Court quashes case against Kailash Kher over song ‘hurting religious sentiments’
The Bombay High Court has dismissed criminal proceedings against singer Kailash Kher for allegedly outraging religious sentiments through his song ‘Babam Bam’.
The bench, comprising Justices Bharati Dangre and Shyam C Chandak, underscored the importance of tolerance in a democratic society, stating, “Intolerance of dissent has been the bane of Indian society for centuries, but a free society distinguishes itself by its acceptance of differing views”.
The case against the veteran singer stemmed from a complaint by a Ludhiana resident who identified himself as a devotee of Lord Shiva. After purchasing a CD of Kailash Kher’s album and watching the song ‘Babam Bam’, the man claimed the content hurt his religious sentiments and subsequently filed a complaint in a Ludhiana Magistrate court.
The complainant alleged that the song featured a girl dressed in revealing clothing, scenes of a couple kissing, and elements of vulgarity. He also claimed that the song depicted police officers accepting a bribe and leaving the scene, and concluded with a flag bearing a heart symbol being set on fire. Stating that these visuals “deeply hurt his religious sentiments”, he filed the complaint.
Kailash Kher had moved the Bombay High Court in 2014, seeking relief before the Ludhiana court proceedings could progress. The court granted interim protection, directing Mumbai Police to take no coercive action against him and staying any warrant issued by the Ludhiana court. This relief remained in place until the final judgment.
During a hearing last week, Additional Public Prosecutor DS Krishnaiyar opposed Kher’s petition, arguing that the Bombay High Court lacked jurisdiction to quash proceedings pending in Ludhiana.
However, Kher’s legal team, comprising advocates Ashok M Saraogi, Priti Rao, and Amit Dubey, argued that since the music was composed and released by Sony Music Entertainment Pvt. Ltd., which is based in Mumbai, the case fell within the Bombay High Court’s jurisdiction.
Saraogi further contended that just because the CD was distributed globally and the complainant chose to file the case in Ludhiana, the entire cause of action could not be confined solely to the jurisdiction of the Punjab court.
The bench concurred with Saraogi’s argument, ruling that the complaint did not meet the essential criteria for a criminal offence. The court observed that the song was a devotional piece dedicated to Lord Shiva and emphasised that Kher was only the singer, with no role in its picturisation.
“What is important to note in this whole scenario is the absence of deliberate and malicious intention on the part of the petitioner, who is just singing the song. He is not the producer of the album nor has he directed its filming,” the High Court said.
The judges highlighted that Section 295A necessitates a “deliberate and malicious intention to outrage religious feelings”, which was absent in this case. Referring to Supreme Court precedents, the court reiterated that not every act that some individuals may find objectionable amounts to outraging religious sentiments.
The court also pointed out procedural lapses, noting that prosecution under Section 295A requires prior sanction under Section 196(1) of the CrPC, which was not obtained in this case.
Based on these findings, the court ruled in Kailash Kher’s favour, quashing the Ludhiana court proceedings and granting him protection from further legal action.