JAVED AHMAD HAJAMversusSTATE OF MAHARASHTRA & ANR.

                 [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 – Appellant-
       Professor 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 –

* Author
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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.
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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
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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
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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
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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
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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.