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SUPREME COURT OF INDIA
Abhay S. Oka, Ujjal Bhuyan, JJ.
Javed Ahmad Hajam – Appellant
Versus
State of Maharashtra & Anr. – Respondents
Criminal Appeal No. 886 of 2024 (Arising out of Special Leave Petition (Crl.) No.11122 of 2023)
Decided On : 07-03-2024
(A) Indian Penal Code, 1860 – Section 153-A – Constitution of India – Article 19(1)(a) – Promoting enmity between different groups and doing acts prejudicial to maintenance of harmony – Every citizen has right to offer criticism for every decision of State – He has right to say he is unhappy with any decision of State – Every citizen of India has a right to be critical of action of abrogation of Article 370 and change of status of Jammu and Kashmir – Describing the day abrogation happened as a “Black Day” is an expression of protest and anguish – If every criticism or protest of actions of State is to be held as an offence under Section 153-A, democracy, which is an essential feature of Constitution of India, will not survive – Right to dissent in a legitimate and lawful manner is an integral part of rights guaranteed under Article 19(1)(a) – Every individual must respect right of others to dissent – An opportunity to peacefully protest against decisions of Government is an essential part of democracy – Right to dissent in a lawful manner must be treated as a part of right to lead a dignified and meaningful life guaranteed by Article 21 – But protest or dissent must be within four corners of modes permissible in a democratic set-up – It is subject to reasonable restrictions imposed in accordance with clause (2) of Article 19 – In present case, appellant has not at all crossed line – Effect of words used by appellant on his WhatsApp status will have to be judged from standards of reasonable women and men – We cannot apply standards of people with weak and vacillating minds – Test is of general impact of 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 IPC. (Paras 9, 10 and 11)
(B) Constitution of India – Article 19(1)(a) – Indian Penal Code, 1860 – Section 153-A – Freedom of speech and expression – Every citizen has right to extend good wishes to citizens of other countries on their respective independence days – If a citizen of India extends good wishes to 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 appellant only because he belongs to a particular religion – What is depicted on WhatsApp status of appellant cannot be said to be prejudicial to maintenance of harmony among various groups – Continuation of prosecution of appellant for offence punishable under Section 153-A of IPC will be a gross abuse of process of law – Impugned FIR quashed. (Paras 12, 14 and 15)
Facts of the case:
First Information Report was registered against appellant for offence punishable under Section 153-A of Indian Penal Code, 1860. Appellant filed a writ petition before High Court of Judicature at Bombay for quashing FIR. By impugned Judgment dated 10th April 2023, High Court has dismissed writ petition. By impugned judgment, 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.
Findings of Court:
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 extent of reasonable restraint on their free speech and expression. They must be sensitised about democratic values enshrined in our Constitution.
Result : Appeal allowed.
JUDGMENT :
Abhay S. Oka, J.
FACTUAL ASPECTS
1. 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.
2. 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:
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.
.. .. .. .. .. .. .. .. .. .. .. .. ..”
3. 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.
SUBMISSIONS
4. The learned counsel appearing for the appellant submitted that by no stretch of the imagination, the words written on WhatsApp status by the appellant will promote disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities. He relied upon a decision of this Court in the case of Manzar Sayeed Khan v. State of Maharashtra & Anr., (2007) 5 SCC 1. He submitted that the prosecution of the appellant was a complete abuse of the process of law. The learned counsel representing the respondent-State of Maharashtra submitted that whether the words or signs of the appellant on his WhatsApp status promoted disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities or not, is a matter of evidence. He submitted that it is only after examining the witnesses that the prosecution can establish the effect of these writings or signs on the minds of people. He submitted that at this stage, no conclusion regarding the impact of what is written by the appellant on the minds of the members of the public can be drawn. He would, therefore, submit that no interference is called for with the impugned judgment, and the trial may be allowed to proceed.
CONSIDERATION OF SUBMISSIONS
5. The only offence alleged against the appellant is the one punishable under Section 153-A of the IPC. Section 153-A of the IPC, as it exists with effect from 4th September 1969, reads thus:
(a) by words, either spoken or written, or by signs or by visible representations or oth
Every citizen has right to offer criticism for every decision of State – He has right to say he is unhappy with any decision of State – Every citizen of India has a right to be critical of action of ....
The FIR lacks necessary ingredients for offences under Section 196(1)(a) of the Bharatiya Nyaya Sanhita, justifying its quashing due to vagueness.
Bail can be granted in cases where there is high probability that trial may take long time to conclude.
The court ruled that mere dissent or criticism of government actions does not constitute an offence under Section 153A IPC unless it promotes enmity or hatred.
The court established that mere expressions of political support do not constitute an offence under Section 153A IPC unless they promote enmity between distinct groups.
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