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Synopsis

The Kerala High Court has ruled that sharing Facebook posts, even if critical or unsavory towards political leaders, cannot be considered per se illegal.

A Single judge bench of Justice S. Manu, delivered the verdict, observing that “the mere act of sharing Facebook posts simply criticizing someone cannot be held as per se illegal. Even if the target of criticism is a dignitary or a political leader and the criticism is unsavory the act cannot be termed as ex-facie illegal.”

The court, with this observation, quashed the criminal proceedings against the petitioner, Arun G. Nair, accused under Section 153 (provocation with intent to cause riot) of the Indian Penal Code (IPC) and Section 120(o) (causing nuisance through communication) of the Kerala Police Act for repeatedly sharing Facebook posts that depicted the Chief Minister of Kerala, the Devaswom Minister, and the District Police Chief in a derogatory manner. The posts included pictures of these dignitaries alongside images of animals.

The complaint was filed by the President and Secretary of the DYFI Block Committee, alleging that the petitioner, a Travancore Devaswom Board employee had violated the Service Rules applicable to government employees.

The petitioner contended that the case was politically motivated and constituted an abuse of process of law. The petitioner also highlighted contradictions between the original complaint and the police FIR, noting that while the complaint referred to a violation of Service Rules, the First Information Report (FIR) alleged defamation and incitement to riot. It was argued that merely sharing a Facebook post, without being its author, cannot be deemed an illegal act as required under Section 153 IPC. Citing the Supreme Court’s judgment in Shreya Singhal v. Union of India, the petitioner asserted that online criticism, unless directly linked to incitement of violence, falls within the realm of free speech.

On the other hand, the Public Prosecutor, appearing for the respondent State, submitted that the petitioner had acted malignantly by sharing posts showing the Chief Minister and Minister for PWD in poor light and in a highly defamatory manner. The respondents further argued that the Facebook posts have the potential to create unrest in the society and to provoke political riots as they were posted at a highly volatile time when agitations against permitting entry of women of particular age groups at Sabarimala were taking place. The prosecution argued against the quashing of proceedings stating that even if the petitioner did not author the posts, his intent in sharing them needed to be examined at trial.

The court noted several discrepancies between the original complaint and the FIR. It highlighted that the de facto complainants alleged defamatory posts against the Minister for Devaswom and the District Police Chief, while the FIR claimed the petitioner shared posts against the Chief Minister and the Minister for PWD. The complainants accused the petitioner of posting objectionable content, but the FIR stated he only shared such posts, a claim reiterated in the final report.

The court also found that there was misconception in depicting the petitioner as a government employee. He was actually an employee of the Devaswom Board.

Emphasising that mere criticism of political figures, does not constitute an offence under Section 153 IPC unless it incites immediate violence or rioting. “It is well settled with respect to the offence under Section 153 of IPC that if the alleged act is not illegal; however wanton, however undesirable, however deplorable the act may have been, there could be no offence committed under Section 153. Therefore, the offence under Section 153 of IPC would lie against the petitioner only if the act of sharing the Facebook posts was an illegal act,” observed the court.

The court acknowledged that while individuals should act responsibly in times of societal unrest, “the freedom of speech and expression being guaranteed under the Constitution cannot be denied and police action and prosecution against any dissent can be justified and upheld only if the same are legally sustainable.”

The court held that Section 120(o) of the Kerala Police Act, was also inapplicable as the prosecution failed to establish any direct harm or disturbance caused by the petitioner’s actions.

Conclusively, the court quashed the proceedings against the petitioner, stating that “When the offences alleged are found unsustainable in the eye of law on a scrutiny of the factual matrix, the prosecution proceedings cannot be permitted to go on as the same would amount to abuse of the process of law.”

 

Cause Title: Arun G Nair v State of Kerala [Crl M.C.No. 1858 of 2020]

Appearance: Advocate C.S.Manilal - For the Petitioner; Senior Public Prosecutor Maya M.N. - For the Respondents.