat to democracy, the bench said that “We cannot be a democracy, if we receive same plausible views from all the citizens. There is bound to be discontent, which might be acceptable and unacceptable, but the duty of the State is much larger than engaging in legal battles to prevent such unacceptable opinions.” It further remarked that people consuming information on social media are the best judges for themselves and constitutional institutions cannot indulge in a process to influence the views of the people, and added that “Actions of the Institution speaks for themselves and the views may come and go.”
On the rights of viewers, the bench observed that fellow citizens have right to know the opinions of a fellow citizen on the policies or actions of the government and censorship against such views is unhealthy for good governance. It also stated that “View and opinions are subjective and based on one’s own perception of information available at their disposal. No one can alter or change other’s views or opinions.”
The court also went into academic inquiry to understand what could be considered as influencing the opinion of fellow citizens. It provides the following illustration: “To illustrate further; ‘Y’ may post a content unfairly criticising a policy of the government which though a good policy and is in accordance with the laws in force. But ‘Y’ feels that it is a wrong policy and has to go. ‘A’, ‘B’ and ‘C’ are viewers watching the content. ‘A’ agrees with ‘Y’, ‘B’ agrees partially and ‘C’ does not agree with ‘Y’. ‘A’, ‘B’, ‘C’ is believed to have their own views about the said policy. Can it be said that ‘Y’ is influencing them against the government thereby causing public disorder with his opinions.”
The judgment notes that by taking a stricter construction of content online, the State is embarking on a never-ending unproductive journey which may eventually result in narrowing down the contours of Article 19(1)(a). It further said that “individual freedom cannot be clamped down at the whims and fancies of the State” and “Excessive usage of such laws to restrict the right to free speech will deter other citizens from enforcing their right to criticism or opinions against the State thereby fracturing the spine of democracy.”
The bench suggested that the State should instead use social media to understand the grievances of its people rather than trying to clamp them down. It observed that reasonable restrictions is a “narrow term” and it should be used in the most sparing way possible.
As the court quashed the detention order against Shankar as being noncompliant with the provisions of the Tamil Nadu Goondas Act, 1982, and set him free, it said that “in this month of 77th Independence Day celebrations can the voices of the citizens be stifled again? This Court cannot narrow the walls of Article 19(1)(a). The soul of a healthy democracy lies in free speech.”
Note: “The Goondas Act, 1982” has been used in this article to ensure easy readability, the formal name of the said legislation is “Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug offenders, Forest-offenders, Goondas, Immoral Traffic Offenders, Sand offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982.
The Madras HC judgement may be read here:
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