This Case Commentary is written by Advika Dwivedi, a Fourth-Year Law Student of Christ Academy Institute of Law

Case Details

SCR Citation: [2024] 3 S.C.R. 317

Year/Volume: 2024/ Volume 3

Date of Judgment: 07 March 2024

Neutral Citation: 2024 INSC 187

Judgment Delivered by: Hon'ble Mr. Justice Abhay.S. Oka

Case Type: CRIMINAL APPEAL /886/2024

Bench: Hon'ble Mr. Abhay S. Oka and Hon'ble Mr. Ujjal Bhuyan, JJ.

Parties to the Dispute

Petitioner: Javed Ahmad Hajam

Respondent: State Of Maharashtra & Anr.

Introduction

On 7th of March 2024, Justice Abhay S. Oka and Justice Ujjal Bhuyan pronounced an uncanny judgment shielding the inviolability of the constitutionally guaranteed freedom enshrined under Article 19 (1)(a) vis-à-vis Article 21 of the Constitution of India. The case of Javed Ahmad Hajam V. State Of Maharashtra & Anr.[1], emphasizes establishing the essential ingredients of the penal law for the conviction of the accused.

Facts of the Case

1. The Appellant, a Professor at Sanjay Ghodawat College in District Kolhapur, Maharashtra, was earlier a permanent resident of District Baramulla, Kashmir. The Appellant was a member of a WhatsApp Group comprising Parents and Students. In the time frame of August 13, 2022, to August 15, 2022, the apparent uploaded two messages as status:

i. “August 5 – Black Day Jammu & Kashmir” with a picture of two barbed wires.

ii. “14th August – Happy Independence Day Pakistan” with a picture of “Chand”(Moon).

2. Additionally, the appellant’s WhatsApp Status included a message stating, “Article 370 was abrogated, we are not happy.” Based on the status, the Hatkanangale Police Station in Kolhapur registered a First Information Report for the offense punishable under Section 153-A of the Indian Penal Code, 1860 (IPC).

History of the Case

The Appellant filed a petition before the Bombay High Court, pleading to quash the FIR filed against him. The reason is that neither of the statuses would attract the application of Section 153-A of IPC. After due consideration, the Bombay High Court on 10th April’23 observed that celebrating the Independence Day of Pakistan would not fall under the purview of Section 153-A but on the contrary, with references to other objectionable parts refused to quash the FIR and Dismissed the petition. Applying the impugned judgment of the Division Bench of Bombay High Court, the appellant filed a Special Leave Petition under the virtue of Article 136 of the Constitution of India.

Judgment

The Hon’ble Supreme Court allowed the appeal of the appellant, setting aside the impugned judgment of the Division Bench of the Bombay High Court. The Hon’ble Court quashed the FIR in question along with the proceedings based on such impugned FIR.

Analysis

The Hon’ble Court scrutinized the facts of the case in consideration with Manzar Sayeed Khan vs. State of Maharashtra[2], Balwant Singh v. State of Punjab[3], Patricia Mukhim vs. State of Meghalaya & Ors.[4] Bhagwati Charan Shukla v. Provincial Government[5] and Ramesh v. Union of India[6].

The Original draft of the Constitution of India guaranteed the freedom of speech and expression with the virtue of Article 19(1)(a) which could only be curtailed by Article 19(2), empowering the State to restrict such freedom which undermines the Security of the State or overthrows the State. Sedition, Hate Speech, and Public Order were intentionally not included under Article 19(2) of the Constitution.[7] The First Amendment to the Constitution of India authorized the state to make laws concerning curtailment of the right including on the ground of ‘public order’.[8] It must be noted that such an addition to the Article not only prevented the repealing of numerous colonial laws but also made it difficult for the Judiciary to protect the dissent of the citizens. [9]

Public order is an encompassing concept that refers to the peaceful coexistence of members of political society. The government's internal constraints have led to this state of quiet. The term 'public order' was missing from Article 19(2). It was determined that only the grounds specified in that article could be used to impose constraints. As a result of this decision, the term 'public order' was added to Article 19(2), establishing a legal basis for regulating free expression. Anything that disrupts public peace is a threat to public order.[10] Thus, community disturbances[11] and strikes conducted only to incite worker[12] Dissatisfaction are public order offense. Merely criticizing the government does not inevitably threaten public order.[13] Under "public order," the Union Government may prevent a country at war with India from disseminating propaganda. [14]

With the bear reading of Section 153-A, “intention” is a sine qua non for the application of the offense.[15] This was also observed by the Hon’ble Court via the case of Manzar Sayeed Khan.[16]:

“16. The gist of the offense 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 intention must 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. 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.”

The liberty granted to the citizens must be without charge of seeming sensitive to the understanding of public authorities. Our Constitutional Frameworks have emphasized maintaining the sanctity of fundamental rights and constructing effective governance. The Hon’ble Court has affirmed that the expression “Black Day” is mere protest and anguish.[17] The grundnorm of criminal law has highlighted malicious intent as essential for conviction.

The Hon’ble Court ruled Clause (b) of sub-section (1) of Section 153-A of the IPC applies to acts that harm harmony between religious, racial, language, or regional groups, castes, or communities and disrupt public tranquility.[18] Article 21 ligatures with Article 19 for a citizen to live a meaningful life.[19] All the feathered rights under Article 21 can be referenced with the right to dissent as correctly observed as well.

The “effect test”[20] Must be solicited for. The Preamble of the Constitution of India declares the State to absorb the principles of a Democratic Republic. Justice Bhagwati, in Maneka Gandhi v. Union of India[21], threw light on the right to open discussion and open dialogue. For the functioning of a popular government[22] It is vital that citizens critically pursue the passing of ‘The abrogation of Article 270’.

Conclusion

The fundamental right to freedom of speech and expression, guaranteed by Article 19(1)(a) of the Indian Constitution, is critical to the operation of a democratic society. It assures that people can express themselves, collect information, and participate in public debates. This right, however, is not absolute and can be fairly limited for the sake of sovereignty, public order, or morality.

The correlation between free expression and Article 21, which safeguards the right to life and personal liberty, is their shared contribution to human dignity. The Supreme Court of India stressed that the right to life is incomplete without the opportunity to freely express oneself, connecting free speech to the larger concept of human liberty and self-fulfillment.

The judiciary has vigorously safeguarded these rights. In numerous key cases, the courts held that arbitrary limits on freedom of expression violate both Article 19(1)(a) and Article 21, guaranteeing that the state cannot deprive people of their liberty without due process of law. This judicial decision stressed the value of free speech in maintaining a healthy democracy.

References

1. Manupatra, Manupatra Articles, https://articles.manupatra.com/article-details/A-Bird-s-Eye-View-of-the-Right-to-Freedom-of-Speech-and-Expression-in-India (last visited Sep 19, 2024).

2. Subhajit Basu & Shameek Sen, Taylor & Francis Online: Peer-reviewed journals, https://www.tandfonline.com/doi/full/10.1080/14797585.2023.2194551 (last visited Sep 19, 2024).

3. Published by Constitutional Law Society- NLUO View all posts by Constitutional Law Society- NLUO et al., Javed Ahmad v. State of Maharashtra: The intriguing nexus between art. 21 and the right to dissent Constitutional Law Society (2024), https://clsnluo.com/2024/06/03/javed-ahmad-v-state-of-maharashtra-the-intriguing-nexus-between-art-21-and-the-right-to-dissent/#:~:text=By%20and%20large%2C%20the%20decision,valuable%20right%20to%20free%20speech (last visited Sep 19, 2024).

4. Abhinav Sekhri, Guest post: On the decision in Javed Ahmad Hajam v. Maharashtra Guest Post: On the Decision in Javed Ahmad Hajam v. Maharashtra, https://theproofofguilt.blogspot.com/2024/03/guest-post-on-decision-in-javed-ahmad.html (last visited Sep 19, 2024).

5. Javed Ahmad Hajam v. State of Maharashtra & Anr. [2024] 3 S.C.R. 317 : 2024 INSC 187, Digital Supreme Court reports, https://digiscr.sci.gov.in/view_judgment?id=MzY2ODE (last visited Sep 19, 2024).

[1] [2024] 3 S.C.R. 317 : 2024 INSC 187

[2] (2007) 5 SCC 1 : (2007) 2 SCC (Cri) 417]

[3] (1995) 3 SCC 214 : 1995 SCC (Cri) 432

[4] [2021] 7 SCR 65 : (2021) 15 SCC 35

[5] AIR 1947 Nag 1

[6] [1988] 2 SCR 1011 : (1988) 1 SCC 668

[7] Abhinav Chandrachud, 2017. Republic of Rethoric: Free Speech and Constitution of India. Penguin Random House India.

[8] Ibid.

[9] Arudra Burra. 2018. 'Freedom of Speech in the Early Constitution: A Study of the Constitution (First Amendment) Bill', in Udit Bhatia (ed.) The Indian Constituent Assembly: Deliberations on Democracy. Routedge, p. 132; Ramachandra Guha. 2016. Democrats and Dissenters. Allan Lane

[10] Om Prakash v. Emperor, 1949CRILJ34, AIR 1949 ALLAHABAD 37

[11] Noor Mohammad v. Rex, 1949 CriLJ 131

[12] Note 10

[13] Raj Bahadur Gond v. State of Hyderabad [1953] AIR 277 (Hyd)

[14] Rex v. Amir Hussain, MANU/UP/0122/194.

[15] Note 3

[16] Note 1

[17] Para.10, Note 1

[18] Para 8, Note 1

[19] Para 10, Note 1

[20] Applicability of Section 153-A of IPC, in paragraph 13: “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.” Note 6.

[21] MANU/SC/0133/1978.

[22] Romesh Thappar v. State of Madras AIR 1950 Supreme Court 124.