'Free expression of thoughts integral to civilised society': Supreme Court quashes Gujarat FIR against Congress MP Imran Pratapgarhi in 'provocative' song case

New Delhi: The Supreme Court on Friday said free expression of thoughts and views by individuals or a group is an integral part of a healthy civilised society and without freedom of expression of thoughts and views, it is impossible to lead a dignified life guaranteed by Article 21 of the Constitution.

A bench of Justices Abhay S Oka and Ujjal Bhuyan quashed an FIR lodged with Jamnagar police against Congress MP Imran Pratapgarhi for posting a poem on social media "Ae khoon ke pyase baat suno...", holding no offence was made out in the matter and no mens rea can be attributed to him.

After 75 years into our republic, the bench said, "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 stressed that one of the most important fundamental rights conferred on the citizens of India is under Article 19 (1)(a) of the Constitution, which is the right of freedom of speech and expression.

However, this case showed that even after 75 years of the existence of the 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 court felt 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 the views must be respected and protected," the court said.

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

There is no other institution which can uphold the fundamental rights of the citizens, it stressed, saying such cases can be quashed even when the investigation was at nascent stage.

"Registration of such 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 court said.

The court also asked the police officers to abide by the Constitution and respect its ideals for being a part of the State within the meaning of Article 12 of the Constitution. They are bound to honour and uphold freedom of speech and expression conferred on all citizens, it said, saying a preliminary inquiry must be conducted in such cases before lodging the FIR.

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

"To say the least, it is ridiculous to say 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 court added.

The court said, to ascertain whether the information received by an officer-in-charge of the police station makes out a cognisable offence in such cases, the officer must consider the meaning of the spoken or written words, which will not amount to making a preliminary inquiry not permissible under sub-Section (1) of Section 173 of the BNSS.

It also 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.

Therefore, when an allegation is of 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. 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 for imprisonment up to 7 years, which 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 there exists a prima facie case to proceed, the court said.

"If the police officers are not aware of these obligations, the State must ensure that they are educated and sensitized by starting massive training programs," the bench said.

The court found the registration of the FIR appears to be a very mechanical exercise and is a clear abuse of the process of law.

The court also held 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 the 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 the nascent stage. It all depends on the facts and circumstances of each case as well as the nature of the offence," it said.

The court said there is no such blanket rule putting an embargo on the powers of the high court to quash FIR only on the ground that the investigation was at a nascent stage. If such embargo is taken as an absolute rule, it will substantially curtail the powers of the high court, the bench said.