For 'Promoting Enmity' Offence, Words Must Not Be Judged On Standards Of Insecure People Or Those Seeing Criticism As Threat : Supreme Court
The Supreme Court on Friday (March 28) held that for an offence under section 196 (promoting enmity between groups) of Bharatiya Nyaya Sanhita alleged on the basis of written or spoken words, the standard to judge effect of the words should be that of a reasonable, firm, individual rather than an insecure person.“When an offence under section 196 of BNS is alleged, the effect of spoken...
The Supreme Court on Friday (March 28) held that for an offence under section 196 (promoting enmity between groups) of Bharatiya Nyaya Sanhita alleged on the basis of written or spoken words, the standard to judge effect of the words should be that of a reasonable, firm, individual rather than an insecure person.
“When an offence under section 196 of BNS is alleged, the effect of spoken or written words will have to be considered based on standards of reasonable, strong-minded, firm and courageous individuals and not based on standards of people with weak and oscillating minds. The effect of spoken or written words cannot be judged on the basis of standards of the people who always have a sense of insecurity or those who always perceive criticism as a threat to their power or position”, Justice Abhay Oka pronounced.
A bench of Justice Abhay Oka and Justice Ujjal Bhuyan quashed an FIR registered by the Gujarat Police against Congress Rajya Sabha MP Imran Pratapgarhi over his Instagram post featuring a video clip with the poem “Ae khoon ke pyase baat suno” in the background.
On the duty of police machinery, the Court said, “The police officers must abide by the Constitution and respect the ideals. The philosophy of the constitutional ideals can be found in the Preamble itself. The preamble lays down that the people of India solemnly decided to constitute India into a sovereign, socialist, secular, democratic, republic and to secure all its citizens liberty of thought. Therefore liberty of thought and expression is one of ideals of our Constitution. Police officers being citizens are bound to abide by the Constitution and they are bound to uphold the right.”
The Court held that normally if an offence is alleged under Section 196 BNS, recourse must be taken to Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita, which provides that for offences punishable with imprisonment between three to seven years, the police may conduct a preliminary enquiry within 14 days to establish a prima facie case, with prior approval from a Deputy Superintendent of Police (DSP). If a prima facie case exists, a full investigation proceeds.
“If the sentence is up to 7 years and when there are written words, normally recourse should be taken to Section 173(3) of so that fundamental rights are protected. And that needs to be considered in the context of Article 19(1)(a).
Justice Bhuyan added, “We have also added that Article 19(2) which speaks of reasonable restrictions must remain reasonable. It can't be fanciful or oppressive. It cannot overshadow Article 19(1).”
Background
The FIR, was registered in Jamnagar under Sections 196, 197, 299, 302, and 57 of the Bharatiya Nyaya Sanhita, 2023. Section 196 pertains to promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
On January 17, 2025, the Gujarat High Court refused to quash the FIR, noting that the poem's content had references to “the throne” and that responses to the post suggested a potential disturbance in social harmony. The High Court said that as an MP, Pratapgarhi was expected to know the repercussions of such posts and avoid actions that could disrupt social harmony.
The High Court observed that further investigation was necessary as Pratapgarhi had not cooperated with the investigation and failed to respond to notices requiring his presence before the police.
Pratapgarhi challenged the High Court's decision before the Supreme Court. On January 25, the Supreme Court issued notice in the matter and granted interim relief, directing that no further steps be taken concerning the FIR until further orders.
During subsequent hearings, the Supreme Court questioned the Gujarat Police's decision to register the FIR. Justice Oka criticized the lack of sensitivity shown by the police and remarked that the poem conveyed a message of non-violence. He said that the police must understand the freedom of speech and expression guaranteed under Article 19 of the Constitution.
Solicitor General Tushar Mehta for the State of Gujarat submitted that the public might have interpreted the poem differently. He also contended that Pratapgarhi was responsible for the actions of his social media team, which uploaded the video.
Senior Advocate Kapil Sibal for Pratapgarhi contended that the Supreme Court must criticise the High Court for its approach in this case.
The Supreme Court reserved its judgment on March 3.
Also from the judgment - Supreme Court Mandates Preliminary Inquiry Before FIR On Certain Offences Related To Speech & Expressions
Other reports about the judgment can be read here.
Case no. – Crl.A. No. 1545/2025
Case Title – Imran Pratapgadhi v. State of Gujarat
Citation : 2025 LiveLaw (SC) 362
