Guest Post: On the Decision in Javed Ahmad Hajam v. Maharashtra

(This is a guest post by Prabash Pandey)

A Bench of the Supreme Court recently delivered the judgment in Javed Ahmad Hajam v. State of Maharashtra [2024 INSC 187, decided on 07.03.2024 ('Javed Hajam')] – in an appeal from the Division Bench of Bombay High Court for refusing to quash FIR under Section 153A of the IPC, which pertains to promoting enmity or disharmony between different groups.

The Supreme Court affirmed that even at its most deferential standard (i.e., a mere existence of a prima facie case based on prosecution’s case records), the ingredients constituting the offence must be made out. The court's reasoning provides that such burden falls on the prosecution, and a court cannot approximate or stretch the material so as to meet this criterion nor can uncritically accept the State’s version of the events, however remote the possibility of such events might be, based on available material.

In this piece, I argue that the judgment in Javed Hajam is significant as it reaffirms the “basics” that a judge must consider when adjudicating claims related to personal liberty.

Background

The accused was a professor working in Maharashtra but originally belonged to Kashmir. The case essentially revolves around two sets of messages he allegedly shared on a WhatsApp group comprising of parents and teachers –

1. A message wishing Happy Independence Day of Pakistan, and
2. A message terming the abrogation of Article 370 as wrong and August 5th a Black Day for the Indian Republic.

He was charged under Section 153A IPC, i.e., promoting enmity between groups or feelings of hatred.

The accused’s application for quashing the FIR was moved before the High Court under Section 482 of CrPC, which, as construed by precedent, required a prima facie case to be established where the prosecution’s material is accepted in its entirety and taken at face value. The High Court agreed that no offence was made out on the first set of messages but found that the second set of messages satisfied the ingredients of the offence. While doing so, I would argue that the High Court almost nullified citizens’ Right to criticise the Government’s actions.

The High Court held that criticising the abrogation of Article 370 was motivated by emotion and was made without giving any reasons for the opinion or any critical analysis of the Government’s actions. It went on to hold that abrogation of Article 370 was a matter that involved a lot of contrasting opinions, and thereby, any criticism of the same should be based on an evaluation of all merits and cons and backed by reasons lest there be a possibility of harmful consequences (para 9). The High Court held that –

“9. When the emotions and sentiments behind a particular thing or aspect being criticized run high with different shades and hues among different groups of people. In such a case, the criticism, disagreement; difference of opinion, dissent, whatever one may choose to call, must be, expressed upon an in-depth analysis and accompanied by reasons, so that the appeal that such critique makes is not to the emotions of groups of people but to the reason; the logic; the rationale of the groups of people.”

The High Court, I would submit, made two grave errors –

1. It prevented any simple disagreement of government actions by citizens, making it dependent upon a complete analysis of merits and cons and providing reasons for disagreement.
2. It provided for a very wide criterion wherein such rational analysis needs to be done, i.e., “when emotions behind a particular thing are high.” This by itself and the court’s reasoning further did not shed any light on when such circumstances exist, for presumably, any decision by the government that affect interests of one community will make their emotions High and make criticism by common citizenry almost impossible.

Furthermore, the High Court’s reasoning in my view fell flat even on first order principles of hate speech jurisprudence. It seems to follow earlier views which lay down considerable emphasis on the words themselves and not whether such words were valid criticism or a truthful version of the account. This effectively led to a Heckler’s veto on citizen’s speech, with Section 153A being used to suppress any speech which harms majoritarian sentiments.

Jeremy Waldron has argued that Hate Speech does two things –

· It promotes exclusion of a community and thus violates the constitutional value of equality.

· It damages inherent dignity of the community.

Based on the above framework, it has been argued that hate speech should be seen not by its contents but rather through the lens of constitutional morality, i.e., only speech that has no inherent value or is made with express intent to violate inherent dignity of a community should be punished, and constraints not be over-broad so as to give a heckler’s veto or restrict artistic expression, which is what distinguishes it from thought crime or blasphemy law.

A similar framework for hate speech was recognised by the Supreme Court in Pravasi Bhalai Sangathan and Amish Devgan, emphasising that hate speech has no redeeming or legitimate value other than hatred towards a particular group. This is different from mere advocacy or criticism of government policies, which is at the heart of Article 19(1)(a).

The High Court, in its reasoning, not only misconstrued the purpose behind hate speech law and thereby the necessary ingredients but approximated the prosecution material of (the accused belonging from a minority religion) to a prima facie possibility (howsoever, remote) of disorder (para 9). A liberty-enhancing view would have recognised that the burden lies on the prosecution (even at a prima facie stage) to establish a direct link between disorder and speech and not for the court to engage in the gap-filling exercise of the prosecution’s case.

Supreme Court’s Reversal – Affirming the Basics

The Supreme Court disagreed with the High Court’s order on the second set of messages and quashed the FIR in its entirety. The Supreme Court's reasoning is significant, as it shows that even in an application for quashing of FIR, wherein the law demands considerable deference to be given to the prosecution, there remains a space for the Courts to substantively engage with the materials presented by the prosecution.

The Supreme Court’s order adopts a line of judicial reasoning that can be described as liberty-enhancing, that envisages scrutiny of the ingredients of the offence and the materials presented by the prosecution. At the heart of the court’s reasoning is that the essential requirement of Section 153A IPC is the “intention to promote enmity or hatred.” The court relied on the earlier decision of Manzar Sayeed Khan v. State of Maharashtra to hold that the gist of the offence is the intention to cause disorder or incite the people to violence, and the prosecution has to prove a prima facie existence of mens rea on the part of the accused. Based on this interpretation, the court holds that the alleged objectionable messages sent by the appellant must, on the face of it, promote disharmony or feelings of enmity, hatred, or ill-will between different groups.

The court notes that there was no intention to ignite feelings of hatred behind the messages sent by the appellant; instead, they were an expression of his individual view and reaction to the abrogation of Article 370. This was merely a simple protest, protected by Article 19(1)(a). The court correctly reaffirmed that the right to dissent from government actions is an integral part of Article 19(1)(a) rights and also must be treated as a part of the right to lead a dignified and meaningful life under Article 21 (para 9).

The court then notes the second essential of Section 153A jurisprudence: the effect of the words must be to create or have a tendency to create public disturbance or disturbance of law and order or effect public tranquility. The court’s analysis of this is strikingly simple at its core, i.e., the effect cannot be judged based on subjective satisfaction of the judges or from the perspective of one community who might get enraged by it but rather by its impact on reasonable people who are significant in numbers (para 11).

Unlike the High Court, which perceived the effect of words through the perspective of the few and held that the possibility of stirring up their emotions could not be ruled out, the Supreme Court’s opinion recognised that the purpose of Section 153A IPC (and other hate speech laws) is not to impose the morality or opinion of those with most prominent voice over others (heckler’s veto) but rather to prevent speech which has no intrinsic value and affects constitutional morality at large from remaining in the public sphere.

The Supreme Court goes on to hold that by no stretch could the messages by the petitioner be interpreted to promote feelings of ill-will or hatred amongst communities and instead had the intrinsic value of a simple act of protest against government actions.

Thus, the Supreme Court goes on to partially overrule the High Court’s decision and quashes the FIR on the appellant on both sets of messages, holding it a gross abuse of process. The court, in the process, reaffirms that when dealing with claims of personal liberty and deciding the existence of prima facie claims –

• The gap between the prosecution’s case and the necessary ingredients cannot be bridged by inferences or speculation.
• When such a gap exists, the prosecution’s burden is not discharged, and personal liberty should not be restricted.

Conclusion

The judgment in Javed Hajam and the Supreme Court’s assessment of the prosecution’s case reaffirms what ought to be a basic principle when dealing with criminal statutes, Courts even at their most deferential should not shirk from their responsibility to ensure that the prosecution’s case fits the ingredients of the offence for which the accused is being charged for. The court’s assessment of the prosecution’s material against the accused demonstrated that such evidence must correspond, even at a prima facie view, to establish the necessary ingredients of the offence. If any such gap exists between the two, the court must intervene in favour of the accused and not fill the gap by stretching the material through mere inferences or speculative analysis.