CASE COMMENTARY:Right to Dissent in India, AUTHOR:Ivan Thakur
The right to dissent and the right to freedom of Speech and Expression comes hand-in-hand however the State using it’s machinery and ideology strike down on these ‘expression’ which it deem ‘harmful’ not only to State but regional harmony and often times the ‘reasonable restriction’ becomes an umbrella to curtail and track down those view point which the State could deemed seditious , nuisance and harmful for regional harmony and peace. Since the ‘ interpretation of these medium whether it is on social media , newspaper often view incitement to communal aggression using the inferential reasoning to come on specific end which it can curtail. It can become a quite abstract topic considering many similar speech and expression restricting BNS sections. So the Imran Pratapgiri would give us the glimpse over Speech & expression jurisprudence in India.
CASE COMMENTARY
CASE COMMENTARY -Right To Dissent In India – Imran Pratapgadhi vs State of Gujarat
Case: Imran Pratapgadhi vs State of Gujarat
Citation: (2025) 6 SCC 1545
Court: Supreme Court of India
Bench: Two-judge bench J. (Abhay S. Oka) J. (Ujjal Bhuyan)
Date of judgment: March 28, 2025
KEY PROVISION/LAW INVOLVED: Article 19 (1), Article 21, BNS 528, 196 ,197(1),302,299,57 and 3(5) and section 173 BNSS
Introduction
The right to dissent and the right to freedom of Speech and Expression comes hand-in-hand however the State using it’s machinery and ideology strike down on these ‘expression’ which it deem ‘harmful’ not only to State but regional harmony and often times the ‘reasonable restriction’ becomes an umbrella to curtail and track down those view point which the State could deemed seditious , nuisance and harmful for regional harmony and peace. Since the ‘ interpretation of these medium whether it is on social media , newspaper often view incitement to communal aggression using the inferential reasoning to come on specific end which it can curtail. It can become a quite abstract topic considering many similar speech and expression restricting BNS sections. So the Imran Pratapgiri would give us the glimpse over Speech & expression jurisprudence in India.
Facts
o The Appellant is a member of Rajya Sabha for whom the FIR was registered with Jamnagar Police Station for the offences- 196 ,197(1),302,299,57 and 3(5) of BNS.
o The Respondent 2 lodged the complaint that on 29th December 2024 which was Altaf Ghafarbhai Khafi , a member of MC Jamnagar birthday in mass wedding programme , Altaf invited the Appellant who recited the poem of which the video was posted on his verified ‘X’ account.
o The allegation that it hurts the religious community sentiments , that the spoken word incite the one community against the another.
o Upon asking the Chat GPT, the said poem is attributed to either Faiz Ahmed Faiz or Habib Jalib and it unable to conclusively determine the original owner. Which came after the compliance with the Court’s order date 13.01.2025.
o
“ए खून (blood) के प्यासो (thirsty) बात सुनो ग़र हक्क़ (truth) की लडाई जु ल्म (excesses/injustice) सही हम जुल्म (excesses/injustice) से इश्क़ (love) ननभा दें गे गर शम- ए- नगररया (melting of a candle which resembles tears) आनतश (flame) है हर राह वो शम्मा (light) जला दें गे गर लाश हमारे अपनोोंकी खतरा है तुम्हारी मसनद (throne) का उस रब (god) की ़सम हस्ते हस्ते नकतनी लाशे दफ़ना दें गे ए खूनके प्यासोों बात सुनो”
Issues
o The Appellant filed the petition under the BNSS section 528 read with Article 226 of Indian Constitution praying for quashing the said FIR.
o It is the message of Love not violence
o The Preliminary investigation aftermath of IPC and it’s holding of Lalita Kumari v Govt of UP and the Obligation of Police officer to register FIR.
Arguments
o From Appellant’s side- Posting the video in ‘X’ always get many mixed responses , it would not necessarily convert into social disharmony or feeling of enmity.
o The said FIR violates the Fundamental Right to Freedom of Speech & Expression under Article 19(1)
o From Respondent- The HC didn’t quashed the FIR, It is an obligation for Police office to lodge an FIR.
Judgement Ratio & Obiter
o The High Court’s holding for not quashing the FIR- The Investigation is on very nascent state hence interference cannot be made- Niharica Infrastructure Pvt.ltd. v State of Maharashtra.
o The Ratio- when an offence is punishable under section 196 of BNS , the effect of words ( spoken or written) will have to be considered on the based on the standard of reasonable , strong-minded , firm & courageous individual and not on the standard of people with weak & oscillating minds.
o Obiter- State of Haryana V Bhajanlal – Power of High court under article 226 and BNSS 528, Shreya Singhal V Union of India - when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme. It is one of the most basic human rights.
Analysis
Section 173 of the BNSS and 154 of CRPC
The sub-section (3) of section 173 of BNSS is where the former CRPC section 154 fell short is which related to
o 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.
o The former section 154 of CRPC with the holding of the Lalita Kumari case requires a minimum preliminary inquiry to ascertain that cognizable offence was commissioned.
o The latter BNSS section 173 is applicable even if the information pertaining to the commission of cognizable offence was received, an enquiry which can be conducted for proceeding the matter further hence it an unofficial remedy against the registration of FIR against the frivolous cases. Hence the ‘officer-in-charge’ has final say and must examine against it
o It is pertinent to note that section 173 of BNSS by corollary is not permissible for ‘officer-in-charge’ for the commission of preliminary inquiry for the cognizable offence punishable for more than 7 years. Hence section of 57 of BNS is beyond it’s purview.
o The Court upon discretion of Officer-in-charge used the ‘Fundamental duty of all citizen to abide by the Constitution’ and highlighted the spirit of Part 3 of the Constitution especially Article 19 with Section 173 of BNSS with the ‘ reasonable restrictions’ hence the Prima Facie of the cognizable offence during Preliminary investigation should respect Article 19 (1) Right to Freedom of Speech & Expression.
High Court Ruling and Supreme Court Quashing of the FIR
The ld. High court didn’t quashed the FIR that the investigation is on very nascent stage and hence the interference cannot be made citing M/S Neeharika, Infrastructure Pvt. vs The State Of Maharashtra –
In the case of Union Of India vs Prakash P. Hinduja (supra), it is observed and held by this Court that the court would not interfere with the investigation or during the course of investigation which would mean from the time of lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency.
However the Supreme Court stated that there was no absolute rule that when investigation is in nascent stage it cannot exercise it’s jurisdiction under Article 226 or Section 582 of BNSS , if such embargo taken seriously it would curtails the High Court’s power State of Haryana v Bhajanlal.
Men’s Rea
Many highlighted cases like Manzar Sayeed Khan and Patricia Mukhim v State of Meghalaya as well as Ramesh v Union of India dealt with section 153 of IPC current section 192 of BNS as - the effect of the words must be judged from the standards of reasonable, strong- minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.
It is certain from the Ramesh v Union of India Judgement that depraved and perverted mind will not be use as a yardstick for section 192 of BNS and relevant section.
The Judgement falls perfectly with the cited ratio regarding against the inferential reading so that it falls under the purview of BNS. The right to dissent in lawful manner must be treated as under right to lead dignified and meaningful life under Article 21 Right to Life & Liberty. Hence the arbitrary nature of the State to overpower it’s actions against the dissent are well curtailed and protected prospectively after this judgement.
Conclusion
The Court’ Judgement came in Appellant’s favour with Right to dissent coming under the ambit of Right to Freedom of Speech & Expression