Courts in India have often flattered to deceive on free-speech matters. The judgment on the Kashmir internet shutdown case provides an archetype. The court held that the right to speak freely on the internet is a fundamental right. But instead of lifting the internet shutdown that had prevented anyone in Jammu and Kashmir from speaking and communicating on the internet, the court instead directed a committee headed by the home secretary to review all orders. That was a bit like unlocking the birdcage, but giving the key to the captor to lock the bird in again. The court’s paeans to free speech rung hollow when its actions failed to live up to its own wisdom.
This is why the judgment of the Supreme Court in Javed Ahmad Hajam vs State of Maharashtra is an overdue corrective. Hajam, a professor in a local college in Kolhapur, had a first information report filed against him for promoting religious disharmony. This was on the basis of three status updates on WhatsApp in which he wished Pakistan and Pakistanis a happy Independence Day, commemorated August 5, the day Article 370 was abrogated in Kashmir, as a “Black Day”, and expressed his unhappiness with the abrogation. The high court found his posts on Kashmir objectionable and refused to quash the police proceedings against him.
In the Supreme Court, the State made a spirited case that whether his statements had in fact incited people to violence or caused disharmony would be proved by evidence. Before such evidence could be gathered, the case should not be quashed. Appealing to the conservatism inherent in every court of law, the prosecution urged caution.
The court threw caution to the wind.
It categorically held that the professor’s statements on Article 370 were an expression of his opinion. He had a fundamental right to disagree with the government’s decision to abrogate the Article and commemorate it as a “Black Day”. Any expression of disagreement with a governmental action could not be seen as a view intended to foster disharmony between citizens. Citizens would have to rise above such pettiness. Similarly, wishing Pakistanis on Independence Day was an act of courtesy. Simply because a Muslim man had expressed this view, it cannot be inferred that there was any motive to the statement. Neither was it accompanied by any call to violence or hate. The court unequivocally quashed the FIR and removed the prospect of any criminal prosecution against Hajam.
At a time when plainspeak of this nature has become uncommon, the judgment is a breath of fresh air. It refuses to judge either of the status messages from the perspective of “weak and vacillating minds” or as per those “who scent danger in every hostile point of view”. From either of these perspectives, it is easy to conclude that Hajam’s statements can incite the gullible to jump to generalised conclusions, conflating Muslims with support for Pakistan or branding critics of governmental action as ‘anti-national’. It holds on to the view that the reasonable Indian is fair, rational and not quick to take offence.
While reassuring, it also shows how flimsy the law is as an anchor for freedom and liberal values. The law is always interpreted in light of where society is at any given moment. With the mainstreaming of a raft of illiberal views over the decades, the day when a reasonable person may view criticising any government as offensive or triggering may not be far away.
Even today, it required two enlightened judges of the Supreme Court to show common sense when the Bombay High Court and layers of the Maharashtra police had been indifferent. The ‘reasonable Indian’ is too precious to democracy in India to simply be left to the enlightenment of Supreme Court judges — each of us has to introspect and guard against lazy generalisations that push us towards hate.
The judgment also contains a timely warning to the police force to be trained in constitutional values like free speech. This is particularly relevant at a time when the three new criminal legislations fundamentally transforming the nature and structure of criminal law in India are about to come into force. While the impulse to decolonise colonial-era criminal laws is understandable, decolonisation will remain a farce at best without retraining the police that still functions as a colonial force. As a nation that aspires to a tech-enabled modernity, the police will have to be fundamentally reoriented away from being lathi-wielding punishers to enablers of access to justice. This is a generational transformation and the Supreme Court’s message to governments to invest in police training is timely and apt.
Finally, the reason this incident became a police case in the first place is because of the continued existence of Section 153A of the Indian Penal Code. This provision, designed to deter communal violence, is based on the colonial way of seeing Indian society as a lumping together of communities inimical to each other. The job of the colonial State in such a construct was to maintain peace while doing little to bridge differences.
It is a sign of how colonised our minds are that we have bought in entirely to the need for the State to maintain communal peace without questioning why the adjective, ‘communal’, isn’t superfluous. Shouldn’t the Indian State not simply be looking to maintain peace at the bare minimum, and fashion a cohesive, harmonious society at its most ambitious, without seeing a citizen as Hindu or Muslim?
The judgment of the Supreme Court urges everyone not to think of Javed Ahmad Hajam in terms of his religious identity but as a citizen who disagrees with some of his government’s decisions. That makes him neither a criminal nor an anti-national. It makes him an Indian with a point of view. It is on the back of the voices of billions of such Indians that the nation too will find its own voice. Police cases to stifle such voices are like the mucus stuck in our national throat. This simple, yet landmark, judgment of the Supreme Court has cleared up the passage for now.
Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy. Views are personal
