Magistrates asked to be on guard in cases related to free speech

Justice G R Swaminathan on remarking that taking offence has now become a fashion, said, “It is true that at the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint. He has only to prima facie satisfy whether there are grounds to proceed against the accused. But the above said yardstick and standard cannot be so mechanically applied even in matters that have clear and direct implications on free speech.”

Also, seeking the magistrates not to proceed if the allegations made in the complaint are so absurd based on which no prudent person can ever reach a just conclusion, Justice Swaminathan said, “Neither the Magistrate nor the police should exhibit alacrity to take cognisance or register a case in such matters. Every time they receive such complaints, they must dust their knowledge of the law relating to free speech.” However, on noting that one marker of a civilised society is how it treats and respects its artists, writers and intellectuals, the judge held, “Ki Ra is now 97 years. He lost his wife recently. He is said to have suffered a stroke. Closing the criminal proceedings initiated against him is the minimum courtesy that the system owes to him.” “I have already held that the elementary ingredients of the offences levelled against him are wholly absent. The very institution of the impugned prosecution is an abuse of legal process,” he noted

Justice Swaminathan in his order also called on the Magistrates to go through the celebrated decision reported in Perumal Murugan’s case, authored by Justice Sanjay Kishan Kaul as the Chief Justice of the Madras High Court. They must also read the books Offend, Shock or Disturb by Gautam Bhatia and the Republic or Rhetoric by Abhinav Chandrachud, he said. “The courts must remember that whenever they play into the hands of people like the complainant, the image of the judiciary as well as the nation takes a beating. Section 66-A of the Information Technology Act, 2000 was struck down as unconstitutional taking note of its chilling effect on free speech. Magistrates must realize that complaints such as the one on hand produce similar effect and lead to stifling of this fundamental freedom. They must therefore be on guard and adopt a nuanced approach in such cases,” Justice Swaminathan added.