Clamping down on people for dissent an affront to democratic values: Kerala High Court

The Kerala High Court recently quashed criminal proceedings against two persons accused of posting negative comments in a WhatsApp group regarding contributions to the Kerala Chief Minister's Distress Relief Fund (CMDRF) for the rehabilitation of Chooralmala Mundakkai landslide victims [Gowri Sankari VS & anr v State of Kerala & ors].

Justice VG Arun observed that prosecuting individuals merely for expressing dissent or criticising the government undermined the democratic principles protected by the Constitution of India.

Fair criticism is permissible under the law and forms an essential part of democratic governance, the Court added.

"That the comments are not palatable to a group of people or even to the Government, is no reason to initiate criminal prosecution against the petitioners, since the comments, though critical of the Government, are well within the bounds of law. Our Constitution guarantees the right to freedom of speech and expression to every citizen. Fair criticism and right to express dissent is intrinsic to the concept of democratic governance ... Clamping persons expressing dissent or raising criticisms with criminal cases is an affront to the democratic values enshrined in our Constitution," the July 4 ruling said.

The Court was dealing with a petition by two persons (petitioners), Gowri Sankari VS and Prasanth Bellulaya, who were accused of making negative comments on a WhatsApp group against CMDRF contributions.

The petitioners had allegedly criticising the government in their comments, while asking WhatsApp group members to verify the credentials of those seeking donations under the CMDRF.

This action was termed by the State as one that could incite riots and discourage contributions to the CMDRF.

The petitioners were, therefore, accused of committing the offences under Sections 192 (provocation with intent to cause riot) and 45 (abetment) of the Bharatiya Nyaya Sanhita, 2023, Section 51 (punishment for obstruction) of the Disaster Management Act, 2005, and Section 120(o) (causing nuisance) of the Kerala Police Act, 2011.

The two petitioners eventually moved the High Court with a plea to quash trial court proceedings against them in the matter.

They argued that their remarks were made in a closed WhatsApp group and constituted a legitimate discussion on the use of funds donated to the CMDRF, as they had only tried to caution members before making such contributions.

The prosecution maintained that the timing, context, and criticism of the ruling party proved an intent to obstruct contributions to the fund and create unrest.

The Court rejected the State's arguments, concluding that even if the prosecution's allegations were accepted in their entirety, they did not satisfy the ingredients of any of the offences charged.

"By no stretch of imagination can fair criticism of governmental action be termed as something done with the intention to provoke others to commit rioting," the Court held, while observing that Section 192, BNS was not applicable to the case at hand.

Similarly, it held that charges under Section 120(o) of the Kerala Police Act would also not be attracted.

It added that Section 51 of the Disaster Management Act applied only when a public servant is obstructed from discharging duties or when a person disobeyed directions passed by a public servant in the course of official duties, which too was not the case.

A general request for contributions to the CMDRF could not be equated with a direction from a public servant, the Court held. As such, comments urging caution in making donations would not amount to disobedience of a public servant, it held.

Accordingly, the Court allowed the petition and quashed all further proceedings against the accused.

The petitioners were represented by advocates T Madhu, CR Saradhamani, Renjish S Menon, Aleena Jose, Avanthika R and Karthik Krishna M.

Public prosecutor Sheeba Thomas appeared for the State.

[Read Order]