'Kuntham', 'Kudachakram' cannot be words of respect: HC on Saji Cherian's remarks against Constitution

The Kerala High Court, which ordered a Crime Branch probe into the case related to disrespectful comments by Minister Saji Cherian against the Constitution of India, observed in the order that the words used by the minister like 'kuntham', 'kudachakram' cannot be terms of respect generally.

Before going into case details, the court quoted the words of B R Ambedkar, citing that they have particular relevance in the controversy. "Constitution is not a mere lawyers' document, it is a vehicle of life and its spirit is always the spirit of age. If things go wrong in the new Constitution, the reason will not be that we had a bad Constitution, but what we will have to say is that Man was vile", the court quoted Ambedkar.

Saji Cherian had earlier told the Assembly before he quit as a minister that he had no intention of insulting the Constitution and that he only meant to criticise the successive governments at the Centre that failed to deliver social and economic justice to the people of the country as promised in the Constitution.

The court inquired with the Director General of Prosecution as to the meaning of the term 'kuntham', 'kudachakram'. However, it wasn't explained. Independently, those words mean ‘spear’ and ‘a type of firecracker’, the court noted. However, it is a matter of common perception in the Malayalam language that those words, when spoken in collocation with each other, cannot be stated to be used in a respectful manner.

"Thus the words used by the minister in his speech, like “ideal Constitution to loot the people” or the words 'secularism', 'democracy', 'kuntham’ ‘kudachakram’ cannot be terms of respect generally," Justice Bechu Kurian Thomas noted in the order.

The HC then assessed whether the context in which those terms were used shows disrespect to the Constitution. As regarding the minister's statement that the Indian Constitution is ideal for looting the people, the court observed that it does not leave much room for discussion and there cannot even be two views on that statement.

However, the expression 'secularism', 'democracy', 'kuntham', 'kudachakram' is obviously referring to the Preamble which is a part of the Constitution. The said expression cannot be stated to be used with respect, according to the HC. It was further noted that the perception of the investigation officer was not the determining factor in ascertaining if the context in which these terms were used caused disrespect to the Constitution.

"What is decisive is the perception of a reasonable man of common sense and prudence -- a person who can approach the words and the context, independently, and in a fair and proper manner," the court noted.

The HC also invoked the amendment of Prevention of Insults to National Honour Act, 1971, while arriving at the verdict. Initially, the words "otherwise shows disrespect to" were not part of the statute. Before 2003, what was made punishable under the Act was only burning, mutilation, defacement, defiling, disfiguring, destroying, trampling upon or bringing into contempt by words either spoken or written or by acts the National Flag or the Constitution or any part of it. However, by amending Act 31 of 2003, a wider terminology was brought in.

The words "shows disrespect" were added. The Statements of Objects and Reasons for the Amending Act 31 of 2003 do indicate that the intention of the amendment was "to widen the scope of the expression insult". The provision as it now stands indicates that even disrespect shown to the Constitution or to any part of it, by words either spoken or written or by acts can amount to a conduct that falls foul of the statute, the order said.

While this explanation excludes any criticism of the Constitution or disapprobation of the Constitution for the purpose of obtaining an amendment of the Constitution by lawful means, the court noted that the prosecution has no case that the meeting held on July 3, 2022, (where the minister made the controversial remarks) was one intended to bring about a change or a debate on the Constitution.