After 75 years of Constitution, police still ignorant of fundamental rights: Kunal Kamra to Bombay High Court

The Bombay High Court on Wednesday was told that the Mumbai Police was insisting on physically questioning stand-up comedian Kunal Kamra in the city despite the death threats he was receiving..A Bench of Justice Sarang Kotwal and Justice SM Modak was hearing the plea filed by Kamra seeking quashing of the first information report (FIR) registered by the Mumbai Police against him for his ‘gaddar’ (traitor) remark allegedly directed at Maharashtra Deputy Chief Minister Eknath Shinde..When the matter was taken up, counsel for the complainant said,"We have instructions to be present but not appear." To this, the Court replied,"What does it mean? Once you appear before the Court and waive notice...It's your duty to file reply. You understand the seriousness of appearing before High Court?".Appearing for Kamra, Senior Advocate Navroz Seervai told the Court that none of the offences mentioned in the first information report (FIR) are made out. He said that the criminal justice system was being misused at the behest of political groups to victimise and almost terrorise a person. Urging the Court to stay the investigation in the case, Seervai said,"All illegal or improper attempts at censorship are repelled by the Supreme Court since time immemorial because threat of criminal action leads to censorship, what our Court calls chilling effect."Pointing to the haste with which the FIR was registered by the Mumbai Police, he said,"Kindly see the timeline. He says he got the video clip at 9:30 on 23rd (March) made the complainant at 10:45 and the FIR is filed at 11:55 on 23rd.".On the allegation under Section 353(2) of the Bharatiya Nyaya Sanhita (BNS), which punishes public mischief that creates enmity between groups, Seervai said,"There is no identification of groups...There is not even an allegation...All political parties are competitors and all political parties behave with malice towards each other. They don't need a stand-up comedian for that. Nobody takes stand-up comedy at face value."On the police's insistence on Kamra appearing for questioning physically, he said,"It appears that my communication with police is reaching the media...These are the posters openly put up: 'Will kill you...Cut you into pieces.' Pictures are being burned...Police know this and yet they are insisting on my physical presence for a stand-up comedy show.".Seervai also referred to the Supreme Court's recent judgment in the Imran Pratapgarhi case, which criticised the Gujarat Police for lodging a case against the Congress leader over a poem he had recited. He went on to say,"Police failed to make a determination of whether offence is made out through a preliminary enquiry. Three summons demanding his physical presence despite physical threats...Madras High Court, taking note of the threats, gave interim relief. The police still gave a summons for Kamra to be present on April 5. And the harassing of elderly parents. To call a person who gave attended a show in an investigation. You can call the team that produced the show. This is sheer and completely malafide."On the authorities' disregard for the freedom of speech protected under Article 19 of the Constitution, he said,"This shows that even after 75 years of the existence of Constitution...Law enforcement machinery is ignorant of the fundamental right or does not care about the fundamental right."Arguing that it was a fit case for the Court to interfere, Seervai said,"Only when speech creates disturbance in public tranquility the law needs to step in...Illegal vandalism (in the aftermath of the stand-up show), however, is not an event affecting public tranquility...".The Court then queried,"Our question is whether filing of FIR is first stage then preliminary enquiry, or whether preliminary enquiry is first and then FIR. Since your contention is that FIR was filed before preliminary enquiry. We are not making any opinion...We need your assistance on this."Seervai replied,"...a plain reading of sub-section 3 (of Section 173 of Bharatiya Nagarik Suraksha Sanhita) is that preliminary enquiry precedes FIR. The phrase used is 'receipt of information' and nothing says it has to be written."At this point, the Court asked,"After Section 173, when to register FIR...does it say? When to file the FIR after preliminary enquiry?"Referring to the Supreme Court's judgment, Seervai said that the inquiry has to be conducted before FIR is registered."Where allegation is of an offence covered by clause (2) of Article 19...Section 173(3) is applicable. It is always recommended to conduct a preliminary enquiry so that fundamental rights remain protected. If in such cases, 173(3) is not exercised...it will defeat the purpose of including this sub-section.".During the previous hearing, the Court had issued formal notice to the State and the complainants, and sought their responses to Kamra's plea. The matter was adjourned in light of the fact that the Madras High Court had already granted Kamra anticipatory bail in the matter till April 17.Kamra had first sought anticipatory bail by moving the Madras High Court since he is a resident of Villupuram in Tamil Nadu. He later moved the Bombay High Court to quash the FIR..Kamra, during his stand-up show Naya Bharat, performed a parody song that reportedly referred to Deputy CM Eknath Shinde as a 'gaddar' (traitor), alluding to his defection from Uddhav Thackeray’s Shiv Sena to join hands with the BJP. This led to a split in the party and the rise of Shinde’s faction to power through a BJP coalition.Kamra was booked under Sections 353(1)(b), 353(2), and 356(2) of the BNS after Shiv Sena legislator Muraji Patel filed a complaint. The FIR was lodged in Mumbai, despite Kamra being a resident of Tamil Nadu..According to Kamra’s petition, the FIR was filed hastily, just 70 minutes after the complaint, without a proper legal process and without a preliminary enquiry as required under Section 173(3) of the BNSS.He told the Court that the FIR was violative of his constitutional right to free speech. Kamra also highlighted the police's insistence on his physical presence for questioning, despite ongoing death threats and his requests for video conferencing. Kamra said he has received over 500 threatening emails and messages.Additionally, Kamra pointed to harassment of audience members from the show, summons issued to them and a vandalised venue where the police were present but took no action..Pertinently, Kamra argued that the FIR lacks legal merit, particularly under Section 356(2) of the BNSS, which mandates that defamation cases can be initiated only by the person actually aggrieved by the offence and not a third party. In this case, Kamra pointed out that Eknath Shinde has not claimed that he is personally aggrieved and the FIR has been lodged at the instance of someone else.The petition further asserted that even if the allegations in the FIR were taken at face value, they would not constitute a cognizable offence under Sections 353(1)(b) and 353(2) of the BNSS..Specifically, Kamra argued that his speech "was not false nor did it amount to a rumour" and that there was no intent to cause fear or alarm to the public. Regarding the charge under Section 353(2) of the BNSS, the petition emphasised that Kamra’s comments were satirical and intended to ridicule and criticise events in relation to the split of the Shiv Sena. The comments do not promote enmity, hatred or ill-will between any groups, Kamra argued..[Read a live account of today's hearing]