The New Rule of Preliminary Inquiry in Speech-Related Offences and Protection of Freedom of Expression

1. Introduction

In this landmark decision of the Supreme Court of India in the matter of Imran Pratapgadhi v. State of Gujarat (2025 INSC 410), the Court clarifies and underscores several critical aspects concerning the intersection of freedom of speech and expression (Article 19(1)(a) of the Constitution of India) and the criminal provisions under the Bharatiya Nyaya Sanhita (BNS) as well as the Bharatiya Nagarik Suraksha Sanhita (BNSS). The crux of the controversy revolved around a poem recited in the background of a social media post. This poem allegedly incited communal disharmony and hatred; however, upon judicial scrutiny, the Court held that it did not violate any penal provision and instead reinforced the importance of free speech.

The appellant, a Member of Parliament, had posted a video clip on social media containing certain verses. The police registered a First Information Report (FIR) against him, mainly under Sections 196, 197(1), 302, 299, 57, and 3(5) of the BNS without undertaking any prior assessment of whether or not the poem truly disclosed a cognizable offence. In this judgment, the apex Court quashed the FIR, emphasizing that the police ought to conduct a preliminary inquiry under Section 173(3) of the BNSS when it comes to speech-related allegations that do not on their face constitute cognizable offences.

The key issues at the heart of this case were:

• Whether the poem recited by the appellant had the effect of promoting enmity or hatred among communities.
• Whether registering an FIR without any preliminary screening (especially in peaceable speech situations) infringed upon the fundamental right to free speech guaranteed under Article 19(1)(a).
• The mandatory vs. discretionary aspects of registering an FIR under Section 173 of the BNSS when the alleged offence is punishable for three years or more but less than seven years.

By striking down the FIR, the Supreme Court established fresh procedural safeguards and firmly reaffirmed the constitutional protection of free speech.

2. Summary of the Judgment

The Supreme Court delivered a thorough examination of the spoken words and concluded that the poem:

• Did not refer to any specific religion, caste, or community.
• Promoted non-violence and willingness to face injustice with love, rather than incitement of hate.
• Could not be construed to create hatred, ill will, or disharmony between different groups.
• Did not meet the essential ingredients of the alleged offences under the BNS.

In reaching this conclusion, the Court firmly criticized the conduct of the police in registering the FIR without appreciating the poem’s actual meaning. The Court quashed the FIR, declared the High Court’s denial of relief incorrect, and emphasized a new or clarified procedure: when the alleged offence concerns speech punishable by imprisonment for less than seven years, the police must conduct a preliminary inquiry under Section 173(3) of the BNSS if the text or nature of the communication is suspect—but not evidently criminal.

The Court strongly reiterated the importance of abiding by the Constitution, particularly with regard to the fundamental right of freedom of speech and expression. It cautioned investigating agencies to be mindful of Article 19(1)(a) and ensure that legitimate expression is not stifled by the mechanical registration of FIRs in frivolous speech-based allegations.

3. Analysis

3.1 Precedents Cited

The Court referred to several judicial authorities, drawing heavily on the principles enunciated under Section 154 of the Code of Criminal Procedure (CrPC) as interpreted in Lalita Kumari v. Government of U.P. The Court explained that Section 173 of the BNSS is substantially similar to Section 154 of the CrPC, with an additional distinguishing feature: subsection (3) of Section 173 of the BNSS permits a preliminary inquiry before the registration of an FIR for certain categories of offences (punishable with three years or more but less than seven years).

Citing Manzar Sayeed Khan v. State of Maharashtra and Patricia Mukhim v. State of Meghalaya, the Court highlighted the necessity of mens rea to be read into speech offences under the penal laws. Further reference was made to the classic interpretation by the erstwhile Nagpur High Court in Bhagwati Charan Shukla v. Provincial Government, which required courts to apply the standard of a “reasonable, strong-minded, firm, and courageous individual” rather than that of a “weak or vacillating mind” in evaluating whether certain words spark enmity or hatred.

In essence, these precedents squarely emphasize that mere expression of dissent, an unconventional viewpoint, or the use of poetic hyperbole is insufficient to construe an offence under the Indian criminal law statutes. The context, intention, and textual meaning must all be carefully considered before concluding that there is a cognizable offence.

3.2 Legal Reasoning

A key highlight of the Court’s reasoning is its interpretation of Section 173(3) of the BNSS:

• When a complaint alleges a cognizable offence punishable with three years or more but less than seven years, the police officer, with permission from a higher-ranked officer, may conduct a preliminary inquiry to ascertain whether a cognizable offence is indeed made out.
• Speech-based complaints, especially those falling within the ambit of Sections 196, 197, 299, and 302 of the BNS (all relating to hate speech, enmity between groups, or inciting hatred), warrant careful scrutiny before an FIR is formally registered.
• The fundamental right of free speech under Article 19(1)(a) and the narrow exceptions permitted by Article 19(2) must guide police officers as well as courts. The existence (or non-existence) of genuine public order or incitement to violence must be evident—ordinary or even vigorous criticism of government or society cannot be criminalized as hate speech.

The Court found that the poem in question did not meet any statutory requirement for triggering the invoked sections. Far from promoting hatred, it actually called for love and invited a figurative response of sacrifice in the face of injustice. Hence, no real or imminent harm was shown to be caused or likely to be caused.

3.3 Impact

This judgment has significant future implications:

• Guidance for Police Practice: Police officers are now clearly directed to undertake a preliminary inquiry when speech-based complaints (punishable up to seven years) are filed. A mechanical registration of FIR without analyzing the actual text or context of the alleged offence contravenes the mandate of the BNSS and can be quashed.
• Strengthening of Free Speech: The judgment reaffirms that free speech is axiomatic to a healthy democracy. Individuals engaged in poetry, satire, stand-up comedy, literature, or mere criticism of governance are entitled to constitutional protection, so long as no real incitement to hatred or violence is demonstrated.
• Judicial Oversight: Courts have reinvigorated their role in safeguarding fundamental rights. In situations where the FIR is “nascent” and the preliminary stage repeatedly used as a reason to withhold judicial intervention, courts can still examine whether the complaint discloses a cognizable offence.

4. Complex Concepts Simplified

Several legal concepts are involved in understanding the crux of this judgment. Below are some crucial terms and their simplified explanations:

• Cognizable Offence: An offence in which the police can arrest an accused without a warrant. Under the CrPC (and correspondingly under the BNSS), the police typically must register an FIR if such an offence is disclosed. However, Section 173(3) of the BNSS slightly modifies this with the allowance for a preliminary inquiry.
• BNSS (Bharatiya Nagarik Suraksha Sanhita): A legislative enactment setting out procedural rules for criminal investigations and related police procedures, broadly analogous to the CrPC but with certain differences, including provisions that allow more discretion in preliminary inquiries.
• Preliminary Inquiry: A short, fact-finding initiative conducted by the police to ensure that the allegations indeed indicate an offence. It is especially emphasized for speech-related allegations to avoid undue infringement on free expression.
• Mens Rea: Latin for “guilty mind,” this principle requires criminal intention or knowledge for many criminal offences. The Court underscores that for hate speech and offences like Section 196 of the BNS, such intent must be evident.
• Article 19(1)(a) & Article 19(2) of the Constitution: Article 19(1)(a) guarantees the fundamental right to freedom of speech and expression, whereas Article 19(2) creates certain permissible restrictions (e.g., sovereignty, public order, defamation). The Court stresses that these restrictions should never overshadow the substantive right of free speech and must remain “reasonable.”

5. Conclusion

The Supreme Court’s ruling in Imran Pratapgadhi v. State of Gujarat emphatically restates that legitimate expressions—be it in the form of poetry, literature, or public speech—deserve the highest level of constitutional protection. Crucially, the new rule introduced is that where a “speech-based” offence is punishable by imprisonment of less than seven years, law enforcement should undertake a preliminary inquiry under Section 173(3) of the BNSS to weed out frivolous or non-cognizable matters that may infringe upon free speech.

Through this judgment, the Apex Court sends a clear message that the criminal process must not be used as a tool to suppress dissent or artistic expression, and that the fundamental duty of both the police and the judiciary is to protect constitutional values. The Court provides helpful guidance on how investigating authorities must respect the paramountcy of Article 19(1)(a) and the crucial role of courts in ensuring that false or misconceived prosecutions do not trample upon these basic constitutional rights.

In essence, this ruling vindicates the principle that free speech remains the cornerstone of a vibrant democracy, and that law enforcement agencies must exercise due diligence—and, indeed, sensitivity—when dealing with content-based prosecutions. By delineating the obligations of police officers and providing a robust threshold for speech infringements, the judgment sets an important precedent for safeguarding the freedoms of thought, expression, and dissent.