Police Constitutionally Bound To Protect Freedom Of Expression; State Should Sensitize Officers On Constitutional Ideals: Supreme Court

The Supreme Court on Friday (March 28) emphasized that police officers, as part of the State under Article 12 of the Constitution, have a duty to abide by the Constitution and respect its ideals.Referring to Article 51A(a), which mandates citizens to abide by the Constitution and respect its institutions, the Court observed that officers must uphold the fundamental rights of individuals, particularly the right to freedom of speech and expression guaranteed under Article 19(1)(a).“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. The preamble 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. Therefore, liberty of thoughts and expression is one of the ideals of our Constitution.”A bench of Justice Abhay Oka and Justice Ujjal Bhuyan made these observations while quashing an FIR registered by the Gujarat Police against Congress Rajya Sabha MP Imran Pratapgarhi for his Instagram post featuring a video clip with the poem “Ae khoon ke pyase baat suno” in the background. The Court observed, “Article 19(1)(a) confers a fundamental right on all citizens to freedom of speech and expression. The police machinery is a part of the State within the meaning of Article 12 of the Constitution. Moreover, the police officers being citizens, are bound to abide by the Constitution. They are bound to honour and uphold freedom of speech and expression conferred on all citizens.”It noted that despite the Constitution being in force for over 75 years, police officers were often not sufficiently sensitized to their constitutional responsibilities. The Court urged the State to conduct massive training programs to ensure officers are aware of their obligations under the Constitution.“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 the ideals of the Constitution. 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.”The Court held that whenever information is received about alleged offences under Sections 196, 197, 299, or 302 of the Bharatiya Nyaya Sanhita (BNS), a police officer must read or hear the words in question to determine whether the information discloses a cognizable offence. For offences punishable with imprisonment between three to seven years, Section 173(3) of the BNSS is an exception to Section 173(1) provides the police with the option to conduct a preliminary inquiry, the Court noted, holding that a preliminary inquiry must be conducted before lodging the FIR, for certain offences dealing with speech and expressions which fall under the ambit of section 173(3).The case arose from an FIR registered in Jamnagar, Gujarat, against Pratapgarhi under Sections 196, 197, 299, 302, and 57 of the BNS. Section 196 relates to promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, or similar grounds, and committing acts prejudicial to the maintenance of harmony.The Court observed that, except for Section 57, all the other alleged offences were punishable by imprisonment of less than seven years. Moreover, Section 57 was inapplicable to the case, the Court stated. Therefore, the police officer had the discretion to conduct a preliminary inquiry under Section 173(3) of the BNSS the court said, noting that the officer chose not to exercise this option.The Court further noted that when a police officer declines to conduct a preliminary inquiry under Section 173(3) in such cases, it not only undermines the intent of the provision but also violates the State's obligation to protect constitutional freedoms. “If an option under sub-Section (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)”, the Court held.The Court emphasized that, even while fulfilling obligation under Section 173(1) of the BNSS to register an FIR if a cognizable offence is disclosed, police officers must be mindful of the rights guaranteed under Article 19(1)(a) and the exceptions outlined in Article 19(2).“Even while dealing with the performance of an obligation under sub-Section (1) of Section 173, where the commission of the offence is based on spoken or written words, the police officer...

Police Constitutionally Bound To Protect Freedom Of Expression; State Should Sensitize Officers On Constitutional Ideals: Supreme Court

Amisha Shrivastava

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