Supreme Court relief to Pratapgarhi: Can’t be so shaky on our basics over a poem or stand-up comedy

Deciding Pratapgarhi’s appeal against a Gujarat High Court order declining to quash criminal proceedings over his post, the bench of Justices A S Oka and Ujjal Bhuyan said the offences charged were not made out.

According to the prosecution, Pratapgarhi, after attending a wedding at Jamnagar, uploaded a video with the poem “Ae khoon ke pyase baat suno” running in the background, and its words were deemed objectionable.

The bench of Justices Oka and Bhuyan said “the poem does not encourage violence. On the contrary, it encourages people to desist from resorting to violence and to face injustice with love. It states that if our fight with injustice results in the death of our near and dear ones, we would be happy to bury their bodies”.

The ruling underlined the importance of protecting freedom of speech and expression, linking it to dignity.

“Free expression of thoughts and views by individuals or groups of individuals is an integral part of a healthy, civilised society. Without freedom of expression of thoughts and views, it is impossible to lead a dignified life guaranteed under Article 21 of the Constitution. In a healthy democracy, the views 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,” it stated.

“Sometimes, we the judges may not like the spoken or written words, but still it is our duty to uphold fundamental rights under Article 19 (1). We judges are also under an obligation to uphold the Constitution and the respective ideals.”

“If the police or executive fail to honour and protect the fundamental rights guaranteed under Article 19 (1) (a) of the Constitution, it is the duty of the court to step in and to protect the fundamental rights. Particularly, Constitutional courts must be at the forefront to zealously protect the fundamental rights of the citizens. It is the bounden duty of the court to ensure that the Constitution and ideals of the Constitution are not trampled upon,” the bench said.

“The endeavour of the Court should be to always protect and promote the fundamental rights including the freedom of speech and expression which is the most important right citizens can have in all liberal constitutional democracy,” it said.

Acting on a complaint, Gujarat Police had booked Pratapgarhi on January 3 under Bharatiya Nyaya Sanhita (BNS) sections 196 (promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony), 197 (imputations, assertions prejudicial to national integration), 299 (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 302 (uttering words, etc, with deliberate intent to wound religious feelings of any person) and 57 (abetting commission of offence by the public or by more than 10 persons).

The bench said when the allegation is of commission of an offence covered by the law referred to in clause (2) of Article 19 and if sub-Section (3) of Section 173 of Bharatiya Nagarik Suraksha Sanhita (BNSS) 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”.

Section 173 (3) of BNSS speaks about the need for a preliminary inquiry in cognizable offence where the punishment is 3 to 7 years.

“This will ensure that the fundamental rights guaranteed under sub-clause (a) of clause (1) of Article 19 remain protected,” the bench said.

“If an option under sub-Section (3) is not exercised by the police officer in such a case, he may end up registering an FIR against a person who has exercised his fundamental right under Article 19 (1) (a) even though clause (2) of Article 19 is not attracted. If, in such cases, 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).”

On the role of police in such cases, the bench said they “must abide by the Constitution and respect the ideals. The philosophy of constitutional ideals can be found in the Constitution itself. In the Preamble, it is laid down that the people of India solemnly decided to constitute India into a sovereign, socialist, secular, democratic republic and to secure for all its citizens liberty of thought and expression. Therefore, liberty of thought and expression is one of the ideals of our Constitution. The police officers, being citizens, are bound to abide by the Constitution and they are bound to uphold the right,” it stated.