Disrespect Shown To Constitution By Words Or Acts Constitutes Offence: Kerala HC

While making it absolutely clear that disrespect shown to the Constitution by words or acts constitute offence, the Kerala High Court in a most pragmatic, pertinent, persuasive and progressive judgment titled Adv. M. Baiju Noel vs Additional Chief Secretary (Home & Vigilance), Secretariat in W.P. (Crl.) No. 1042 of 2024 and Crime No. 600/2022 of Keezhvaipur Police Station, Pathanamthitta Against The Order dated 15.05.2023 In CMP No.617 of 2023 of Judicial Magistrate of First Class, Thiruvalla and cited in Neutral Citation: 2024:KER:87228 and finally pronounced on November 21, 2024 has ordered a Crime Branch probe into a 2022 incident in which it was alleged that the then State Minister of Fisheries, Culture and Youth Affairs - Saji Cherian while addressing a public function at Pathanamthitta made certain remarks which were disrespectful and insulting to the Constitution of India. It must be recalled that Saji found himself in hot water after he said astonishingly that, "India has the ideal Constitution to loot the maximum number of people. The Constitution prepared by the British was written by an Indian. It has been implemented in this country for 75 years. It is written in the Indian Constitution that there will be secularism, democracy, 'kuntham', 'kodachakram'." He said clearly that values like "secularism" and "democracy," the "kuntham and kodachakram" (spear and wheel), were just inscribed on its (Constitution) sides.

It was due to eruption of this unwarranted controversy that culminated his resignation from Kerala Chief Minister Pinarayi Vijayan's Cabinet. He was later reinstated in 2023 after a Thiruvalla court accepted a police report clearing him of any wrongdoing. He said explicitly that the Constitution of India was used to exploit commoners at a party meeting on July 3, 2022 in Mallappally in Pathanamthitta district in Malayalam language. What merits consideration is that the Kerala High Court's order came in a petition that had been moved by a lawyer practicing before the Kerala High Court - Advocate M Baiju Noel who contended that Cherian made highly derogatory and insulting remarks against the Constitution of India with a deliberate intention to ridicule and insult the Constitution in public view. Noel underscored that such an act is punishable under Section 2 of the Prevention of Insults to National Honour Act, 1971 (the Act).

We need to note that the Bench was most categorical in holding that, "The provision as it now stands indicates that even disrespect shown to the Constitution or to any part of it, by words either spoken or written or by acts can amount to a conduct that falls foul of the statute. Of course, the explanation categorically excludes any criticism of the Constitution or disapprobation of the Constitution if it is for the purpose of obtaining an amendment of the Constitution by lawful means." The Bench was most forthright in holding that even without collecting the entire materials for connecting the accused with the nature of the offence alleged and even before receiving the report of the Forensic Science Laboratory, it was not proper for the Investigating Officer to have come to a conclusion that no offence had been made out. Absolutely right!

At the very outset, this robust, remarkable, rational and recent judgment authored by the Single Judge Bench comprising of Hon'ble Mr Justice Bechu Kurian Thomas of Kerala High Court sets the ball in motion by first and foremost putting forth in para 1 that, "Constitution is not a mere lawyers document, it is a vehicle of life and its spirit is always the spirit of age. If things go wrong in the new Constitution, the reason will not be that we had a bad Constitution, but what we will have to say is that Man was vile." B.R Ambedkar's above words of wisdom must ring in the mind of every Indian citizen who is bound to uphold the Constitution and its ideals. They have particular relevance while appreciating the controversy arising in the instant case."

As we see, the Bench then discloses in para 2 stating that, "Petitioner seeks for a direction to set aside the final report filed in Crime No. 600/2022 of Keezhvaipur Police Station. He also challenges an order dismissing his petition for further investigation into the above crime. A direction is also sought to entrust the re-investigation of the above crime with the Central Bureau of Investigation."

To put things in perspective, the Bench envisages in para 3 while going to the root of the matter observing that, "On 03.07.2022, Sri. Saji Cherian, the then Minister of Fisheries and Agriculture, Government of Kerala, while addressing a public function at Pathanamthitta made certain remarks which are alleged to be disrespectful and insulting to the Constitution of India. Several persons, including the petitioner, submitted written complaints to the police. However, when his complaint did not result in the registration of a crime, petitioner approached the jurisdictional Magistrate. Pursuant to a reference under section 156(3) Cr.P.C, FIR No.600/2022 of Keezhvaipur Police Station was registered alleging the commission of an offence under section 2 of the Prevention of Insults to National Honour Act, 1971 (for short 'the Act')."

Briefly stated, the Bench enunciates in para 4 mentioning that, "According to the FIR, on 03.07.2022, the accused had, in a public function made a speech that "……" and thereby disrespected the Indian Constitution and thus committed an offence under section 2 of the Act. (The literal translation of the above words is as follows: "India has the ideal Constitution to loot the maximum number of people. The Constitution prepared by the British was only written by an Indian. It has been implemented in this country for 75 years. It is written in the Indian Constitution that there will be secularism, democracy 'Kuntham' 'Kodachakram'.")."

As it turned out, the Bench then discloses in para 5 revealing that, "After completing the investigation, a final report was filed 'dropping further proceedings' by concluding that the accused had no intention to disrespect the Constitution of India in his speech. On receipt of notice of the final report, petitioner filed Crl.M.P No.617/2023 before the Judicial First Class Magistrate Court, Thiruvalla to reject the report and to direct further investigation. The learned Magistrate by order dated 15.05.2023 dismissed the said petition after observing that though the pen drive and the CD containing the speech had been forwarded to the Forensic Laboratory, the investigating officer had recorded the statement of 39 witnesses and came to the conclusion that there was no disrespect shown to the Constitution and the circumstances do not warrant a further investigation into the said aspect. As mentioned earlier, the aforesaid order is also challenged."

Simply put, the Bench then lays bare in para 8 that, "In this context, it needs to be mentioned that the learned Director General of Prosecution made the case diary available for the court's perusal. Later, a pen drive containing the speech was also handed over. Both were perused and viewed by the Court."

As things stands, the Bench then stipulates in para 9 stating precisely that, "The issues that arise for consideration are (i) Whether this writ petition under Article 226 of the Constitution of India is maintainable?, (ii) Whether the order dismissing the petition for further investigation filed by the defacto complainant is liable to be set aside? and (iii) Whether further investigation or re-investigation is required to be directed and if so by whom?"

Do note, the Bench notes in para 10 that, "The reliefs sought for in this writ petition are manifold. Apart from challenging an order dismissing an application for further investigation, petitioner has also sought a re-investigation by the CBI. Direction to re-investigate a case or to direct the CBI to conduct an investigation can be issued only by a Constitutional Court. Reference to the decision in Vinay Tyagi v. Irshad Ali @ Deepak and Others [(2013) 5 SCC 762] is relevant in this context. Hence this writ petition under Article 226 of the Constitution of India is maintainable."

Be it noted, the Bench notes in para 12 that, "Even otherwise, it is settled that the High Court can exercise its power of judicial review in criminal matters and the power conferred on the High Court under Article 226 and Article 227 of the Constitution of India and under S.482 of the Code of Criminal Procedure, 1973 has no limits except for the self-imposed restrictions. In the decision in M/s. Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [(1998) 5 SCC 749] the Supreme Court had after elaborately considering various decisions including those in State of Haryana and Others v. Bhajan Lal and Others 1992 (1) SCC Supp 335, and Nagendra Nath Bora and Another v. The Commissioner of Hills Division and Appeals, Assam and Others [AIR 1958 SC 398] observed that the power of judicial interference under Art.227 of the Constitution with orders of judicial or quasi-judicial nature are not greater than the power under Art.226 of the Constitution. Under Art.226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. It was also observed that the nomenclature under which the petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which it otherwise possesses unless there is a special mandatory procedure prescribed. The Court went on to hold that if in a case the Court finds that the litigant could not invoke its jurisdiction under Art.226, the Court can certainly treat the petition as one under Art.227 or S.482 of the Code. Hence, the contention raised by the learned Director General of Prosecution regarding the non-maintainability of this writ petition is rejected."

Most significantly, the Bench while referring to Section 2 of "Insults to Indian National Flag and Constitution of India" and violation of which entails punishment of imprisonment which may extend to three years or fine or both, the Bench propounds in para 16 what constitutes the cornerstone of this notable judgment postulating that, "A perusal of the above provision indicates that the words "otherwise shows disrespect to" were not part of the statute initially. The provision contained only the words "otherwise brings into contempt the Constitution of India or any part thereof". Thus prior to 2003, what was made punishable under the Act was only burning, mutilation, defacement, difiling, disfiguring, destroying, trampling upon or bringing into contempt by words either spoken or written or by acts the National Flag or the Constitution or any part of it. However, by the amending Act 31 of 2003, a wider terminology was brought in. The words "shows disrespect" were added. The Statements of Objects and Reasons for the Amending Act 31 of 2003 do indicate that the intention of the amendment was "to widen the scope of the expression insult". The provision as it now stands indicates that even disrespect shown to the Constitution or to any part of it, by words either spoken or written or by acts can amount to a conduct that falls foul of the statute. Of course, the explanation categorically excludes any criticism of the Constitution or disapprobation of the Constitution if it is for the purpose of obtaining an amendment of the Constitution by lawful means."

Equally significant and what cannot be lost sight of is that the Bench expounds in para 17 holding that, "Though this Court enquired with the learned Director General of Prosecution as to the meaning of the term à´•à´¨ à´• à´Ÿà´šà´•, (kuntham, Kudachakram), the same could not be explained. Independently those words mean 'spear' and 'a type of firecracker'. However, it is a matter of common perception in the Malayalam language, that those words, when spoken in collocation with each other, cannot be stated to be used in a respectful manner. Thus the words used by the Minister in his speech, like "ideal Constitution to loot the people" or the words "secularism, democracy 'Kuntham' 'Kudachakram' cannot be terms of respect generally. But the question that begs the answer is whether the context in which those terms were used shows disrespect to the Constitution. The statement that the Indian Constitution is ideal for looting the people does not leave much room for discussion. There cannot even be two views on that statement. However, the expression "secularism, democracy 'Kuntham' 'Kudachakram' is obviously referring to the Preamble which is a part of the Constitution. The said expression cannot be stated to be used with respect and the answer to the question posed, as far as the latter of the contentious statement is concerned, lies in the context, the manner and the tone in which those expressions were used. That, in fact, is a matter of perception. However, the perception of the investigating officer is not the determining factor. What is decisive is the perception of a reasonable man of common sense and prudence - a person who can approach the words and the context, independently, and in a fair and proper manner."

It is worth noting that the Bench notes in para 18 that, "The prosecution has no case that the meeting held on 03.07.2022 was one intended to bring about a change or a debate on the Constitution. Hence the accused cannot claim the benefit of Explanation No.1 to the provision. The investigating officer referred the case stating that there was no intention behind the words to disrespect the Constitution. It is difficult to comprehend the said conclusion and the manner in which such a conclusion was arrived at. Intention must be gathered from the circumstances and contextually, the words used. In fact certain words by themselves can manifest the intention. When the statutory intention is explicit that no member of the public shall disrespect the Constitution, and when the words themselves can manifest the intention, the conclusion of the Investigating Officer is not legally tenable. Even otherwise, when the words used are not respectful, the surrounding circumstances are necessary to conclude whether they were used disrespectfully or not. The report of the forensic laboratory and the video and audio recording of the speech become relevant in this context."

Most forthrightly, the Bench pointed out in para 19 that, "The statutory amendment behind including the word 'disrespect' to the Constitution and the legislative intent ought to have been borne in mind by the investigating officer. Even without collecting the entire materials for connecting the accused with the nature of the offence alleged and even before receiving the report of the Forensic Science Laboratory, it was not proper for the Investigating Officer to have come to a conclusion that no offence had been made out. In the decision in Tomaso Bruno and Another v. State of Uttar Pradesh [(2015) 7 SCC 178], the importance of the production of scientific and electronic evidence was explained. It was observed that the non-production of CCTV footage can amount to withholding the best evidence. It was also observed that courts in that case went wrong in believing the investigating agency's version that footage had been viewed but nothing relevant was found without bringing the footage on record. In the instant case, the pen drive and CD containing the footage were sent for forensic examination, yet the report has not been made available. Hence the CCTV footage was not even part of the final report and the Magistrate had no opportunity to even ascertain the correctness of the conclusion of the investigating officer."

While continuing in the same vein, the Bench mandates in para 20 stating that, "The learned Magistrate also erred in accepting the final report without noticing that there were several witnesses like the media persons who had viewed or published the speech. Those persons were not questioned nor were their statements taken. Further, the investigating officer came to the conclusion solely on the basis of the statements given by persons who attended the meeting conducted by a political party. The statements of those witnesses who attended the meeting are likely to have been prejudiced due to their affiliation to the political party. Hence relying only on those statements would not amount to a fair investigation. In this context also, the CCTV footage and the pen drive can become relevant. Thus the conclusion arrived at by the investigating officer was in haste and without proper appreciation. This Court is satisfied that the investigation conducted into Crime No.600/2022 was not proper and the learned Magistrate went wrong in accepting the final report. On a consideration of the entire circumstances, this Court is of the view that the final report ought to be set aside and a further investigation be conducted."

It would be worthwhile to note that the Bench notes in para 21 that, "Re-investigation ought to be ordered only in exceptional cases as held in Vinay Tyagi v.Irshad Ali @ Deepak and Others [(2013) 5 SCC 762]. It wipes away the earlier investigation. No circumstance exists to order a re-investigation. However, this Court has already found that a further investigation is required, and since the accused is a Minister of the State, the investigation by the Station House Officer will not suffice and a superior agency is required. The further investigation hence ought to be conducted by the State Crime Branch."

Finally, the Bench then concludes by holding in para 22 stating that, "Accordingly, the impugned order dated 15.05.2023 passed by the learned Judicial First Class Magistrate Court, Thiruvalla in Crl.M.P No.617 of 2023 is set aside, and a further investigation is ordered into Crime No.600/2022, which shall be conducted by the State Crime Branch. The State Police Chief shall immediately pass appropriate orders handing over further investigation of Crime No.600/2022 to the State Crime Branch with an Officer of integrity to lead the investigation. Needless to mention, the investigation shall be completed without undue delay. The writ petition is allowed as above."

In sum, it is now indubitably clear as can be inferred clearly by this noteworthy judgment of the Kerala High Court that disrespect shown to Constitution by words or acts constitutes offence. It is thus a no-brainer that words that are made in disrespect and that are in insult to the Constitution of India would certainly constitute an offence and we see here in this leading case that Kerala High Court very rightly orders State Crime Branch to probe into it! No denying or disputing it!