By Adv. R. S. Agrawal 

 

 

THROUGH the judgement of the case- Javed Ahmad Hajam v. State of Maharastra & Another, delivered on March 7, 2024, Justice Abhay S. Oka and Justice Ujjal Bhuyan, at the Supreme Court, have underlined the need 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 of India and the extent of reasonable restraint on their free speech and expression. They must be sensitised about the democratic values enshrined in our Constitution. 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 of the will be a gross abuse of the process of law. A First Information Report (the impugned FIR) was registered against the appellant for the offence under section 153-A of the IPC. The appellant filed a writ petition before the Bombay High Court at Mumbai for quashing the FIR. The Bombay High Court dismissed the said petition on April 10, 2023.

 

The appellant was a Professor at Sanjay Ghodewat College in Kolhapur district of Maharashtra. He went 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 offence is based on what was seen on his WhatsApp Status. It has been stated that during the incident, when the petitioner was employed as a Professor in the said College, he was a member of a WhatsApp group consisting of parents and teachers. Between August 13, 2022 and August 15, 2022, while being part of this WhatsApp group, he posted two messages as their status: 3c- 1. “August 5-Black Day Jammu & Kashmir.” 2. “August 14 - Happy Independence Day Pakistan.” d. Furthermore, after aforementioned status, the petitioner’s 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 IPC. 1860, by the Hatkanangale Police Station in Kolhapur. Through the impugned judgement, the HC division bench held that what was stated by the appellant regarding celebrating Independence Day of Pakistan will not come within the purview of the section 153-A of the IPC. However, the other objectionable part can attract the offence punishable under section 153-A of the IPC.

 

Coming back to section 153-A, its sub-section (1)(a) 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 or place of birth, residence, language, caste, community or any other analogous grounds. Section 153-A (1)(b) 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. Now, coming to the words used by the appellant on his WhatsApp status, it may be noted here that the first statement is that August 5 is a Black Day for Jammu & Kashmir. August 5, 2019 is the day on which Article 370 of the Constitution of India was abrogated, and two separate Union Territories of Jammu & 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. 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 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 right to offer criticism of the action of abrogation of Article 370 or, for that matter, every decision of the State. He has right to say he is unhappy with any decision of the State. In the judgement of the case - Mamzar Sayeed Khan v. State of Maharashtra and Another-(2007) 5 SCC 1, the Supreme 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 religions, 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. It does not reflect any intention to do something which is prohibited under section 153-A. At best, it is a protest against the actions of the State, which are part of his freedom of speech and expression guaranteed by the 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. Every citizen has the right to extend good wishes to the citizens of other countries on their Independence Days. The Supreme Court has set aside the impugned judgement delivered by the Bombay High Court on April 10, 2023 and quashed the FIR 295/ 2022 registered at the Police Station Hatkanangle in Kolhapur District of Maharashtra.