SC quashes FIR over Art 370 protest: How the court relied on the 1947 Justice Vivian Bose ruling
The Supreme Court on Thursday (March 7) quashed an FIR against a Maharashtra college professor booked for his WhatsApp status critical of the abrogation of Article 370 and for wishing Pakistan on its independence day.
In doing so, the apex court cited a 1947 Nagpur High Court judgment authored by Justice Vivian Bose, which had said the effect of the words must be judged from the “standards of reasonable” men and women.
Over the years, courts have used Justice Vivian Bose’s ruling as a yardstick to judge if any words, spoken or written, can promote enmity or disharmony between different groups.
Here is a look at that judgment and how the Supreme Court relied on it to quash the FIR against the professor.
But first, what was the case against the Maharashtra college professor?
The Supreme Court was acting on a plea filed by one Javed Ahmad Hajam, who was a professor at a college in Kolhapur. Previously a permanent resident of Baramulla district in Kashmir, he had moved to Kolhapur to become a professor at a local college.
As part of a WhatsApp group of parents and teachers, Javed, between August 13 and August 15, 2022, allegedly posted two messages as status: “August 5-Black Day Jammu & Kashmir” and “14th August Happy Independence Day Pakistan.” The WhatsApp status also included the message: “Article 370 was abrogated, we are not happy.”
Based on these allegations, an FIR was registered against him under Section 153A of the Indian Penal Code, by the Hatkanangale police station in Kolhapur.
Section 153A IPC penalises “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”. It’s punishable with imprisonment of up to three years, a fine, or both.
Subsequently, on April 10, 2022, a two-judge Bombay High Court bench ruled that celebrating Pakistan’s Independence Day would not fall within the purview of Section 153A, but the “other objectionable part can attract the offence”.
In response, the professor moved the top court challenging the HC’s order.
Why did the Supreme Court quash the FIR against the professor?
On Thursday, a division bench of the top court quashed the FIR, saying “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.”
Relying on its 2007 ruling in Manzar Sayeed Khan v. State of Maharashtra the court said the “gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people”. The professor’s act, however, “does not reflect any 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),” the court added.
Setting aside the Bombay HC ruling, which said the possibility of stirring up the emotions of a group of people cannot be ruled out, the top court referred to Justice Vivian Bose’s 1947 ruling in Bhagwati Charan Shukla v. Provincial Government, delivered while he was a judge of the Nagpur HC.
What was Justice Vivian Bose’s 1947 ruling?
In 1947, a three-judge bench of the Nagpur HC, comprising Justice Vivian Bose, was tasked with deciding whether a particular article in the press, directly or indirectly, tended to bring about hatred or contempt for the government. In doing so, it also examined the offence of sedition under Section 124A of the IPC, which deals with the offence of sedition, and Section 4(1) of the Press (Emergency Powers) Act, 1931.
Justice Vivian Bose held that the said article didn’t incite or lead to sedition. He also came up with a test, which went on to become the yardstick for such cases to be decided in the future.
In his judgment, he ruled: “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”.
Similarly, in its 1988 ruling in Ramesh v. Union of India, popularly known as the TAMAS case, the top court reiterated this view. It dismissed a PIL to ban the exhibition of the television serial “Tamas” on the ground that it offends or is likely to offend public order and public morality and create public danger.
In the case against the college professor also, the top court referred to the yardstick laid down by Justice Vivian Bose.
The court said: “The (Bombay) 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 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”.
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