Introduction: In a landmark judgment on March 7, 2024, the Supreme Court, in the case of Javed Ahmad Hajam vs State of Maharashtra, asserted the fundamental right to free speech and dissent. The ruling emphasizes citizens’ right to express dissent and extend good wishes on the independence days of other nations without facing penal charges.
While firmly ruling most elegantly, eloquently and effectively on the inalienable right to dissent in a lawful manner, the Supreme Court in a most learned, laudable, landmark and latest judgment titled Javed Ahmad Hajam vs State of Maharashtra and Another in Criminal Appeal No.886 of 2024 (Arising out of Special Leave Petition (Crl.) No.11122 of 2023) and cited in Neutral Citation No.: 2024 INSC 187 that was pronounced as recently as on March 7, 2024 has minced just no words absolutely to hold that every citizen has the fundamental right to free speech under Article 19 of the Constitution to extend good wishes to citizens of the other countries on their respective independence days, and the same cannot attract any penal offence. It must be noted that a Division Bench comprising of Hon’ble Mr Justice Abhay S Oka and Hon’ble Mr Justice Ujjal Bhuyan unequivocally held that, “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. Motives cannot be attributed to the appellant only because he belongs to a particular religion.” Moreover, how can we ever forget that before 14 August, 1947 there was “no Pakistan” as it was an inalienable part of India till then and it were the Britishers who ensured the most ghastly partition of India and how can those whose blood relationship were living in earlier undivided India ever break their family and friendship relations merely because the “outsiders” that is the Britishers masterminded most cleverly, most dastardly and most cruelly the partition of India into “Pakistan and India” granting Pakistan independence a day earlier on 14 August and India a day later on 15 August and allowing Mohammad Ali Jinnah to become the first Governor General of Pakistan and also appointing Lord Mountbatten of England also known as United Kingdom and also known as Great Britain to be the first Governor General of India most pompously which India as we all know accepted most graciously and most humbly which my very best friend Sageer Khan in Sagar in Madhya Pradesh in 1993 lashed out at terming it as an “act of slavery” and imposition of monogamy as a “punishment only on Hindus” and imposition of Article 370 as “anti-Hindu acts” and “anti-national acts” respectively?
It was made absolutely clear by the Apex Court that the right to dissent in a lawful manner must be treated as a part of the right to lead a dignified life under the Constitution. It was also noted by the top court that every citizen has a right to be critical of the abrogation of Article 370 and the change of Jammu and Kashmir’s status. We thus see quite distinctly that the Supreme Court quashed a criminal case that had been lodged against Javed Ahmad Hajam who is a Kashmiri Muslim Professor working in a Kolhapur college in Maharashtra who was booked under Section 153A of IPC for putting out a Whatsapp status in a group terming ‘August 5-Black Day for Jammu & Kashmir” and celebrating Independence day of Pakistan on August 14. The Apex Court held that describing August 5 as a “Black Day” is an expression of protest.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Abhay S Oka for a Division Bench of Apex Court comprising of himself and Hon’ble Mr Justice Ujjal Bhuyan sets the ball in motion by first and foremost putting forth in para 1 that, “A First Information Report (for short, ‘the impugned FIR’) was registered against the appellant for the offence punishable under Section 153-A of the Indian Penal Code, 1860 (for short, ‘the IPC’). The appellant filed a writ petition before the High Court of Judicature at Bombay for quashing the FIR. By the impugned judgment dated 10th April 2023, the High Court has dismissed the writ petition.”
To put things in perspective, the Bench envisages in para 2 that, “The appellant was a Professor at Sanjay Ghodawat College in District Kolhapur, Maharashtra. He came to Kolhapur for employment. Earlier, he was a permanent resident of District Baramulla, Kashmir. The appellant was a member of a WhatsApp group. The allegation of commission of offence is based on what was seen on his WhatsApp status. The State Government has set out the precise text appearing on the WhatsApp status of the appellant in its counter affidavit. Clauses (c) and (d) of paragraph 3 of the counter affidavit read thus:
“3……………………
a……………………
b……………………
c. During the incident, the Petitioner was employed as a Professor at Sanjay Ghodavat College. The Petitioner was a member of a WhatsApp group that consisted of parents and teachers. Between August 13, 2022, and August 15, 2022, while being part of this WhatsApp group, the Petitioner posted two messages as their status:
1. “August 5 – Black Day Jammu & Kashmir.”
2. “14th August – Happy Independence Day Pakistan.”
d. Furthermore, after aforementioned status, the Petitioner WhatsApp status on their mobile included the message: “Article 370 was abrogated, we are not happy.” Based on these allegations, the present FIR was registered under Section 153-A of the Indian Penal Code, 1860, by the Hatkanangale Police Station in Kolhapur………………….””
As it turned out, the Bench enunciates in para 3 that, “By the impugned judgment, the Division Bench of the High Court held that what was stated by the appellant 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.”
Do note, the Bench notes in para 8 that, “Now, coming back to Section 153-A, clause (a) of subsection (1) of Section 153-A of the IPC is attracted when by words, either spoken or written or by signs or by visible representations or otherwise, an attempt is made to promote disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities. The promotion of disharmony, enmity, hatred or ill will must be on the grounds of religion, race, place of birth, residence, language, caste, community or any other analogous grounds. Clause (b) of sub-section (1) of Section 153-A of the IPC will apply only when an act is committed which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities and which disturbs or is likely to disturb the public tranquility.”
Quite significantly, the Bench observes in para 9 that, “Now, coming to the words used by the appellant on his WhatsApp status, we may note here that the first statement is that August 5 is a Black Day for Jammu and Kashmir. 5th August 2019 is the day on which Article 370 of the Constitution of India was abrogated, and two separate Union territories of Jammu and Kashmir were formed. Further, the appellant has posted that “Article 370 was abrogated, we are not happy”. 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. The aforesaid 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 of India and the further steps taken based on that decision. 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.”
Most significantly and so also most remarkably, the Bench then minces absolutely just no words to propound succinctly in para 10 what constitutes the cornerstone of this notable judgment mandating that, “In the case of Manzar Sayeed Khan vs State of Maharashtra & Anr (2007) 5 SCC 1, this Court has read “intention” as an essential ingredient of the said offence. 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. The WhatsApp status of the appellant has a photograph of two barbed wires, below which it is mentioned that “AUGUST 5 – BLACK DAY – JAMMU & KASHMIR”. 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). 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 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 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.”
Broadly speaking, the Bench most forthrightly points out in para 11 that, “The High Court has held that the possibility of stirring up the emotions of a group of people cannot be ruled out. The appellant’s college teachers, students, and parents were allegedly members of the WhatsApp group. 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 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.”
It is worth noting that the Bench notes in para 12 that, “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 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. Motives cannot be attributed to the appellant only because he belongs to a particular religion.”
Be it noted, the Bench notes in para 13 that, “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.”
Most sagaciously, the Bench postulates in para 14 that, “For the same reasons, 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 as stated therein. 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.”
As a corollary, the Bench directs in para 15 that, “Accordingly, we set aside the impugned judgment dated 10th April 2023 of the High Court of Judicature at Bombay and quash the impugned FIR bearing no. 295 of 2022 registered at PS Hatkanangle, District Kolhapur, Maharashtra and the proceedings based on the impugned FIR.”
Finally, the Bench then concludes by holding in para 16 that, “The Appeal is, accordingly, allowed.”
In sum, the key takeaway of this notable judgment is that every citizen has right to be critical of decisions taken by Centre like the one on Article 370 of Constitution. As for instance, the lawyers of West UP denounce Centre’s most discriminatory, despicable, dastardly and divisive decision to create only one single High Court Bench in the most populated State of India that is Uttar Pradesh and that too so near to Allahabad where High Court itself is located at Lucknow and attaching the litigants of West UP not with Lucknow which falls 230 km earlier but right uptill Allahabad which means whole night and half day is wasted on just travelling alone most atrociously and this despite the irrefutable fact that it is West UP which owes for more than half of the total number of pending cases of UP and still no Bench inspite of Justice Jaswant Singh Commission headed by former Supreme Court Judge recommending three High Court Benches including one for West UP in mid 1970s yet not one created till date most atrociously! Now this does not mean that Centre or lawmakers punish the lawyers of West UP for dissenting with Centre on it and going on strike for 6 months as in 2001 and in 2014-15, strike for Wednesday also many times and strike for few months many times in different years and strike every Saturday since May 1981 till March 2024!
Conclusion: The Supreme Court’s ruling in the Javed Ahmad Hajam case reinforces the essence of democracy and the right to express dissent without fear of persecution. The judgment upholds citizens’ freedom of speech, especially in expressing criticism of government actions. By quashing the charges against Hajam, the Court sends a strong message about the significance of democratic values and the need to protect the right to dissent, even in the digital realm. This decision stands as a testament to the robustness of India’s constitutional principles and the judiciary’s commitment to safeguarding individual liberties.
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