Elected Representative Raising Concerns Of Minorities Not An Offence: Allahabad High Court Refuses To Order FIR Against Rahul Gandhi
The Court found that the alleged remarks did not tend to incite violence or disturb public order and that a third party’s appropriation of the speech could not be attributed to its speaker.
The Allahabad High Court has refused to direct registration of an FIR against Member of Parliament Rahul Gandhi over his remarks concerning the security and religious rights of Sikhs, holding that an elected representative’s act of raising concerns about minority rights does not become an offence merely because some sections of society disagree with the statement.
The Court was hearing an application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 challenging orders of a Magistrate and a revisional court refusing to direct registration of an FIR under Section 173(4) BNSS. Although offences under Sections 147, 148 and 152 of the Bharatiya Nyaya Sanhita, 2023 were originally alleged, the applicants pressed the alleged commission of an offence under Section 152 BNS before the High Court.
A Bench of Justice Vikram D. Chauhan observed: “… elected representative may articulate public concerns through diverse mediums. Elected representatives are chosen to carry the voice of people into the institutions of governance. Raising public concerns is therefore not an optional courtesy but a core function. Representatives also act as channel of public concerns, ensuring that less powerful sections are heard in public debate.”
The Court further held: “Further, questioning the rights of minorities by elected representative by itself cannot be an offence and the said speech of respondent no. 2 will have protection of freedom of speech and expression under Article 19 of Constitution. It is further to be noted that certain sections of society or individuals may not agree with statement of respondent no. 2 however that itself would not be a cause for considering the said speech as an offence. Disagreeing with one’s view is part of vibrant democracy.”
Advocate Satyendra Kumar Tripathi appeared for the applicants. Additional Advocate General Manish Goyal appeared for the State.
Background
The applicants sought registration of an FIR over remarks allegedly made by Rahul Gandhi during a foreign visit. According to their application, he referred to an atmosphere of insecurity among Sikhs in India and questioned whether a Sikh would be permitted to wear a turban and visit a Gurudwara.
The applicants alleged that the statement was inflammatory and could be used by separatists to spread violence and propaganda. The applicants relied upon the alleged endorsement of the remarks by a separatist, while the State submitted that the person headed a banned terrorist organisation.
The Magistrate initially rejected the FIR application for want of prior sanction. That order was set aside in revision, and the matter was remanded for a fresh determination of whether any cognizable offence was disclosed.
Upon reconsideration, the Magistrate held that the application disclosed only suspicion and contained no concrete material showing that the speech endangered India’s sovereignty, unity or integrity. The Magistrate also noted the absence of particulars concerning the date, time and place of the alleged speech. The revisional court affirmed that decision.
The applicants then approached the High Court, contending that the remarks disclosed an offence under Section 152 BNS and that a newspaper report concerning the statement had been placed before the lower court.
Court’s Observations
Speech-Based FIR Requests Require Careful Judicial Scrutiny
The Court noted that Article 19(1)(a) protects freedom of speech and expression, subject to the reasonable restrictions prescribed by Article 19(2).
Referring to Kaushal Kishor v. State of Uttar Pradesh (2023), Imran Pratapgadhi v. State of Gujarat (2026) and Shreya Singhal v. Union of India (2015), the Court distinguished discussion and advocacy from incitement. It observed that even advocacy of an unpopular cause remains protected until it reaches the level of incitement.
The Bench stated: “It is therefore necessary for courts to examine whether any objection to the speech or expression would violate fundamental right to freedom of speech and expression of an individual. It is therefore imperative that whenever an issue is raised objecting to a particular speech or expression, courts are required to ensure that fundamental right of an individual is not taken away lightly and that restriction on speech and expression is reasonable.”
The Court said that directing registration of an FIR has serious consequences for an individual’s liberty. Courts must consequently exercise caution when criminal prosecution is sought over speech or expression.
Referring to Simran Gupta v. State of U.P. (2026), it held that the person challenging speech must place sufficient particulars and context before the court to show that the speech falls within Article 19(2) and satisfies the ingredients of a criminal offence.
Ingredients Of Section 152 BNS Were Not Shown
The Court noted that Section 152 BNS applies where a person purposely or knowingly excites or attempts to excite secession, armed rebellion or subversive activities, encourages separatist activities or endangers India’s sovereignty, unity and integrity.
Examining the alleged remarks, the Court found that they raised concerns relating to a section of society. It held that the alleged speech did not tend to incite violence or disturb public order.
The Court observed: “Upon examination, the impugned speech of respondent no. 2 does not tend to incite violence or disturb public order. It merely articulates the concerns of a certain segment of society. If a third party misinterprets or appropriates the said speech to advance its own ends, the responsibility for any ensuing consequences lies exclusively with that party, which is amenable to the law for its own acts.”
The applicants had not shown that the speech had excited or attempted to excite secession, armed rebellion or subversive activities, encouraged separatism or endangered India’s sovereignty, unity or integrity.
The Court also noted that the complete speech had not been produced. The applicants had relied upon a newspaper report without supplying the complete extract or material particulars concerning when and where the remarks were made.
Suspicion And Disagreement Could Not Found Prosecution
The Court held that suspicion, regardless of its strength, could not replace proof or provide the foundation for criminal prosecution.
It stated: “It is settled law that suspicion cannot be foundation for criminal prosecution. Suspicion is a belief that something may have happened. Proof is evidence showing that it must have happened. The grave suspicion however strong cannot take the place of proof.”
The Bench further observed that some sections of society, including the majority, may disagree with or disapprove an elected representative’s statement. The lawful response was to express contrary views rather than seek criminal prosecution without satisfying the ingredients of an offence.
It held that making the remarks on foreign soil might be regarded by some as improper or contrary to parliamentary tradition, but that circumstance did not itself make the speech an offence. Even an inaccurate or unsubstantiated statement could be tested through parliamentary debate and open public discourse.
Conclusion
The High Court held that Rahul Gandhi’s alleged speech did not disclose any cognizable offence requiring registration of an FIR.
It declined to interfere with the Magistrate’s refusal to order an FIR and the revisional court’s decision affirming that order. The application under Section 528 BNSS was accordingly dismissed.
Cause Title: Nageshwar Mishra and Another v. State of U.P. and Another (Neutral Citation: 2026:AHC:230511)