The right to protest and dissent are inalienable: Supreme Court

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By Joseph Maliakan

NEW DELHI—Criticising the abrogation of Article 370 of the Constitution of India or wishing Pakistan on its independence day did not attract the provisions of Section 153 (A) of the Indian Penal Code , the Supreme Court ruled on 7th March 2024, setting aside a the Bombay Court order and quashing an FIR registered against Professor Javed Ahmad, of a college in Kolhapur, Maharashtra.

A division bench of Supreme Court comprising Justices O.S. Oka and Ujjal Bhuyan ruled : “Every citizen of India has a right to be critical of the action of abrogation of Article 370 and the changed status of Jammu and Kashmir.”

As part of a WhatsApp group of teachers and parents between August 13 and August 15, Prof Javed Ahmed Hajam had posted three messages as status: “August 5 – Black Day Jammu & Kashmir and “14 August Happy Independence Day Pakistan and” Article 370 was abrogated, we are not happy.”

Based on these, the Hatkanangle police in Kolhapur registered an FIR under section 153A of the IPC. The section deals with promoting enmity between different groups on grounds of religion, race, language etc., and doing acts prejudicial to maintenance of harmony and shall be punishable with imprisonment which may extend to three years, or with fine or with both.

The Supreme Court in its order made very clear: “The right to dissent is 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 right to lead a dignified and meaningful life guaranteed by Article 21.”

“But the protest or dissent must be within the 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 apex court said.

Commenting on the WhatsApp status of Prof Hajam, the Supreme Court pointed out: “This is an expression of his individual view and his reaction to the abrogation of Article 370 of the Constitution of India and does not reflect any intention to do anything 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).”

Setting aside the Bombay High Court ruling, the Supreme Court said, “The High Court has held that the possibility of stirring up the emotions of a group of people cannot be ruled out …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 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, the SC said is “not the effect of words on some individuals with weak minds or who see a danger in every hostile point of view. The test is of 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 subsection (1)of Section 153-A of the IPC.”

“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 of the IPC,” the top court ruled.

“Every citizen has a right to extend good wishes to the citizens of other countries on their respective independence days,” the Supreme Court said.

“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 is 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 particular religion,” the Supreme Court stressed.

The order concluded by emphasising the need to enlighten and educate our police machinery on the concept of freedom of speech and expression guaranteed by our Constitution and the extent of restrictions on these freedoms. They should also be sensitised about democratic values enshrined in our Constitution.

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