Prosecution for criticism of government actions does not violate free speech unless it incites public disorder.

ORDER

The petitioner is the accused in Crime No.1698 of 2019 registered at the Ernakulam Central Police Station, now pending as C.C.No.210 of 2022 on the files of the Judicial First Class Magistrate Court-II, Ernakulam. Therein the petitioner is facing charges for offences under Sections 505 (1)(b) of the Indian Penal Code and 118(b), 118(c) and 120(o) of the Kerala Police Act , 2011. The case originated from Crime No.1698 of 2019 registered suo motu by the Ernakulam Central Police Station in relation to a comment posted in the Facebook account by the petitioner on 11.08.2019, a rough translation of which reads as under;

‘if anyone wants to help, they can do it directly. Pinarayi is agitated for not getting the amount directly and if paid, it will be swindled'.

2. The learned Counsel for the petitioner contended that every citizen has the right to criticize the Government and such criticism cannot result in prosecution. The right to freedom of expression guaranteed under Article 19(1) of the Constitution cannot be curtailed, except for justifiable reasons. The petitioner's Facebook post does not affect the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality and does not amount to contempt of Court, defamation or incitement to an offence. Therefore, the petitioner's prosecution for offences under Sections 505 (1)(b) of IPC and 118(b) & 118(c) read with 120(o) of the Kerala Police Act amounts to an abuse of process of court. To buttress the argument reliance is placed on this Court's decision in Gowri Sankari V.S. and Another v. State of Kerala and Others [2025 6 KHC 184] .

3. Learned Public Prosecutor submitted that the call for contribution was made to provide relief to persons in distress and the attempt was to derail the Government’s efforts.

According to the Public Prosecutor, the then prevailing circumstances ought to be borne in mind while considering the challenge. It is also contended that the offence Section 118 (c) of the Kerala Police Act is attracted since contribution to the CMDRF was being utilised to provide essential services to the needy.

4. Freedom of speech and expression is a fundamental right guaranteed to every citizen by our great Constitution. The right to criticise the policies and actions of the Government and those at the helm of affairs is ingrained in this fundamental right. As held by the Apex Court in Shreya Singhal v. Union of India [(2015) 5 SCC 1] , when it comes to democracy, liberty of thought and expression is a cardinal value and is of paramount significance under a democratic constitution which envisages changes in the composition of legislatures and Governments. Free flow of opinions and ideas is essential to sustain the collective life of the citizenry. Fear of setback to Government’s initiatives, due to expression of opinion or dissent by a citizen, cannot result in Article 19(2), restricting the freedom of speech and expression, being brought into play. Only if the comment reaches the level of incitement would Article 19(2) kick in and only at that stage can there be prosecution under a law curtailing the speech or expression that tends to cause public disorder or tends to affect the sovereignty and integrity of India, the security of the State. In the case at hand also, merely because the petitioner's comment is not be palatable to a section of people, that, by itself, is sufficient to initiate criminal action.

5. The next question is whether the ingredients necessary for constituting the alleged offences are made out. In order to attract the offence under Section 505 (1)(b) of IPC , the accused must have made published or circulated any statement,