Bombay High Court quashes case against Kailash Kher over 'Babam Bam' song

The Bombay High Court recently quashed a criminal complaint against renowned singer Kailash Kher accused of allegedly hurting religious sentiments through his song "Babam Bam" from the album ‘Kailasa Jhoomo re [Kailash Kher v State of Maharashtra]..The complaint, which was filed in Punjab, took objection to a kissing scene or and burning of a flag in the music video. Kher was accused of insulting religious feelings under Sections 295A and 298 of the Indian Penal Code (IPC).However, a Bench of Justice Bharati Dangre and Justice Shyam Chandak quashed the case, stating that the offence of hurting religious sentiments would not be attracted due to a kissing scene or burning flag in the video.“Merely because he is singing the song being surrounded by large number of people, who have independently performed the role assigned to them by the Director, according to us the ingredients of Section 295 A of IPC are not made out,” the Court said. .The Bench clarified that every action disapproved by a particular class of people does not necessarily lead to an offence under Section 295A."More so every action which may be to the dislike of a class of people may not necessarily lead to outraging religious sentiments, as a person can be foisted with Section 295A if his action is intentional and malevolent, aimed at insulting religious feelings/ beliefs and would not cover an act which is not intended to outrage the religious feelings", the order read..The case stemmed from a complaint filed by Narinder Makkar, a resident of Ludhiana, who alleged that Kher’s song “Babam Bam” offended his religious beliefs. Makkar, a worshipper of Lord Shiva, took issue with the portrayal of a girl dressed in clumsy and very short clothes as well as a kissing scene in the video. The complaint further contended that the burning of a flag with a heart printed on it was a deliberate attempt to insult religious feelings. Makkar approached the Salem Tabri Police Station and later the Judicial Magistrate’s Court in Ludhiana, seeking the registration of an FIR and the prosecution of Kher. Before any action could be taken against Kher, he approached the High Court seeking quashing of the proceedings before the Magistrate. .Kher’s counsel had contended that Kher, as a singer, was not responsible for the choreography or the direction of the video, and thus, could not be held liable for the alleged religious insult. He further asserted that there was no deliberate or malicious intent to outrage the religious feelings of any community.The Court acknowledged the importance of protecting freedom of speech and expression, observing that such freedoms are fundamental under the Constitution of India. While reasonable restrictions can be imposed, the Court emphasized that laws like Section 295A should not be used to stifle creativity or expression unless there is clear evidence of deliberate and malicious intent.The court quoted famous historian AG Noorani who had said that “intolerance of dissent from the orthodoxy of the day has been the bane of Indian society for centuries,” The Court stressed the importance of distinguishing between dissent and deliberate harm intended to outrage religious sentiments.The court eventually agreed with Kher’s arguments, stating that the song’s lyrics “is nothing but praise of Lord Shiva and the attributes of his mighty character and nothing else.” The Court also found that the complainant’s grievance related more to the video’s choreography, costumes and certain scenes which were not under Kher’s direct control. Merely performing a song surrounded by dancers was not sufficient to constitute an intentional act of religious insult, the Bench concluded..The Court also highlighted the importance of obtaining sanction under Section 196(1) of the Criminal Procedure Code (CrPC) when prosecuting a person under Section 295A IPC, emphasizing that without such sanction, the prosecution could not proceed.It further explained that the provision of Section 295A of the IPC was intended to address more severe offences involving deliberate and malicious acts to outrage religious sentiments, and that in this case, the allegations did not meet this threshold..Advocate Ashok M Saraogi along with advocates Priti Rao and Amit Dubey appeared for Kher.Additional Public Prosecutor DS Krishnaiyar appeared for the State..[Read Order]