Fair criticism of government actions is protected under the constitutional right to freedom of speech, and does not constitute grounds for criminal prosecution.

ORDER :

V.G. ARUN, J.

The petitioners are accused Nos.1 and 2 in Crime No.434 of 2024 registered at the Bekal Police Station, now pending as C.C.No.2519 of 2024 on the files of the Judicial First Class Magistrate Court-II, Hosdurg. Therein, the petitioners are facing prosecution for the offences under Sections 192 and 45 of the Bharatiya Nyaya Sanhitha, 2023 (' BNS ' for short), Section 51 of the Disaster Management Act, 2005 and Section 120(o) of the KERALA POLICE ACT , 2011.

2. The prosecution allegation is that the petitioners posted negative comments in a WhatsApp group about the solicitation of contribution to the Kerala Chief Minister’s Distress Relief Fund (CMDRF), towards rehabilitation of the Chooralmala- Mundakkai landslide victims. According to the prosecution, the derogatory comments posted by the petitioners are capable of creating riot and were intended to dissuade the public from contributing to the CMDRF.

3. Learned counsel for the petitioners submitted that the petitioners had only asked the members of their group to verify the credentials of the persons seeking contribution and to donate only to those who are trustworthy. According to the counsel, such a comment, posted in a closed WhatsApp group, cannot result in criminal prosecution.

4. Per contra, learned Public Prosecutor contended that the context, the timing of the comments and the pointed criticism against the party in power are clear proof of the intention to create riot and obstruct the flow of contributions to the CMDRF. According to the Public Prosecutor, the question as to whether the petitioners had such an intention has to be decided based on the evidence tendered during the trial of the case.

5. The comments, when read as a whole, makes it apparent that they were posted during the course of a discussion regarding utilization of the contributions made to the CMDRF. There are comments about mis-utilisation of the money donated and also against the political party in power. Even if so, to assume that such comments are capable of causing riot among the public and nuisance to others, is to say the least, preposterous. That the comments are not palatable to a group of people or even to the Government, is no reason to initiate criminal prosecution against the petitioners, since the comments, though critical of the Government, are well within the bounds of law.

6. Our Constitution guarantees the right to freedom of speech and expression to every citizen. Fair criticism and right to express dissent is intrinsic to the concept of democratic governance. While on the subject, it will be beneficial to read the following erudite exposition of the Supreme Court at paragraphs 80 and 97 of the judgment in Bennett Coleman & Co. and Others v. Union of India and Others [ (1972) 2 SCC 788 ];

“80. The faith of a citizen is that political wisdom and virtue will sustain themselves in the free market of ideas so long as the channels of communication are left open. The faith in the popular Government rests on the old dictum, ‘let the people have the truth and the freedom to discuss it and all will go well’. The liberty of the press remains an ‘Art of the Covenant’ in every democracy. Steel will yield products of steel.

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97. Political philosophers and historians have taught us that intellectual advances made by our civilisation would have been impossible without freedom of speech and expression. At any rate, political democracy is based on the assumption that such freedom must be jealously guarded. Voltaire expressed a democrat's faith when he told an adversary in argument: “I do not agree with a word you say, but I will defend to the death your right to say it.” Champions of human