Read Time: 12 minutes

Synopsis

The Kerala High Court has ordered further investigation into the allegedly insulting remarks made by State Minister Saji Cherian concerning the Indian Constitution. During a speech on July 3, 2022, Cherian allegedly described the Constitution as “ideal for looting maximum number of people” and as a document influenced by British interests. The comments also included statements like “secularism and democracy are mere additions to the Constitution.” These remarks prompted widespread complaints, leading to the registration of a case under Section 2 of the Prevention of Insults to National Honour Act, 1971.

A Single judge bench comprising Justice Bechu Kurian Thomas, observed, “The statement that the Indian Constitution is ideal for looting the people does not leave much room for discussion. There cannot even be two views on that statement. However, the expression “secularism, democracy ‘kuntham (spear) and kudachakram (firecracker)’ is obviously referring to the Preamble which is a part of the Constitution. The said expression cannot be stated to be used with respect and the answer to the question posed, as far as the latter of the contentious statement is concerned, lies in the context, the manner and the tone in which those expressions were used.”

The court was hearing the case wherein following an investigation, the police concluded that Cherian had no intention to disrespect the Constitution and submitted a final report to that effect. Dissatisfied, the petitioner approached the Judicial First Class Magistrate, Thiruvalla, seeking rejection of the report and further investigation. The Magistrate dismissed the petition, prompting the petitioner to file the present petition before the High Court.

The petitioner, M.Baiju Noel, appearing in person, argued that the Minister's remarks clearly violated the Prevention of Insults to National Honour Act. It was highlighted that the final report was submitted without awaiting the forensic analysis of the speech's audio and video recordings and without interviewing relevant witnesses, including media personnel present at the event. It was also contended that the investigation was biased due to the accused’s political stature and sought an investigation by the Central Bureau of Investigation (CBI).

Opposing the petitioner’s contentions, the Director General of Prosecution, T.A. Shaji, argued that the petitioner’s remedy lay in filing a revision petition rather than a writ petition. It was further asserted that the speech merely expressed concerns about societal issues and did not reflect any intent to insult the Constitution. The respondents claimed that there was no fault in the investigating officer concluding that the speaker had no intention to disrespect the Constitution of India and therefore a further investigation is unwarranted.

The court, while considering the scope of the Act and the nature of the offence alleged, emphasised that following the 2003 amendment to Section 2 of the Act, which penalizes insults to the Indian National Flag and the Constitution, even verbal or written disrespect toward the Constitution can constitute an offence under the law. “The provision as it now stands indicates that even disrespect shown to the Constitution or to any part of it, by words either spoken or written or by acts can amount to a conduct that falls foul of the statute. Of course, the explanation categorically excludes any criticism of the Constitution or disapprobation of the Constitution if it is for the purpose of obtaining an amendment of the Constitution by lawful means,” the court clarified.

The court highlighted major flaws in the investigation, including the premature filing of the final report without forensic analysis of the speech recordings. The court noted, “Even without collecting the entire materials for connecting the accused with the nature of the offence alleged and even before receiving the report of the Forensic Science Laboratory, it was not proper for the Investigating Officer to have come to a conclusion that no offence had been made out.”

“The investigating officer referred the case stating that there was no intention behind the words to disrespect the Constitution. It is difficult to comprehend the said conclusion and the manner in which such a conclusion was arrived at. Intention must be gathered from the circumstances and contextually, the words used. In fact certain words by themselves can manifest the intention. When the statutory intention is explicit that no member of the public shall disrespect the Constitution, and when the words themselves can manifest the intention, the conclusion of the Investigating Officer is not legally tenable,” the court further stated.

Moreover, the court pointed out that key witnesses, such as media personnel who were present or reported on the event, were not interviewed. Instead, the investigation heavily relied on statements from individuals with known political affiliations. “The learned Magistrate also erred in accepting the final report without noticing that there were several witnesses like the media persons who had viewed or published the speech. Those persons were not questioned nor were their statements taken. Further, the investigating officer came to the conclusion solely on the basis of the statements given by persons who attended the meeting conducted by a political party. The statements of those witnesses who attended the meeting are likely to have been prejudiced due to their affiliation to the political party. Hence relying only on those statements would not amount to a fair investigation,” the court held.

After reviewing the circumstances, the court directed a further investigation by the State Crime Branch, noting that “the conclusion arrived at by the investigating officer was in haste and without proper appreciation.”

The court on being satisfied that the Magistrate also went wrong in accepting the final report, set aside both the Magistrate’s acceptance of the final report and the report itself.

 

Cause Title: Advocate M. Baiju Noel v. Additional Chief Secretary and Others [WP(CRL.) NO. 1042 OF 2024]