Zero FIR and Political Speech: BNS, Obscenity and Free Speech Explained

Subject: GS 2: Polity & Governance

Context: A Zero FIR was registered, over allegedly abusive remarks against the Indian Prime Minister during a Jantar Mantar protest, invoking Bharatiya Nyaya Sanhita (BNS), 2023  provisions on insult, public mischief and defamation. 

• The case raises the constitutional question of where protected political speech ends and criminally punishable expression begins. 

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Obscenity- How Do Courts Determine It?

Indian jurisprudence has progressively moved away from treating material as obscene merely because it is considered offensive by some sections of society.

• Ranjit D. Udeshi v. State of Maharashtra (1965): The Supreme Court relied on the Hicklin test, which focused on whether material could corrupt susceptible minds.
• Doordarshan v. Anand Patwardhan (2006): The Court moved towards assessing allegedly objectionable content in its overall context, rather than isolating individual portions.
• Aveek Sarkar v. State of West Bengal (2014): The Supreme Court moved away from the Hicklin approach and adopted a contemporary community-standards test, involving assessment from the perspective of an average person.
• Present Principle: Obscenity is not synonymous with vulgarity, profanity or offensiveness. The statutory ingredients must independently be established.

Profanity Is Not Necessarily Obscenity

Recent Supreme Court decisions have reinforced this distinction.

• In the College Romance case (2024), the Court held that vulgar or profane expressions do not automatically become obscene merely because particular words have sexual meanings.
• In Sivakumar v. State (2026), an abusive expression used during a heated argument was held insufficient to satisfy the threshold of obscenity.
• In Mani v. State (2026), the Court reiterated that swear words, vulgar expressions and profanity cannot automatically be equated with criminal obscenity.
  • Therefore, bad language may be distasteful without necessarily being unlawful.

Legal Framework- Crude Language Is Not Automatically Criminal

Indian criminal law does not treat every vulgar, offensive or insulting expression as a crime. Liability depends upon the content, context, intention and legally defined consequences of the expression.

• Obscenity: Section 296 of the Bharatiya Nyaya Sanhita penalises obscene acts or words in or near a public place when they cause annoyance to others.
• Intentional Insult: Section 352 requires more than mere offence; the insult must be intended, or known to be likely, to provoke a breach of public peace.
• Public Mischief: Section 353 deals with specified forms of speech or conduct capable of causing serious consequences such as incitement, fear or hostility. Mere harsh criticism does not automatically meet this threshold.
• Defamation: Section 356 concerns imputations that harm reputation, subject to recognised statutory exceptions, including certain good-faith comments regarding public conduct.
• Freedom of Speech: Article 19(1)(a) of the Constitution protects freedom of speech and expression, subject to the reasonable restrictions specified under Article 19(2).

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Where Does the Law Draw the Line?

• Protected Political Expression: Strong criticism, satire, ridicule, disagreement and even unpleasant political language can remain protected where the expression does not satisfy the ingredients of a criminal offence.
• Potentially Criminal Expression: Speech may attract criminal liability where it contains the necessary elements of defamation, genuine incitement, threats, deliberate provocation of public disorder or legally established obscenity.
  • The mere fact that a public figure feels insulted cannot, by itself, determine criminal liability.

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