Supreme Court disapproves of direct FIRs in free speech case, says conduct prelim inquiry first

The Supreme Court on Friday mandated that police officers should conduct a preliminary inquiry before registering a first information report (FIR) in cases involving “spoken or written words”, establishing a robust legal precedent that will likely impact future cases involving free speech in India by introducing a critical layer of immunity.

A bench of justices Abhay S Oka and Ujjal Bhuyan remained emphatic that police officials are “bound to honour and uphold freedom of speech and expression conferred on all citizens” and that direct registration of FIRs in cases involving speech, drama, satires, stand-up comedy acts, poems or artworks has the propensity of stifling the fundamental right. The ruling is a part of the judgment that quashed an FIR against Congress parliamentarian Imran Pratapgarhi.

At the heart of the ruling is the court’s interpretation of Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which introduced a critical procedural safeguard. The provision allows for a preliminary inquiry when the alleged offence carries a punishment of three years or more but less than seven years. The court clarified that in cases where the alleged offence is based on spoken or written words, it is essential to ascertain whether a prima facie case exists before an FIR is registered.

“In a case where sub-Section (3) of Section 173 is applicable, even if the information pertaining to the commission of any cognizable offence is received, an inquiry can be conducted to ascertain whether a prima facie case exists for proceeding in the matter. The intention appears to be to prevent the registration of FIRs in frivolous cases where punishment is up to seven years, even if the information discloses the commission of the cognizable offence,” it said.

According to the ruling, “it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused” in cases where allegations relate to breaching the limits of free speech right. This the bench held, “will ensure that the fundamental rights guaranteed Article 19 (1)(a) remain protected”.

The court pointed that BNSS provides for approval of higher police officers for conducting a preliminary inquiry. “In such cases, the higher police officer must normally grant permission to the police officer to conduct a preliminary inquiry. Therefore, when the commission of cognizable offences is alleged, where punishment is for imprisonment up to 7 years, which is based on spoken or written words, it will always be appropriate to exercise the option under Section 173 (3) and conduct a preliminary inquiry to ascertain whether there exists a prima facie case to proceed,” maintained the ruling.

This crucial interpretation ensures that police officers cannot automatically register an FIR solely based on allegations but must first determine whether the speech in question actually constitutes an offence under the law.

Going beyond procedural aspects, the judgment reiterates the constitutional duty of the police to uphold free speech rights. It reminds law enforcement agencies that their powers are not absolute and must align with the constitutional philosophy that places free expression as a cornerstone of democracy.

“The police officers must abide by the Constitution and respect its ideals. The philosophy of the Constitution and its ideals can be found in the preamble itself, which lays down that the people of India have solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic and to secure all its citizens liberty of thought, expression, belief, faith and worship,” it highlighted.

Furthermore, the bench noted that any restrictions on free speech must be reasonable and proportionate, cautioning against the misuse of exceptions carved out under Article 19(2). The ruling explicitly warns that: “The reasonable restrictions provided for in Article 19(2) must remain reasonable and not fanciful and oppressive. Article 19(2) cannot be allowed to overshadow the substantive rights under Article 19(1)(a).”

The judgment drew from past precedents and reinforces the necessity of applying the “reasonable, strong-minded, firm and courageous individual” standard when assessing whether speech should be criminalized.

Quoting the landmark Nagpur high court ruling in Bhagwati Charan Shukla Vs Provincial Government, CP & Berar (1946), which has been upheld in subsequent Supreme Court cases, the judgment asserts: “The effect of the spoken or written words will have to be considered based on standards of reasonable, strong-minded, firm and courageous individuals and not based on the standards of people with weak and oscillating minds. The effect of the spoken or written words cannot be judged on the basis of the standards of people who always have a sense of insecurity or of those who always perceive criticism as a threat to their power or position.”

Recognising the need for institutional change, the Supreme Court also stressed that police officers should be educated and trained to respect constitutional rights. The judgment calls for massive training programs to sensitize law enforcement about their duty to uphold the principles of free speech, stating: “The Constitution is more than 75 years old. By this time, the police officers ought to have been sensitized about their duty of abiding by the Constitution and respecting its ideals. If the police officers are not aware of these obligations, the State must ensure that they are educated and sensitized by starting massive training programs.”