Criticising Abrogation Of J&K Special Status, Wishing Pakistanis On Their Independence Day Not Offence : Supreme Court

“Every citizen of India has a right to be critical of the action of abrogation of Article 370 and the change of status of Jammu and Kashmir. Describing the day the abrogation happened as a 'Black Day' is an expression of protest and anguish. 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 court's verdict, handed down by a bench of Justices Abhay S Oka and Ujjal Bhuyan emphasises the fundamental right of citizens to express dissent and criticism, particularly in matters of public importance.

The case centred on Professor Javed Ahmed Hajam, against whom the Maharashtra Police registered an FIR  under Section 153A of the Indian Penal Code for his WhatsApp messages regarding the abrogation of Article 370.

In a WhatsApp group of teachers and parents, he posted the messages,  “August 5 – Black Day Jammu & Kashmir.",“14th August – Independence Day Pakistan.”

The Bombay High Court had earlier refused to quash a first information report (FIR) lodged against him over this WhatsApp status, citing concerns that the messages could promote disharmony and ill-will among different groups.

However, the Supreme Court has taken a different stance, recognising the primacy of the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution.

Analysing the message that sparked controversy, the apex court has noted, “The first statement is that August 5 is a Black Day for Jammu and Kashmir. August 5, 2019, is the day on which Article 370 of the Constitution of India was abrogated…On a plain reading, the appellant 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.

This critical analysis formed the crux of the court's decision to quash the case against Hajam. The court emphasised that the WhatsApp status, while expressing dissent, did not target any specific group based on religion, race, or other grounds. It is a 'simple protest' by the professor against the union government's decision to abrogate Article 370 of the Constitution and the attendant measures, the court noted.

Referring to Manzar Sayeed Khan, in which 'intention' has been interpreted as an essential ingredient of Section 153A of the Indian Penal Code, the court concluded –

“The alleged objectionable words or expressions used by the appellant, 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… 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. At best, it is a protest, which is a part of his freedom of speech and expression guaranteed by Article 19(1)(a).”

This verdict further elucidates on the significance of dissent in a democracy, highlighting that citizens have the right to express disagreement with the State's actions. Describing the day of the abrogation of Article 370 as a 'Black Day' was therefore viewed by the court as an expression of 'protest and anguish', rather than an attempt to incite hatred.

“The Constitution of India, under Article 19(1)(a), guarantees freedom of speech and expression. Under the 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.”

Effect on 'weak minds' or those who see danger in every hostile point not the test to be applied: Supreme Court

The judges also stressed the importance of considering the impact of expressions of dissent on reasonable individuals, rather than a few with 'weak minds', rejecting the high court's reasoning that the possibility of stirring up the emotions of a group of people cannot be ruled out. Applying the 'reasonable person' metric, the court observed –

“We cannot apply the standards of people with weak and vacillating minds. Our country has been a democratic republic for more than 75 years. The people of our country know the importance of democratic values. Therefore, it is not possible to conclude that the words will promote disharmony or feelings of enmity, hatred or ill-will between different religious groups. 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 clause (a) of sub-section (1) of Section 153-A of the IPC.”

Motive cannot be attributed only because of religious affiliation: Supreme Court

Regarding a second WhatsApp message celebrating the Independence Day of Pakistan, the court reaffirmed the high court's view that this act would not attract penal consequences under Section 153A of the Indian Penal Code. It emphasised that citizens have the right to extend good wishes to other countries, such as celebrating Pakistan's Independence Day, without it being seen as promoting disharmony. Notably, it also held that motive cannot be attributed to the embattled professor only owing to his religion.

“As regards the picture containing “Chand” and below that the words “14th August–Happy Independence Day Pakistan”, we are of the view that it will not attract clause (a) of sub- section (1) of Section 153-A of the IPC. 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 14th August, which is their Independence Day, there is nothing wrong with it. It's a gesture of goodwill. In such a case, it cannot be said that such acts will tend to create disharmony or feelings of enmity, hatred or ill-will between different religious groups. Motives cannot be attributed to the appellant only because he belongs to a particular religion.”

Case Details: Javed Ahmad Hajam v. State of Maharashtra & Anr. | Criminal Appeal No. 886 of 2024

Citation : 2024 LiveLaw (SC) 208

Click here to read the judgment