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Synopsis

The Supreme Court, on March 28, 2025, said that the free expression of thoughts and views by individuals or a group is an integral part of a healthy, civilised society, while literature—including poetry, dramas, films, stage shows including stand-up comedy, satire, and art—makes the lives of human beings more meaningful.

Holding that, without freedom of expression of thoughts and views, it is impossible to lead a dignified life as guaranteed by Article 21 of the Constitution, the apex court quashed an FIR lodged by Jamnagar police against Congress MP Imran Pratapgarhi for posting a poem on social media, 'Ae khoon ke pyase baat suno....'.

A bench of Justices Abhay S Oka and Ujjal Bhuyan said that on January 26, 2025, our Constitution became 75 years old. One of the most important fundamental rights conferred on the citizens of India is under Article 19(1)(a) of the Constitution. It is the fundamental right to freedom of speech and expression.

"This case shows that even after 75 years of the existence of our Constitution, the law enforcement machinery of the State is either ignorant about this important fundamental right or does not care for this fundamental right," the court said.

The FIR was registered against the Congress leader at Jamnagar Police Station for offences punishable under Sections 196, 197(1), 302, 299, 57, and 3(5) of the Bharatiya Nyaya Sanhita, 2023, based on a complaint filed on December 29, 2024.

In such cases, the bench said, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out. The court also said that the high court can quash such cases even though the investigation is at a nascent stage.

Considering the challenge to the validity of the FIR and the high court’s refusal to quash the case, the bench said, "75 years into our republic, we cannot be seen to be so shaky on our fundamentals that mere recital of a poem or for that matter, any form of art or entertainment, such as, stand-up comedy, can be alleged to lead to animosity or hatred amongst different communities. Subscribing to such a view would stifle all legitimate expressions of view in the public domain which is so fundamental to a free society".

The court emphasised that in a healthy democracy, the views, opinions, or thoughts expressed by an individual or group of individuals must be countered by expressing another point of view. Even if a large number of persons dislike the views expressed by another, the right of the person to express those views must be respected and protected.

"Literature including poetry, dramas, films, stage shows including stand-up comedy, satire and art, make the lives of human beings more meaningful. The Courts are duty-bound to uphold and enforce fundamental rights guaranteed under the Constitution of India. Sometimes, we, the Judges, may not like spoken or written words. But, still, it is our duty to uphold the fundamental right under Article 19 (1)(a). We Judges are under an obligation to uphold the Constitution and respect its ideals," the bench said.

The top court reminded the courts that if the police or the executive fail to honour and protect the fundamental rights guaranteed under Article 19(1)(a) of the Constitution, it is the duty of the courts to step in and protect those fundamental rights.

There is no other institution which can uphold the fundamental rights of the citizens, it pointed out.

The court also told the police officers that they must abide by the Constitution and respect its ideals. Article 19(1)(a) confers a fundamental right on all citizens to freedom of speech and expression. The police machinery is a part of the State within the meaning of Article 12 of the Constitution. Moreover, the police officers, being citizens, are bound to abide by the Constitution. They are bound to honour and uphold freedom of speech and expression conferred on all citizens, it said.

The appellant contended that it cannot be said that the poem caused social disharmony among the people. His counsel, Kapil Sibal, submitted that the poem does not promote disharmony or feelings of enmity, hatred, or ill-will between various religious, racial, language, or regional groups and castes or communities. He said that, on its plain reading, it is about sacrificing oneself to fight for rights and truth. The poem promotes non-violence and preaches that one must suffer injustice with love.

The counsel said that registering an FIR based on the said poem violates the appellant’s fundamental right guaranteed under Article 19(1)(a) of the Constitution. He submitted that the police have shown insensitivity. Even the high court has not attempted to appreciate the message sought to be conveyed by the poem.

Solicitor General Tushar Mehta left it to the court to take an appropriate decision. He, however, said the tall claim made by the appellant on oath—that the poem’s author could be either Faiz Ahmed Faiz or Habib Jalib—was entirely wrong and had no basis at all.

Examining the matter, the bench said the poem did not refer to any religion, caste, or language. It did not refer to persons belonging to any religion. By no stretch of imagination did it promote enmity between different groups.

"We fail to understand how the statements therein are detrimental to national unity and how the statements will affect national unity," the bench said.

To say the least, it is ridiculous to claim that the act of the appellant is intended to outrage the religious feelings of any class by insulting its religion or religious beliefs. The poem only tells the rulers what the reaction will be if the fight for rights is met with injustice, the bench said.

To ascertain whether the information received by an officer-in-charge of the police station makes out a cognizable offence, the officer must consider the meaning of the spoken or written words. This act on the part of the police officer will not amount to making a preliminary inquiry, which is not permissible under sub-section (1) of Section 173 of the BNSS, the bench said.

The court also emphasised that the reasonable restrictions provided for in Article 19(2) must remain reasonable, and not fanciful and oppressive. Article 19(2) cannot be allowed to overshadow the substantive rights under Article 19(1), including the right to freedom of speech and expression, court stressed.

Therefore, when an allegation concerns the commission of an offence covered by the law referred to in clause (2) of Article 19, if sub-section (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused. This will ensure that the fundamental rights guaranteed under sub-clause (a) of clause (1) of Article 19 remain protected, the bench said.

When the commission of cognizable offences is alleged, where punishment is imprisonment of up to seven years, and where the offence is based on spoken or written words, it will always be appropriate to exercise the option under sub-section (3) of Section 173 and conduct a preliminary inquiry to ascertain whether a prima facie case exists to proceed.

"If the option under sub-Section (3) of Section 173 is not exercised, it will defeat the very object of incorporating sub-Section (3) of Section 173 of the BNSS and will also defeat the obligation of the police under Article 51-A (a)," the bench said.

The court also said that when an offence punishable under Section 196 of the BNS is alleged, the effect of the spoken or written words will have to be considered based on the standards of reasonable, strong-minded, firm, and courageous individuals and not based on the standards of people with weak and oscillating minds. The effect of the spoken or written words cannot be judged on the basis of the standards of people who always have a sense of insecurity or of those who always perceive criticism as a threat to their power or position, it said.

The court again pointed out that the Constitution is more than 75 years old. By this time, police officers ought to have been sensitised about their duty of abiding by the Constitution and respecting its ideals. If police officers are not aware of these obligations, the State must ensure that they are educated and sensitised by starting massive training programs.

In this case, looking at the text of the words spoken and the context in which those were spoken, it is impossible to attribute any mens rea to the appellant, the bench said.

The court found that no prima facie case can be said to have been made out against the appellant qua the sections invoked. In such a case, registration of the FIR appears to be a very mechanical exercise and is a clear abuse of the process of law. In fact, registration of such an FIR virtually borders on perversity.

"We are surprised that this very crucial aspect escaped the notice of the High Court. The High Court ought to have nipped the mischief at the threshold itself," the bench said.

The court also said that there is no absolute rule that when the investigation is at a nascent stage, the high court cannot exercise its jurisdiction to quash an offence by exercising its jurisdiction under Article 226 of the Constitution of India or under Section 482 of the CrPC, equivalent to Section 528 of the BNSS.

When the high court, in a given case, finds that no offence was made out on the face of it, to prevent abuse of the process of law, it can always interfere even though the investigation is at a nascent stage. It all depends on the facts and circumstances of each case as well as the nature of the offence. There is no blanket rule putting an embargo on the powers of the high court to quash an FIR merely on the ground that the investigation is at a nascent stage. If such an embargo is treated as an absolute rule, it will substantially curtail the powers of the high court, the bench said.

Case Title: Imran Pratapgadhi Vs State of Gujarat & Anr