"Right to be funny:" Madras High Court quashes case against CPI(ML) leader for tongue-in-cheek Facebook post

The Madurai Bench of the Madras High Court last week suggested how right to be funny can be considered as forming part of free speech under Article 19(1)(a) of the Constitution, while quashing a case registered against a man whose attempt at word play on Facebook went awry when the police registered a criminal case against him [Mathivanan vs. The Inspector of Police]..The charges were laughed out of the Court after Justice GR Swaminathan said that he found the invocation of certain provisions humorous.The judge, however, made it clear in his judgment that attempting to be funny cannot be equated to poking fun at another person."The correlative right to be funny can be mined in Article 19 (1) (a) of the Constitution of India (the use of crypto vocabulary to be forgiven). Being funny is one thing and poking fun at another is different altogether," the Court said.The Court was hearing a plea by a man, an office bearer of CPI (Marxist-Leninist), who was moved against by the Vadipatty Police after he posted images, from a sightseeing pleasure trip to the Sirumalai Hills, on Facebook with the caption, “Trip to Sirumalai for shooting practice”.Vadipatty Police did not find the petitioner’s attempt at a joke humorous and thought he was making preparations to wage war against the state.They proceeded to arrest him and registered a case for offences under Sections 120B (criminal conspiracy), 122 (waging war), 505(1) (b) (cause fear or alarm to the public) and 507 (Criminal intimidation by an anonymous communication) of the Indian Penal Code..At the very outset, the singe-Judge discussed that if any satirist or cartoonist had authored this judgement, they would have proposed a momentous amendment to the Constitution of India by adding one more fundamental duty.“..the hypothetical author would have added one more fundamental duty - duty to laugh," the Court stated. .“Laugh at what? is a serious question,” the judge further mused.He then went on to note the relative difference in various parts of the country in what people might consider holy or funny. Justice Swaminathan explained that this was so because in India we have “holy cows” grazing all over from Varanasi to Vadipatty. He discussed that across regions, certain subjects are beyond the bounds of criticism. However, all over India, there is one ultimate holy cow and that is 'national security'.“There is however no single catalogue of holy cows. It varies from person to person and from region to region. A real cow, even if terribly underfed and emaciated, shall be holy in Yogi's terrain. In West Bengal, Tagore is such an iconic figure that Khushwant Singh learnt the lesson at some cost. Coming to my own Tamil Desh, the all-time iconoclast “Periyar” Shri. EV Ramasamy is a super-holy cow. In today's Kerala, Marx and Lenin are beyond the bounds of criticism or satire. Chhatrapati Shivaji and Veer Savarkar enjoy a similar immunity in Maharashtra. But all over India, there is one ultimate holy cow and that is “national security”.”.The Court also noted that when the police had produced the accused before the magistrate seeking his custody, the same was refused..The Court encouraged and appreciated the Magistrate’s decision stating that requests for remand must be in line with Section 41 of the Criminal Procedure Code and Article 21 of the Constitution.“I wish other magistrates in the State of Tamil Nadu act likewise. Remand can never be made for the asking. The police and the prosecution will seek remand in every case. It is for the magistrate to satisfy herself that the arrestee deserves to be remanded.. Thanks to the judicious conduct so well exhibited by Shri. MC Arun (the Judicial Magistrate, Vadipatty), the petitioner escaped incarceration by a whisker.”.The High Court then went on to explain the offence to wage a war, stating that it requires several steps and stages including mobilisation of men, accumulation of arms and ammunition as well as a concerted effort.“Each individual who is a party to the conspiracy to wage war may be allotted a particular task. One may be tasked with collecting men, another with arms and the third with ammunition,” the Court opined..In this context, it was found that the petitioner had done nothing except giving the title to the photographs taken on the occasion of his trip. He had no weapon and no proscribed material was recovered.Therefore, it was held that the petitioner neither intended to wage war nor did he commit any act towards preparation of the same..Justice Swaminathan said that the invocation of the provision relating to criminal intimidation by an anonymous communication made him laugh.“The communication must be anonymous. In this case, the petitioner had posted the photographs along with the caption in his Facebook page. He has not concealed his identity. There is nothing anonymous about the act in question,” the order noted. .The Court summarily rejected the charge of conspiracy, stating that the petitioner is the sole accused and one cannot conspire with oneself.In view of the above, the FIR was quashed with the observation that its registration was absurd and an abuse of the legal process..Advocate Henri Tiphagne appeared for the petitioner. The respondent was represented by Additional Public Prosecutor T Senthil Kumar..[Read Order]