While quashing the detention of YouTuber Savukku Shankar under the draconian Goondas Act, the Madras High Court said social media content is not thrust upon the viewers, and the choice either to consume or reject it is always at the disposal of the viewers.
On 9th August, a division bench comprising justices SM Subramaniam and V Sivagnanam dwelt at length on various aspects of the case, including malice by the state, balance between individual rights and public order, criticism, social media, and freedom of the press.
While disposing off a habeas corpus petition (HCP) filed by Shankar’s mother against police slapping the Goondas Act on him on May 12, the bench said, “The viewer has a right to know the opinions of a fellow citizen on the policies or actions of the government or any other institution working for the people. Censorship against such views is unhealthy for good governance. The government can handle social media as an effective tool to understand the grievances of the common man instead of trying to shut him down. Any human being shall be allowed to speak his personal views and opinions; a free country should always propagate free speech. Reasonable restrictions are a narrow term and should be used in the most sparing way possible.”.
It was further contended that the impugned detention order has no legs to stand under the rule of law. The arrest was made on May 10, 2024, and the video referred to in the detention order was broadcast on February 11, 2024. The detention order reveals that the passengers at Chennai’s New Kalaignar Centenary Bus Terminus in Kilambakkam staged a protest alleging the non-availability of bus services on 10.02.2024. But the impugned order states that the information contained in the mail was published in M/s. Savukku Media on 11.02.2024. The contradiction apparent on the face of it would be sufficient to conclude that an element of breach of public order has not been established.
It is also contended that “regarding the jurisdiction, the alleged occurrence of protest in the Kilambakkam bus stand was staged by the passengers falling within the territorial jurisdiction of the Commissionerate of Tambaram. Thus, the complaint by the Superintending Engineer, CMDA, before the 2nd respondent/Commissionerate of Chennai is not entertainable, and thus, the impugned order lacks jurisdiction.” The judges point out that “the remand order states that ‘Injury is not mentioned in the arrest memo. The intimation letter was sent to the mother of the detenu at Chennai on 10.05.2024 by the very same Inspector of Police, Cyber Crime Police Station. The manner of service to the mother of the petitioner from Chennai and serving the arrest intimation to the detenu at Coimbatore by the very same inspector of police raises a doubt.”.
The bench said “offenses disclosed in the adverse cases and the ground case do not disclose any serious threat to ‘Public Order’ and do not meet the threshold. An element of malice in the entire action is traceable through the documents furnished for issuing the impugned order of detention.
The court raised doubts about why a complaint from journalist Sandhya Ravishankar against Savukku Shankar was registered after a lapse of nearly six years. It also said, “Allegation or remarks made against individuals cannot constitute a threat to ‘public order’.’ There must be a real threat or apprehension of large-scale disturbance in society or amongst the people at large to invoke the term ‘public ‘disorder’. This Court does not find merit in the detention order issued by the second respondent. Therefore, there are serious doubts in the detention of the detenue in the present case, as there is no sufficient ground to establish the breach of public order.”
Authoring the verdict, Justice SM Subramaia said, “Preventive detention law subverts the exercise of an individual’s fundamental right. Hence, the courts need to balance individual freedoms and the public order. But as the nation progresses, the walls of fundamental rights and freedoms must widen, and that can be a reality only by a responsible usage of the freedoms guaranteed to us in the Constitution. The detenue claims to be a whistleblower and social media journalist. In cases where preventive detention laws are invoked, the courts need to balance the individual’s freedoms and rights with public order.”
The bench said, “This Court shall never stifle or attempt to strangulate Article 19(1)(a) of the Constitution of India. The spirit of Article 19(1)(a) shall be ever-evolving, and the reasonable restrictions shall also shift their shape to stay in tune with Article 19(1)(a). The vision of our lawmakers is to ensure free voice for all, and that shall be protected under the Constitution. The freedom of thought and expression shall be set free, and any individual or state machinery affected by the views of another shall fetch appropriate remedy available under relevant criminal laws, cyberlaws, and Defamation Laws instead of embarking on indirect censorship by detaining persons under the Goondas Act or unnecessary bridling of Article 19(1)(a), which will be a hopeless pursuit with no end. Further, scope of conflict in decisions may arise, so the best possible remedy for any aggrieved party is to take appropriate action with the aid of laws in place on commission of offense, if any. Selective detention of persons and spreading false information is also a threat to democracy.
The bench said, “In the Age of the Internet, information is overflowing from all quarters, and booking every person for spreading false information is an impossible exercise… We cannot be a democracy if we receive the 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. A state going behind every social media post or YouTube video will not change anyone’s views; instead, it will make the people feel stifled of their right to speech. Can the voices of everyone be strangulated to curb these small groups from spreading unpleasant opinions? The people consuming information in social media are the best judges of these views and opinions.”.
The judges said “the viewer has a right to know the opinions of a fellow citizen on the policies or actions of the government or any other institution working for the people. Censorship against such views is unhealthy for good governance. Dissenting views may be in different mediums, forms, and languages. Some may even be unfair and prejudicial. If an individual feels affected by such views, he/she can proceed against such content providers in a manner known to law. But institutions like the state and its machinery shall impose restraint when taking a legal course of action against its own citizens. Therefore, by taking such stricter construction of content on social media, the State is embarking on a never-ending, unproductive journey. Speeches in order to be attracted under the Preventive detention laws, such as Tamil Nadu Act 14 of 1982, must instill a sense of fear and harm to the public at large and incite a grave danger to public order. A breach of law and order by itself cannot be termed a public disorder. This individual freedom cannot be clamped down at the whims and fancies of the State. And 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.
The court ordered the release of Savukku Shankar forthwith unless his continuous detention was required in connection with any other case.
