The Bombay High Court has dismissed a criminal complaint against singer Kailash Kher accused of allegedly hurting religious sentiments over a song based on Hindu deity Shiva, titled, ‘Babam Bam’ from the album ‘Kailasa Jhoomo re’.
Quoting A.G. Noorani, a famous author, historian and political analyst, a Division Bench of judges comprising Justices Bharati Dangre and Shyam C. Chandak observed, “Intolerance of dissent from the orthodoxy of the day has been the bane of Indian society for centuries. But it is precisely in the ready acceptance of the right to dissent as distinct from its mere tolerance that a free society distinguishes itself.”
In a detailed order made available on Thursday, the Bench observed, “In the said song, the petitioner is seen singing, with a Clapper Drum (Damaru) and he is surrounded by a mob of people dancing around. The only accusation against him is that he is dancing with some girls, who were scantily dressed in the song, and the girl and boy are also kissing each other, which is display of vulgarity and this is alleged by the complainant to hurt the religious feelings and emotions of the complainant.”
What is important to note in this whole scenario is the absence of the deliberate and malicious intention on part of the petitioner, who is just singing the song, and in any case, he is not the producer of the album, nor he has directed its filming/recording, the Bench noted.
“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 judges said.
Moreso 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 or beliefs and would not cover an act which is not intended to outrage the religious feelings, the order read.
“While safeguarding the freedom of speech, the burden lies on the complainant to prove the ingredients of Section 295A, as it is intended to deal with an offence more serious than the one punishable under Section 298 of the Penal Code, which relates to oral words uttered in presence of the person with intention of wounding his religious feelings,” the Bench noted.
The complaint was filed by a Ludhiana resident Narinder Makkar before Salem Tabri police station and then with judicial magistrate’s court in Ludhiana seeking registration of an FIR against the singer under Indian Penal Code (IPC) Sections 295A and 298, citing the music video has offended his religious sentiments as being a devotee of Shiva, watching a religious song depicting vulgar scenes of a woman dressed in clumsy and very short clothes, a kissing scene and burning of a flag with a heart printed on it, are deliberate attempt to insult religious sentiments.
“As far as the offence under Section 298 of IPC is concerned, the complainant has failed to make out even a prima facie case of his religious feelings being wounded with a deliberate intention attributed to the petitioner. The lyrics of the song sung by the petitioner is nothing but praise of Lord Shiva and the attributes of his mighty character and nothing else,” the Bench noted.
Before any action could be taken on the complaint lodged in Ludhiana, the singer moved the High Court on July 4, 2014, and the Bombay High Court had given an interim relief noting that no coercive action should be taken against him.
Representing Mr. Kher, advocates Ashok M. Saraogi, Priti Rao and Amit Dubey argued that there is no dispute that the song is sung by Mr. Kher, but the 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.
The Bench said, “We find substance in submission of Mr. Saraogi that the petitioner has a global appeal, and he is required to travel across the length and breadth of country for the purposes of his shows and for shooting of his songs/album. As far as the producer of the album, Sony Entertainment Ltd is concerned, it is having its office in Mumbai and merely because the complaint is filed in Ludhiana, this court cannot be said to lack jurisdiction to entertain the petition merely on the ground that the court, where the complaint is filed is situated beyond its territorial limits.”
Published – March 13, 2025 02:55 pm IST
