JAVED AHMAD HAJAM V. THE STATE OF MAHARASHTRA
The Appellant was a Professor at Sanjay Ghodawat College in District Kolhapur, Maharashtra. He used to live in District Baramulla, Kashmir. The appellant posted two WhatsApp statuses:
(i) “August 5 – Black Day Jammu & Kashmir.” & “14th August – Happy Independence Day Pakistan.”
(ii) “Article 370 was abrogated, we are not happy.”
A First Information Report (“FIR”) was registered against the Appellant for posting these WhatsApp status under Section 153-A of the Indian Penal Code, 1860 (“IPC”). Section 153-A of IPC provides for punishment for promoting enmity between different groups on grounds such as religion, race, place of birth, residence, language and doing acts prejudicial to the maintenance of harmony.
The Appellant filed a writ petition in the Bombay High Court to quash the FIR. The High Court refused to quash the FIR. The Appellant approached the Supreme Court.
The Supreme Court quashed the FIR registered against the appellant under Section 153-A IPC. The Court held that the right to dissent against government decisions in a legitimate and lawful manner is an integral part of the right to freedom of speech and expression under Article 19(1)(a) of the Constitution. The judgment of the Court was authored by Justice Oka.
Ingredients of Section 153-A IPC not fulfilled
The Supreme Court noted that the intention to cause disorder or provoke people to violence is a necessary ingredient to commit the offence under Section 153-A IPC (¶6). The Court found that the words used by the Appellant did not reflect any intention to cause disharmony between two groups (¶10). The Court further noted that the words used by the Appellant in his WhatsApp status did not refer to any religion, race, place of birth, residence, language, caste or community (¶9).
Reasonable man standard
The Supreme Court noted that 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. The test to be applied is not the effect of the words on some individuals who see a danger in every hostile point of view (¶11). Merely because a few individuals may develop hatred or ill will is not sufficient to attract Section 153-A IPC (¶11).
Right to Dissent
The Supreme Court stated that the status of the Appellant was intended to criticise the action of the Union Government which abrogated Article 370 of the Constitution of India (¶9). The Court held that the Constitution of India, under Article 19(1)(a), guarantees freedom of speech and expression which includes the right to criticise the action of abrogation of Article 370 or, for that matter, any decision of the State (¶9). The Court noted that if every criticism or protest of the actions of the State is to be held as an offence under Section 153-A, democracy will not survive (¶10).
Right to extend good wishes to the citizens of the other countries
With respect to the WhatsApp status wishing Happy Independence Day to Pakistan, the Supreme Court held that every citizen has the right to extend good wishes to the citizens of the other countries on their respective independence days (¶12). The Court noted that it’s a gesture of goodwill and harmful motives cannot be attributed to the appellant only because he belongs to a particular religion (¶12).
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