Disrespect To Constitution By Words, Acts An Offence Under Insults To National Honour Act: Kerala HC Directs Probe Into Saji Cherian's Remarks
While ordering further investigation into the allegedly insulting remarks made by Minister for Fisheries, Culture and Youth Affairs Saji Cherian, the Kerala High Court observed that post the 2003 amendment to Section 2 of Prevention of Insults to National Honour Act, even disrespect shown to the Constitution by words either spoken or written or by acts can amount to conduct falling foul of the Act.
For context, Section 2 of the Act declares insults to the Indian National Flag and the Constitution of India as a punishable offence with imprisonment for a term which can extend upto three years or with fine or with both. The court in its order observed that the intention of the 2003 amendment to the provision, which added the words "shows disrespect" was to widen the scope of the expression "insult". It further said that the concerned investigating officer should have borne in mind the "statutory amendment behind including the word 'disrespect' to the Constitution" and its legislative intent.
Perusing through the language of the provision Justice Bechu Kurian Thomas in its order noted that it indicated that the words “otherwise shows disrespect to” were not part of the statute initially.
The court said that earlier the provision only contained the words “otherwise brings into contempt the Constitution of India or any part thereof”. It said that prior to the 2003 amendment, "only burning, mutilation, defacement, difiling, disfiguring, destroying, trampling upon or bringing into contempt by words either spoken or written or by acts the National Flag or the Constitution or any part of it" were made punishable under the act. However, post the amendment, a wider terminology was brought in which the addition of the words “shows disrespect”. It said:
"The Statements of Objects and Reasons for the Amending Act 31 of 2003 do indicate that the intention of the amendment was “to widen the scope of the expression insult”. The provision as it now stands indicates that even disrespect shown to the Constitution or to any part of it, by words either spoken or written or by acts can amount to a conduct that falls foul of the statute. Of course, the explanation categorically excludes any criticism of the Constitution or disapprobation of the Constitution if it is for the purpose of obtaining an amendment of the Constitution by lawful means".
Saji Cherian, reportedly made a speech in July 2022 and allegedly made certain remarks about the Constitution. The alleged speech contained remarks like 'our Constitution is ideal to loot maximum number of people', 'we are implementing a Constitution written on the instructions of Britishers' and 'among the ideals like secularism and democracy, 'kuntham', 'kodachakram' has been added to the constitution.'
A case was taken against the Minister alleging offence under Section 2 of the Prevention of Insults to National Honour Act after several people complained to the police. The police dropped the proceedings after submitting a final report before the Magistrate that the Minister had no intention to disrespect the Constitution. The petitioner M. Baiju Noel, a lawyer challenged the final report before the Magistrate. However, it was dismissed. Against this dismissal, the petitioner approached the High Court.
As per the Act, a criticism does not constitute an offence if it's made with the intention of obtaining an amendment "by lawful means". The Court noted that the prosecution has no case that the meeting in which the Minister made the comments was intended to amend the Constitution or conduct a debate on it. Therefore, the court said that the accused cannot claim the benefit of that provision.
The Court observed that though the words kuntham, kudachakram has some other literal meaning, in this context it cannot be said to be used in a respectful manner. The Court said that this has to been seen along with the statement that the Indian Constitution is ideal for looting people. The Court said that whether the words were used in a disrespectful manner depends on the manner, tone and the context in which the words are used and therefore it is a matter of perception. The Court, however added that, the determining factor is not the perception of the investigation officer, but of a reasonable man with common prudence – 'a person who can approach the words and the context, independently, and in a fair and proper manner.'
The Court said that the conclusion that the words were not intended in a disrespectful manner would not stand when the words themselves can manifest the intention. The Court observed that investigating officer should have considered the legislative intend in amending the Section and widening the scope of 'insult' to the Constitution.
The court further said,"The statutory amendment behind including the word 'disrespect' to the Constitution and the legislative intent ought to have been borne in mind by the investigating officer. Even without collecting the entire materials for connecting the accused with the nature of the offence alleged and even before receiving the report of the Forensic Science Laboratory, it was not proper for the Investigating Officer to have come to a conclusion that no offence had been made out".
The Court also noted that the footage of the speech was not part of the final report. Further, the court observed that statements were taken only from people who came to attend the speech and not from any media persons who had viewed the speech. The Court observed that the attendees to the meeting conducted by the political party are "most likely to have been prejudiced due to their affiliation to the political party".
"Hence relying only on those statements would not amount to a fair investigation," the court underscored.
The Court directed the State Crime Branch to conduct further investigation into the matter observing that investigation by a Station House Officer would not suffice for a sitting Minister, and set aside the final report.
Accordingly, the petition was allowed.
Counsel for the Petitioner: Adv. M. Baiju Noel
Counsel for the Respondents: Advocates Sreelal Warriar (SC), T.A. Shaji(Director General of Prosecution), P. Narayanan (PP), Sajju S. (Sr. GP)
Case No: WP(C) 1042/ 2024
Case Title: Adv. M. Baiju Noel v Additional Chief Secretary and Others
Citation: 2024 LiveLaw (Ker) 738
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