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Dissent in Democracy

It is of utmost importance to keep all speech free in order for the truth to emerge and have a civil society.                                                                                                          

Thomas Jefferson

In this month, the Supreme Court of India passed a significant judgment in the case of Electoral Bonds, which was discussed and reported widely. However, another significant judgment that skipped our attention and not discussed at all was in the matter of Javed Ahmad Hajam vs. State of Maharashtra[1], where the Supreme Court echoed the importance of dissent in democracy.

Javed was a Professor at Sanjay Ghodawat College in District Kolhapur, Maharashtra. Earlier he was a permanent resident of District Baramulla Kashmir, and he came to Kolhapur for employment. He was a member of a WhatsApp group consisted of parents and teachers at the college and between August 13, 2022, and August 15, 2022, he posted two messages as his WhatsApp status:

  1. “August 5 – Black Day Jammu & Kashmir” with a picture of two barbed wires.
  2. “14th August – Happy Independence Day Pakistan” with a picture of “Chand”.

Javed’s WhatsApp status also included a message “Article 370 was abrogated, we are not happy.” Based on these, an FIR was registered under Section 153-A of the Indian Penal Code, 1860, against Javed in Kolhapur. This section makes acts promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony, punishable with imprisonment which may extend to three years or fine or with both.

Javed filed a Petition before the Bombay High Court to quash the FIR on the ground that none of his messages attract Section 153-A of IPC. The Bombay High Court on April 10, 2023, observed that celebrating Independence Day of Pakistan would not fall within the purview of Section 153-A of IPC, however, on other messages, dismissed his Petition and refused to quash the FIR. Javed filed a Criminal Appeal before the Supreme Court, impugning the Bombay High Court’s decision dated April 10, 2023.

The Supreme Court analysed the facts and various precedents on this issue. The Supreme Court analysed the judgment of Manzar Sayeed Khan vs. State of Maharashtra[2] wherein it was held that the gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people. The intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153-A IPC and the prosecution must prove prima facie the existence of mens rea on the part of the accused. The Apex Court also relied on the decision in the matter of Ramesh vs. Union of India[3], which laid down the test that the effect of the words used must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The decision in the case of Patricia Mukhim vs. State of Meghalaya & Ors.[4] was also considered on the interplay of the freedom of speech and expression under Article 19 and Section 153-A of IPC.

Considering the facts of the case and various precedents, on the issue of the words “14th August- Happy Independence Day Pakistan” with a picture of “Chand”, the Apex Court observed that every citizen has a right to extend good wishes to the citizens of the other countries on their respective independence days. There is nothing wrong in wishing citizens of Pakistan on their Independence Day as it is a gesture of goodwill. The Court, therefore, held that Javed’s messages cannot be said to create disharmony or feelings of enmity, hatred or ill-will between religious groups. Motives cannot be attributed to Javed merely because he belongs to a particular religion.

The Supreme Court further observed that on a plain reading of the WhatsApp status “August 5 is a Black Day for Jammu and Kashmir” and “Article 370 was abrogated, we are not happy”, with the photo of two barbed wires, Javed intended to criticise the abrogation of Article 370 of the Constitution of India and expressed unhappiness about it. The above words do not refer to any religion, race, place of birth, residence, language, caste or community.

The Court held that Article 19(1)(a) guarantees freedom of speech and expression, and every citizen has a right to offer criticism to the abrogation of Article 370 of for that matter every decision of the State. Javed has the right to say he is unhappy with any decision of the State. Describing August 5, 2019, as “Black Day” is an expression of protest and anguish. On the issue of intention, the Supreme Court held that the above WhatsApp status messages do not reflect any intention to do something that is prohibited under Section 153-A.

The Supreme Court observed that 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. The right to dissent in a legitimate and lawful manner is an integral part of the rights guaranteed under Article 19(1)(a) and it must be respected. The 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. However, such dissent must be subject to reasonable restrictions under Article 19(2).

The Court observed that Javed’s WhatsApp status messages are not in breach of the reasonable restrictions imposed on the freedom of speech and expression. The Court concluded that the words used in the WhatsApp status messages do not promote disharmony or feelings of enmity, hatred or ill-will between different religious groups. Applying the principle in Ramesh vs. UOI, the Court observed that 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 but the impact 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 Section 153-A of IPC.

Consequently, the Supreme Court set aside the impugned order of the Bombay High Court and quashed the FIR filed against Javed.

In today’s environment where we have seen in a country like United States of America, being a flag bearer of free speech, that free speech of Teachers in the educational institutions is being curtailed; the Supreme Court has proved to be a guardian of free speech enshrined in the Constitution of India. Every citizen has a right to offer criticism for every decision of the State in a legitimate and lawful manner, subject to the reasonable restrictions. Kudos to Supreme Court as well as the Government of India who have done phenomenally well in safeguarding dissent in India!!

For more information, please contact Dhiraj Mhetre, Partner (dhiraj.mhetre@khaitanlegal.com)

[1] Order dated March 07, 2024, passed in Criminal Appeal No.886 of 2024

[2] (2007) 5 SCC 1

[3] (1988) 1 SCC 35

[4] (2021) 15 SCC 35

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