The Bombay High Court has quashed a criminal complaint filed against renowned singer Kailash Kher, who was accused of hurting religious sentiments through his song “Babam Bam” from the album Kailasa Jhoomo Re [Kailash Kher v. State of Maharashtra]. The complaint, originally lodged in Punjab, objected to a kissing scene and the burning of a flag in the music video, alleging that these elements were offensive to religious beliefs and violated Sections 295A and 298 of the Indian Penal Code (IPC).
A Bench comprising Justice Bharati Dangre and Justice Shyam Chandak ruled that the presence of such scenes in the video did not constitute an offence under Section 295A of the IPC, as they did not exhibit deliberate or malicious intent to insult religious sentiments. The Court observed that artistic expression should not be stifled merely because certain elements in a creative work may be disliked by a section of society. It further emphasized that the law is meant to penalize acts committed with the intention to outrage religious beliefs, not mere disagreements with artistic depictions.
The case originated from a complaint by Ludhiana-based petitioner Narinder Makkar, who claimed that the portrayal of a woman in revealing clothing, a kissing scene, and the burning of a flag with a heart symbol in the video were disrespectful to his religious beliefs as a devotee of Lord Shiva. He sought action against Kher through the Salem Tabri Police Station and later approached the Judicial Magistrate’s Court in Ludhiana, demanding an FIR against the singer. However, before proceedings could advance, Kher moved the Bombay High Court, arguing that as a singer, he had no role in the video’s direction or choreography and could not be held responsible for its content.
Agreeing with Kher’s position, the Court noted that the lyrics of the song merely praised Lord Shiva and did not contain any offensive content. The judges highlighted the need to distinguish between creative expression and intentional acts meant to provoke religious discord. Citing legal precedents, the Court reaffirmed that freedom of speech and artistic expression is fundamental to Indian democracy and should not be curtailed unless there is clear and proven intent to cause harm.
Additionally, the Bench underscored the procedural necessity of obtaining sanction under Section 196(1) of the Criminal Procedure Code (CrPC) before prosecuting a case under Section 295A of the IPC. It held that, in this instance, the complaint failed to meet the threshold for invoking these legal provisions. The ruling reinforces the judiciary’s stance on protecting artistic freedom while ensuring that legal provisions are not misused to suppress creative works.
