The Madras High Court on Friday set aside an order of the Chennai City Police Commissioner, detaining Shankar alias 'Savukku' Shankar, a well-known YouTuber under the stringent Goondas Act.

Allowing a Habeas Corpus Petition filed by Shankar's mother A Kamala, the bench directed the Youtuber, lodged in the Coimbatore Central Prison to be set at liberty forthwith if he was not required in any other case.

Setting aside the detention order dated May 12, 2024, a division bench comprising Justices S M Subramaniam and V Sivagnanam said "In fine, we have arrived at an irresistible conclusion that the impugned order of detention is not in compliance with the essential requirement and ingredients as contemplated under Act 14 of 1982. Thus, the detention order issued by the Commissioner of police is set aside." The bench said the detaining authority had registered both the adverse complaints on the same day i.e., on May 7, 2024. One complaint was registered after a lapse of nearly six years, whereas the other complaint was pertaining to derogatory remarks against Women Police Officers given by a social activist.

The manner in which both these complaints were registered, one with an inordinate delay and another which was pertaining to police officers raises several questions as to the intentions behind the detention order.

Further, these two adverse cases do not form sufficient ground to culminate into a case of Preventive detention under Act 14 of 1982. Further, the inconsistencies in the ground case also shakes the foundation of the detention order. Hence, in case of preventive detention, if there was any doubt, whether rules have been strictly observed, that doubt must be resolved in favour of the detenu, the bench added.

In the age of internet, information was overflowing from all quarters and booking each and every person for spreading false information was an impossible exercise. The threshold shall be to see if the publication of information causes any threat to public disorder. There were lakhs of people expressing their view in various forms across various mediums. If the State Machinery starts hunting down each and every views and opinion, the voices will neither be brought down nor will this yield any viable result, the bench added.

It added, a State going behind each and every social media post or YouTube videos will not change any one's views. Instead it will make the people feel stifled of their right to free speech. The beauty of our democracy lies in the Constitutionally guaranteed freedom and when the State Machinery themselves starts stifling it, people lose faith in democracy, the bench added.

The bench said the regulatory mechanisms for all other mediums has been achieved to a certain extent, whereas social media still remains an unregulated space, thereby paving the way for more infractions. The regulations for the content creators have become essential to curb such violations on other's rights. It was also an incumbent duty of every citizen to use his/her rights in a responsible manner, the bench added.

The bench said preventive detention laws cannot be used to curb speeches where there was no disturbance to public order or security of the State. Speeches, in order to be attracted under the preventive detention laws such as Tamil Nadu Act 14 of 1982 must instill a sense of fear and harm to the public at large and incite a grave danger to public order. Breach of law and order by itself cannot be termed as public disorder, the bench added.

The court said individual freedom cannot be clamped down at the whims and fancies of the State. Extreme care and caution was a precondition to invoke preventive detention laws and must not be used in a routine manner to suppress fundamental rights of the citizens.

Excessive usage of such laws to restrict the right to free speech will deter other citizens from enforcing their right to criticism or give opinions against the State thereby fracturing the spine of democracy, the bench added.

The bench said the exchange of views and opinions of citizens about governance of the State was present from time immemorial. It was through such expression and speeches that the stifled voices found an awakening during the freedom movement, paving the way for an Independent India.

"And in this month of 77th Independence Day celebrations, can the voices of the citizens be stifled again? This Court cannot narrow the walls of Article 19(1)(a) (right to freedom of speech and expression). The soul of a healthy democracy lies in free speech," the bench added.

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