The Bombay High Court recently quashed the criminal case filed against renowned singer Kailash Kher, accused of hurting religious sentiments through his song Babam Bam. The court emphasized that intolerance of dissent has been a long-standing issue in Indian society and reiterated the importance of freedom of speech.
Case Background
The case originated from a complaint filed by Narinder Makkar in Ludhiana, alleging that the video of Babam Bam—a devotional song dedicated to Lord Shiva—contained visuals of scantily clad individuals dancing and kissing, which allegedly hurt the religious sentiments of the Hindu community. The complaint led to the filing of a case under Section 295A and Section 298 of the Indian Penal Code (IPC).
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However, the Bombay High Court bench, comprising Justices Bharati Dangre and Shyam C. Chandak, observed that mere dislike or disagreement by a section of society does not automatically translate into an offense under these provisions.
Court's Observations
- The court pointed out that there was no deliberate or malicious intent on the part of Kher to insult religious beliefs. The song in question was simply a musical composition praising Lord Shiva, and Kher was neither the producer nor the director of the video. "In any case, it is not the allegation in the complaint that the lyrics sung by the petitioner as a singer had outraged religious feelings."
- The court referred to constitutional provisions safeguarding freedom of speech and expression, acknowledging that while certain reasonable restrictions exist, mere discontent by a group of people does not justify criminal prosecution. "Every action that may be disliked by a certain group cannot be considered an offense unless there is clear intent to outrage religious feelings."
- The court reiterated that Section 295A of IPC penalizes only deliberate and malicious acts intended to outrage religious sentiments. It cited Ramji Lal Modi v. State of Uttar Pradesh (1957), which clarified that unintentional actions or carelessness do not fall under this provision. "Insults to religion offered unwittingly or carelessly without deliberate intent to offend are not covered under Section 295A."
- The court also referred to legal scholar AG Noorani, emphasizing that intolerance towards differing views has been a persistent problem in India. "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."
- The court noted that before prosecuting someone under Section 295A, prior sanction under Section 196(1) of the CrPC is necessary. Since no such sanction was obtained, the prosecution was legally unsustainable.
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The Bombay High Court ruled that the complaint failed to establish any prima facie case under Sections 295A and 298 IPC. The court concluded that Kher’s act was not intended to cause harm and that the allegations did not hold sufficient legal ground.
"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."
As a result, the criminal complaint and bailable warrant issued against Kher in 2014 were quashed.
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)
