Educate cops on free speech: Supreme Court quashes FIR on Article 370 protest, greeting Pakistan

It said “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”.

Section 153-A of the Indian Penal Code penalises “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”.

The bench’s ruling came on a plea by Javed Ahmad Hajam, who was a professor at a college in Kolhapur. On April 10, 2023, the Bombay High Court had turned down his plea for quashing the FIR.

Between August 13 and August 15, 2022, while being part of a WhatsApp group of parents and teachers, he allegedly posted two messages as status: “August 5-Black Day Jammu & Kashmir” and “14th August Happy Independence Day Pakistan.” This apart, the WhatsApp status included the message: “Article 370 was abrogated, we are not happy.” Based on these allegations, an FIR was registered under IPC Section 153-A by the Hatkanangale police station in Kolhapur.

In its ruling Thursday, the bench of Justices Oka and Bhuyan said, “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.”

“But the protest or dissent,” it said, “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. In the present case, the appellant has not at all crossed the line”.

Pointing to “the WhatsApp status of the appellant” Hajam, it said, “This is an expression of his individual view and his reaction to the abrogation of Article 370 of the Constitution of India” and “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).”

Setting aside the High Court ruling, the bench said “the High Court has held that the possibility of stirring up the emotions of a group of people cannot be ruled out… As held by Vivian Bose, J, the effect of the words used by the appellant on his WhatsApp status will have to be judged from the standards of reasonable women and men. 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,” it said, 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”.

“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,” it said.

“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,” the bench said.

“Now, the time has come to enlighten and educate our police machinery on the concept of freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution and the extent of reasonable restraint on their free speech and expression. They must be sensitised about the democratic values enshrined in our Constitution,” it said.