An Overview
In March 2024, the Supreme Court (SC) bench consisting of Justice Abhay S. Oka and Justice Ujjal Bhuyan came out with a remarkable judgement in Javed Ahmad v. State of Maharashtra, which not only re-emphasised the sanctity of the fundamental right to freedom of speech and expression under Article (Art.) 19(1)(a), but also added a new dimension to the much haloed Art. 21 of the Constitution.
In this case, the appellant approached the SC via a Special Leave Petition (SLP) under Art. 136 of the Constitution. The appellant, a professor residing in Maharashtra but originally from Kashmir, was charged under S. 153-A of the Indian Penal Code for his posts in the social media platform, WhatsApp. The issue was triggered by two of his posts in a WhatsApp Group; while one was regarding the abrogation of Art. 370, the other was regarding the Independence Day of Pakistan. He had also posted a certain image as his ‘WhatsApp Status’ to express his displeasure with the abrogation of Art. 370.
The appellant filed a writ petition before the Bombay High Court (HC) for quashing the FIR, which was ultimately dismissed. Aggrieved by the lack of appreciation of the appellant’s right to free speech, which he is entitled to as a citizen of India, he appealed against this decision, hoping for an apposite and just consideration by the apex court.
After analysing the submissions, the SC quashed the FIR and set aside the impugned decision of the Bombay HC; the Court opined that the posts of the accused were just an expression of his protest and displeasure, and did not intend to promote enmity between specific groups of people.
Most importantly, it was also opined that his act of protest and expression of displeasure was protected under Art. 19(1)(a) of the Constitution. It was well within the contours of this provision and did not transgress the contours of this fundamental right. The Court also reiterated that the test for determining the applicability of S. 153A is to be hinged on its impact on the ‘common man’, that is, on a reasonable mind. Further, in holding so, the Court also beautifully associated the concept of free speech with the values of democracy.
The Decision and the Right to Dissent
As the factual matrix shows, the posts of the appellant were construed by the State as malicious, with an intention to cause communal disharmony. However, as pointed out by the Court, the intent of the appellant was to criticise the abrogation of Art. 370 of the Constitution and the appellant was fully empowered to do so by virtue of Art. 19(1)(a). It observed that, “every citizen has the right to offer criticism of…every decision of the State” (¶¶9,10).
The Court, in multiple instances, emphasised the right of each citizen to express dissent and peacefully protest. The application of Art. 19(1)(a) by the Court and analogising the posts of the appellant to a form of protest is indeed welcome in the interest of democratic values (¶¶11,13). A prima facie perusal of the appellant’s post indicates that it was an expression of dissent, and not a ploy to trigger enmity between different communities. The Court’s application is also welcome because it has set a good precedent in favour of scrutiny, criticism and dissent of State actions.
However, what is most note-worthy here is the nexus posited between the right to dissent lawfully and Art. 21 of the Constitution (¶10). It posited, though sans elaboration, that the right to lawful dissent must be treated as a part of one’s right to lead a meaningful life under Art. 21. A similar, though not parallel, reference can be seen in the landmark Right to Privacy case. In this case, in the submission of Sr. Adv. Shyam Divan (¶48), the freedom to dissent was posited as one of the facets of the right to privacy, which is an inseparable aspect of Art. 21.
Similarly, in the current context, it can be posited that the right to dissent is concomitant with the status of citizens as independent moral agents who are capable of deciding and setting the law for themselves in a democratic arrangement. Such a perception is inevitably connected with the concept of meaningful (political) life, especially in a democracy, and hence, associated with Art. 21 of the Constitution.
Such an interpretation, in different aspects, positions Art. 21 in a different domain – that is, the past trend convinces one of the picture of Art. 21 as the constitutional embodiment of human rights in India;[i] however, with this new meaning added to Art. 21, it has extended its long-reaching arms into the political abstraction of the right to meaningful life as a political agent. Hence, in such a perspective, any hindrance to the performance of the duties placed on each citizen is construed to be a violation of this right, as the performance of the same is essential for leading a complete life as a citizen. A broader reading would tempt one to compare this to the teleological approach of Aristotle and his conception of eudaimonia.[ii]
Another intriguing aspect of this reading is the slew of new rights that can be read into the umbrella of Art. 21, and the most prominent one among those would be the right to vote. The act of voting, which is essentially a form of expression,[iii] is the most fundamental feature of a citizen in a democracy. However, in the absence of such a nexus, it exists as a constitutional right today.
However, this link between Art. 21 and the right to meaningful life as a citizen, has multiple lacunae. Primarily, Art. 21 extends to all individuals, irrespective of one’s status of citizenship.[iv] However, in the above nexus, the principal holder of the right is a citizen, an individual who is a member of the political community which runs the democracy. Hence, it is not apposite to read in a citizen-centric right into a fundamental right as broad as the one enshrined in Art. 21.
Furthermore, to arrive at this nexus, one has to read deep into words of the judgement. Even in that case, it is a far-fetched inference. Therefore, the incomplete reference to Art. 21 is ostensibly more troublesome than beneficial, as a vague extension of its interpretation does more harm than good.[v] Ultimately, this link posited by the Court does not form a part of the ratio decidendi of the decision, thus saving from an unsubstantiated precedent.
On a different note, the Court’s observation that, “every citizen has the right to extend good wishes to the citizens of the other countries on their respective independence days”, bodes well in light of contemporary circumstances. It is illogical to tag the appellant’s post celebrating the independence of Pakistan as malicious, and intended to induce communal enmity.
Furthermore, the Court’s reference to the right to freedom of speech and expression is, in almost all instances, based on its relationship with the concept of democratic governance. While that is unequivocal and trite, it is always welcome from the side of the Court to repeat what is basic but seldom reflected in governance. As highlighted before, free speech runs through the sinews of democratic governance.[vi]
Another notable aspect of this decision was the fact that the test of restrictions to the right to freedom of speech and expression was applied with reference to the concept of ‘reasonable man’ (¶11). The Court reaffirmed that while the right to free speech must be restricted in the interest of public welfare, it must be reasonable and tested based on its impact on a reasonable man. Placing a reasonable filter on one’s right to free speech does well in ensuring that free speech does not degenerate into hate speech, and that free speech is not curbed arbitrarily.
Conclusion
By and large, the decision of the Court in Javed Ahmad Hajam v State of Maharashtra has set a good precedent in favour of citizens’ right to free speech, and reminds the State as well as the citizens that India’s democratic functioning is rested upon the judicious exercise of the latter’s valuable right to free speech and expression. Most importantly, the Court’s attempt to describe the potential of a nexus between Art. 21 and the right to dissent was revolutionary. It transcends the scope of Art. 21 to give a firm recognition of citizens as independent political agents with the right to meaningful life in a democracy. Nevertheless, due to the Court’s hesitation in substantiating the same, such a nexus only has academic value; it is upon the future benches to choose whether to give life to this intriguing nexus, and expand the ever-expanding scope of Art. 21.
Endnotes:
[i] Sunil Khosla & M.M. Semwal, Human Rights Jurisprudence in Indian Constitution – Right to Equality and Life: Concept and Substance, 72 The Indian Journal of Political Science 927, 932 (2011).
[ii] Eleni Leontsini, Aristotle on a Meaningful Life, 15 Studia Philosophica Wratislaviensia 193 (2019).
[iii] MP Jain, Indian Constitutional Law, 6 1447 (6th ed. 2018).
[iv] National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742 ¶20.
[v] Carolyn Singh, Lessons Unlearned: The Effects of Statutory Ambiguity and The
Interpretative Uncertainty It Injects in The Courts, 18 University of District Columbia Law Review 278 (2015).
[vi] Fredrick Schauer, Free speech and the argument from democracy, 25 Nomos – Liberal Democracy 241 (1983).
The Author is a student of National University of Advanced Legal Studies, Kochi
Image Credit: NDTV
Constitutional Law Society 
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