Brief:

In the context of a video clip containing a poem, the Hon’ble Supreme Court examined whether its contents incited one community against another, promoted enmity, hurt religious sentiments, or posed a threat to national unity. Emphasizing the protection of free speech under Article 19(1)(a), the Hon’ble Court held that mere criticism or symbolic expression cannot be criminalized in the absence of statutory ingredients and mens rea. Further, the assessment under Section 196 BNS must rest on how a reasonable, strong-minded, firm and courageous individual person would understand the speech, rather than on reactions by weak and oscillating minds. 

Facts:

“Those who are blood thirsty, listen to us

If the fight for our rights is met with injustice

We will meet that injustice with love

If the drops flowing from a candle are like a flame

We will use it to light up all paths

If the bodies of our loved ones are a threat to your throne

We swear by God that we will bury our loved ones happily

Those who are blood thirsty, listen to us.”

(Note: This is the translation referred to by the Hon’ble Supreme Court, original poem is in Urdu.)

 

• The Appellant, a Member of the Rajya Sabha, recited the aforesaid poem at a mass marriage program at Jamnagar district, Gujarat. It was alleged that the poem incited people of one community against another; created enmity between two communities; hurt a community’s religious and social sentiments; and had a detrimental effect on national unity. The FIR was registered based on a complaint against the Appellant under Sections 196, 197(1), 302, 299, 57 and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (“BNS”).
• The Appellant had approached the Hon’ble High Court of Gujarat under Section 528 of Bhartiya Nagrik Suraksha Sanhita, 2023 (“BNSS”), r/w Article 226 of the Constitution of India. At the time of issuance of notice, the Appellant was directed to file an affidavit disclosing the poem’s source. He stated in the affidavit that the poem is authored by either Faiz Ahmed Faiz or Habib Jalib, however, exact authorship is uncertain, and the poem contains a message of love and non-violence.
• The Hon’ble High Court of Gujarat refused to grant him relief citing that investigation was at a very nascent stage and interference cannot be made. Hence, he has approached the Hon’ble Supreme Court.

Issues:

• Whether the alleged offences as per the FIR are made out or not.
• Whether, considering the facts of the present case, it was obligatory under sub-section (1) of Section 173 BNSS to register FIR.
• Whether there was a violation of Article 19(1)(a) of the Constitution of India.

Provisions of Law:

• Section 57 BNS: Abetting commission of offence by public or by more than ten persons.
• Section 196 BNS: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
• Section 197 BNS: Imputations, assertions prejudicial to national integration.
• Section 299 BNS: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
• Section 302 BNS: Uttering words, etc., with deliberate intent to wound religious feelings of any person.
• Section 173(1) and (3) BNSS: 173. Information in cognizable cases.—

(1) Every information relating to the commission of a cognizable offence, irrespective of the area where the offence is committed, may be given orally or by electronic communication to an officer in charge of a police station, and if given— 

(i) orally, it shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it; 

(ii) by electronic communication, it shall be taken on record by him on being signed within three days by the person giving it, 

and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may by rules prescribe in this behalf.

(3) Without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,— 

(i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or 

(ii) proceed with investigation when there exists a prima facie case. 

• Article 19(1)(a) Constitution of India: Protection of certain rights regarding freedom of speech, etc.—

All citizens shall have the right to freedom of speech and expression;

• Article 51A(a), Constitution of India: Fundamental duties.—

It shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

Contentions:

On Behalf of Appellant – 

• The ingredients of the alleged offences against the appellant are not being made out on the plain reading of the complaint and the poem.
• There were mixed reactions on the social media platform ‘X’ that cannot be said to have caused “social disharmony”.
• Rather than promoting any ill-will, hatred, or disharmony, the poem talks about sacrificing oneself to fight for rights and truth. The poem promotes non-violence and preaches that one must suffer injustice with love. 
• Registration of FIR based on the said poem violates fundamental right of the Appellant guaranteed under Article 19(1)(a) of the Constitution.

On Behalf of Respondents – 

• The claim made by the Appellant on oath that the poem’s author can be either Faiz Ahmed Faiz or Habib Jalib is entirely wrong and without any basis.
• The police is under an obligation to register an FIR and the Hon’ble High Court has followed the law while rejecting the appellant’s petition.

Findings:

Poem & Alleged Offences –

• On a plain reading of the poem and its translation, it was found that the poem had no nexus with any religion or community and did not affect national integration or the sovereignty, unity, and integrity of India. The poem did not incite violence or enmity between groups and advocated non-violence by urging that injustice be met with love and moral strength. The reference to the “throne” was purely symbolic as an entity which was responsible for causing injustice and the poem further suggested that one should be willing to sacrifice life in the fight against injustice.
• The Hon’ble Court examined the provisions of Sections 196, 197, 299, and 302 of the BNS and applied them to the facts of the present case to determine their applicability on the poem recited by the Appellant. The Hon’ble Court found that none of these offences were being made out against the Appellant, considering the intent and meaning of the recited poem. 
• Further, the Hon’ble Court expressed disapproval on invocation of Section 57, BNS and held that even if the Appellant had committed some offence, it is difficult to understand how he had abetted the commission of an offence by the public generally or by any number or class of persons exceeding ten.

Registration of FIR in present case – Mechanical exercise and a clear abuse of the process of law –

• Sub-Section (3) of Section 173 of the BNSS makes a significant departure from Section 154 of the Code of Criminal Procedure (“CrPC”). It provides that when information relating to the commission of a cognizable offence which is made punishable for 3 years or more but less than 7 years is received by an officer-in-charge of a police station, with the prior permission of a superior officer as mentioned therein, the police officer is empowered to conduct a preliminary inquiry to ascertain whether there exists a prima facie case for proceeding in the matter.
• The intention appears to be to prevent the registration of FIRs in frivolous cases where punishment is up to 7 years, even if the information discloses the commission of the cognizable offence.
• Under sub-Section (3) of Section 173 of the BNSS, after holding a preliminary inquiry, if the officer comes to a conclusion that a prima facie case exists to proceed, he should immediately register an FIR and proceed to investigate. But, if he is of the view that a prima facie case is not made out to proceed, he should immediately inform the first informant/complainant so that he can avail a remedy under sub-Section (4) of Section 173.
• Scope of Section 173(1): Take a case where a person approaches an officer-in-charge of a police station either personally or by electronic communication and alleges that he has seen ‘A’ assaulting ‘X’ with a stick. If the injury caused is simple, it will be an offence punishable under Section 115 (2) of the BNS. As per the first Schedule of the BNSS, it is a non-cognizable offence. Therefore, based on such information, FIR cannot be registered. If grievous hurt is caused, it will be an offence punishable under Section 117 (2) of the BNS, which is a cognizable offence. Therefore, the allegations made in the information furnished to an officer-in-charge of a police station must be examined by the officer only with a view to ascertain whether a cognizable offence is made out. Taking the information as correct, the officer has to determine whether it makes out a case of the commission of a cognizable offence. If the allegation makes out a case of a cognizable offence, unless the offence falls in sub-Section (3) of Section 173, it is mandatory to register FIR.
• Under Section 154 of the CrPC, as held in the case of Lalita Kumari v. Govt. of U.P. (2014) 2 SCC 1, only a limited preliminary inquiry is permissible to ascertain whether the information received discloses a cognizable offence. Moreover, a preliminary inquiry can be made under the CrPC only if the information does not disclose the commission of a cognizable offence but indicates the necessity for an inquiry. 
• In case of the offence punishable under Section 196 of the BNS to decide whether the words, either spoken or written or by sign or by visible representations or through electronic communication or otherwise, lead to the consequences provided in the Section, the police officer to whom information is furnished will have to read or hear the words written or spoken, and by taking the same as correct, decide whether an offence under Section 196 is made out. Reading of written words, or hearing spoken words will be necessary to determine whether the contents make out a case of the commission of a cognizable offence. The same is the case with offences punishable under Sections 197, 299 and 302 of BNS. Therefore, to ascertain whether the information received by an officer-in-charge of the police station makes out a cognizable offence, the officer must consider the meaning of the spoken or written words. This act on the part of the police officer will not amount to making a preliminary inquiry which is not permissible under sub-Section (1) of Section 173.
• In the present case, the offences except the offence under Section 57 of the BNS are punishable by imprisonment for less than 7 years. Section 57, on the face of it, is not applicable. Therefore, this option was also available to the police officer in the present case. The officer did not exercise the said option.

Philosophy of the Constitution and Liberty of Thought and Expression –

• Referring to clause (a) of Fundamental Duties under Article 51-A (Part IV-A) of the Constitution, the Hon’ble Court held that police officers must abide by the Constitution and respect its ideals. The philosophy of the Constitution and its ideals can be found in the preamble itself. 
• Liberty of thoughts and expression is one of the ideals of our Constitution. Article 19(1)(a) confers a fundamental right on all citizens to freedom of speech and expression. The police machinery is a part of the State within the meaning of Article 12 of the Constitution. 
• The police officers being citizens are bound to abide by the Constitution. They are bound to honour and uphold freedom of speech and expression conferred on all citizens. Clause (2) of Article 19 of the Constitution carves out an exception to the fundamental right guaranteed under subclause (a) of clause (1) of Article 19. The reasonable restrictions provided for in Article 19(2) must remain reasonable and not fanciful and oppressive.
• 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 to proceed against the accused. This will ensure that the fundamental rights guaranteed under sub-clause (a) of clause (1) of Article 19 remain protected. In such cases, the higher police officer referred to in sub-Section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry. 
• In essence, when the commission of a cognizable offence 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. In case such an option 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).
• In the facts of the present case, even without taking recourse to sub-Section (3) of Section 173 of the BNSS, the information furnished to the police officer did not attract the offences punishable under Sections 196, 197, 299 and 302 of the BNS.

Standard when offence under Section 196 BNS is alleged and Ingredient of Mens Rea –

• In Manzar Sayeed Khan v. State of Maharashtra (2007) 5 SCC 1 and Javed Ahmad Hajam v. State of Maharashtra (2024) 4 SCC 156, the Hon’ble Supreme Court, while dealing with precedents concerning Section 153-A of the Indian Penal Code, 1860 (“IPC”), held that ingredient of mens rea has been read into Section 153-A of IPC and that effect of the spoken or written words will have to be considered based on standards of reasonable, strongminded, firm and courageous individuals.

• Section 153-A of the IPC, is pari materia with Section 196 of the BNS. The only difference is that the words ‘or through electric communication’ have been added in clause (a) of Section 196 of the BNS, which were not in clause (a) of Section 153-A of the IPC.
• When an offence punishable under Section 196 of BNS is alleged, the effect of the spoken or written words will have to be considered based on standards of reasonable, strong-minded, firm and courageous individuals and not based on the standards of people with weak and oscillating minds. The effect of the spoken or written words cannot be judged on the basis of the standards of people who always have a sense of insecurity or of those who always perceive criticism as a threat to their power or position.
• Further, Mens Rea will have to be read into Section 196 of the BNS. In the present case, looking to the text of the words spoken and the context in which those were spoken, it is impossible to attribute any mens rea to the Appellant.

Impugned Judgment –

• The Hon’ble Supreme Court expressed shock at the observations by the Hon’ble High Court of Gujarat in the impugned judgment, especially in light of the precedents for violation of right to freedom of expression and of right to life, relied upon by the Appellant.
• 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.

Importance of freedom of expression and the duty of the Courts –

• Without freedom of expression of thoughts and views, it is impossible to lead a dignified life guaranteed by Article 21 of the Constitution.
• 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.
• Literature including poetry, dramas, films, stage shows, satire and art, make the life of human beings more meaningful. The Courts are duty-bound to uphold and enforce fundamental rights guaranteed under the Constitution of India.

Decision:

The appeal was allowed and the order passed by the Hon’ble High Court of Gujarat was set aside. Further, the FIR against the Appellant was also quashed.

Critique:

While the final decision to quash the FIR is based on interpretation of the statutory provisions of the BNSS/CrPC and precedents, the judgment ventures beyond the necessary confines of the appeal when it expands into Articles 21 and 51A of the Constitution. 

The Hon’ble Court undertook a detailed examination of Sections 196, 197, 299, 302 and 57 of the Bharatiya Nyaya Sanhita 2023, and categorically held that none of the ingredients were satisfied on a plain reading of the poem and the allegations in the FIR. The Hon’ble Court expressly concluded that the information furnished to the police officer did not attract the offences punishable under Sections 196, 197, 299 and 302 of the BNS. This finding, by itself, was sufficient to dispose of the appeal. Once the Hon’ble Court determined that no cognizable offence was disclosed, the registration of the FIR was unsustainable in law. The matter could have been concluded entirely within the statutory framework and established precedents governing quashing of proceedings.

While it is true that Article 21 is wide in scope and “right to life” has been given expansive interpretation through precedents, its breadth does not justify its invocation in every case especially where a specific fundamental right directly governs the controversy, as Article 19(1)(a) governs in the present case. The wide scope and expansive character of Article 21 is one of the strengths of constitutional framework but using it in every case without necessity risks turning it into a catch-all provision. 

Playing devil’s advocate, it may be contended theoretically that the findings were given in connection with Article 19(1)(a), which squarely governs the controversy. In practical terms, Article 19(1)(a) read with Article 19(2), provides a complete and sufficient constitutional framework for adjudication in the present case. The issue at best concerned the permissible limits of speech and the reasonable restrictions traceable to Article 19(2); recourse to other constitutional provisions was therefore not strictly necessary for resolving the dispute.

The present judgment safeguards freedom of expression and applies statutory standards to the facts. However, the extensive engagement with Articles 21 and 51A(a) was not essential to the adjudication of the appeal, which stood conclusively resolved on statutory grounds.

Analysis by: Saksham Singh (Associate)