Police Should Not be Influenced by Social and Political Biases

Newsreel Asia Insight #158
March 12, 2024

The Supreme Court of India has affirmed the right to free speech, stating that a citizen cannot be prosecuted for criticising government actions or extending good wishes to citizens of another country, such as Pakistan, on their independence day. The division bench, comprising Justices Abhay Oka and Ujjal Bhuyan, underlined the fundamental right to free speech under Article 19 of the Indian Constitution.

The ruling came in the context of a case where an individual was prosecuted for allegedly promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony, under Section 153A of the Indian Penal Code (IPC), according to Bar and Bench.

The individual had merely put up WhatsApp status criticising abrogation of Article 370 of the Constitution and extended greetings for Pakistan’s Independence Day, which led to the legal challenge.

The court held that extending good wishes on significant days like independence days of other countries is a gesture of goodwill and should not be construed negatively or attract penal action. “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. Motives cannot be attributed to the appellant only because he belongs to a particular religion,” the Court said.

Article 370 accorded special status to the region of Jammu and Kashmir. The court said that criticising the government’s decision to abrogate it does not constitute an offense under Section 153A of the IPC.

“It is a simple protest by the appellant against the decision to abrogate Article 370 of the Constitution of India and the further steps taken based on that decision,” the Court stated. “The Constitution of India under Article 19(1)(a), guarantees freedom of speech and expression. Under the said guarantee, every citizen has the right to offer criticism of the action of abrogation of Article 370, or for that matter, every decision of the State. He has the right to say he is unhappy with any decision of the State.”

Justice Oka, heading the Division Bench, observed in the judgment: “Describing the day the abrogation happened as a ‘Black Day’ is an expression of protest and anguish. 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,” as reported by The Hindu.

The judgment also criticised the police machinery for unwarranted prosecution, stressing the need for education and sensitisation about democratic values and the concept of freedom of speech and expression. The Court remarked on the necessity to enlighten the police on the extent of reasonable restraint on free speech and expression, advocating for a better understanding of democratic values enshrined in the Constitution.

The Court’s remarks point towards an overreach by the police, possibly influenced by political or social biases rather than a strict adherence to the Constitution and the penal code. The Court’s observation that motives cannot be attributed to the individual based on their religion or the act of extending greetings indicates a concern that the police action may have been influenced by factors other than legal principles.

The judgment serves as a significant affirmation of the democratic principles of free speech and expression. It shows the importance of tolerance, goodwill and the right to dissent in a democratic society, while also calling for a more informed and sensitive approach from law enforcement agencies towards these fundamental rights.