The Kerala High Court recently quashed criminal proceedings against a 38-year-old-man accused of making a critical comment on Facebook about the Chief Minister's Distress Relief Fund (CMDRF) [Manu S v State of Kerala].

Justice VG Arun observed that in a democracy, citizens must be free to express their opinions, even if those opinions displease the government or a section of society and mere criticism of the government cannot attract penal provisions

Restriction on free speech under Article 19(2) of the Indian Constitution would come into play only when a statement reaches the level of incitement where it threatens public order, national security or the sovereignty and integrity of India, the Court underlined.

"Only if the comment reaches the level of incitement would Article 19(2) kick in and only at that stage can there be prosecution under a law curtailing the speech or expression that tends to cause public disorder or tends to affect the sovereignty and integrity of India, the security of the State. In the case at hand also, merely because the petitioner's comment is not be palatable to a section of people, that, by itself, is sufficient to initiate criminal action," the Court added.

Finding no such incitement on the petitioner's part, the Court held that his comment fell within the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.

On August 11, 2019, the petitioner had made an online comment on Facebook where he allegedly wrote that anyone wishing to help the 2018 flood victims should contribute directly instead of contributing to CMDRF, which could be misused by the Chief Minister Pinarayi Vijayan.

"If anyone wants to help, they can do it directly. Pinarayi is agitated for not getting the amount directly and if paid, it will be swindled," the comment stated.

This led to the registration of a case against him by the Ernakulam Central Police Station for offences under Section 505(1)(b) (publishing or circulating any statement, rumour or report which induces others to commit an offence against the state or disturb public order) of the Indian Penal Code and Sections 118(b) (penalty for spreading rumour on any essential service), 118(c) (penalty for willingly damaging essential service to create panic in public) and 120(o) (penalty for causing nuisance and violation of public order through anonymous call, message, letter, email etc) of the Kerala Police Act, 2011.

Aggrieved, the petitioner approached the Court seeking to quash the charges and proceedings against him.

The petitioner's counsel argued that every citizen has the right to criticise the government and such criticism should not be equated with creating public disorder or inciting others to commit offence against the state.

However, the public prosecutor maintained that the comment was intended to derail the government's efforts to raise funds for disaster relief and even amounted to an offence under

The Court stressed that government's fear of potential criticism or backlash cannot be a ground to restrict speech. It referred to the view taken by the Supreme Court in Shreya Singhal v Union of Indiai in which it was held that liberty of thought and expression is the cornerstone of democratic constitution and the state could not suppress dissent under the guise of maintaining public order.

The Court also found that none of the charges invoked against the petitioner were applicable as it observed that the Facebook comment made by him did not incite fear or disturb the public tranquility as required under Section 505(1)(b) IPC or cause any damage to any essential service of the government as required under Sections 118(b) of the Kerala Police Act.

Further, relief activities for disaster victims could not be referred as 'essential services' under Sections 118(c) and added that a single comment could not be penalised as being a repeated nuisance under Section 120(o) of the Kerala Police Act.

Hence, the Court quashed the final report and all related proceedings against the petitioner.

Petitioner was represented by advocates Suvin R Menon, Parshathy SR, Achuth Krishnan R and Cristy Therasa Suresh.

Public prosecutor Vipin Narayanan appeared for the State.

[Read Order]