While quashing criminal proceedings instituted against ninety year old Tamil writer, K. Rajanarayanan, for allegedly insulting the Scheduled Castes community, the Madras High Court cautioned Magistrates against mechanically ordering registration of FIRs in cases having "direct and clear implications on free speech".
Remarking that taking offence had become a fashion, the court said that the magistrate, at the complaint stage, will have to see if the allegations made in the complaint are so absurd on the basis of which no prudent person can ever reach a just conclusion. With reliance on Perumal Murugan' case decided by HC, the court said,
"It is true that at the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint. He has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused…He is not expected to embark upon a detailed discussion.
But the above said yardstick and standard cannot be so mechanically applied even in matters that have clear and direct implications on free speech.
Neither the Magistrate nor the Police should exhibit alacrity to take cognizance or register a case in such matters. Every time they receive such complaints, they must dust their knowledge of the law relating to free speech."
"Prosecutor's Veto" is the term used by the judge to describe the setting in motion of the the criminal law to target those legitimately exercising their right of speech and expression.
The judge urged the Magistrates to go through the "celebrated decision in Perumal Murugan case" authored by Mr.Justice Sanjay Kishan Kaul as the Chief Justice of the Madras High Court (who is a Supreme Court judge now).
They must also read the books 'Offend, Shock or Disturb' by Gautam Bhatia and the 'Republic or Rhetoric' by Abhinav Chandrachud, said Justice Swaminathan.
"One marker of a civilised society is as to how it treats and respects its artists, writers and intellectuals", said Justice Swaminathan , while calling upon the Magistrates to follow a more guarded and nuanced approach in such cases.
"Magistrates must realize that complaints such as the one on hand produce similar effect and lead to stifling of this fundamental freedom. They must therefore be on guard and adopt a nuanced approach in such cases", said the judgment.
Illustrating the unceasing horizons of this fashion, Justice G. R. Swaminathan commented on the recent FIR filed in Bihar, against 49 celebrities on the charge of sedition, for merely raising concerns on mob lynching, which later came to be closed at the directions of concerned SSP.
"Violence is the most extreme threat to freedom of expression…
A recent instance is the registration of FIR in Muzaffarpur District against 49 celebrities, including Ramchandra Guha, Aparna Sen, Mani Ratnam. They had written an open letter to the Prime Minister of India expressing concern over certain developments. A Muzaffarpur based lawyer Sudhir Kumar Ojha filed a case against them in the court of Chief Judicial Magistrate… This caused considerable consternation to the enlightened citizenry. It is now reported that the FIR has since been closed."
The petitioner Rajanarayanan had approached the high court seeking quashing of proceedings, pending against him before the court of Judicial Magistrate, under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), 1989 and Section 504 of IPC.
Those proceedings were initiated by one P. Kathiresan, belonging to the "Pallar" community (notified as a Scheduled Caste), who alleged that Rajanarayanan had used the derogatory connotation "Avan" while referring to the Dalits, while he used the expression "Avar" while referring to other communities, in his interview published by a magazine "The Sunday Indian".
It was alleged that "Avan" is non-honorific reference to second person singular in Tamil while "Avar" is an honorific reference. This, as per Kathiresan, constituted intentional insult to the SC community.
Disagreeing with Kathiresan's submissions, Justice Swaminathan noted that as explained by Shri Jagannath, a young Tamil scholar from Madurai, "Avan" was referred to in Tamil literature more to indicate male gender and whether it is rude and disrespectful or not would depend more on the context. Rather, right from Sangam Literature to current day, this expression had been used to denote even highly revered characters.
The court further said that insult to a "member" of the community was an essential ingredient to constitute an offence under Section 3(1)(x) of the Act and not an insult against a group of members or the crowd or the public in general though these may comprise of SC/ST. Reliance was placed on D. P. Vats v. State, (2002) ILR 2 Del 237. This ingredient, as per the court, was missing from the allegations so leveled and hence the court said,
"looked at from any angle, even the elementary ingredients of Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), 1989 Act are not present in the case on hand."
Further stating that by no stretch of imagination could Rajanarayanan's remarks be construed as an intentional insult to such a degree as to provoke a person to break the public peace, the court said,
"The petitioner did not have any intention to hurt anyone let alone the members of the Scheduled Castes. Therefore, the essential ingredients of Section 504 are not satisfied in this case."
Reliance was placed on Fiona Shrikhande v. State of Maharashtra and Ors., 2013 (14) SCC 44.
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