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Synopsis

The Supreme Court has on March 7, 2024 said describing August 5, the day abrogation of Article 370 for Jammu and Kashmir happened as a “Black Day” is an expression of protest and anguish and 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, will not survive.

The apex court also said to extend independence day greetings to people of Pakistan is a goodwill gesture and cannot be said to create disharmony or feelings of enmity, hatred or ill-will between different religious groups just because the person doing it belonged to particular religion.

A bench of Justices Abhay S Oka and Ujjal Bhuyan said the test to be applied in such cases is not the effect of the words on some individuals with weak minds 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" the bench said, adding 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 of the Constitution.

"But 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. In the present case, the appellant has not at all crossed the line," the bench said.

The court quashed a criminal case lodged against Javed Ahmad Hajam, a Kashmiri Muslim professor working in a Kolhapur college in Maharashtra for putting out a WhatsApp status in a group terming 'August 5 -Black Day for Jammu and Kashmir' and celebrating Independence day of Pakistan on August 14.

In its judgment, 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.

The court said 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. Those words do not refer to any religion, race, place of birth, residence, language, caste or community. It is a simple protest by the appellant against the decision to abrogate Article 370 of the Constitution and the further steps taken based on that decision, the court said. 

The 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, the bench said.

"This is an expression of his individual view and his reaction to the abrogation of Article 370 of the Constitution. 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). 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 bench said.

In the case, the Bombay High Court dismissed the appellant's plea to quash the FIR, saying the possibility of stirring up the emotions of a group of people cannot be ruled out. 

Having noted that the appellant’s college teachers, students, and parents were members of the WhatsApp group, the bench said, "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."

With regard to a charge of putting out the picture containing “Chand” and below that the words “14th August–Happy Independence Day Pakistan”, the bench held it will not attract clause (a) of subsection (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," the bench said.

"Motives cannot be attributed to the appellant only because he belongs to a particular religion," the bench added.

The court held clause (b) of sub-section (1) of Section 153-A of the IPC will not be attracted as what is depicted on the WhatsApp status of the appellant cannot be said to be prejudicial to the maintenance of harmony among various groups. Thus, continuation of the prosecution of the appellant for the offence punishable under Section 153-A of the IPC will be a gross abuse of the process of law, it said.

The court set aside the High Court's judgment of April 10, 2023 and quashed the FIR lodged in Kolhapur in Maharashtra.