Wishing Happy Independence Day To Pakistan, Terming Abrogation Of Article 370 A Black Day For J&K Are Protected Under Article 19(1)(a): Apex Court Quashes FIR U/s. 153A IPC Against Kashmiri Professor

The Supreme Court has quashed an FIR registered against a Kashmiri Professor in Maharashtra under Section 153-A of the Indian Penal Code, 1860 for posting on social media, “14th August–Happy Independence Day Pakistan” with a picture of “Chand” and posting that August 5 (date of abrogation of Article 370) is a Black Day for Jammu and Kashmir and also saying that “Article 370 was abrogated, we are not happy”.

The Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan allowed an SLP filed by the Kashmiri Professor challenging an order of the Bombay High Court that refused to quash the FIR.

The Appellant Javed Ahmad Hajam was a Professor at Sanjay Ghodawat College in District Kolhapur, Maharashtra and was a permanent resident of District Baramulla, Kashmir. The allegation of commission of offence is based on what was seen on his WhatsApp status in August, 2022.

Advocate Javed R Shaikh appeared for the Appellant while AoR Aaditya Aniruddha Pande appeared for the Respondent State of Maharashtra.

The Division Bench of the Bombay High Court had held that the appellant celebrating the 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 said offence.

"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", the Supreme Court held.

The Supreme Court held that the Appellant has the right to say that he is unhappy with the decision of the State to abrogate Article 370 and that the said right is guaranteed under Article 19(1)(a) of the Constitution of India.

The Court held, "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".

The Court held that the WhatsApp status of the Appellant with a photograph of two barbed wires, below which it is mentioned that “AUGUST 5 – BLACK DAY – JAMMU & KASHMIR” is an expression of his individual view and his reaction to the abrogation of Article 370. "It does not reflect any intention to do something which is prohibited under Section 153-A. 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", the Court held.

The Supreme Court held 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 Court added that the right to dissent in a legitimate and lawful manner is an integral part of the rights guaranteed under Article 19(1)(a) and that Every individual must respect the right of others to dissent. The Court added that an opportunity to peacefully protest against the decisions of the Government is an essential part of democracy and that 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", the Bench clarified.

The Court held that as far as the finding of the High Court about the possibility of stirring up the emotions of a group of people is concerned, 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 Court held that the test is of the general impact of the utterances on reasonable people who are significant in numbers.

Cause Title: Javed Ahmad Hajam v. State of Maharashtra & Anr. (Neutral Citation: 2024 INSC 187)

Appearance:

Petitioner: Advocates Javed R Shaikh, Adil Muneer Andrabi, Towseef Dar, Yasser Jilani, Bisma Rashid, Aushaq Hussain, Saddam Hussain

Respondents: Advocates Aaditya Aniruddha Pande, Siddharth Dharmadhikari, Bharat Bagla, Sourav Singh, Aditya Krishna, Preet S. Phanse

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