Ensuring Frivolity is Filtered: Supreme Court’s Stand on Artistic Expression

Introduction

The Supreme Court of India, in a judgment in “Imran Pratapgadhi v. State of Gujarat¹” while quashing the FIR registered against theaccused, has reiterated the importance of freedom of speech guaranteed under Article 19(1)(a)² of the Constitution and the duty of the police to abide by the Constitution and to respect its ideals. The Court has clarified the difference between the scope of preliminary enquiry under Section 154(3)³ of the Code of Criminal Procedure, 1973 (CrPC) and Section 173(3)⁴ of the Nagarik Suraksha Sanhita, 2023 (BNSS). The Court has also passed directions with respect to conduct of preliminary inquiry in cases where an offence, covered by the law referred to in Article 19(2)⁵ of the Constitution, is alleged. The Court has held that it would always be appropriate for the police to conduct a preliminary inquiry under Section 173(3) of the BNSS to ensure that the rights under Article 19(1)(a) remain protected.

Factual background

FIR was registered against theaccused for offences under Sections 196⁶, 197(1)⁷, 302⁸, 299⁹, 57¹⁰, and 3(5)¹¹ of the Nyaya Sanhita, 2023 (BNS). Theaccused had posted a video clip of a wedding event held in Jamnagar which he attended. The video included a recitation of a poem in Urdu, which according to the FIR incited enmity between 2 communities, hurt religious sentiments and undermined national integrity. Theaccused moved the Gujarat High Court for quashing of the said FIR under Section 528¹² of the BNSS read with Article 226¹³ of the Constitution. The High Court dismissed the petition on ground that the investigation was at a very nascent stage and cannot be interfered with, in view of the judgment in Neeharika Infrastructure (P) Ltd. v. State of Maharashtra¹⁴. Therefore, the present appeal came to be filed.

Analysis of the poem

The Supreme Court meticulously analysed the text of the poem in question and concluded that it does not reference any religion, caste, or community nor does it promote enmity or disharmony. It was held that the poem is a symbolic critique of a ruler perpetrating injustice and advocates non-violence and sacrifice in the pursuit of rights. The poem is not a literal incitement against any group or authority. The Court held that from a plain reading of the poem, none of the offences alleged in the FIR are made out.

Comparison of Section 154 CrPC and Section 173 of the BNSS

The Court took note of the provisions in Section 154¹⁵ CrPC and Section 173¹⁶ of the BNSS. It was observed that Section 173(3) of the BNSS provides that on receipt of information relating to commission of a cognizable offence which is punishable by 3 to 7 years, the officer in charge of the police station may, with prior permission of the Deputy Superintendent of Police, considering the gravity of the offence, conduct a preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within 14 days. It was observed that Section 154¹⁷ CrPC does not provide for a preliminary enquiry, however, it is permissible if the information received does not disclose a cognizable offence, as per the judgment in Lalita Kumari v. State of U.P.¹⁸ In Lalita Kumari¹⁹, it was held that,

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120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

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Therefore, it was observed that Section 173(3) of the BNSS makes a significant departure from Section 154 CrPC. Under Section 154 CrPC, as per the directions passed in Lalita Kumari²⁰, only a limited inquiry may be conducted to ascertain whether the information received discloses a cognizable offence, only if the information received under Section 154 CrPC does not disclose the commission of a cognizable offence but indicates necessity for an inquiry. Section 173(3) of the BNSS allows an officer, with the Deputy Superintendent of Police’s prior approval, to conduct a preliminary inquiry within 14 days for cognizable offences punishable by 3 to 7 years, even when an offence is disclosed, to assess if a prima facie case exists. Section 173(3) of the BNSS confers a discretion on the officer receiving information relating to the commission of a cognizable offence to conduct a preliminary inquiry to ascertain whether a prima facie case exists to proceed. This option becomes open when the offence alleged is punishable by 3 to 7 years. The legislative intent behind incorporating this discretion is to prevent the registration of frivolous first information reports (FIRs) in cases where the information discloses commission of a cognizable offence and expands the scope of preliminary inquiry which was made permissible by Lalita Kumari judgment²¹.

Interpretation of Section 196 of the BNS

Section 196 of the BNS provides as follows:

(1) Whoever—

(a) by words, either spoken or written, or by signs or by visible representations or through electronic communication or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities; or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility; or

(c) organises any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,

shall be punished with imprisonment which may extend to three years, or with fine, or with both.

(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.

The Court observed that the offence under Section 196 of the BNS is attracted when words, spoken or written or by signs or visible representations, promote enmity between different groups, on the grounds of religion, race, place of birth, residence, language, caste or community or any other ground promote or attempt to promote disharmony, hatred, ill-will between different groups or communities.

Standard to be applied

The Court took note of the judgment in Bhagwati Charan Shukla v. Provincial Govt.²², where it was held that:

67. … We pause to observe that here, as in the case of reasonable doubt in criminal cases, and as in the case of putting fear of hurt in a matter of assault, we must use the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.…

The Court then took note of the judgment in Javed Ahmad Hajam v. State of Maharashtra²³ which also dealt with offence punishable under Section 153-A²⁴ of the Penal Code, 1860 (IPC). In the said judgment, the Court had quashed the FIR and reiterated the importance of the right to dissent in light of Article 19²⁵ of the Constitution. The Court observed that Section 196 of the BNS is pari materia to Section 153-A IPC, the only difference being that Section 196 of the BNS includes electronic communication of the offending words. Therefore, it was held that when an offence under Section 196 BNS is alleged, the effect of the 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.

Mens rea as an essential ingredient

The Court also took note of the judgment in Manzar Sayeed Khan v. State of Maharashtra²⁶, where it was held that the gist of the offence under Section 153-A IPC is the intention to promote feelings of enmity or hatred between different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153-A IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused. Since, 153-A IPC is pari materia to Section 196 of the BNS, it was held that mens rea will have to be read as an essential ingredient for the offence under Section 196 of the BNS.

Importance of freedom of speech

The Court highlighted that freedom of speech under Article 19(1)(a) is integral to a dignified life under Article 21, enabling self-expression through art, literature, and dissent. Even unpopular views merit protection, as they fuel democratic discourse. Police officers, as State actors under Article 12 and citizens bound by Article 51-A²⁷, must uphold these values. In cases involving Article 19(2) restrictions, such as Section 196 of the BNS, and offences punishable by 3 to 7 years, a preliminary inquiry under Section 173(3) of the BNSS is appropriate to balance free expression with public order and as such the superior officer referred to in Section 173(3) must normally grant permission to conduct a preliminary inquiry to assess whether a prima facie case exists. It was further held that High Courts, under Article 226 or Section 528 of the BNSS, retain power to quash baseless FIRs early, preventing abuse of process.

Conclusion

The Supreme Court finally quashed the FIR, holding that none of the offences alleged in the FIR were made out against theaccused. This judgment clarifies that Section 173(3) of the BNSS broadens the scope of preliminary inquiries beyond Section 154 CrPC and the judgment in Lalita Kumari²⁸. The Court has further directed that it would always be appropriate to conduct a preliminary inquiry in Article 19(2) related cases to safeguard freedom of speech. Mens rea has to be read as an essential ingredient for offences under Sections 196, 197, 299, and 302 of the BNS, requiring police to interpret words contextually. It was held that this act would not amount to conducting a preliminary inquiry which is not permissible under Section 173(3) of the BNSS. This judgment protects artistic expression and mitigates potential constraints on freedom of speech.