The freedom of speech guaranteed under Article 19(1)(a) of our constitution has been the subject of debates over the years among the legal fraternity. The reason for this is the non-availability of a scale which measures the extent of the line of this guaranteed freedom. Even though the judicial system of our country has repeatedly assured its stand on asserting that ‘no fundamental right is an absolute right’, the absence of the aforesaid scale leads to a legal rumble. The Honorable High Court of Madras gave out two distinct judgements while dealing with the cases of George Ponnaiah and Maridoss respectively. Interestingly, it is the same judge who handled both the cases and both the judgements came out as landmark decisions in the journey of finding this non-existent scale.
The case of Maridoss:
Maridoss is a youtuber who speaks on various socio-political issues. He was arrested by the police for tweeting on the unfortunate demise of our former Chief of Defense Staff. In that tweet, he raised a question on whether if Tamil Nadu under DMK rule is turning into another Kashmir? This tweet, according to the prosecution, was tweeted during tough times and could have triggered a law and order situation. Sedition charges (Section 124A of the Indian Penal Code) was brought against Mr. Maridoss and he was remanded for the same. The prosecution further pressed the charges of hate speech and inciting violence between two communities (Section 153A of IPC), intentional insult to provoke breach of peace (Section 504 of IPC) etc., While Mr. Maridoss was still in remand, another criminal petition was filed against him on his YouTube video where he had spoken against the act of people belonging to Tablighi Jamaat on spreading of Covid-19 virus. The charges of outraging the religious feeling of a class (Section 295A of the IPC) and publishing statements conducing to mischief (Section 505(2)) was framed against him. The Defense of Mr. Maridoss was that he published the tweet as well as the video within the rights guaranteed to him under the rights of freedom of speech and expression. Mr. Maridoss was acquitted.
The case of George Ponnaiah:
George Ponnaiah is a Roman catholic priest. He was arrested for speaking derogatory statements against Bharath Matha and Hinduism, for giving a warning to the members of the Hindu community living in the district of Kanyakumari (more Christians, less Hindus), for holding out a grim prophecy against PM Modi and Home minister Amit Shaw (As they were the heads of the non-believing Hindus as thought by Mr. Ponnaiah). He was booked under Section 153A of the IPC (promoting enmity between religious groups), 295A (Outraging the religious feelings of a class), 505(2) of the IPC (publishing statements conducing to mischief) etc., The Defense of Mr. Ponnaiah was that he spoke within the rights vested onto him under Article 19(1)(a) of our constitution.
The Honorable Justice G.R.Swaminathan gave out the ‘What? Where? Who?’ test while delivering the judgement on the case of George Ponnaiah. The test is to find the reasonability of the exercising of the freedom of speech by the accused. The applicability of this test is very simple. The first step is to analyze what the accused is trying to speak/express, the hidden meaning behind the statements, the intention, presence of the element of malice etc., The second step is to inspect on the place where the accused has attempted to exercise his freedom of speech. The third step is to find out who the accused really is and what his ideological intentions are based upon.
When we apply this rule to both the cases, we will get the difference between these two rulings on the subject of freedom of speech and expression.
Applying ‘What?’ test: starting with the case of Mr. Maridoss, the tweet raised a question against the competence of the ruling party. It was an interrogative tweet and not an affirmative tweet. This cannot attract the charges under 153A and 504 of the IPC. In the other criminal case, speaking against Tablighi Jammat cannot be taken as speaking against Islam, as Tablighi Jammat cannot be considered as a body that represents the principles of Islam. Hence, 295A, 505(2) of the IPC cannot be invoked. In the case of George Ponnaiah, the derogatory remarks were deliberately aimed at Brahmins, principles of Hinduism and Bharath Matha. So, this speech of Mr.Ponnaiah attracts the charges under 153A, 295A and 505(2) of the IPC.
Applying ‘Where?’ test: Mr.Maridoss published the tweet in Twitter which is a social media platform. The video by Mr. Maridoss was published in YouTube. Both the tweet and the video were not targeted or addressed for a specified class of audience. It was put up in a general platform for the general public to criticize. Mr. Ponnaiah on the other hand, passed out the offensive remarks on a private space to a specific set of Christian audience during the mourning meet of father Stan Swamy. It is to be noted that father Stan Swamy was arrested by the NIA on the charges of hatching terror plots against the country. (He died in prison).
Applying ‘Who?’ test: Mr. Maridoss is a youtuber who claims himself to be a nationalist. This means that the ideology of Mr. Maridoss is to curb separatism and to find a way to progress as a nation by upholding the values enshrined in our constitution. Neither he claimed himself to be from one separate class nor did he divide people based on fundamentalist principles. When it comes to the case of Mr. Ponnaiah, he is a religious head to a certain group of people, the entire principle of evangelism, in the words of the judgement is to see other religions as an area to be poached and hence the rights envisaged in him cannot be used for ulterior purposes.
Legality in mind:
In the famous case of Kedarnath Singh Vs. The State of Bihar, the Honorable Supreme court has given the right to freedom of speech an upper hand over sedition charges when such a conflict arises. This landmark judgement was kept in mind by the Honorable High Court of Madras while delivering the judgement of Mr. Maridoss. In the case of S.P.Mittal Vs. Union of India, the Honorable Supreme Court held that Shri. Aurobindo do not represent Hinduism whereas he represents his own philosophies. A similar view was taken up by the court in this case while it declared that Thablighi Jammat cannot be considered as a group which represents the principles of Islam.
Freedom of speech is a wonderful tool provided by the law and that weapon must not be used to hurt the sentiments of others. To protect that right and to endeavor it lies within the hands of the Honorable courts and these cases are classic examples of such execution.
– Ramanujam Vedhanarayanan,