The Madras High Court on Monday observed that the police serve the State and not the political party in power, while granting anticipatory bail to a Dravida Munnetra Kazhagam (DMK) councillor accused of making derogatory remarks against Tamil Nadu Chief Minister and Tamilaga Vettri Kazhagam (TVK) leader Vijay [D Sudha v. State].

Justice N Ramesh said that an impartial police force was essential to constitutional governance and that the machinery of criminal law could not be deployed merely because political speech offended those holding public office.

"An even hand between the ruling party and its opponents is not a courtesy the police extend; it is a condition of their constitutional legitimacy. The police serve the State, which endures, and not the party in government, which changes," the Court observed.

The Court made the observation after taking critical note of the manner in which the FIR was registered in this case.

"Twelve days of complete public silence were followed by registration within the hour of a complaint by a functionary of the ruling party who was not present at the meeting."

The Court said that it is common knowledge that political discourse is substantially conducted on social media by the IT wings of political parties, and that such content often involves trolling and abuse of rivals.

The Court added that a grievance often raised is that the police moves swiftly when the complaint is against a speaker who belongs to the opposition, while complaints against members of the ruling political party do not get registered at all.

Commenting on the instant case, the Court said that while there is nothing on record to indicate that the police acted on the TVK party's behest, it must also be mindful of how its actions may be interpreted by a citizen.

The Court emphasised that these are not abstract apprehensions and cited a recent incident in which a Chennai economist was taken from his home over an abusive social media post allegedly originating from a fake account. It recounted that he was released the same day after the Chief Minister intervened.

"An apology, however high its source, is not accountability, and a remedy that depends on the Chief Minister’s personal intervention is not a remedy at all," the Court remarked.

The Court also observed that the economist secured such relief partly because of his status, and that a citizen with no access to power may have suffered a more dire fate.

"A common citizen with no access to power, taken at dawn on the same mistaken complaint, would have tasted the lock-up, the remand and the long road of a trial before anyone asked whether the account was even his. The measure of a police force is not how it treats the eminent when the press is watching, but how it treats the unknown when nobody is. It is against that measure that the handling of political speech—this case included—falls to be judged," the Court said.

The Court was hearing an anticipatory bail petition filed by D Sudha, a Greater Chennai Corporation councillor and DMK women's wing functionary.

Sudha was booked over a speech delivered at a DMK function in Chennai on October 7, during which she allegedly referred to the Chief Minister as a "dog" and a "corpse."

A TVK functionary lodged a complaint 12 days later, following which the police registered an FIR alleging offences relating to obscenity, intentional insult and statements promoting enmity.

This led Sudha to file an anticipatory bail plea before the High Court. She submitted that the comments were made in an emotional state and that she and also tendered an apology in an affidavit. Her counsel added that the speech, however intemperate, was political speech against the head of a rival party. It named no community nor incited any criminal act. Her counsel further highlighted that there was no need for custodial interrogation in this case.

The State opposed the plea, arguing that the speech could provoke hostility between rival political parties and disturb public peace.

However, the Court found that the remarks targeted an individual political leader rather than any community and did not incite violence.

"Public officials must be open to criticism and comment on their public conduct, and the State cannot move to throttle such comment," the Court added.

The Court also emphasised that constitutional protection extended even to offensive political speech.

"The constitutional protection of speech is tested when speech is ugly, not when it is polite; it is never the decorous critic whom power is tempted to arrest. Those who hold high office in a republic hold it on the term that they will be criticised, lampooned and, not rarely, abused. The office is not so fragile that a ward councillor’s invective at a party meeting can shake it ... Magnanimity towards political speech is not a grace the State may extend or withhold; it is what the Constitution exacts of those who hold power over their critics," the Court observed.

While disapproving Sudha's language, the Court noted her subsequent apology and found no justification for custodial interrogation.

It also refused to prohibit her from criticising the Chief Minister as a bail condition, stating that such conditions would violation the freedom of speech and expression guaranteed under Article 19 of the Constitution.

"A court that gags a politician as the price of liberty does indirectly what Article 19 forbids the State to do directly. The petitioner’s volunteered undertaking to exercise restraint is recorded; it is her promise, not my condition," it said.

The Court proceeded to grant Sudhar anticipatory bail on a ₹25,000 bond with two sureties and directed her to report before the police daily until further orders.

Advocate A Damodaran, instructed by A Thanasekar, appeared for Sudha

State Public Prosecutor R John Sathyan, assisted by Government Advocate R Rajasekaran, represented the State.

[Read Judgment]