* Author
[2024] 3 S.C.R. 317 : 2024 INSC 187
Javed Ahmad Hajam
v.
State of Maharashtra & Anr.
(Criminal Appeal No. 886 of 2024)
07 March 2024
[Abhay S. Oka* and Ujjal Bhuyan, JJ.]
Issue for Consideration
High Court whether justified in dismissing the writ petition filed by
the appellant for quashing the FIR filed against him for the offence
punishable u/s.153-A, Penal Code, 1860.
Headnotes
Penal Code, 1860 – s.153-A – When not attracted – AppellantProfessor was a member of a WhatsApp group that consisted
of college teachers, students, and parents – He had put
up a Whatsapp status protesting against the decision to
abrogate Article 370 of the Constitution of India; and a
picture containing “Chand” and below that the words “14th
August-Happy Independence Day Pakistan” were written –
FIR registered against the appellant for offence punishable
u/s.153-A – Allegation of commission of offence based on
his WhatsApp status – High Court dismissed the writ petition
filed by the appellant for quashing the FIR – Correctness:
Held: “Intention” as an essential ingredient of offence u/s.153-A–
Alleged objectionable words or expressions used by the appellant
cannot promote disharmony or feelings of enmity, hatred or
ill-will between different religious, racial, language or regional
groups or castes or communities – WhatsApp status of the
appellant had a photograph of two barbed wires below which it
was mentioned “August 5- Black Day- Jammu & Kashmir” – This
was an expression of his individual view and his reaction to the
abrogation of Article 370 – It does not reflect any intention to do
something prohibited u/s.153-A – At best, it was a protest, which
is a part of his freedom of speech and expression guaranteed by
Article 19(1)(a) – Describing the day the abrogation happened
as a “Black Day” was an expression of protest and anguish –
318 [2024] 3 S.C.R.
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Further, the appellant had posted that “Article 370 was abrogated,
we are not happy”– He intended to criticise the action of the
abrogation of Article 370 – He had expressed unhappiness
over the act of abrogation – The aforesaid words do not refer
to any religion, race, place of birth, residence, language, caste
or community – It was a simple protest against the decision to
abrogate Article 370 – If every criticism or protest of the actions
of the State is to be held as an offence u/s.153-A, democracy,
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 u/Article 19(1)(a) – 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 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-sec.
(1) of s.153-A– Also, the picture containing “Chand” and below
that the words “14th August-Happy Independence Day Pakistan”,
will not attract clause (a) of sub-sec.(1) of s.153-A – Nothing
wrong with a citizen of India extending good wishes to the
citizens of Pakistan on 14th August, their Independence Day –
It’s a gesture of goodwill – It cannot be said that such acts will
tend to create disharmony or feelings of enmity, hatred or ill-will
between different religious groups – Clause (b) of sub-sec.(1) of
s.153-A not attracted – Impugned judgment and FIR, quashed.
[Paras 10, 9, 11, 12, 14, 15]
Constitution of India – Articles 19, 21 – Right to dissent,
a part of the right to lead a dignified and meaningful life
guaranteed by Article 21 – Police to be sensitised about the
democratic values enshrined in the Constitution:
Held: 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 – But the protest or dissent must be within four
corners of the modes permissible in a democratic set-up – It is
subject to reasonable restrictions imposed in accordance with
clause (2) of Article 19 – In the present case, the appellant did
[2024] 3 S.C.R. 319
Javed Ahmad Hajam v. State of Maharashtra & Anr.
not at all cross the line – Now, the time has come to enlighten
and educate the 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 the Constitution. [Paras 10, 13]
Case Law Cited
Manzar Sayeed Khan v. State of Maharashtra & Anr.,
[2009] 6 SCR 431 : (2007) 5 SCC 1; Ramesh v. Union of
India, [1988] 2 SCR 1011 : (1988) 1 SCC 668; Patricia
Mukhim v. State of Meghalaya & Ors., [2021] 7 SCR
65 : (2021) 15 SCC 35 – relied on.
Bhagwati Charan Shukla v. Provincial Government, AIR
1947 Nag 1 – referred to.
List of Acts
Penal Code, 1860; Constitution of India.
List of Keywords
WhatsApp status; Happy Independence Day Pakistan; Abrogation
of Article 370; Criticise the action of the State; Expression of
protest; Anguish; Freedom of speech and expression; Democracy,
Right to dissent; Legitimate and lawful manner; Hatred; Ill-will;
Gesture of goodwill; Disharmony; Enmity; Religious groups; Police
sensitization; Abuse of process of law.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.886
of 2024
From the Judgment and Order dated 10.04.2023 of the High Court
of Judicature at Bombay in CRWP No. 94 of 2023
Appearances for Parties
Javed R Shaikh, Adil Muneer Andrabi, Towseef Dar, Yasser Jilani,
Ms. Bisma Rashid, Aushaq Hussain, Saddam Hussain, Advs. for
the Appellant.
Aaditya Aniruddha Pande, Siddharth Dharmadhikari, Bharat Bagla,
Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse, Advs. for the
Respondents.
320 [2024] 3 S.C.R.
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Judgment / Order of the Supreme Court
Judgment
Abhay S. Oka, J.
FACTUAL ASPECTS
1. A First Information Report (for short, ‘the impugned FIR’) was
registered against the appellant for the offence punishable under
Section 153-A of the Indian Penal Code, 1860 (for short, ‘the IPC’).
The appellant filed a writ petition before the High Court of Judicature
at Bombay for quashing the FIR. By the impugned judgment dated
10th April 2023, the High Court has dismissed the writ petition.
2. The appellant was a Professor at Sanjay Ghodawat College in District
Kolhapur, Maharashtra. He came to Kolhapur for employment. Earlier,
he was a permanent resident of District Baramulla, Kashmir. The
appellant was a member of a WhatsApp group. The allegation of
commission of offence is based on what was seen on his WhatsApp
status. The State Government has set out the precise text appearing
on the WhatsApp status of the appellant in its counter affidavit.
Clauses (c) and (d) of paragraph 3 of the counter affidavit read thus:
“3. .. .. .. .. .. .. .. .. .. .. ..
a. .. .. .. .. .. .. .. .. .. .. ..
b. .. .. .. .. .. .. .. .. .. .. ..
c. During the incident, the Petitioner was employed
as a Professor at Sanjay Ghodavat College. The
Petitioner was a member of a WhatsApp group that
consisted of parents and teachers. Between August
13, 2022, and August 15, 2022, while being part
of this WhatsApp group, the Petitioner posted two
messages as their status:
1. “August 5 – Black Day Jammu & Kashmir.”
2. “14th August – Happy Independence Day Pakistan.”
d. Furthermore, after aforementioned status, the
Petitioner WhatsApp status on their mobile included
the message: “Article 370 was abrogated, we
are not happy.” Based on these allegations, the
[2024] 3 S.C.R. 321
Javed Ahmad Hajam v. State of Maharashtra & Anr.
present FIR was registered under Section 153-A of
the Indian Penal Code, 1860, by the Hatkanangale
Police Station in Kolhapur.
.. .. .. .. .. .. .. .. .. .. .. .. ..”
3. By the impugned judgment, the Division Bench of 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. However, the other objectionable part
can attract the offence punishable under Section 153-A of the IPC.
SUBMISSIONS
4. The learned counsel appearing for the appellant submitted that
by no stretch of the imagination, the words written on WhatsApp
status by the appellant will promote disharmony or feelings of
enmity, hatred or ill-will between different religious, racial, language
or regional groups or castes or communities. He relied upon a
decision of this Court in the case of Manzar Sayeed Khan v. State
of Maharashtra & Anr1
. He submitted that the prosecution of the
appellant was a complete abuse of the process of law. The learned
counsel representing the respondent-State of Maharashtra submitted
that whether the words or signs of the appellant on his WhatsApp
status promoted disharmony or feelings of enmity, hatred or ill-will
between different religious, racial, language or regional groups or
castes or communities or not, is a matter of evidence. He submitted
that it is only after examining the witnesses that the prosecution
can establish the effect of these writings or signs on the minds of
people. He submitted that at this stage, no conclusion regarding
the impact of what is written by the appellant on the minds of the
members of the public can be drawn. He would, therefore, submit
that no interference is called for with the impugned judgment, and
the trial may be allowed to proceed.
CONSIDERATION OF SUBMISSIONS
5. The only offence alleged against the appellant is the one punishable
under Section 153-A of the IPC. Section 153-A of the IPC, as it exists
with effect from 4th September 1969, reads thus:
1 [2009] 6 SCR 431 : (2007) 5 SCC 1
322 [2024] 3 S.C.R.
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“153-A. Promoting enmity between different groups
on grounds of religion, race, place of birth, residence,
language, etc., and doing acts prejudicial to maintenance
of harmony.—(1) Whoever—
(a) by words, either spoken or written, or by signs or
by visible representations or otherwise, promotes
or attempts to promote, on grounds of religion,
race, place of birth, residence, language, caste
or community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill-will
between different religious, racial, language or
regional groups or castes or communities, or
(b) commits any act which is prejudicial to the
maintenance of harmony between different
religious, racial, language or regional groups or
castes or communities, and which disturbs or is
likely to disturb the public tranquillity,
(c) organizes any exercise, movement, drill or other
similar activity intending that the participants
in such activity shall use or be trained to use
criminal force or violence or knowing it to be
likely that the participants in such activity will use
or be trained to use criminal force or violence,
or participates in such activity intending to use
or be trained to use criminal force or violence
or knowing it to be likely that the participants
in such activity will use or be trained to use
criminal force or violence, against any religious,
racial, language or regional group or caste or
community and such activity for any reason
whatsoever causes or is likely to cause fear
or alarm or a feeling of insecurity amongst
members of such religious, racial, language or
regional group or caste or community,
shall be punished with imprisonment which may
extend to three years, or with fine, or with both.
(2) Offence committed in place of worship,
etc.—Whoever commits an offence specified in
[2024] 3 S.C.R. 323
Javed Ahmad Hajam v. State of Maharashtra & Anr.
sub-section (1) in any place of worship or in any
assembly engaged in the performance of religious
worship or religious ceremonies, shall be punished
with imprisonment which may extend to five years
and shall also be liable to fine.”
In this case, clause (c) of sub-section (1) of Section 153-A of the
IPC is admittedly not attracted.
6. In the case of Manzar Sayeed Khan1
, while interpreting Section
153-A, in paragraph 16, this Court held thus:
“16. Section 153-A IPC, as extracted hereinabove, covers
a case where a person by words, either spoken or written,
or by signs or by visible representations or otherwise,
promotes or attempts to promote, disharmony or feelings
of enmity, hatred or ill will between different religious, racial,
language or regional groups or castes or communities or
acts prejudicial to the maintenance of harmony or is likely
to disturb the public tranquillity. 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 has to prove prima facie the
existence of mens rea on the part of the accused. The
intention has to be judged primarily by the language
of the book and the circumstances in which the book
was written and published. The matter complained of
within the ambit of Section 153-A must be read as a
whole. One cannot rely on strongly worded and isolated
passages for proving the charge nor indeed can one
take a sentence here and a sentence there and connect
them by a meticulous process of inferential reasoning.”
(emphasis added)
This Court referred to the view taken by Vivian Bose, J., as
a Judge of the erstwhile Nagpur High Court in the case of
Bhagwati Charan Shukla v. Provincial Government2. A
2 AIR 1947 Nag 1
324 [2024] 3 S.C.R.
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Division Bench of the High Court dealt with the offence of
sedition under Section 124-A of the IPC and Section 4(1) of the
Press (Emergency Powers) Act, 1931. The issue was whether
a particular article in the press tends, directly or indirectly, to
bring hatred or contempt to the Government established in law.
This Court has approved this view in its decision in the case
of Ramesh v. Union of India3
. In the said case, this Court
dealt with the issue of applicability of Section 153-A of IPC. In
paragraph 13, it was held thus:
“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, nor of those who scent danger in every hostile
point of view. … It is the standard of ordinary reasonable
man or as they say in English law ‘the man on the top of
a Clapham omnibus’.”
(emphasis added)
Therefore, the yardstick laid down by Vivian Bose, J, will have
to be applied while judging the effect of the words, spoken or
written, in the context of Section 153-A of IPC.
7. We may also make a useful reference to a decision of this Court
in the case of Patricia Mukhim v. State of Meghalaya & Ors4
.
Paragraphs 8 to 10 of the said decision read thus:
8. “It is of utmost importance to keep all speech free in order
for the truth to emerge and have a civil society.”—Thomas
Jefferson. Freedom of speech and expression guaranteed
by Article 19(1)(a) of the Constitution is a very valuable
fundamental right. However, the right is not absolute.
Reasonable restrictions can be placed on the right of free
speech and expression in the interest of sovereignty and
integrity of India, security of the State, friendly relations
with foreign States, public order, decency or morality or
in relation to contempt of Court, defamation or incitement
to an offence. Speech crime is punishable under Section
3 [1988] 2 SCR 1011 : (1988) 1 SCC 668
4 [2021] 7 SCR 65 : (2021) 15 SCC 35
[2024] 3 S.C.R. 325
Javed Ahmad Hajam v. State of Maharashtra & Anr.
153-A IPC. Promotion of enmity between different groups
on grounds of religion, race, place of birth, residence,
language, etc. and doing acts prejudicial to maintenance
of harmony is punishable with imprisonment which may
extend to three years or with fine or with both under Section
153-A. As we are called upon to decide whether a prima
facie case is made out against the appellant for committing
offences under Sections 153-A and 505(1)(c), it is relevant
to reproduce the provisions which are as follows:
…………………………………………………………………
…………………………………………………………………
……………………………………………………………………
9. Only where the written or spoken words have the
tendency of creating public disorder or disturbance of law
and order or affecting public tranquility, the law needs to
step in to prevent such an activity. The intention to cause
disorder or incite people to violence is the sine qua
non of the offence under Section 153-A IPC and the
prosecution has to prove the existence of mens rea
in order to succeed. [Balwant Singh v. State of Punjab,
(1995) 3 SCC 214 : 1995 SCC (Cri) 432]
10. The gist of the offence under Section 153-A IPC is
the intention to promote feelings of enmity or hatred
between different classes of people. The intention has
to be judged primarily by the language of the piece of
writing and the circumstances in which it was written and
published. The matter complained of within the ambit of
Section 153-A must be read as a whole. One cannot rely
on strongly worded and isolated passages for proving the
charge nor indeed can one take a sentence here and a
sentence there and connect them by a meticulous process
of inferential reasoning [Manzar Sayeed Khan v. State of
Maharashtra, (2007) 5 SCC 1 : (2007) 2 SCC (Cri) 417].”
(emphasis added)
8. Now, coming back to Section 153-A, clause (a) of sub-section (1) of
Section 153-A of the IPC is attracted when by words, either spoken
or written or by signs or by visible representations or otherwise, an
326 [2024] 3 S.C.R.
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attempt is made to promote disharmony or feelings of enmity, hatred
or ill-will between different religious, racial, language or regional
groups or castes or communities. The promotion of disharmony,
enmity, hatred or ill will must be on the grounds of religion, race,
place of birth, residence, language, caste, community or any other
analogous grounds. Clause (b) of sub-section (1) of Section 153-A of
the IPC will apply only when an act is committed which is prejudicial
to the maintenance of harmony between different religious, racial,
language or regional groups or castes or communities and which
disturbs or is likely to disturb the public tranquility.
9. 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 criticise
the action of the abrogation of Article 370 of the Constitution of India.
He has expressed unhappiness over the said act of abrogation. The
aforesaid words do not refer to any religion, race, place of birth,
residence, language, caste or community. It is a simple protest by
the appellant against the decision to abrogate Article 370 of the
Constitution of India and the further steps taken based on that decision.
The Constitution of India, under Article 19(1)(a), guarantees freedom
of speech and expression. Under the said guarantee, every citizen
has the right to offer criticism of the action of abrogation of Article
370 or, for that matter, every decision of the State. He has the right
to say he is unhappy with any decision of the State.
10. In the case of Manzar Sayeed Khan1, this Court has read “intention” as
an essential ingredient of the said offence. The alleged objectionable
words or expressions used by the appellant, on its plain reading,
cannot promote disharmony or feelings of enmity, hatred or ill-will
between different religious, racial, language or regional groups or
castes or communities. The WhatsApp status of the appellant has
a photograph of two barbed wires, below which it is mentioned that
“AUGUST 5 – BLACK DAY – JAMMU & KASHMIR”. This is an
expression of his individual view and his reaction to the abrogation
of Article 370 of the Constitution of India. It does not reflect any
intention to do something which is prohibited under Section 153-A.
[2024] 3 S.C.R. 327
Javed Ahmad Hajam v. State of Maharashtra & Anr.
At best, it is a protest, which is a part of his freedom of speech and
expression guaranteed by Article 19(1)(a). 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. 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. But the protest or dissent must be within
four corners of the modes permissible in a democratic set-up. It is
subject to reasonable restrictions imposed in accordance with clause
(2) of Article 19. In the present case, the appellant has not at all
crossed the line.
11. The High Court has held that the possibility of stirring up the emotions
of a group of people cannot be ruled out. The appellant’s college
teachers, students, and parents were allegedly members of the
WhatsApp group. As held by Vivian Bose, J, 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. We cannot 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 153-A of the IPC.
12. 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
328 [2024] 3 S.C.R.
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of the IPC. 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’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.
13. Now, 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.
14. For the same reasons, 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.
15. Accordingly, we set aside the impugned judgment dated 10th April
2023 of the High Court of Judicature at Bombay and quash the
impugned FIR bearing no. 295 of 2022 registered at PS Hatkanangle,
District Kolhapur, Maharashtra and the proceedings based on the
impugned FIR.
16. The Appeal is, accordingly, allowed.
Headnotes prepared by: Divya Pandey Result of the case:
Appeal allowed.
