New Delhi: The right to dissent in a lawful manner must be treated as a part of the right to lead a dignified life under the Constitution, the Supreme Court held on Thursday, noting that every citizen of India has a right to be critical of the abrogation of Article 370 and the change of status of Jammu & Kashmir.

A bench of justices Abhay S Oka and Ujjal Bhuyan said that if every criticism or protest of the actions of the State is to be held as an offence under section 153A of the Indian Penal Code (IPC), “democracy, which is an essential feature of the Constitution of India, will not survive”.

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Section 153A of 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”. The offence is punishable with imprisonment up to three years, or with fine, or with both.

“The right to dissent in a legitimate and lawful manner is an integral part of the rights guaranteed under Article 19(1)(a). Every individual must respect the right of others to dissent. An opportunity to peacefully protest against the decisions of the Government is an essential part of democracy. The right to dissent in a lawful manner must be treated as a part of the right to lead a dignified and meaningful life guaranteed by Article 21,” said the bench.

The top court’s remarks came as it quashed a criminal case lodged against Javed Ahmad Hajam, a Kashmiri Muslim professor working in a Kolhapur college in Maharashtra who was booked under section 153A of IPC for putting out a WhatsApp status in a group terming ‘August 5 -Black Day for Jammu & Kashmir’ and celebrating Independence day of Pakistan on August 14.

The apex court held that describing August 5 as a “Black Day” is an expression of protest and anguish and that the professor intended to criticise the action of the abrogation of Article 370 of the Constitution on that day.

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“Every citizen of India has a right to be critical of the action of abrogation of Article 370 and the change of status of Jammu & Kashmir,” it said.

In its judgment, the bench said now, the time has come to enlighten and educate our police machinery on the concept of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution and the extent of reasonable restraint on their free speech and expression. “They must be sensitised about the democratic values enshrined in our Constitution,” it said.

Hajam’s parents, teachers, and students were all members of the WhatsApp group, the bench noted. It, thus, held: “We cannot apply the standards of people with weak and vacillating minds. For over 75 years, our nation has been a democratic republic. The citizens of our nation understand the value of democratic principles. Thus, it is impossible to draw the conclusion that the remarks will encourage animosity, hostility, or malice between various religious groups.”

Regarding the accusation that the image with the phrases “Chand” and “14th August–Happy Independence Day Pakistan” beneath it was released, the court ruled that it would not be subject to 153A of IPC.

“Every citizen has the right to extend good wishes to the citizens of the other countries on their respective independence days. If a citizen of India extends good wishes to the citizens of Pakistan on 14th August, which is their Independence Day, there is nothing wrong with it. It’s a gesture of goodwill. In such a case, it cannot be said that such acts will tend to create disharmony or feelings of enmity, hatred or ill-will between different religious groups,” the bench said.

“Motives cannot be attributed to the appellant only because he belongs to a particular religion,” it added.

It further noted: “Merely because a few individuals may develop hatred or ill will, it will not be sufficient to attract clause (a) of sub-section (1) of Section 153-A of the IPC”.

The bench said “the right to dissent in a lawful manner must be treated as a part of the right to lead a dignified and meaningful life guaranteed by Article 21 of the Constitution.”