Preventive Detention A Colonial Law, Can't Be Applied To Everyone Booked For False News: Madras HC Says In Savukku Shankar Case

The bench of Justice SM Subramaniam and Justice V Sivagnanam commented that the Preventive Detention Act itself is a colonial law and such detaining powers should be used sparingly. The court also remarked that if the state strangulated the voices of media persons and Youtubers, it would take the country back to colonial times.

“Preventive detention is a colonial law. Detaining power should be used sparingly. If the voices of YouTubers and media people are strangulated, we'll go back to colonial times. Media is the fourth pillar of democracy,” the court commented.

The oral remarks were made while hearing the HCP filed by A Kamala, Shankar's mother. The court said that the state should have taken the regular channel and proceeded against Shankar for his comments and could have even proceeded with a defamation suit. The court added that detaining Shankar was draconian and affected the fundamental right of speech and expression.

“When an offence is committed, you register a case against him. Proceed with defamation. Regular channels are available. But detaining him is draconian. It's against the fundamental right of speech,” the court said.

Though the state argued that Shankar was detained for spreading false news, the court questioned the government on whether every person who was spreading false news was being arrested.

“How many persons are saying lies in media? Are you arresting all such persons? Is it possible to run behind the people who are spreading false news in the society? You have to see if the public order is affected. People giving false news is the most common,” the court said.

The court added that state's effort must be to prevent irregularities and illegalities within its department and not to prevent the persons who make comments against them.

When the Additional Public Prosecutor Raj Tilak informed the court that in another adverse case, Shankar had allegedly made derogatory remarks against women police officers which would affect their morale, the court said that tolerance was important in public service

“Tolerance is important in public service. You've seen what all they say about us judges. If it's like this, we should take action right? If we pass an order, they'll say something. If we don't, they'll say something else. In public service, you should be unaffected,” the court said.

The court emphasised that in the present era, everything was available on the fingertips and it was upon the people who view the content to make an opinion about things. The court pointed at how different media channels, run by different political parties were giving news suiting their ideologies and the people ended up viewing the news channels which supported their ideology.

Shankar was detained under the Tamil Nadu Preventive Detention Act based on an adverse report from the Inspector of Police, Chennai City CCD. Previously, a bench had recused from hearing the HCP after noting that Kamala had made 'unwarranted' remarks about the court proceedings and that continuing the proceedings before the bench would not be appropriate. Following this and a change in roster in the meantime, the matter was posted before the current bench.

On Tuesday, Advocate C Iyyapparaj, appearing for Shankar challenged the detention order on four grounds. Firstly, he argued that public order was not affected as a result of Shankar's speech. It was submitted that though the State alleged that shankar's video had led to protests in Kilambakkam Bus Terminus, the alleged video was posted one day after the protests. Thus, he contended that the order was passed without application of mind.

Secondly, it was argued that the order was passed without jurisdiction. He submitted that while the protests happened in Kilambakkan, it was the Tambaram Commissioner who could have taken action against Shankar and not the Commissioner of Greater Chennai.

Thirdly, it was argued that while the detaining order speaks that he was remanded in connection with a crime in Coimbatore, the documents relating to the crime were not supplied to him thereby causing him prejudice.

Lastly it was argued that the representations sent by Kamala against the detention were not considered by the authorities as per statute. It was submitted that representations were rejected two days after approving the detention order which showed arbitrariness and malice.

Case Title: A Kamala v State and others

Case No: HCP 1163 of 2024