In this case, the Supreme Court considered whether WhatsApp status can be held offensive under sec. 153A of IPC. The appellant posted two status related to abrogation of art. 370 and wishing happy independence day to Pakistan.

Case title

Javed Ahmad Hajam v. State of Maharashtra and Anr., 2024 INSC 187.

Bench: J. Abhay S. Oka and J. Ujjal Bhuyan

Facts

A FIR was registered against the appellant for the offence punishable under section 153A of IPC. The appellant filed a writ petition before the High Court of Judicature at Bombay for quashing the FIR. The High Court dismissed the petition. The appellant was a professor at Sanjay Ghodawat College in District Kolhapur, Maharashtra. He was a resident of Baramulla, Kashmir. He was a member of WhatsApp group. The offence is based on what he posted in his status on WhatsApp. He posted two status the first one was wishing Happy Independence Day to Pakistan and second status was stating the day of abrogation of Art. 370 as a black day.

Submissions

The counsel representing appellant submitted that by no stretch of imagination, the words written on WhatsApp will promote disharmony or feeling of enmity, hatred or ill-will. He relied on Manzar Sayeed Khan v. State of Maharashtra and Anr.[1]

The prosecution submitted that it is matter of evidence to consider whether disharmony or feeling of enmity, hatred or ill-will occurred due to appellant status.

Consideration of submissions

Sec. 153A of IPC read as “Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. In Manzar Sayeed Khan case, the court interpreted sec. 153A to provide that the gist of the offence is the intention to promote feelings of enmity or hatred between classes of people. The intention is sine qua non.

The court cited another case titled Bhagwati Charan Shukla v. Provincial Government.,[2] where the division bench of the High Court considered questions related to Sec. 124A of IPC and Sec. 4(1) Press (Emergency Power) Act, 1931 was against the appellant questioning whether article published bring hatred? The court in the above case cited Ramesh v. UOI[3] which stated that:

“The effects 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.”

The court also referred to Patricia Mukhim v. State of Meghalaya and Ors.,[4]which highlighted on freedom of speech and expression and the intention to cause disorder or incite people to violence is sine qua non of offence under sec. 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed. ¶7

Court Observation

The appellant WhatsApp status related to the abrogation of Art. 370 of the Constitution is an expression of unhappiness. He has the right to say he is unhappy with any decision of the state. The Constitution of India, under Article 19(1)(a) guarantees freedom of speech and expression. It is a simple protest and well within the right of the appellant to criticize the action of abrogation of Art. 370 of the Constitution. ¶9

As regards the wishing Happy Independence Day to Pakistan. It is gesture of goodwill from citizen of one country to wish on Independence day of another country and every citizen has the right to extend good wishes to the citizens of the other countries on their respective independence days.

Judgment

The court stated that Sec. 153A would not be applicable in the case of the appellant from what is depicted on the WhatsApp status of the appellant. Thus, continuation of the prosecution under Sec. 153A of the IPC will be a gross abuse of the process of law. Accordingly, the Court set aside the judgment of Bombay High Court and quash the FIR against the appellant. ¶14, ¶15 & ¶16.  

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[1] (2007) 5 SCC 1.

[2] AIR 1947 Nag 1.

[3] (1988) 1 SCC 668.

[4] (2021) 15 SCC 35.