Pratapgarhi approached the High Court (HC) of Gujarat to quash the FIR. The HC refused, on the ground that the investigation was still at a “nascent stage”. This, then, brought him to the Supreme Court. The apex court set aside the judgment of the HC. It held that no case was made out at all, and that the FIR deserved to be quashed. In doing so, the bench of Justices Abhay Oka and Ujjal Bhuyan did two important things — one substantive and one procedural.

On the substantive issue, the Court made clear that none of the elements of any of the invoked criminal law sections had been made out. The poem had nothing to do with any community, race, or religion, it did not jeopardise the country’s integrity, and nor did it call for violence. One may think that this is rather basic — indeed, the Court spent around 10 pages listing out the sections that the police had invoked, and then simply noting that it was self-evident that none of these was attracted in the case. However, it is worth remembering that this case only arrived at the Supreme Court because both the police and the HC seemed to believe that there was at least some substance to the allegations. In such a situation, then, there is perhaps some value to the Court reiterating even the basics.

The Supreme Court went on to note that 75 years into the Republic, it was unreasonable to believe that India’s integrity was so fragile that it could be threatened by a few innocuous verses — even if those verses used extravagant or hyperbolic language. The standard from which to judge speech was that of the “reasonable, strong-minded, firm and courageous individuals,” and not those with “weak or oscillating minds.” Once again, this has long been the legal standard, but far too often, courts themselves seem to have forgotten it. It was also important to read the disputed speech or writing as a whole, and not to pick out stray passages out of context.

The Court further noted that the views of the social majority were irrelevant when it came to the protection of the right to free speech. As the Court held, “even if a large number of persons dislike the views expressed by another, the right of the person to express the views must be respected and protected. Literature including poetry, dramas, films, stage shows, satire and art, make the life of human beings more meaningful.” At a time at which we are seeing vigilante attacks on comedians such as Kunal Kamra, and spaces of artistic performance, for the crime of causing “offence”— and at a time during which the police have sent notices to those who attended the allegedly “offensive” comedy show — this reminder is most salutary.

In free speech terminology, the ability of powerful social groups to stifle speech, often through forceful means, is called “the heckler’s veto”. In the Imran Prataphgarhi judgment, the Court clearly set its teeth against the heckler’s veto. Indeed, the Court went even further, and observed that “sometimes, we, the judges, may not like spoken or written words. But, still, it is our duty to uphold the fundamental right under Article 19 (1)(a)”.

In the context of the ongoing Supreme Court proceedings with respect to Ranveer Allahbadia — which the present author critiqued in a previous article — it is difficult not to see this as an invitation for some institutional self-reflection. In repeatedly berating Allahbadia for a crass joke that was apparently cracked on his YouTube channel, and by inviting the State to impose restrictions upon online speech to protect “social mores”,” the Court appears to be blurring the lines between speech that it — or a majority in society — dislikes, and the fundamental right to free speech. In the Imran Pratapgarhi judgment, the Court issued a mild warning against giving in to the temptation to blur those lines, and a reminder that the judicial duty, above all else, is to protect fundamental rights, even for — indeed, especially for — speech that is disliked.

However, perhaps the real bite of the judgment lies in its procedural element. The Supreme Court interpreted the new criminal laws to hold that before registering an FIR and setting the wheels of the criminal law in motion, when it came to speech-based offences — where the quantum of punishment upon sentencing was seven years or less — it was incumbent upon the police to conduct a preliminary enquiry. During this preliminary enquiry, the police would have to read the speech — or writing — as a whole, and consider whether the content of the speech actually fell within the elements of the criminal law provisions that it was purporting to invoke, in the context of the legal and constitutional standards set out in the judgment.

This procedural innovation — which the Supreme Court brought in for the first time — is important, as one of the reasons why persecuting and censoring speech in India is so easy is because of the extremely low cost to the State. It takes almost nothing to register an FIR and initiate criminal proceedings — indeed, until this judgment, there was an argument that upon receipt of a complaint, the police had no choice but to register an FIR. Now, however, the requirement of a preliminary enquiry — which, in turn, requires demonstrable application of mind by the police —increases the costs of censorship. This will — it is to be hoped — reduce the ease with which speech can be criminalised.

Of course, the proof of the pudding is in the eating, and it remains to be seen what positive impact the Supreme Court’s judgment will have on the ground. Kunal Kamra — who presently faces FIRs for his comedy show in Bombay — might well be the first test case to determine that!

Gautam Bhatia, a Delhi-based advocate, is the author of Offend, Shock or Disturb: Free Speech Under the Indian Constitution. The views expressed are personal