2024 INSC 187 Criminal Appeal no.886 of 2024 Page 1 of 14

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.886 OF 2024

(Arising out of Special Leave Petition (Crl.) No.11122 of 2023)

Javed Ahmad Hajam … Appellant

versus

State of Maharashtra & Anr. … Respondents

J U D G M E N T

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 10

th 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

Criminal Appeal no.886 of 2024 Page 2 of 14

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. “14

th 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

present FIR was registered under

Section 153-A of the Indian Penal

Code, 1860, by the Hatkanangale

Police Station in Kolhapur.

.. .. .. .. .. .. .. .. .. .. .. .. .. ”

Criminal Appeal no.886 of 2024 Page 3 of 14

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 &

Anr

1. 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

1

(2007) 5 SCC 1

Criminal Appeal no.886 of 2024 Page 4 of 14

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 4

th September 1969, reads

thus:

“153-A. Promoting enmity between

different groups on ground s 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,

Criminal Appeal no.886 of 2024 Page 5 of 14

(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 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.

Criminal Appeal no.886 of 2024 Page 6 of 14

6. In the case of Manzar Sayeed Khan

1, 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

Criminal Appeal no.886 of 2024 Page 7 of 14

Bhagwati Charan Shukla v. Provincial Government

2. A

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 India

3. 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

& Ors

4. Paragraphs 8 to 10 of the said decision read thus:

2

AIR 1947 Nag 1

3

(1988) 1 SCC 668

4

(2021) 15 SCC 35

Criminal Appeal no.886 of 2024 Page 8 of 14

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 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

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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 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

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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. 5

th

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.

Criminal Appeal no.886 of 2024 Page 11 of 14

10. In the case of Manzar Sayeed Khan

1, 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 an y 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. 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

Criminal Appeal no.886 of 2024 Page 12 of 14

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 “14

th 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. Every citizen has the

Criminal Appeal no.886 of 2024 Page 13 of 14

right to extend good wish es 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

10

th April 2023 of the High Court of Judicature at Bombay and

quash the impugned FIR bearing no. 295 of 2022 registered at

Criminal Appeal no.886 of 2024 Page 14 of 14

PS Hatkanangle, District Kolhapur, Maharashtra and the

proceedings based on the impugned FIR.

16. The Appeal is, accordingly, allowed.

….…………………….J.

( Abhay S. Oka)

…..…………………...J.

(Ujjal Bhuyan)

New Delhi;

March 7, 2024 .