Criticizing abrogation of Article 370 is not a Hate Speech; Intention of the accused is vital to attract the charges under the Section 153-A of IPC: Supreme Court
Case title – Javed Ahmad Hajam vs State of Maharashtra & Anr
Case no. – Criminal Appeal No.886 OF 2024 (Arising out of SLP (Crl.) No.11122 of 2023)
Decision on – March 07, 2024
Quoram – Justice Abhay S. Oka and Justice Ujjal Bhuyan
Facts of the case
The Appellant was a Professor at Sanjay Ghodawat College in District Kolhapur, Maharashtra. He was a member of a WhatsApp group that consisted of parents and teachers. It was alleged that between August 13, 2022 and August 15, 2022, the appellant posted two messages in his status, which stated – “August 5 – Black Day Jammu & Kashmir”, “14th August – Happy Independence Day Pakistan.” Furthermore, the status included a message which stated “Article 370 was abrogated, we are not happy.”
A FIR was registered against the appellant, based on these allegations under Section 153-A of the IPC. The appellant filed a writ petition before the High Court of Judicature at Bombay for quashing the FIR. 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. But however, pointed out that the other part of the status attracted Section 153-A of the IPC and thereby, dismissed the writ petition.
Submissions of the Parties
The learned counsel appearing on behalf of the appellant submitted that the words written on WhatsApp status by the appellant did not attract the charges under the said section. He relied upon a decision of this Court in the case of Manzar Sayeed Khan v. State of Maharashtra & Anr and contended that the prosecution of the appellant was a complete abuse of the process of law.
The learned counsel representing the respondent submitted that whether the words or signs of the appellant on his WhatsApp status accounted to the offence under the said section or not is a matter of evidence. He submitted that examination of the witnesses is vital for the prosecution to establish the effect of the writings on the minds of people. He, therefore, submitted that the trial should be allowed without any interference.
Court’s Analysis and Judgement
The Court delved into the provisions of Section 153-A and observed that clause (a) and (b) of sub-section 1 need to be examined in relation to the instant case. The Court relied on the decision in Manzar Sayeed Khan Case which held that the intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153-A IPC, which needs to be proved by the prosecution.
The Court further relied on the view taken by Justice Vivian Bose in the case of Bhagwati Charan Shukla v. Provincial Government who held that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds.
The Court considering the first statement made by the appellant i.e. August 5 is a Black Day for Jammu and Kashmir and the message made in furtherance of it i.e. “Article 370 was abrogated, we are not happy” noted that 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. The Court observed that such statements were by the appellants to express his unhappiness and criticize the action of the Government.
In light of such observation, the Court highlighted Article 19(1) (a) which implicitly provides every citizen the right to criticize the decision of the State.
The Court pointed out to that intention is an essential ingredient for conviction under the said section. The Court, thus observed that the words of the appellant in the WhatsApp status does not reflect any intention to do something which is prohibited under Section 153-A.
The Court opined that at best it a right to dissent in a lawful manner which is protected under Article 19(1) (a) and Article 21. The Court, thus, held that describing the day of abrogation day as a “Black Day” is an expression of protest and anguish and does not attract the charges under Section 153-A of IPC.
The Court considering the impugned ruling of High Court, stated that the effect of the words used by the appellant on his WhatsApp status need to be judged from the standards of reasonable women and men and therefore, held that merely because a few individuals might develop hatred or ill will, would not be sufficient to attract clause (a) of sub-section (1) of Section 153-A of the IPC.
The Court, furthermore considering the second statement of the appellant, stated that extending good wishes to the citizens of Pakistan on 14th August which is their Independence Day is a gesture of goodwill and does not attract the Section 153A. The Court hence, stated that the motives cannot be attributed to the appellant only because he belongs to a particular religion.
The Court, therefore, held that the words of the appellant does not fall under the Section 153A of IPC and continuation of the prosecution on the same would be a gross abuse of the process of law. The Court, thereby, set aside the judgement of High Court and allowed the appeal.
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Judgement Reviewed by – Keerthi K