The Indian republic’s fundamentals cannot be “so shaky” that poetry or standup comedy can be deemed to cause hatred between communities, the Supreme Court ruled on Friday.
A two-judge bench quashed the criminal cases registered against Congress MP Imran Pratapgarhi in BJP-ruled Gujarat for posting on X a poem that was alleged to have wounded religious feelings and undermined national integration.
It did not explain the reference to standup comedy. However, the judgment comes days after standup comedian Kunal Kamra was booked in Mumbai on charges of public mischief and defamation for his reference to a “traitor” during a performance, construed as a slur against Maharashtra deputy chief minister Eknath Shinde.
The bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan not only came down hard on Gujarat police but disapproved of Gujarat High Court’s decision not to quash the case against Pratapgarhi.
“Seventy-five years into our republic, 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 standup comedy, can be alleged to lead to animosity or hatred amongst different communities,” it said.
“Subscribing to such a view would stifle all legitimate expressions of view in the public domain which is so fundamental to a free society.”
A rough translation of excerpts from Pratapgarhi’s poem reads: “Those who are bloodthirsty, listen to us/ If the fight for our rights is met with injustice/ We will meet that injustice with love…
The poem says: “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 bloodthirsty, listen to us.”
The court said the poem does not refer to any religion, caste or language, or to people from any religion, and by no stretch of imagination does it promote enmity between groups.
“We fail to understand how the statements therein are detrimental to national unity and how the statements will affect national unity. On its plain reading, the poem does not purport to affect anyone’s religious feelings,” the judgment said.
“This case shows that even after 75 years of the existence of our 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 effect of the spoken or written word cannot be judged based on the standards of people who have a sense of insecurity or perceive criticism as a threat to their power or position.
HC rapped
The judgment said the registration of the FIR against the MP seemed “a very mechanical exercise and is a clear abuse of the process of law... (the) 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,” it said.
“We fail to understand how the High Court concluded that the message was posted in a manner that would certainly disturb social harmony. Thereafter, the High Court gave a reason that the investigation was at a nascent stage.
“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….”
It added: “In a healthy democracy... 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 Courts are duty-bound to uphold and enforce fundamental rights guaranteed under the Constitution of India.”
Justice Oka wrote that although he was the author of the judgment, “it is based on valuable inputs” from Justice Bhuyan.
As for Kamra, he has refused to withdraw his remarks or apologise. Nor has he responded to the Maharashtra police’s notice yet. Madras High Court has granted him interim anticipatory bail.