The Bombay High Court on April 16 reserved its order on comedian Kunal Kamra’s plea seeking quashing of an FIR filed against him over defamatory remarks against Maharashtra Deputy Chief Minister Eknath Shinde. The court, however, stayed Kamra’s arrest.
Kamra, 36, is facing FIRs lodged against him after he sparked a row by taking a swipe at Eknath Shinde in one of his stand-up shows. Kamra used a modified version of a Hindi song from Shahrukh Khan’s Dil To Pagal Hai movie with a”gaddar” (traitor) jibe.
A division bench of Justices S Kotwal and S Modak reserved the order.
Senior advocate Navroz Seervai, representing Kamra, said the case fell within the ‘rarest of rare’ category and that the law machinery was used by persons who took umbrage with Kamra’s exercise of free speech, guaranteed under Article 19(1)(a) of the Constitution.
Seervai sought a complete stay on the investigation against Kamra and said that the Supreme Court has always repelled such illegal and improper attempts at censorship, as reported by legal news website, Bar and Bench.
He told the court that Mumbai Police was insisting on physically questioning stand-up comedian Kunal Kamra in the city despite the death threats he was receiving.
Seervai referred to the Supreme Court’s recent judgment in the Imran Pratapgarhi case, which criticised the Gujarat Police for lodging a case against the Congress leader over a poem he had recited.
On March 28, the Supreme Court said that literature, including poetry and satire, makes human life ‘more meaningful.’ The top court observed this while quashing a First Information Report (FIR) registered against Congress Member of Parliament (MP) and poet Imran Pratapgarhi by Gujarat police over an Instagram post with a poem playing in the background.
‘Law enforcement machinery is ignorant’
“This shows that even after 75 years of the existence of Constitution…Law enforcement machinery is ignorant of the fundamental right or does not care about the fundamental right,” Seervai said blaming the the authorities’ with disregard for the freedom of speech protected under Article 19 of the Constitution.
“Only when speech creates disturbance in public tranquility the law needs to step in…Illegal vandalism (in the aftermath of the stand-up show), however, is not an event affecting public tranquility,” he said.
Referring to the Supreme Court’s judgment in Pratapgarhi case, Seervai said that the inquiry has to be conducted before FIR is registered.
“Where allegation is of an offence covered by clause (2) of Article 19…Section 173(3) is applicable. It is always recommended to conduct a preliminary enquiry so that fundamental rights remain protected. If in such cases, 173(3) is not exercised…it will defeat the purpose of including this sub-section,” he said.
In the previous hearing, the Court issued formal notice to Maharashtra government and the complainants. The matter was adjourned in light of the fact that the Madras High Court had already granted Kamra anticipatory bail in the matter till April 17.
Kamra had first sought anticipatory bail by moving the Madras High Court since he is a resident of Villupuram in Tamil Nadu. He later moved the Bombay High Court to quash the FIR.
Kamra was booked under Sections 353(1)(b), 353(2), and 356(2) of the BNS after Shiv Sena legislator Muraji Patel filed a complaint. The FIR was lodged in Mumbai, despite Kamra being a resident of Tamil Nadu.
This shows that even after 75 years of the existence of Constitution…Law enforcement machinery is ignorant of the fundamental right or does not care about the fundamental right.
According to Kamra’s petition, the FIR was filed hastily, just 70 minutes after the complaint, without a proper legal process and without a preliminary enquiry as required under Section 173(3) of the BNSS.
(With inputs from Bar and Bench)
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