On July 31, YouTuber Felix Gerald was granted bail by the Madras High Court (HC) on the condition that he shut down his YouTube channel – Red Pix 24x7 – which has a subscriber base of 2.51 million. Felix was arrested for publishing a video interview of YouTuber Savukku Shankar in Delhi, on May 10, where Savukku had made derogatory comments about women police personnel. The case against him is for providing a platform for Savukku Shankar to make defamatory remarks in the guise of an interview.
While Felix’s bail petition was previously dismissed on account of having provided a platform to Savukku Shankar for making defamatory statements, Justice TV Tamilselvi of the Madras High Court granted him bail on July 31. The judge observed that Felix had previously indulged in similar controversial activities and that bail would be granted only if he closes his channel, executes a bond of Rs 10,000 with two sureties, and does not abscond or tamper with evidence.
TNM contacted senior advocate John Sathyan who appeared for Felix, to understand if the condition of shutting down the YouTube channel for bail was suggested by the prosecution to the court. He however clarified, “No, the court drafted the condition.”
So, can the Madras HC order to shut the channel in this case? Is it justified? At least two retired Madras HC judges don’t think so.
According to the Code of Criminal Procedure (CrPC) section 437(3) now replaced by the Bharatiya Nagrik Suraksha Sanhita (BNSS) section 480(3), the court is allowed to impose any condition that it may consider necessary when an accused person is booked under an offence punishable with imprisonment which may extend to seven years or more. The law reads that the court may also impose, “...in the interests of justice, such other conditions as it considers necessary.”
Retired judge of the Madras High Court, Justice K Chandru, referring to this section said, “Although the law allows for the judges to draft necessary conditions, the Supreme Court has time and again, said that the conditions imposed for providing bail should be genuine. The apex court has reiterated that judges should refrain from stating conditions that go beyond what is required.”
In January 2023, the Rajasthan HC, ordered for Rs 1 lakh to be paid as fine with an additional Rs 1 lakh surety in a case for bail. The Supreme Court then made an observation that the conditions of bail should not be so bad that it could lead to the refusal of the bail itself by the accused. The bench of Justices Krishna Murari and V Ramasubramanian said, “Conditions of bail cannot be so onerous that their existence itself tantamounts to refusal of bail,” and quashed the Rajasthan HC’s bail condition.
Recently, on July 8 this year, while hearing the Frank Vitus vs Narcotics Control Bureau (2024) case, a bench of Justices Abhay S Oka and Ujjal Bhuyan held that the words “interest of justice” in the aforementioned CrPC Section 437(3) cannot be interpreted in a general or expansive manner. “We can say that the bail conditions cannot be fanciful, arbitrary, or freakish,” the bench clarified.
Justice Chandru therefore said the court’s direction to shut down the YouTube channel to not be a genuine condition. “Asking the YouTuber to take down the particular interview that has problematic content is a genuine bail condition. Even if the person is a repeat offender, this condition to shut the channel doesn’t satisfy any party. Tomorrow, if articles published by any well-known daily newspaper are repeatedly challenged, will it make sense to ask them to dissolve the entity? The same logic applies here,” he added.
While hearing the Frank Vitus vs Narcotics Control Bureau (2024) case, the SC also held that bail conditions cannot infringe on the fundamental rights that are guaranteed by the constitution.
Another retired judge of the Madras High Court, Justice D Hariparanthaman, said Felix Gerald's bail condition infringes on the Right to Freedom of Speech and Expression guaranteed under Article 19(1)(a).
He expressed similar sentiments as Justice Chandru and added, “Asking them to dissolve their channel with a huge subscriber base is not warranted. The said channel has been uploading videos for years. So asking all of that to be dissolved, and asking them to no longer publish content on that channel, is equal to denying the individual their right to Freedom of Speech and Expression. Atleast that is how I see it,” he told TNM.
“We can always argue that there is reasonable restriction but that cannot extend to dissolving the entire channel. Besides it also infringes on the individual’s Right to Work guaranteed under the constitution. One should also remember that Felix Gerald is only an accused and is yet to be proven guilty. So such a drastic condition for bail doesn’t seem justified,” Justice Chandru added.
Felix was booked under the Indian Penal Code sections 294(b) (sings, recites or utters any obscene song, ballad or words, in or near any public place), 353 (assault or criminal force to deter public servant from discharge of his duty), and 509 (insulting the modesty of a woman); section 67 of the IT Act (publishing or transmitting obscene material in electronic form); and section 4 of the Tamil Nadu Prohibition of Harassment of Women Act.
Editor's note: The first version of the story said that Felix was not out on bail yet. We regret the error.