Person cannot be booked for wishing happy independence day to Pakistan on WhatsApp: Supreme Court

The Supreme Court on Thursday quashed a hate speech case under Section 153A of the India Penal Code (IPC) against a college professor (petitioner) booked by the Maharashtra Police for putting up WhatsApp status criticising abrogation of Article 370 of the Constitution and wishing independence day to Pakistan [Javed Ahmad Hajam v. State of Maharashtra and Another]..A division bench of Justices Abhay Oka and Ujjal Bhuyan held that every citizen has the fundamental right to free speech under Article 19 of the Constitution to extend good wishes to citizens of the other countries on their respective independence days, and the same cannot attract any penal offence. "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. Motives cannot be attributed to the appellant only because he belongs to a particular religion," the Court said.On criticising the abrogation of Article 370, the Court said that every citizen has the right to criticise every action of the government and merely criticising a government decision will not attract Section 153A of the IPC. "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 observed.The Court also berated the police machinery for unwarranted prosecution."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..The petitioner was a professor at Sanjay Ghodawat College in Kolhapur district of Maharashtra. He had come to Kolhapur for employment. Earlier, he was a permanent resident of Baramulla in Kashmir.In the instant case, the appellant had putting a sequence of WhatsApp status which read as follows:- August 5 – Black Day Jammu & Kashmir- 14th August – Happy Independence Day Pakistan- Article 370 was abrogated, we are not happy.The appellant was also a part of a college WhatsApp group of which several parents and teachers were also members.He came to be booked under Section 153A of IPC after which he filed a petition before the Bombay High Court to quash the case.The Bombay High Court observed that what was stated by the petitioner regarding celebrating independence day of Pakistan will not come within the purview of Section 153A IPC. However, it was of the view that the other two WhatsApp status updates regarding Article 370 were objectionable and will attract Section 153A IPC.Hence, it dismissed the petitioner's plea. The petitioner then approached the apex court..At the outset, the top court placed reliance on its decisions in Manzar Sayeed Khan v. State of Maharashtra & Another (2007), Ramesh v. Union of India (1988) and Patricia Mukhim v. State of Meghalaya and Others (2021), to observe that the intention to cause disorder or incite people to violence is essential to attract the offence under Section 153A IPC and the prosecution has to prove the existence of mens rea in order to invoke the said provision.In the present case, the Court noted that on a plain reading of the the first and the second status (August 5 – Black Day Jammu & Kashmir/Article 370 was abrogated, we are not happy), it can be said that the appellant was only criticising the action of the government of abrogating the said article and there was no mens rea required under Section 153A IPC.He has the right to say he is unhappy with any decision of the State, the Court underscored..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.Supreme Court.The Court also noted that even though the appellant was part of a group of college teachers, students, and parents, the effect of the words used by the appellant on his WhatsApp status has to be judged from the standards of reasonable women and men and not from the point of view of few individuals who would develop hatred or ill will."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," the Court said. .With regard to the status posted by the petitioner regarding Pakistan's independence day, the Court was of the view that this will not attract Section 153A IPC since every citizen of the country has right to extend good wishes to citizens of other countries on their respective independence days..In view of the above, the Court set aside the decision of the High Court and has quashed the proceedings against the appellant. While quashing the case, the Court emphasised on the aspect of sensitizing the police machinery about the democratic principles enshrined in the Constitution..[Read Judgment]