The Supreme Court has ruled that expressing unhappiness on the deoperationalisation of Article 370, calling August 5 a "black day" for Jammu and Kashmir and wishing Pakistan a happy independence day are not crimes but rather acts of free speech.
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IN a rare ruling affirming citizen's right to free speech, and going against its own stance on the issue in recent times, the Supreme Court has quashed a criminal case against a professor for referring to the day of deoperationalisation of Article 370 of the Constitution of India as a black day for Jammu and Kashmir.
Between August 13 and August 15, 2022, the professor had put up a series of WhatsApp status messages that had not gone down well with some members of a parent–teacher Whatsapp group, of which he was a part.
One of the messages read: "Article 370 was abrogated, we are not happy." Another contained a picture of the crescent moon, a distinct part of both Pakistan's flag and emblem, and the greeting: "14th August— Happy Independence Day Pakistan." A third message announced: "August 5– Black Day Jammu & Kashmir," emphasised with the imagery of barbed wires.
Based on these words, a first information report (FIR) was filed against Javed Ahmad Hajam, who was a professor at Sanjay Ghodawat College in District Kolhapur, Maharashtra.
Hajam hails from district Baramulla in the Kashmir valley and had come to Kolhapur for employment. The FIR was filed under Section 153A of the Indian Penal Code.
A Bench comprising Justices Abhay S. Oka and Ujjal Bhuyan observed that calling August 5 a black day for J&K was an expression of the petitioner's individual view.
"It does not reflect any intention to do something which is prohibited under Section 153A. At best, it is a protest, which is a part of his freedom of speech and expression guaranteed by Article 19(1)(a)," the Bench added.
It went on to hold that 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 153A, 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," the Bench held.
While refusing to quash the FIR against Hajam, the Bombay High Court had held that the possibility of stirring up the emotions of a group of people could not be ruled out.
Disapproving the high court's Order, the Bench held that it could not 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 153A of the IPC," the Bench said.
As regards the picture containing the crescent moon and wishing Pakistan on its independence day, the Bench observed that it would not attract the offence under Section 153A(1)(a) of the IPC because 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 is 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," the Bench ruled.
The Bench also observed that 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," the Bench said.
The Bench also noted that Clause (b) of sub-Section (1) of Section 153A of the IPC would not be attracted since what was depicted on the WhatsApp status of the appellant could not be said to be prejudicial to the maintenance of harmony among various groups.
The Order is a far cry from the events that unfolded during the hearings In Re Article 370, where lead petitioner Mohd. Akbar Lone accused of anti-State activities for chanting "Pakistan Zindabad" (Long live Pakistan) slogans in the Jammu and Kashmir (J&K) legislative assembly in 2018.
The affidavit filed on behalf of an intervenor had cited the petition filed by Lone and National Conference leader and member of Lok Sabha from the Anantnag constituency Hasnain Masoodi for restoration of Article 370 as an example of Lone pushing "separatist agenda".
Senior advocate Gopal Sankaranarayanan, representing one of the petitioners, had thundered before the Bench, "Are all of us, by pleading a case before this court, pushing a separatist agenda?"
Ultimately, the Chief Justice of India Dr D.Y. Chandrachud had Mohd. Akbar Lone file an affidavit in the court pledging his "allegiance to India".
Click here to read the order.