'Right To Be Funny Can Be Mined In Article 19(1)(a)' : Madras High Court Quashes FIR Over Humorous Facebook Post

Justice G.R Swaminathan quashed the FIR against the 62-year-old accused while underscoring that the case registered by Vadipatty Police, booking the latter for 'making preparations to wage war against the State', is 'absurd and an abuse of legal process'.

Justice GR Swaminathan started the judgment by observing :

"Jug Suraiya, Bachi Karkaria, E.P.Unny and G.Sampath...if any satirist or cartoonist had authored this judgement, they would have proposed a momentous amendment to the Constitution of India to incorporate sub-clause (l) in Article 51-A…. To this, the hypothetical author would have added one more fundamental duty - duty to laugh."

The Court went on to observe that the correlative right to be funny can be "mined in Article 19 (1) (a) of the Constitution of India".

While noting that 'being funny' and 'poking fun at another' is different, the court rhetorically states that "Laugh at what?" is a serious question. The court also explains as to why the question becomes pertinent in the backdrop of regional diversity in India.

"…This is because we have holy cows grazing all over from Varanasi to Vadipatty. One dare not poke fun at them. 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.E.V.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"."

Vadipetty Police had booked the petitioner accused who went for a sight-seeing trip along with his family for offences under Sections 120B [Criminal Conspiracy], 122 [waging war against the state], and 507 [Criminal Intimidation by Conspiracy] of IPC.

He was also booked for Section 505(1) (b) for posting the pictures with the contentious caption on his Facebook page.

However, Section 505(1) (b) prescribes the punishment for:

"making, publishing, or circulating any statement, or rumour, or report, with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity."

In its order, the court also noted petitioner was the office-bearer of the Communist Party of India (Marxist-Leninist),  a "not so important political party". The Court said that CPI-ML is now an overground organisation that contests in elections. The order also satirically remarks that,

'paper warriors are also entitled to fantasise that they are Swadeshi Che Gueveras…. Revolutionaries, whether real or phoney, are not usually credited with any sense of humour (or at least this is the stereotype). For a change, the petitioner tried to be funny. Perhaps it was his maiden attempt at humour.'

The accused man was arrested by Vadipetty police station on the above grounds and produced before the Magistrate for remand to custody. However, remand was refused by the Magistrate by citing State v. Nakeeran Gopal (2019). The Madras High Court has also appreciated the Magistrate for the due application of mind while rejecting the remand plea. The court note that the police and prosecution will always seek custody and it is for the Magistrate to decide such applications judiciously on the touchstone of Section 41 of Cr.Pc and Article 21 of the Constitution.

Court's Observations

For penal provisions like Section 399 and Section 122 of IPC, even the preparatory stage for the commission of a crime can be made an offence but the provision has to be strictly construed and preparation must meet a higher threshold. About Section 122 of IPC which the petitioner was charged with, the court further states that waging war against the state requires crossing certain stages. Mobilisation of men and accumulation of arms and ammunition through a concerted effort are instances of preparing to wage war against the state. The meaning rendered by 'otherwise prepares' in Section 122 IPC can also encompass fundraising, providing reinforcements, making logistical arrangements and other dimensions of contributions. However, all of such must meet the higher threshold proscribed by the strict construing of the penal statute to the peculiar facts of the case, notes the court.

About the conduct of the petitioner, the court noted that the petitioner merely took photographs of a scenic place during a family trip with an intended-to-be funny caption.

"No weapon or proscribed material was recovered from the petitioner. The petitioner neither intended to wage war nor did he commit any act towards preparation therefor."

About booking the petitioner for the offence under Section 505 (1)(b), the court similarly observes that 'any reasonable and normal person coming across the Facebook post would have laughed it off'. According to the court, the post of the petitioner on his Facebook page could not have induced or wass likely to induce any person to commit an offence against the State or against the public tranquility.

About the invocation of the provision under Section 507of IPC, the court notes as follows:

"Invocation of this provision makes me laugh. Section 507 IPC can be invoked only if the person sending the communication had concealed his identity. 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."

Additionally, on the inclusion of Section 120 B of IPC in the FIR, the court notes that the provision can't be invoked unless there is a meeting of mind of two persons, whereas, the petitioner is the sole accused in the present case.

"One cannot conspire with oneself. Secondly, conspiracy is hatched to commit an offence mentioned in the Section. When the ingredients of the primary offences have been shown to be non-existent, the prosecution cannot hang on to Section 120B IPC alone.", concluded the court while quashing the FIR registered against the CPI(ML) office bearer.

Case Title: Mathivanan v. Inspector of Police & Ors.

Case No: Crl OP(MD)No.18337 of 2021 and Crl MP(MD)No.10063 of 2021

Click Here To Read/ Download Order