Supreme Court: In a criminal appeal filed against the Judgment of Bombay High Court, wherein the Court refused to quash the FIR against the accused for the offence punishable under Section 153-A of the Penal Code, 1860 (‘IPC’), the division bench of Abhay S. Oka* and Ujjal Bhuyan, JJ. while setting aside the impugned judgment and quashing the FIR, said that if every criticism or protest of the actions of the State is to be held as an offence under Section 153-A, democracy, which is an essential feature of the Constitution of India, will not survive. The right to dissent in a legitimate and lawful manner is an integral part of the rights guaranteed under Article 19(1)(a).
The accused was a Professor at Sanjay Ghodawat College in Kolhapur, Maharashtra. He came to Kolhapur for employment. Earlier, he was a permanent resident of Baramulla, Kashmir. The accused was a member of a WhatsApp group that consisted of parents and teachers. Between 13-08-2022, and 15-08-2022, while being part of this WhatsApp group, the Petitioner posted two messages as their status:
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“August 5 — Black Day Jammu & Kashmir.”
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“14th August — Happy Independence Day Pakistan.”
The Division Bench of the High Court held that what was stated by the accused regarding celebrating Independence Day of Pakistan will not come within the purview of Section 153-A of the IPC. However, the other objectionable part can attract the offence punishable under Section 153-A of the IPC.
The Court took note of Section 153-A of the IPC, and said that clause (c) of sub-section (1) of Section 153-A of the IPC is admittedly not attracted.
Further, it referred to Bhagwati Charan Shukla v. Provincial Government, 1946 SCC OnLine MP 5, wherein it was said that “the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view”. The Court said that the yardstick laid down in Bhagwati Charan Shukla (Supra) will have to be applied while judging the effect of the words, spoken or written, in the context of Section 153-A of IPC.
While interpreting the words used by the accused on his WhatsApp status, the Court said that the accused intended to criticise the action of the abrogation of Article 370 of the Constitution of India. He has expressed unhappiness over the said act of abrogation. The aforesaid words do not refer to any religion, race, place of birth, residence, language, caste or community. It is a simple protest by him against the decision to abrogate Article 370 of the Constitution of India and the further steps taken based on that decision. Further, it said that he Constitution of India, under Article 19(1)(a), guarantees freedom of speech and expression. Under the said guarantee, every citizen has the right to offer criticism of the action of abrogation of Article 370 or, for that matter, every decision of the State. He has the right to say he is unhappy with any decision of the State.
After refering to Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1, wherein ‘intention’ was said to be an essential ingredient of the said offence, the Court said that alleged objectionable words or expressions used by the accused, on its plain reading, cannot promote disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities.
The Court noted that the WhatsApp status of the accused has a photograph of two barbed wires, below which it is mentioned that “August 5 — Black Day — Jammu & Kashmir”. Further the Court said that this is an expression of his individual view and his reaction to the abrogation of Article 370 of the Constitution of India. It does not reflect any intention to do something which is prohibited under Section 153-A. It is a protest, which is a part of his freedom of speech and expression guaranteed by Article 19(1)(a).
The Bench said that if every criticism or protest of the actions of the State is to be held as an offence under Section 153-A, democracy, which is an essential feature of the Constitution of India, will not survive. The right to dissent in a legitimate and lawful manner is an integral part of the rights guaranteed under Article 19(1)(a). Every individual must respect the right of others to dissent. An opportunity to peacefully protest against the decisions of the Government is an essential part of democracy. The right to dissent in a lawful manner must be treated as a part of the right to lead a dignified and meaningful life guaranteed by Article 21. However, the Court clarified that the protest or dissent must be within four corners of the modes permissible in a democratic set-up. It is subject to reasonable restrictions imposed in accordance with clause (2) of Article 19. Further, it addded that in the present case, the accused has not at all crossed the line.
The Court said that the test to be applied is not the effect of the words on some individuals with weak minds or who see a danger in every hostile point of view. The test is of the general impact of the utterances on reasonable people who are significant in numbers. Merely because a few individuals may develop hatred or ill will, it will not be sufficient to attract Section 153-A(1)(a) of the IPC.
Concerning the picture containing “Chand” and below that the words “14th August—Happy Independence Day Pakistan”, the Court viewed that it will not attract Section 153-A(1)(a) of IPC. Further, it said that every citizen has the right to extend good wishes to the citizens of the other countries on their respective independence days. If a citizen of India extends good wishes to the citizens of Pakistan on their Independence Day, there is nothing wrong with it. It’s a gesture of goodwill. Thus, it cannot be said that such acts will tend to create disharmony or feelings of enmity, hatred or ill-will between different religious groups.
Thus, it said that the continuation of the prosecution of the accused for the offence punishable under Section 153-A of the IPC will be a gross abuse of the process of law.
[Javed Ahmad Hajam v. State of Maharashtra, 2024 SCC OnLine SC 249, decided on 07-03-2024]
*Judgment Authored by : Justice Abhay S. Oka
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