Every Action To The Dislike Of A Class Of People Not Necessarily Outraging Religious Sentiments: Bombay High Court Quashes Criminal Proceedings Against Kailash Kher
The Bombay High Court allowed the Writ Petition filed by the singer accused of hurting religious sentiments through the song ‘Babam Bam’.
The Bombay High Court quashed the criminal proceedings against singer Kailash Kher, holding that every action that may be disliked by a class of people may not necessarily outrage religious sentiments.
The Court allowed the Writ Petition filed under Section 226 of the Constitution by the singer (Petitioner) accused of hurting religious sentiments through the song ‘Babam Bam’ from his album ‘Kailasa Jhoomo Re’. The complaint alleged that the song contained objectionable visuals and was intended to outrage religious feelings.
A Division Bench of Justice Bharati Dangre and Justice Shyam C Chandak explained, “ 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/ beliefs and would not cover an act which is not intended to outrage the religious feelings.”
Advocate Ashok M Saraogi appeared for the Petitioner, while APP D.S. Krishnaiyar represented the Respondent.
Brief Facts
The complaint alleged that the song depicted Lord Shiva in an inappropriate manner. It was further alleged that the video showed women in very short clothes, scenes of public kissing, and a bribery scene involving police officers, which the complainant stated “gravely hurt” his religious sentiments.
Court’s Reasoning
On examining the contents of the song, the Court noted that there was no deliberate or malicious intent on the part of the Petitioner to outrage religious feelings.
“In order to attract the offence under Section 295A, what is necessary to be demonstrated is deliberate attempt and in this case the attempt on part of the Petitioner, specially when the song sung by him and picturized on him was a musical piece sung in praise of Lord Shiva…The test to invoke Section 295A is, whether the act has the potential to disturb public order or morality,” the Bench explained.
Citing the Supreme Court’s judgment in Ramji Lal Modi v. State of Uttar Pradesh (1957), the Court emphasised that “Section 295A do not penalise any and every act of insult to or attempt to insult the religion or religious feelings, of a class of citizens, which are perpetuated with deliberate and malicious intention of outraging the religious feelings of that class.”
Therefore, the Bench remarked, “The alleged act of the Petitioner, though we are conscious of the fact that he is not the Director/Producer of the Album, but has only vocalised a song, which is picturized on him, with several other things going on in the background, probably is intended as a theme, will have to be tested against the fundamental right of freedom of speech and expression and liberty of conscience guaranteed to every citizen under the Constitution.”
Consequently, the Court held, “In the result, the WP is made absolute by quashing and setting aside the case pending on the file of the Court of Ilaka Judicial Magistrate, Ludhiana, filed by Respondent No.2 under the provisions of Section 295A, and 298 of the Indian Penal Code.”
Accordingly, the High Court allowed the Writ Petition.
Cause Title: Kailash v. The State of Maharashtra & Ors. (Neutral Citation: 2025:BHC-AS:11643-DB)
Appearance:
Petitioner: Advocates Ashok M Saraogi, Priti Rao and Amit Dubey
Respondents: APP D.S. Krishnaiyar
