“Every individual must respect the right of others to dissent,” SC while quashing FIR against a Kashmiri professor for criticizing Abrogation of Article 370

While hearing the Javed Ahmad Hajam vs. The State of Maharashtra case on March 07, 2024, the Supreme Court (SC) of India quashed a First Information Report (FIR) against a Kashmiri Professor (Javed Ahmad Hajam) in Maharashtra for an offence punishable under Section 153-A of the Indian Penal Code, 1860. The allegation of commission of offence was based on what was seen on his WhatsApp status. He posted two messages as WhatsApp statuses, where he was a member of a WhatsApp group consisting of parents and teachers, the first one was ‘August 5 - Black Day Jammu & Kashmir’ and the second one was ‘14th August - Happy Independence Day Pakistan’ with the picture containing “Chand” below the text. Furthermore, the petitioner's WhatsApp status also includes the message: ‘Article 370 was abrogated, we are not happy’. Professor Hajam filed a writ petition before the Bombay High Court for quashing the FIR where the division bench of the HC dismissed the petition. The HC 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.” The matter was, therefore, mentioned before the SC bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan. 

The Supreme Court observed 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 criticize the action of the abrogation of Article 370 of the Constitution of India.” It added that the appellant had expressed unhappiness over the abrogation of Article 370 and he has the right to do so under Article 19(1)(a) (Right to freedom of speech and expression). The SC bench also opined that the words did not refer to any religion, race, place of birth, residence, language, caste, or community. During the proceedings, Advocate-on-Record Aaditya Aniruddha Pande and Advocate Javed R. Shaikh appeared for the Respondent and Appellant respectively. 

After hearing the contentions, the bench said, “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.” It added, “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.” Moreover, the SC opined 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 sub-section (1) of Section 153-A of the IPC. Every citizen has the right to extend good wishes to the citizens of other countries on their respective independence days…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.”

Further, in light of the aforementioned observation, the SC said that now is the time to enlighten and educate 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. Lastly, the bench held that “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.” The SC set aside the impugned judgment of the HC and quashed the impugned FIR and proceedings based on it.