Balancing Public Order And Free Speech: Analyzing Section 153A IPC Through Javed Ahmad Hajam V. State Of Maharashtra

This article will critically analyse the Supreme Court's interpretation of Section 153A in Javed Ahmad Hajam v State of Maharashtra^[1] and how it has widened the tolerance of dissent and the arena of freedom of speech.

Facts of the Javed Ahmad Hajam v State of Maharashtra

This case arises out of the rejection of a petition that the Appellant had filed at the Bombay High Court for quashing an FIR that was filed against him at Hatkanangale Police Station, Kolhapur, Maharashtra.

The petitioner, who was a Kashmiri, was employed as a professor at Sanjay Ghodavat College, Kolhapur. The complaints against the petitioner arose out of 3 distinct WhatsApp messages in a WhatsApp group made by him which were as under:

1. “August 5 – Black Day Jammu & Kashmir.”
2. “14^th August – Happy Independence Day Pakistan.”
3. “Article 370 was abrogated, we are not happy.”

An important fact to note is that these statements were made in a WhatsApp group chat which included his students and their parents. This fact was one of the main arguments used by the Respondent-State for the application of Section 153A of the IPC.

The Supreme Court, in its judgement, allowed the appeal for quashing the impugned FIR and proclaimed that the appellant's statements were not prejudicial to the maintenance of harmony among groups. Furthermore, the continuation of proceedings against the appellant would be a gross abuse of process of law^[2], according to Justice AS Oka.

Analysis and Personal Comments

Section 153A of the IPC penalizes the promotion of enmity among different groups on grounds of religion, race, place of birth, residence, language, etc., and committing acts prejudicial to the maintenance of harmony. Such an offence is punishable with imprisonment which may extend to three years, or with a fine, or both.^[3]

Deciding situations with a very faint line of circumstances which fall within the protection of freedom of speech and which fall within the abuse of the same is indeed a mammoth task. The Supreme Court bench, consisting of AS Oka, U Bhuyan, JJ., by allowing the appeal of Javed Ahmad Hajam, has created an important precedent of not allowing the mischievous usage of legislations like Section 153A of IPC which restricts freedom of speech.

While dealing with such cases that pertain to freedom of speech, the primary questions that need to be answered by the prosecution would be twofold:

1. Should the accused possess “mens rea”?
2. In whose mind should the enmity have been formed?

On the first question, numerous judicial decisions like in Manzar Sayeed Khan v State of Maharashtra^[4] have laid down that any indictment under Section 153A IPC should be accompanied with the ingredient of “intention” or “mens rea”, without which the entire process can be construed to be an abuse of process of law. In my personal opinion, “intention” should be mandatorily proven or sine qua non in order to attract provisions such as 153A IPC. This is because 153A encompasses a very wide scope. The grounds for the said offence can arise through words (spoken or written), visual representations, signs or otherwise. This gives the prosecuting authority the ability to comb through any and all material of the accused to find even a sliver of incrimination. Without the intention to cause disharmony or enmity being sine qua non, it becomes all too easy for the prosecuting authority to construct even the most innocent and unintentional statements as inflammatory. No authority should be given such wide powers to prosecute.

The second aspect, about which a great deal of attention needs to be paid, is “in whose mind should the enmity have been formed?”. This question is almost a mainstay in judicial proceedings of matters not just related to 153A but also to defamation, sedition, etc. I believe that a strong stance always needs to be taken with regard to the above question, as was taken in Javed Ahmad Hajam. There are a multitude of ways by which the courts can decide when dealing with this question. However, unfortunately, most of them would lead to a gross restriction on the freedom of speech, amounting to abuse of law. Should the court take into consideration the mental state of the majority of the society as the standard of reasonableness? But would that not lead to majoritarianism? Should the court take into consideration the mental state of the complainant as the standard of reasonableness? But would that not be biased against the accused? In essence, the court cannot and should not take the standard reasonableness of people with weak and vacillating minds, as mentioned in the Javed Ahmad Hajam judgement. This becomes even more prominent when issues relating to religious disputes come into play. There are bound to be people who have been offended due to such statements. But in no case should our courts be considering them to be the standard of reasonableness. They can be distraught at any hostile remark.

The courts need to ensure that the standards of reasonableness are of strong-minded, firm and courageous citizens^[5]. The courts need to ensure that they maintain a strict balance of providing for the enforcement of freedom of speech and maintaining public order.

Views are personal.