Chennai: “Preventive detention laws cannot be used to curb speeches where there is no disturbance to public order or security of the state”… “Individual freedom cannot be clamped down on the whims and fancies of the state”… “And in this month of 77th Independence Day celebrations, can the voices of citizens be stifled again?”
These are some of the observations made by the Madras High Court Friday while it quashed the detention order under the Goondas Act against Tamil YouTuber A. Shankar, alias ‘Savukku’ Shankar.
The bench comprising Justices S.M. Subramaniam and V. Sivagnanam ordered the release of Shankar if his detention was not needed in any other case. However, Shankar, who is currently facing at least 16 cases, is yet to be formally arrested in at least 10 of these, sources privy to the developments told ThePrint.
The Madras High Court also raised serious doubts over the intentions of the Tamil Nadu government in three cases filed against the YouTuber — one for allegedly circulating fake tender documents related to a new bus stand in Chennai’s Kilambakkam, one for speaking ill of women police personnel in a YouTube interview, and one for derogatory comments against journalist Sandhya Ravishankar.
These three cases were referred to by the Greater Chennai Police to invoke the Goondas Act against Shankar. The act allows the state to detain a person in prison, without trial, for up to one year to prevent dangerous activities and maintain public order.
In the first case related to the Kilambakkam bus stand, the bench observed that there were inconsistencies in the timeline of events reported, raising doubts.
In regard to Ravishankar’s matter, the bench noted that the case was filed nearly six years after the date of original complaint. “This raises some dubious questions as to why this complaint was registered after a lapse of nearly six years,” the bench observed.
On 4 May, the Coimbatore police had arrested Shankar on a complaint relating to his remarks against women police officers. He was charged under various sections of the erstwhile Indian Penal Code (IPC) and the Information Technology Act. Offences under the Tamil Nadu Prohibition of Harassment of Woman Act were also invoked. Besides these, cases were lodged against Shankar by the Chennai City CCD police. On 12 May, a preventive detention order was passed against the YouTuber by the Chennai commissioner of police.
A former lower division clerk in the intelligence wing of the Tamil Nadu Police, Shankar later started the website Savukku (whip in Tamil) and then a YouTube channel. He is known to criticise the state’s ruling Dravida Munnetra Kazhagam government and civil servants. His social media posts show that he often makes personal attacks on Chief Minister M.K. Stalin and his family members.
Also Read: ‘Unrepentant character’ — what HC said while holding YouTuber Savukku Shankar in contempt
‘Speech criticising govt can’t be termed threat to public order’
The Madras High Court in its order emphasised the balance between individual rights and public order, freedom of speech and expression, criticism and unfair opinion.
“Speeches criticising the ruling government, its policies and actions or exposing corrupt or illegal actions in the public administration cannot in itself be termed as threat to ‘public order’,” the order reads.
The bench pointed out that a free country should always propagate free speech.
“Any human being shall be allowed to speak his personal views and opinions. A free country should always propagate free speech. ‘Reasonable restrictions’ is a narrow term and is to be used in the most sparing way possible,” the order adds.
The bench further advised the government to use social media as an effective tool to understand the grievances of the common man instead of trying to shut him down.
Speaking to ThePrint, retired Madras High Court judge D. Hariparanthaman said he was disappointed that the Tamil Nadu government was still using detention laws to stifle the voices of people.
“Though I don’t subscribe to Shankar’s views, it is unfair for a government under M.K. Stalin to invoke the Goondas Act as a measure to curtail his activities. Stalin himself was a victim of one such preventive detention act. He was jailed for 21 months under the Maintenance of Internal Security Act, which also allows preventive detention,” he said.
However, senior advocate Tamil Mani, who accepted that it was unfair to arrest anyone under the Goondas Act, said that Shankar’s comments against women police personnel would not come under the purview of freedom of speech and expression. Shankar had alleged that women police officers were “allowing sexual favours to senior officers” for promotions.
The high court bench also felt that the cases referred to against Shankar can be addressed in the normal course of legal action under relevant provisions of law. “Allegations or remarks made against individuals cannot constitute a threat to ‘public order’,” the bench observed.
Hariparanthaman also said that there are laws that provide for punishment for defamatory or derogatory remarks against anybody in society.
“If the government is so serious about the allegations (against Shankar), it must hasten the proceedings of the case and get a conviction, however small or big it may be. Let him be in jail after conviction, but keeping him in preventive detention is against democracy,” he said.
According to Mani, detaining a person under the Goondas Act showed the failure of the government. “It shows that the government was not interested in taking up the case to the court and getting him convicted. It is the failure of the system,” he said.
‘Freedom can’t be clamped down on whims of state’
In regard to the freedom of the press, the Madras High Court said freedom cannot be clamped down on the whims and fancies of the state.
“Excessive usage of such laws to restrict the right to free speech will deter other citizens from enforcing their right to criticism or opinions against the state, thereby fracturing the spine of democracy,” the court order reads.
Hariparanthaman said that the freedom of the press, an implied right in the Constitution under the right to freedom of speech and expression, may not be applicable to Shankar.
“We have seen him speaking unethically over a lot of issues, including the (2018) police firing incident at Thoothukudi during the protest against the Sterlite copper factory. I doubt if his speeches would come under right to ‘freedom of press’,” he said.
In regard to freedom of speech, the bench asked the government to refrain from taking a legal course of action against its own citizens.
“Dissenting views may be in different mediums, forms, languages. Some may even be unfair and prejudicial. If an individual feels affected by such views, he/she can proceed against such content providers in a manner known to law,” the bench said in its order.
(Edited by Nida Fatima Siddiqui)