SC mandates preliminary inquiry before FIR in free speech-related cases

As police often book individuals for alleged objectionable exercise of free speech and expression, the Supreme Court has mandated preliminary enquiry before registration of FIRs, if the offences alleged are punishable with imprisonment between three to seven years.

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A Bench led by Justice AS Oka – which on Friday quashed a Gujarat Police FIR against Congress MP Imran Pratapgarhi for allegedly posting a clip of a provocative poem on a social media platform – sought to emphasize the fact that Article 19(2) of the Constitution—that authorises the state to impose “reasonable restrictions” on free speech on certain grounds—carves out an exception to the fundamental right guaranteed under Article 19(1)(a) of the Constitution.

“If there is a law covered by clause (2), its operation remains unaffected by sub-clause (a) of clause (1). We must remember that laws covered by clause (2) are protected by way of an exception provided they impose a reasonable restriction. Article 19(2) is an exception to the freedom enumerated under Article 19(1)(a). 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), including the right to freedom of speech and expression,” it said.

The Bench said in cases involving exercise of free speech under Article 19(1)(a), the police should conduct a preliminary enquiry to ascertain if a prima facie case was made out, instead of directly filing an FIR.

Therefore, it said, “When an allegation is of the commission of an offence covered by the law referred to in clause (2) of Article 19, if sub-Section (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused. This will ensure that the fundamental rights guaranteed under sub-clause (a) of clause (1) of Article 19 remain protected.”

A five-judge Bench of the Constitution Bench in Lalita Kumar versus State of Uttar Pradesh (2013) held that a preliminary inquiry is permissible if the information received does not disclose a cognizable offence and indicates the necessity for an inquiry.  A preliminary inquiry must be conducted only to ascertain whether a cognizable offence is disclosed, it said.

However, Section 173(3) of the BNSS makes a significant departure from Section 154 of the CrPC as the former provides that when information relating to the commission of a cognizable offence punishable for 3 years or more but less than 7 years is received by an officer-in-charge of a police station, the police officer is empowered to conduct a preliminary inquiry, with the prior permission of a superior officer, to ascertain whether there exists a prima facie case for proceeding in the matter.

The top court said, “Therefore, in such cases (involving exercise of free speech), the higher police officer referred to in sub-Section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry…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 sub-Section (3) of Section 173 and conduct a preliminary inquiry to ascertain whether there exists a prima facie case to proceed.”

It said, “If an option under Section 173(3) is not exercised by the police officer in such a case, he may end up registering an FIR against a person who has exercised his fundamental right under Article 19 (1)(a) even though clause (2) of Article 19 is not attracted. If, in such cases, the option under sub-Section (3) of Section 173 is not exercised, it will defeat the very object of incorporating sub-Section (3) of Section 173 of the BNSS and will also defeat the obligation of the police under Article 51-A (a) i.e. fundamental duty to abide by the Constitution and respect its ideals and institutions.