The Promise of Imran Pratapgadhi

Somnath Lahiri, the Communist Party representative in the Constituent Assembly of India, is not the name that comes first to mind when one thinks of the fundamental rights guaranteed by the Constitution which that august house was formulating. Yet, it is his canny observation in 1947 which many return to when assessing the life of the fundamental rights clauses in the Indian Republic: That the fundamental rights chapter appeared to have been drafted from the point of view of a police constable. Each right guaranteed by the Constitution came with a qualifier, which meant that while the supreme 'people' of India had many rights, their nascent Indian State decided whether or not the exercise of such rights was lawful or not in any given set of circumstances. Creating a system where the State could contest the legality of how people exercised their rights had the in-built potential for rendering them a dead letter. Parliament could outlaw certain brands of activity, the police could swoop in and forcefully stop persons from engaging in not only such activity but anything that was remotely prejudicial, and by the time the aggrieved persons secured a vindication from courts it would be rendered meaningless by the efflux of time.   

If Imran Pratapgadhi was not a member of the Rajya Sabha (Council of States), perhaps his struggle in exercising his fundamental right to freedom of speech would have played out across the template sketched above. But he is, and thus was able to successfully challenge a case registered by the police against him in December 2024 before the Supreme Court, which in March 2025 set aside the case and in doing so has delivered a judgment of great significance. The Court in Imran Pratapgadhi v. State of Gujarat & Anr. [2025 INSC 410] begins by bleakly noting that "even after 75 ears of the existence of our Constitution, the law enforcement machinery of the State is either ignorant about this [the fundamental right to freedom of speech and expression] or does not care for this fundamental right." An honest effort at implementing the approach outlined in this judgment could bring about some change in this undesirable status quo.

But I get ahead of myself. What had happened in Imran Pratapgadhi? The petitioner had shared a video of a mass wedding program on social media, and the background audio to this video included a poem recited by him. This poem allegedly incited people of different communities against one another and created enmity and hatred between the groups. An FIR (first information report) was registered for the alleged commission of offences under Sections 196, 197(1), 302, 299, 57, 3(5) of the Bharatiya Nyaya Sanhita 2023 [BNS], i.e., doing acts to cause enmity or hatred between groups; making imputations prejudicial to national integration by words or signs; insulting religious beliefs; wounding religious feelings, and so on. The Petitioner challenged this FIR before the High Court, which refused to entertain his plea stating that the investigation was at an initial stage. The Supreme Court, as we already know, had no such qualms in setting aside what it viewed as a patently illegal exercise of power: 

"The poem does not refer to any religion, caste or language. It does not refer to persons belonging to any religion. By no stretch of imagination, does it promote enmity between different groups. We fail to understand how the statements tehrein are detrimental to national unity and how the statements will affect national unity."

The Court could have stopped here — at page 16 of 54 — but it ploughed further to deal with procedural law issues surrounding the registration of criminal cases. The issue arose thus: If police is obligated to file a case upon receiving complaints with allegations of cognizable offences being committed, then how can it be argued that the registration of this case was improper? To determine whether the allegations are made out or not requires an investigation which can happen after registration of a case. Throwing out cases at the initial stage by analysing the merits of the allegations would place the cart before the horse. This is a rather overstated position, mind you, because the Supreme Court itself adopted an equivocal position on whether instant registration of a case is in fact mandatory upon receiving complaints disclosing cognizable offences. This judicial equivocation in the context of the old Criminal Procedure Code 1973 [CrPC] has been crafted upon the statute itself by Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS], which permits a preliminary inquiry into the allegations before registering cases of a comparably lesser gravity. 

Where Imran Pratapgadhi advances the law on this aspect is, first, in its realistic treatment of the process of registering a case. When we speak about police receiving complaints alleging commission of offences, we may imagine simple scenarios such as X hitting Y with a stick. However, allegations revolving around appreciation and interpretation of speech acts is qualitatively different from this relatively straightforward case of bodily harm. Here, as the Court explains, the officer "will have to read or hear the words ... the officer must consider the meaning of the spoken or written words." This, the Court clarifies, is not even a preliminary inquiry, but a process inherent to the very determination of whether a cognizable offence has been committed or not. This intervention appears simplistic but it is far from it. Rarely does the Court deal so candidly with the processes by which police exercise power. 

Thus, in Imran Pratapgadhi, the Court unwinds this most basic and simultaneously most awesome of powers wielded by police in our system — to transform a narrative complaint into a criminal case. Sheer candidness alone is not what makes Imran Pratapgadhi an important decision. After having unwound the fabric of police power, the Court proceeds to clarify the standards which the Constitution demands of the police in how it exercises its power. It holds that wherever fundamental rights under Article 19 are at stake and the alleged offences meet the contours of Section 173(3) BNSS the police must conduct a preliminary inquiry. In this inquiry, or even in an investigation, police must be mindful that the "effect of the spoken or written words will have to be considered based on standards of reasonable, strong-minded, firm and courageous individuals and not based on the standards of people with weak and oscillating minds. The effect of the spoken or written words cannot be judged on the basis of the standards of people who always have a sense of insecurity or of those who always perceive criticism as a threat to their power or position."

The third prong of its significance is that Imran Pratapgadhi also offers guidance on how constitutional courts must address such cases. It notes that it is the "bounden duty" of courts to ensure that the "ideals of the Constitution are not trampled upon. ... The courts must not be seen to regulate or stifle the freedom of speech and expression. As a matter of fact, the Courts must remain ever vigilant to thwart any attempt to undermine the Constitution and the constitutional values, including the freedom of speech and expression." In this vein, the Court clarifies that there is no barrier to quashing cases where no offence is made out, even at the earliest stages after registration of an FIR.

To conclude, then. 75 years on from the adoption of the Constitution, the Supreme Court of India appears aghast at how the police seemingly dealt with a citizen's exercise of his fundamental right to freedom of speech and expression. A more cynical observer might remind the Court of Somnath Lahiri's remarks and ask that if we gave to ourselves a police constable's Constitution, is it any surprise that the constables have run riot with it? That there is still some life left in the fundamental right to freedom of speech and expression for citizens of India is perhaps in spite of, and not because of, the text of the Constitution and its police constable's perspective of rights. Upturning the police constable's constitution will take much more than pious observations from the bench, especially at a time when national tempers are rising. It will take constant vigil from all corners, including from all courts, to ensure that the ideals which the Supreme Court hails as cherished by the Indian Republic are not emblems for securing convenient speech of desirable citizens, but the constants equally protecting the inconvenient speech of supposedly undesirable citizens as well.