'Intolerance Of Orthodoxy A Bane Of Indian Society': Bombay HC Quotes AG Noorani, Quashes Case Against Kailash Kher For Hurting Religious Feelings In Song

Observing that 'intolerance and dissent' from the orthodoxy have been a 'bane' of the Indian society for centuries, the Bombay High Court on Wednesday quashed the criminal case initiated against Bollywood singer Kailash Kher, who was accused of hurting the religious sentiments of the Hindu community in his popular song 'Babam Bam' - a track on Lord Shiva.

A division bench of Justices Bharati Dangre and Shyam Chandak noted from the complaint filed by one Narinder Makkar before a court in Ludhiana, wherein he alleged that in the song sung by Kher in 2007, it can be seen that several girls and boys wearing clumsy clothes are dancing and even kissing each other, which has hurt the sentiments of the Hindu Community because the song was about Lord Shiva.

"In any case, it is not the allegation in the complaint that the lyrics sung by the petitioner as a singer had outraged the religious feelings of the complainant, but the only accusation, against him is that he is dancing with some girls, who were scantily dressed and in the song, the girl and boy are also kissing each other, which is display of vulgarity and this is alleged by the complainant, to hurt the religious feelings and emotions of the complainant," the bench noted. 

What is important to note in this whole scenario is the absence of the deliberate and malicious intention on the part of the petitioner, who is just singing the song, and in any case, he is not the producer of the album nor has he directed its filming/recording, the judges said.

"Merely because he is singing the song being surrounded by large number of people, who have independently performed the role assigned to them by the Director, according to us the ingredients of Section 295 A of IPC are not made out," the bench held.

Further, the judges emphasised that "every action which may be to the dislike of a class of people may not necessarily lead to outraging religious sentiments, as a person can be foisted with Section 295A if his action is intentional and malevolent, aimed at insulting religious feelings/ beliefs and would not cover an act which is not intended to outrage the religious feelings."

The judges, therefore, invoked AG Noorani, a famous author, historian and political analyst, and quoted him, "Intolerance of dissent from the orthodoxy of the day has been the bane of Indian society for centuries. But it is precisely in the ready acceptance of the right to dissent as distinct from its mere tolerance, that a free Society distinguishes itself."

While safeguarding the freedom of speech, the judges said, the burden lies on the complainant to prove the ingredients of Section 295A, as it is intended to deal with an offence more serious than the one punishable under Section 298 of the Penal Code, which relates to, oral words uttered in presence of the person with intention of wounding his religious feelings.

On the aspect of malice on part of Kher, as alleged by the complainant, the judges said, "A man acts maliciously when he wilfully and without lawful excuse does that which he knows will injure another in person or property. The term 'malicious' denotes ill-will or perversion, incorrigible disposition. It means and implies an intention to do an act which is wrongful to the detriment of another and whether a person has acted corruptly or maliciously is a question of fact which must be proved."

Therefore, the alleged act of the Petitioner, the judges said, though he is not the Director/Producer of the Album, but has only vocalised a song, which is pictured on him, with several other things going on in the background, probably is intended as a theme, will have to be tested against the fundamental right of freedom of speech and expression and liberty of conscience guaranteed to every citizen under the Constitution.

"Though the Constitution does not guarantee, it as an absolute right and reasonable fetters can be imposed by law, and many laws restrict free speech, such as laws against blasphemy, sedition or defamation, which derive their legitimacy from Article 19(2) of the Constitution," the bench observed.

As far as the offence under Section 298 of IPC is concerned, the bench noted that the complainant failed to make out even a "prima facie" case of his religious feelings being wounded with a deliberate intention attributed to the Petitioner.

"The lyrics of the song sung by the Petitioner is nothing but praise of Lord Shiva and the attributes of his mighty character and nothing else," the judges remarked. 

Therefore, the judges, quashed the bailable warrant issued against Kher way back in 2014 and even quashed the criminal complaint pending before a court in Ludhiana.

Appearance:

Advocates Ashok Saraogi, Priti Rao and Amit Dubey appeared for the Petitioner.

Additional Public Prosecutor DS Krishnaiyar represented the State.

Case Title: Kailash Mehar Singh Kher vs State of Maharashtra (Writ Petition 2291 of 2014)

Citation: 2025 LiveLaw (Bom) 91

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