Bombay HC quashes complaint against Kailash Kher for hurting religious feelings; says no malicious intent

Mumbai: Intolerance and dissent from the orthodoxy have been a bane of Indian society, the Bombay High Court said, quoting author A G Noorani, while quashing a complaint against singer Kailash Kher for allegedly hurting religious sentiments with a song on Lord Shiva.

A division bench of Justices Bharati Danger and S C Chandak said there was no deliberate or malicious intent on Kher’s part, who had only sung the song ‘Babam Bam’, to hurt anyone's religious sentiments or feelings.

A copy of the order of March 4 was made available on Thursday, the complaint was filed by one Narinder Makkar before a local court in Ludhiana seeking registration of a case against the singer under Indian Penal Code (IPC) sections 295A and 298, concerning outraging religious feelings with deliberate and malicious intent.

The complainant claimed to be a Shiva worshiper and said Kher’s song ‘Babam Bam’ on Lord Shiva depicted a vulgar video showing scantily dressed women and people kissing.

The high court while quashing the complaint filed before the Ilaka judicial magistrate in Ludhiana said the lyrics of the song sung by Kher is nothing but praise of Lord Shiva and the attributes of his mighty character.

“Every action which may be to the dislike of a class of people may not necessarily lead to outraging religious sentiments,” the court said.

The bench quoted author A G Noorani and said, “Intolerance of dissent from the orthodoxy of the day has been the bane of Indian society for centuries.

But it is precisely in the ready acceptance of the right to dissent as distinct from its mere tolerance, that a free society distinguishes itself.” In the order, the bench said that to attract the offence under IPC section 295A, there has to be a deliberate attempt by the person to outrage someone’s religious feelings.

The court said the only accusation against Kher is that he is dancing with some scantily dressed girls in the video which according to the complainant is vulgar and hence hurt his religious feelings and emotions.

The offence is not made out against Kher as there is no deliberate and malicious intention on his part, who is just singing the song, HC said.

Kher had moved HC in 2014 when the complaint was lodged in the Ludhiana court in Punjab. At that time, the HC had in an interim relief said no coercive action should be taken against the singer.

In his plea filed through advocate Ashok Sarogi, Kher said he was only the singer of the song and that the video was choreographed by another company through Sony Music Entertainment.

Sarogi had argued that the video of the song was released only after it was granted clearance by the Central Board of Film Certification.