A bench of Justices Abhay S Oka and Ujjal Bhuyan outlined the importance of preserving the fundamental right of freedom of speech and expression under Article 19 (1) (a) of the Constitution.
The Supreme Court on Monday said the freedom of speech and expression had to be understood by police "at least now" after 75 years of the Constitution as it reserved the verdict on a plea of Congress MP Imran Pratapgarhi to quash an FIR against him for allegedly sharing a provocative song.
A bench of Justices Abhay S Oka and Ujjal Bhuyan outlined the importance of preserving the fundamental right of freedom of speech and expression under Article 19 (1) (a) of the Constitution.
“When it comes to the freedom of speech and expression, it has to be preserved,” Justice Oka said.
The judge went on, “Some sensitivity has to be shown by the police before registering an FIR. They must at least read and understand (the article of the Constitution). Seventy-five years after the Constitution, the freedom of speech and expression has to be at least now understood by the police."
Justice Oka pointed out it was "ultimately a poem" and, in fact, promoted non-violence.
"There seems to be some issue with its translation," Justice Oka said, "it is not against any religion. This poem indirectly says even if somebody indulges in violence, we will not indulge in violence. That is the message which the poem gives. It is not against any particular community."
An FIR was lodged against Pratapgarhi on January 3 for the alleged provocative song during a mass marriage function he attended in Gujarat's Jamnagar.
Solicitor general Tushar Mehta, appearing for the Gujarat police, said the poem was "sadak chhap" (pedestrian) in nature and couldn't be attributed to renowned poet and author like Faiz Ahmad Faiz.
“It was the video message (of the MP) which created the trouble,” he said.
Senior advocate Kapil Sibal, appearing for the MP, said it was Pratapgarhi's team, not the politician who shared the video message.
Mehta said the MP would be held accountable even if his team uploaded the video message on his social media account.
“Leave granted. Submissions heard. Judgement reserved,” the bench said.
Sibal had previously said the high court order was bad in law as the judge did "violence" to the law.
The apex court on January 21 stayed the proceedings against Pratapgarhi for allegedly posting an edited video of the song in question and issued notice to the Gujarat government and complainant Kishanbhai Deepakbhai Nanda on his appeal.
The Congress leader challenged the January 17 order of the Gujarat High Court which dismissed his petition for quashing the FIR filed against him saying the investigation was at a very nascent stage.
Pratapgarhi, national chairman of the Congress' minority cell, was booked under Sections 196 (promoting enmity between different groups on the basis of religion, race, etc.) and 197 (imputations, assertions prejudicial to national integration) of Bharatiya Nyaya Sanhita, among others.
The 46-second video clip, uploaded by Pratapgarhi on X, showed flower petals being showered at him as he walks waving his hands with a background song, the lyrics of which the FIR alleged was provocative, detrimental to national unity and hurting religious feelings.
In his plea to quash and set aside the FIR, he claimed the poem carried "a message of love and non-violence".
Pratapgarhi said the FIR was used as a tool to harass him and lodged with a "malicious intent and malafide motives" while claiming he was implicated as he was a Congress member.
Public prosecutor Hardik Dave had opposed the plea saying the words of the poem clearly indicate the rage to be raised against the throne of the state.
Dave said though a notice was issued on January 4 asking Pratapgarhi to remain present on January 11, he was not available and another notice was issued on January 15.
The high court on January 17 referred to the material of the prosecution and said after the post was shared on social media, the response received from the various persons of the community indicated the repercussions were "very serious" and certainly disturbed the social harmony of the society.