Justice GR Swaminathan authored both these judgments in the cases of CPI (ML) leader Mathivanan being booked for a Facebook post, and a YouTuber Maridhas, for a video he posted.

Justice GR Swaminathan of the Madras High Court
news Court Friday, December 24, 2021 - 18:30

Ordinarily, perhaps it wouldn’t be something that would merit much celebration. However, at a time when citizens in India are being arrested over social media posts and stand-up comedy shows, two recent judgments by the Madras High Court, upholding an individual’s right to freedom of expression, have come as a breath of fresh air. Justice GR Swaminathan of the Madras High Court authored both these judgments. In one, he struck down an FIR filed against a member of the CPI(ML) for his posting a photo on Facebook with the caption, ‘Trip to Sirumalai for shooting practice.’ The second case was the one against YouTuber Maridhas, where the judge said that Maridhas is entitled to protection under Article 19(1)(a) of the Constitution. This Article says all citizens shall have the right to freedom of speech and expression.

The judge made some notable observations while striking down the FIR against 62-year-old CPI(ML) member Mathivanan on December 17, 2021. Mathivanan had gone for a sight-seeing trip in September this year, and had posted some photos of his family and scenery on Facebook. He was booked for the caption “Trip to Sirumalai for shooting practice” which he had posted as a joke – one that was clearly lost on the Vadipatty police. They filed a case and even arrested him under various IPC charges, including one of “waging war against India.” While a Magistrate granted him bail, he moved the High Court to quash the case altogether. On December 17, the Madras High Court quashed the FIR, saying that no charges against him were made out and that ideally, “any normal and reasonable person coming across the Facebook post would have laughed it off.” 

The court also noted that in India, there are many ‘holy cows’ that cannot be made fun of, owing to the regional diversity in the country. “But all over India, there is one ultimate holy cow and that is “national security”,” the court said.  

Justice Swaminathan began his judgment about how satirists and cartoonists in India would perhaps consider “right to be funny” and “duty to laugh” as good additions to the Constitution. Naming noted people like Jug Suraiya, Bachi Karkaria, EP Unny, and G Sampath, the court said, “if any one of them, or for that matter any satirist or cartoonist had authored this judgment, they would have proposed a momentous amendment.” 

“…the hypothetical author would have added one more fundamental duty - duty to laugh. 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 High Court noted. It held, “The very registration of the impugned FIR is absurd, and an abuse of legal process,” and quashed the FIR against Mathivanan. 

A few days later, the judge heard the case filed by controversial YouTuber Maridhas, who was arrested by the Tamil Nadu police in relation to a 2020 case where he was booked for linking the Tablighi Jamaat meeting to the spread of COVID-19. He was booked earlier this month, one year after the FIR was filed, and had moved the High Court seeking that the FIR be quashed. 

The court on December 23, 2021, held that Maridhas cannot be booked under the IPC section that penalises “printing, etc., of grossly indecent or scurrilous matter or matter intended for blackmail.” It added that “Bona fide expressions of opinions on public questions or issues of public importance cannot be construed as scurrilous.” The court noted that Maridhas has “nowhere targeted Islam or the religious beliefs of Muslims as a class. In fact, the petitioner has given several disclaimers in his video.”

“The petitioner nowhere spoke in a divisive manner. In fact, he did not even challenge the ideology of Tablighi Jamaat which has now been proscribed as a terrorist organisation by the Saudi Arabian government. He was directing his criticism only at a section of the attendees,” the court held. The court observed that the Tablighi Jamaat event in 2020 was “uniformly characterized as a superspreader” and as a commentator, Maridhas only spoke on the subject in his YouTube video. 

Maridhas, as a YouTuber who actively comments on current issues, is entitled to the protection under Article 19(1)(a) to his freedom of speech and expression, Justice Swaminathan noted.

“Criticism of an organisation cannot be taken as a criticism of a community. Tablighi Jamaat cannot be equated with Islam. It is a religious organisation professing particular goals,” the court said, adding, “The very registration of the impugned FIR is illegal and it stands quashed.”

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