Invitation To Discuss Legality Of Darjeeling-Sikkim Unification Not An Offence Of Promoting Enmity: Sikkim HC Quashes FIR
The Sikkim High Court has quashed a criminal case against 3 members of the Darjeeling-based organisation Gorkha Seva Sena, holding that an invitation for a public consultation on the "Constitutional Legality of Darjeeling-Sikkim Unification" does not, by itself, attract the offence of promoting enmity under Section 196 of the Bharatiya Nyaya Sanhita (BNS).
The Court, however, took exception to the organisation’s use of the official logo of the Sikkim Government in the invitation without its authorisation, describing the act as "mischievous". It clarified that such use could invite other consequences, but would not bring the case within the scope of Section 196 BNS.
Justice Bhaskar Raj Pradhan observed that debates and deliberations during a public consultation on the constitutional legality of a proposed unification should not provoke sentiments so extreme as to attract the provision.
"An invitation, by itself, for a public consultation for constitutional legality of Darjeeling and Sikkim Unification would not attract the provision of section 196 of BNS" the Court held.
The Court was hearing petitions filed under Section 528 BNSS by Bikram Rai alias Bikramadi Rai, Subash Mani Singh and Noel Sharma, seeking quashing of 2025 FIR, the subsequent charge-sheet and the pending criminal proceedings.
The FIR was lodged on June 6, 2025, by the Principal Secretary to the Chief Minister of Sikkim.
It alleged that the three accused, associated with Gorkha Seva Sena, had used the State Government’s official 50th Statehood commemorative logo and theme without permission in an invitation for a proposed event titled "50th Sikkim State Day Celebration and Constitutional Consultation".
The invitation sought public participation in a consultation on the “Constitutional Legality of Darjeeling-Sikkim Unification”, proposed to be held on June 15, 2025, at Town Hall, Naya Bazar, Kurseong.
The FIR alleged that the unauthorised use of the logo could mislead people into believing that the Sikkim Government endorsed the organisation and its agenda. It further claimed that the material had the potential to provoke enmity between people of Sikkim and Darjeeling, disrupt public order and undermine faith in the State Government.
The FIR invoked Sections 152, 196 and 336 of the BNS, besides referring to Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950.
The police subsequently filed a charge-sheet against the accused under Sections 152, 196(1), 336(4) and 61(2) of the BNS.
Prosecution Concedes Lack Of Material
During the hearing, the Additional Public Prosecutor conceded that the prosecution lacked material to sustain the allegations under Sections 152, 336(4) and 61(2) BNS. The State's opposition to the petitions was confined to the allegation under Section 196 BNS.
The petitioners contended that the invitation concerned a public discussion on a constitutional issue and was protected by the right to freedom of speech and expression under Article 19(1)(a) of the Constitution.
The High Court examined the scope of Section 196 BNS in light of the Supreme Court's judgment in Imran Pratapgadhi v. State of Gujarat.
The provision penalises, among other acts, promoting or attempting to promote disharmony or feelings of enmity, hatred or ill-will between different groups on specified grounds.
The Bench referred to the Supreme Court's observation that the effect of spoken or written words must be assessed by the standards of "reasonable, strong-minded, firm and courageous individuals", and not by those who have weak or oscillating minds or who perceive criticism as a threat to their power or position.
It also relied on the Supreme Court's reiteration that, in a healthy democracy, views and opinions expressed by individuals or groups must be countered by another point of view, and that even if a large number of people dislike an opinion, the right to express it must be respected and protected.
Public Consultation On Unification Does Not Attract Section 196 BNS
Applying these principles, the High Court noted that the invitation issued under the aegis of Gorkha Seva Sena sought people's participation in a public consultation on the constitutional legality of the proposed Darjeeling-Sikkim unification.
"Debates and deliberations during a public consultation seeking views of constitutional legality of what one group of people perceive may be the right course of action, as opposed to the contrary view of another group regarding the alleged proposed Darjeeling-Sikkim Unification, ought not to provoke such extreme sentiments as to attract the mischief of section 196 BNS" the Court observed.
It added that a contrary view, which may be clearer, better reasoned and legally sound, could prove more persuasive.
The Bench thus concluded that the invitation, by itself, did not disclose an offence under Section 196 BNS.
Use Of Official Sikkim Government Logo Described As “Mischievous”
The Court separately considered the use of the Sikkim Government's official logo in the invitation. It noted that the logo had been notified by the State Government for official purposes and that the petitioners had used it without express sanction.
"Prima facie it seems to me quite clearly, mischievous. The petitioners ought not to have used the official logo without the expressed sanction of the Government of Sikkim. The illegal use of the official logo may invite the petitioners for other consequences" Justice Pradhan observed.
However, the Court held that even the unauthorised use of the logo would not bring the case within Section 196 BNS, which concerns promoting enmity between different groups on grounds such as religion, race, place of birth, residence and language, and acts prejudicial to the maintenance of harmony.
The Bench also reiterated that police officers, as part of the State machinery, are bound to respect the constitutional guarantee of freedom of speech and expression.
FIR, Charge-Sheet And Criminal Proceedings Quashed
Finding the case fit for exercise of its inherent powers under Section 528 BNSS, the High Court quashed the FIR, the charge-sheet and the consequential criminal proceedings pending before the Sessions Judge, Special Division-I, Gangtok.
The Court, however, directed the petitioners not to indulge in "such mischievous activities detrimental to the interest of the society by misusing others’ property and representing it as was sought to be done in the written invitation".
It further clarified that the State would remain free to take appropriate action for any illegality committed by the petitioners in using the emblem.
Accordingly, both petitions were disposed of.
Case Title - Noel Sharma v State Of Sikkim