New Delhi: In a key judgment, the Supreme Court on Thursday quashed an FIR against a Kashmiri Professor in Maharashtra and upheld his right to dissent while pointing out that criticising abrogation of Article 370 or for that matter any decision of the government was covered by Article 19(1)(a), which guarantees freedom of speech and expression.
"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," the Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan stated in the order.
The bench quashed the FIR against Javed Ahmad Hajam, a Baramulla resident who worked as a Professor at Sanjay Ghodawat College in Maharashtra's Kolhapur district. The FIR was registered under Section 153-A of the Indian Penal Code, 1860 for posting on social media,
In August 2022, Hajam, as his WhatsApp status, had kept “14th August–Happy Independence Day Pakistan” with a picture of “Chand” and also posted that August 5 (date of abrogation of Article 370) was a "Black Day" for Jammu and Kashmir while adding: “Article 370 was abrogated, we are not happy”.
"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 apex court said it was "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".
"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 Supreme Court held.
Advocate Javed R Shaikh appeared for the Appellant while AoR Aaditya Aniruddha Pande appeared for the Respondent State of Maharashtra.
The apex court said the WhatsApp status of the appellant has a photograph of two barbed wires, below which it mentioned “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. 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 observed.
It further highlighted 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). 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 noted.
The Court further held: "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 subsection (1) of Section 153-A of the IPC. Every citizen has the Criminal Appeal no.886 of 2024 Page 13 of 14 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."
The apex court said 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 court said.
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