The recent quashing of a sedition case by the Madras High Court against Tamil YouTuber Maridoss over his tweets that hinted at a conspiracy behind the recent killing of Chief of Defence Staff Bipin Rawat in a chopper crash in Coonoor, apart from the furore it has created on social media, has also sparked discussions on what constitues sedition and if Section 124(A) of IPC can be struck down on technical grounds.
In the now-deleted tweet, Maridoss, speaking about the crash in which 14 including the CDS were killed, had said that Tamil Nadu was turning into another Kashmir under the rule of the DMK and that it was possible “for any kind of the plot to be hatched here”. In another tweet, he had accused DMK supporters of “mocking” the death of an “army commander in an accident”.
A case was filed against Maridoss under Sections 124(A) (sedition), 505(2) (statements which are alarming, false intention to create disharmony) and 153 (wantonly giving provocation with intent to cause riot) of the IPC.
Naïve statement, made without thought: Justice Swaminathan
However, on December 14, Justice GR Swaminathan of the Madurai bench of the Madras High Court, while hearing the case, observed that Maridoss’ tweets was never intended to subvert the government and on the contrary, they call for strengthening the foundations of government.
“Article 51(A) of the Constitution states that it shall be the duty of every citizen of India to uphold the sovereignty, unity and integrity of India. By no stretch of imagination can the petitioner be said to have harmed the national interests. The petitioner had only drawn the attention of the state government to certain nefarious tendencies brewing in the state. The petitioner wanted the security situation to be overhauled and improved. In the petitioner’s perspective, there has been slackness and inaction on the part of those in charge of the state government. He has merely vented out his anxiety. Hence the tweet of the petitioner cannot be characterised as seditious,” he said.
Invoking a theory by 2006 Nobel Prize-winning writer Orhan Pamuk, on “naive and the sentimental” writers, the judge said the tweets belonged to the former category.
“The naive write spontaneously, almost without thinking, not bothering to consider the intellectual or ethical consequences of their words and paying no attention to what others might say. The sentimental writing is deliberate, well thought out and shaped in constant revision and self-criticism. The latter is the product of deep reflection. The petitioner appears to have made a “naive” tweet in the Pamukian sense. Probably realising it, he took it down. The state can step in only if the petitioner’s act falls foul of law and not otherwise,” Justice Swaminathan said in his order.
Furore over judgement
A huge uproar followed the quashing of the case, with several social media users, primarily DMK supporters, accusing the judge of himself having argued the case for Maridoss while it should have been the job of the latter’s counsel. Others called Justice Swaminathan a right-wing supporter, citing the instance of his recent grant of bail to Sri Vijayendra Saraswathi, pontiff of Kanchi Kamakoti Peetam, who was arrested for not standing up for ‘Tamil Thaai Vaazhthu’, when it was played in a government function held on January 24, 2018. The judge had observed that Tamil Thaai Vaazhthu is a prayer song and not an anthem.
There were also allegations that the judge, during his tenure as an Additional Solicitor General, had participated in a programme organised by the BJP. An invitation of that event is doing the rounds on social media.
‘Judge’s order based on technicality, liberal views’
Lawyers, who have studied past judgments by Justice Swaminathan, say his order in Maridoss’ case was not driven by any right-leaning agenda, but sheer technicality.
Trolls who have been slamming Justice Swaminathan for participating in the aforementioned programme organised by the BJP have conveniently forgotten that AK Rajan, another retired judge of the Madras High Court was also an invitee to the event. Experts say, while cherry picking Justice Swaminathan’s ‘right connections’, the trolls have forgotten that he was the one who fought the case of Tamil writer Perumal Murugan when his book Madhorubagan, was opposed by the Hindutva forces.
In 2019, Swaminathan was the first judge to release what is called as a first-of-its-kind a ‘performance card’, as a measure of judicial accountability, wherein he states how much cases he heard and resolved to bring down the pending cases.
Justice Swaminathan, not the lone wolf
Also, experts say, Justice Swaminathan isn’t the lone judge who has struck down most of the sedition cases, on sheer grounds of technicality.
In July this year, justice M Nirmal Kumar had quashed the sedition cases filed against anti-Sterlite protestors in 2018 for distributing handbills. In May, justice M Dhandapani granted relief to two persons who were accused of raising slogans against Prime Minister Narendra Modi in 2019.
Advocate Shaji Chellam, who is practising law at the Madurai Bench of the Madras High Court said that the accusations against Justice Swaminathan are unnecessary.
“It was the same judge who had quashed the cases against people who had participated in the Tablighi Jamaat event in Delhi. He also quashed the ban put by police to prevent CPI leader Brinda Karat from participating in a public meeting held close on the heels of Sterlite police firing incident in 2018. In every case, he always went by the technicality of the concerned sections. He is always seen as a ‘relief granting’ judge among the advocates. He has never allowed his political leanings to interfere in the cases he is hearing,” Chellam said.
Chellam says that judges who have liberal views and ensure personal rights of individuals are mostly the ones who strike down sedition cases.
Is sedition law necessary to control information?
Advocate Puhazh Gandhi P, the counsel representing the respondent-de-facto complainant said that the court is still in the 60s and 70s era. He said that people still believe that a sedition case should be filed only if a tweet or speech sparks violence – in other words till the actual violence has started.
“The newspapers and television channels have been replaced by the social media. At this juncture, it becomes important to look at what people like Maridoss are posting on Twitter. The social media speeds up the dissemination of an information. It is unfortunate that the court was unable to understand it,” Gandhi said.
In 1950s and 1960s, the sedition cases were not given much importance due to lack of communication tools, he said. So if a leader speaks in Chennai, the message would reach a person living in Kanyakumari days later, that too through newspapers. “Or people who attended the meeting would carry the message to other places,” he added.
“After that the communication and the media has grown largely. However, either in newspapers or on television, there is a gatekeeping in the form of editors to disseminate the news. But now, due to the prevalence of social media, an information posted in one’s account will immediately reach lakhs of people. There is no fact checking too,” he said.
DMK and sedition cases
The DMK despite its claims of being against the British-era law of sedition and wanting to abolish it when it was in the Opposition, is being accused of actually wanting to maintain the status quo now that it is in power.
Responding to the allegation, Gandhi, who is also one of the executive coordinators of Dravidian Professionals Forum said the party is against “false” sedition cases.
“We are against sedition cases like the one filed against journalist Siddique Kappan. But Maridoss’ case is different. In 1991, the DMK government was dismissed based on the allegation that the party had links with the Liberation Tigers of Tamil Eelam (LTTE). The tweet by Maridoss also implies a similar allegation. When there is an ulterior motive, there is no way but to file a sedition case,” said Gandhi.
BJP backs Maridoss
Even though he was relieved in the case regarding his tweet, Maridoss was arrested on Thursday for calling Muslims who participated in Tablighi Jamaat as terrorists and stating that they wanted to spread COVID-19. He is also facing charges on various other allegations,
The state BJP, on the other hand, has been at the receiving end of criticisms for backing Maridoss.
“Maridoss is a common man. Whether he is a right wing supporter or not, that is different. But BJP extends its support to anyone who are sabotaged by the government. We also raising our voice for the youth Manikandan (who was died after his release from police custody). Can you claim then that we are supporting only right wingers?” said Narayan Thirupathy, a spokesperson of BJP, adding that the criticism against Justice Swaminathan is nothing but sheer “hate politics”.