The recent judgment of the Supreme Court in Khushboo v. Kannaiammal upholds the right to freedom of speech and expression. Khushboo’s right to freedom of speech was violated by the institution of multiple criminal cases against her in various courts across the country and consequent harassment that she suffered. The judgment comes after the Delhi High Court judgment in MF Husain v Ram Kumar Pandey in 2008, which also dealt with the procedural loophole in s 177 of the Criminal Procedural Code which allows multiple cases to be filed, even though they have the same subject matter. The Supreme Court has now given an important direction to Magistrates which should curb abuse of the criminal process:
28. We are of the view that the institution of the numerous criminal complaints against the appellant was done in a mala fide manner. In order to prevent the abuse of the criminal law machinery, we are therefore inclined to grant the relief sought by the appellant. In such cases, the proper course for Magistrates is to use their statutory powers to direct an investigation into the allegations before taking cognizance of the offences alleged. It is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the‘freedom of speech and expression’ is indeed a very high one and there should be a presumption in favour of the accused in such cases. It is only when the complainants produce materials that support a prima facie case for a statutory offence that Magistrates can proceed to take cognizance of the same. We must be mindful that the initiation of a criminal trial is a process which carries an implicit degree of coercion and it should not be triggered by false and frivolous complaints, amounting to harassment and humiliation to the accused.
Also worth noting in the judgment is the emphasis on personal autonomy, especially relevant given our developing post-Naz jurisprudence:
29. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and Criminality are not co-extensive.
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