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IN

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Decided on : 16.10.2019

CORAM :

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

Crl OP(MD)No.5519 of 2015

and
MP(MD)No.1 of 2015

K.Rajanarayanan alias Ki.Ra ... Petitioner / 1st respondent

Vs.

1.P.Kathiresan ...1st Respondent / Complainant

2.The State, rep.by

The Sub Inspector of Police,
Tallakulam Police Station,
Madurai – 625 002. ... 2nd Respondent / 2nd Respondent

Prayer : Criminal Original Petition is filed under Section 482 of Criminal

Procedure Code, to call for the records in P.R.C No.80 of 2014 on the file of
the Judicial Magistrate Court No.2, Madurai and to pass an order quashing
the same as illegal and to grant any relief or reliefs as this Court deems fit
and proper in the nature and circumstances of the case and thus render
justice.
For Petitioner : Mr.M.Siddharthan

For Respondents : Mr.A.Robinson,

Government Advocate (crl.side) for R2

Mr.M.Ayyappan for R1

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ORDER

Violence is the most extreme threat to freedom of expression. Many

have paid with their lives for exercising this basic human right. Timothy

Garton Ash in his seminal work “Free Speech” would call it as “the

assassin's veto”. When Ayatollah Khomeini issued fatwa to kill Salman

Rushdie, V.S.Naipaul remarked that assassination is an extreme form of

literary criticism. Long back, an American free speech scholar Harry Kalven

Jr. coined the term “heckler's veto” to describe the way a speaker can be

silenced in a public meeting. To these can be added “the prosecutor's veto”.

It is setting the criminal law in motion to target those legitimately exercising

their right of speech and expression.

2.A recent instance is the registration of FIR in Muzaffarpur District

against 49 celebrities, including Ramchandra Guha, Aparna Sen, Mani

Ratnam. They had written an open letter to the Prime Minister of India

expressing concern over certain developments. A Muzaffarpur based

lawyer Sudhir Kumar Ojha filed a case against them in the court of Chief

Judicial Magistrate. Based on the direction given by the court, an FIR

came to be registered for sedition, public nuisance, hurting religious

feelings and insulting with an intent to provoke breach of peace. This

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caused considerable consternation to the enlightened citizenry. It is now

reported that the FIR has since been closed. But, the complainant has

stated that he intends to file a protest petition.

3.One can recall a spate of private complaints filed in various courts

across the country against the renowned artist Maqbool Fida Husain.

Some of his paintings were charged as vulgar and obscene. Justice Sanjay

Kishan Kaul sitting in Delhi High Court (as His Lordship then was) quashed

the criminal proceedings after authoritatively laying down what the law of

obscenity is. This eloquent decision reported in 2008 Crl LJ 4107

(Maqbool Fida Husain vs. Raj Kumar Pandey) concludes on this evocative

note - “A painter at 90 deserves to be in his home-painting his canvass.”

4.The case of the petitioner is no different. K.Rajanarayanan

popularly known as “Ki.Ra.,” is an acclaimed tamil writer. An English

translation of his novel “Gopallapuram” published by Penguin India carries

the following blurb :

“Ki.Rajanarayanan (b.1922) has spent over five

decades gathering the most exotic tales of his favourite land,
Karisal Kadu—the scorched drought-stricken land in Tamil
Nadu. Popularly known as Ki. Ra., he is a powerful

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storyteller. His short story ‘Mayamaan’ (1958) is considered

the hallmark of the golden age of modern Tamil literature. An
English translation of his collection of folk tales, Where Are
You Going, You Monkeys?, was recently published to much
acclaim. He has been the recipient of the prestigious
Kalaimamani and Sahitya Akademi awards.”

5.There are many who believe that he deserves the highest literary

honour, namely, the Jnanpith Award. The impeccable standing and

credentials of Ki.Ra., did not however deter the first respondent herein from

filing a complaint before the court of Judicial Magistrate No.2, Madurai

against him. The provocation was the petitioner's interview published by a

magazine “The Sunday Indian” for its issue dated 30th September 2012.

When asked as to why he had not written on Dalit life, Ki.Ra replied that

since he is not acquainted with their dialect, he did not attempt to portray

their lives.

6.The complainant herein found two things seriously objectionable in

the remarks of the petitioner. The complainant belongs to a community

known as “Pallar”, that has been notified as a Scheduled Caste in Tamil

Nadu. They proudly called themselves as Devendra Kula Velalar. In fact, a

section of the community is demanding that they should be independently

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categorized and de-notified as a Scheduled Caste. The complainant would

point out that the use of expression “Dalit” has been frowned upon by the

Bombay High Court as well as in the communication issued by the

Governmental authorities. But, more than anything else, he has taken

serious exception to the petitioner's expression “Avan” while referring to the

Dalits.

7.In English, in subjective case, the singular form of the first person

is “I”. Second person singular is “YOU”. The third person singular in the

case of masculine gender is “HE” (subjective case), “HIS” (objective case)

and “HIS” (possessive case). In Tamil, the second person singular and

third person singular can be expressed in two ways : honorific and non-

honorific. Honorific reference in the case of third person singular in

masculine gender will be “Avar”. “Avan” will be non-honorific reference.

Depending on the context, the expression, “Avan” can also be disrespectful.

The complainant would point out that the petitioner while referring to the

other communities has employed the respectful expression ending with “ar”

but while referring to the Dalits, he had employed the expression “Avan”.

According to the complainant, this constitutes an intentional insult to the

Scheduled Castes. The complainant sought issuance of direction under

Section 156(3) of Cr.PC for registering an FIR against the petitioner herein.

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Since the case under the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 is triable only by the Special Court, the

case was taken up for committal in PRC No.80 of 2014 and summons were

issued to the petitioner herein. To quash the same, this criminal original

petition has been filed by the petitioner under Section 482 of Cr.PC.

8.Heard the learned counsel on either side.

9.Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act, 1989 had not been amended when the impugned

complaint was filed. Unamended Section 3 (1) (x) of the Act read that

whoever, not being a member of a Scheduled Caste or a Scheduled Tribe

intentionally insults or intimidates with intent to humiliate a member of a

Scheduled Caste or a Schedule Tribe in any place within public view shall

be punishable with imprisonment for a term which shall not be less than

six months but which may extend to five years and with fine.

10.I took the assistance of Shri.Jagannath, a young Tamil scholar

from Madurai before deciding this issue. According to him, the expression

“Avan” is referred to in Tamil literature more to indicate male gender and

whether it is rude and disrespectful or not would depend more on the

context. Right from Sangam Literature to current day, this expression has

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been used to denote even highly revered characters. In Purananooru, Song

No.72, a respected scholar is referred to as 'khq;Fb kUjd; jiytdhf”.

Thirukkural couplet 388 is as under :

'Kiwnra;J fhg;ghw;Wk; kd;dtd; kf;fl;F

,iwnad;W itf;fg; gLk;.”

In Thiruvasagam, the line “mtd; mUshNy mtd; jhs; tzq;fp” is found. In

Thiruvaimozhi by Nammalvar, the opening stanza reads as as under :

'cah;tw cah;eyk; cilatd; atd; mtd;

kah;tw kjpeyk; mUspdd; atd; mtd;
mah;tWk; mkuh;fs; mjpgjp atd; mtd;
JauW Rlub njhOJvOvd; kdNd.”

In Periyapuranam, the phrase 'cynfyhk; czh;e;J xjw;F mhpatd;” is found.

Thus, even God is referred to only as “Avan”. Mahakavi Bharathi has this

to say about certain communities :

'Ntjkwpe;jtd; ghh;g;ghd; - gy
tpj;ij njhpe;jtd; ghh;g;ghd;
ePjpepiy jtwhky; - jz;l Nekq;fs;
nra;thd; eha;f;fd;”.

The Tamil Poet Bharathidasan would describe his mentor as “ige;jkpo;j;

Njh;g;ghfd;> mtd; xU nre;jkpo;j; NjdP> rpe;Jf;Fj; je;ij”. The foregoing literary

instances, classical and modern, clearly show that the expression “Avan” is

not an insulting connotation. On the other hand, it indicates a high degree

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of intimacy.

11.There is one other aspect of the matter. The Hon'ble Division

Bench of the Delhi High Court in the decision reported in (2002) ILR 2 Del

237 (D.P.Vats vs. State) holds that if an utterance is not directed against a

member of SC/ST in contradistinction to a group of members of SC/ST or

the community as a whole, it would not again make out an offence under

Section 3(1)(x). The word "a member" occurring in the provision assumes

crucial importance in this context and leaves no scope for doubt that it

must be directed against the individual member and not against a group of

members or the crowd or the public in general though these may comprise

of SC/ST. If it is made in generalized terms against all and sundry and is

not individual specific in the name of caste, it would not make out an

offence under the first sub-section, the rationale being that intentional

insult, intimidation and humiliation made in the name of caste was liable to

be caused to a person and in this case to an individual member of SC/ST

and not to a group of members or public in general.

12.Thus, looked at from any angle, even the elementary ingredients of

Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities), 1989 Act are not present in the case on hand. The next

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question is whether the prima facie ingredients of the offence under Section

504 of IPC are present. Section 504 of IPC reads as under :

Section 504. Intentional insult with intent to

provoke breach of the peace -
Whoever intentionally insults, and thereby gives
provocation to any person, intending or knowing it to be likely
that such provocation will cause him to break the public
peace, or to commit any other offence, shall be punished with
imprisonment of either description for a term which may
extend to two years, or with fine, or with both.”

13.The Hon'ble Supreme Court in the decision reported in 2013 (14)

SCC 44 (Fiona Shrikhande vs. State of Maharashtra and Ors.) held as

follows :

“13.Section 504 Indian Penal Code comprises of the

following ingredients, viz., (a) intentional insult, (b) the insult
must be such as to give provocation to the person insulted,
and (c) the accused must intend or know that such
provocation would cause another to break the public peace or
to commit any other offence. The intentional insult must be of
such a degree that should provoke a person to break the
public peace or to commit any other offence. The person who
intentionally insults intending or knowing it to be likely that
it will give provocation to any other person and such
provocation will cause to break the public peace or to commit
any other offence, in such a situation, the ingredients of

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10

Section 504 are satisfied. One of the essential elements

constituting the offence is that there should have been an act
or conduct amounting to intentional insult...”

14.Applying the aforesaid standard, by no stretch of imagination can

the remarks of the petitioner be construed as an intentional insult to such

a degree as to provoke a person to break the public peace. The petitioner

had crossed the age of 90. To celebrate the occasion, a magazine

interviewed the petitioner. It posed certain questions. The petitioner

explained as to why he has not chronicled the lives of the members of the

Scheduled Castes. The petitioner did not have any intention to hurt any

one let alone the members of the Scheduled Castes. Therefore, the

essential ingredients of Section 504 are not satisfied in this case.

15.It is true that at the complaint stage, the Magistrate is merely

concerned with the allegations made out in the complaint. He has only to

prima facie satisfy whether there are sufficient grounds to proceed against

the accused. It is not his province to venture into a detailed discussion on

the merits or demerits of the case. The Magistrate has to decide the

question purely from the point of view of the complaint without at all

adverting to any defence that the accused may have. He is not expected to

embark upon a detailed discussion.

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11

16.But the above said yardstick and standard cannot be so

mechanically applied even in matters that have clear and direct

implications on free speech. This is because taking offence has now

become a fashion. The magistrate will see if the allegations made in the

complaint are so absurd on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding

against the accused. He will also see if the proceeding has been maliciously

instituted with an ulterior motive. Following the registration of FIR by the

Muzaffarpur Police, Ramachandra Guha had this to say :

“That Indian politicians, across party lines, have

used colonial-era laws to suppress freedom of expression
should not surprise anybody. What is more disappointing is
that the judicial system has not done more to prevent this
shrinking of democratic space. Motivated petitions aimed at
pre-emptively shutting up democratic and independent
voices assuredly have no place in a court of law. It is time
the Supreme Court issued clear directions to lower courts
so that this pernicious practice of intimidation stops.

Where politicians are increasingly governed by

sentiments of revenge and retribution, citizens look to the
judiciary to more actively play its Constitutional role as
guarantors of liberty and free expression. In this regard,

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the judges could refer to the maxim that Mahatma Gandhi

offered in 1910, amended for our times as follows: “Every
man [or woman] has a right to hold any opinion he chooses,
and to give effect to it also, so long as, in doing so, he [or
she] does not use [or advocate] physical violence against
anybody.”

Neither the Magistrate nor the Police should exhibit alacrity to take

cognizance or register a case in such matters. Every time they receive such

complaints, they must dust their knowledge of the law relating to free

speech. To start with, I would call upon every Magistrate to go through the

celebrated decision reported in (2016) (4) CTC 561 (Perumal

Murugan'case), authored by Mr.Justice Sanjay Kishan Kaul as the Chief

Justice of the Madras High Court (as His Lordship then was). They must

also read the books Offend, Shock or Disturb by Gautam Bhatia and the

Republic or Rhetoric by Abhinav Chandrachud. The courts must

remember that whenever they play into the hands of people like the first

respondent/complainant, the image of the judiciary as well as the nation

takes a beating. Section 66-A of the Information Technology Act, 2000 was

struck down as unconstitutional taking note of its chilling effect on free

speech. Magistrates must realize that complaints such as the one on hand

produce similar effect and lead to stifling of this fundamental freedom. They

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must therefore be on guard and adopt a nuanced approach in such cases.

One marker of a civilised society is as to how it treats and respects its

artists, writers and intellectuals. Ki.Ra is now 97 years old. He lost his

wife recently. He is said to have suffered a stroke. Closing the criminal

proceedings initiated against him is the minimum courtesy that the system

owes to him. I have already held that the elementary ingredients of the

offences levelled against him are wholly absent. The very institution of the

impugned prosecution is an abuse of legal process. It is quashed to secure

the ends of justice. This criminal original petition stands allowed.

MP(MD)No.1 of 2015 is closed.

16.10.2019
Index : Yes / No
Internet : Yes / No
Skm

To

1.The Sub Inspector of Police,

Tallakulam Police Station,
Madurai – 625 002.

2.The Judicial Magistrate Court No.2, Madurai.

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14

G.R.SWAMINATHAN, J.

Skm

Crl OP(MD)No.5519 of 2015

and
MP(MD)No.1 of 2015

16.10.2019

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