The court held that in the context of 'sensitive matters', any critical or dissenting view must be expressed after proper analysis of the whole situation that must provide the reasons for which the criticism or dissent is made.
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THE Bombay High Court has refused to quash a first information report (FIR) under Section 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence) of the Indian Penal Code (IPC) against a professor over his WhatsApp status in the context of the abrogation of J&K special status under Article 370 (temporary provisions with respect to the State of Jammu and Kashmir) of the Constitution. The impugned status message described August 5, the day on which Article 370 was effectively revoked in 2019, as a black day for Jammu and Kashmir.
The court said that any such criticism must be reasonable, and based upon the evaluation of all pros and cons of the situation.
A division Bench of Justices Sunil B. Shukre and M.M. Sathaye was ruling on a criminal writ petition filed by Javed Ahmed Hajam, who is a professor at the Sanjay Ghodawat University.
It has been alleged that between August 13 and 15 last year, Hajam created two WhatsApp status messages: "AUGUST 5 BLACK DAY JAMMU & KASHMIR" and "14th August Happy Independence Day Pakistan". It was also alleged that below the first message was written "Article 370 was abrogated, we are not happy".
On the basis of these allegations, the Hatkanangale Police Station, Kolhapur registered an offence punishable under Section 153A of the IPC against Hajam.
The court opined that Hajam, in a casual manner, posted the first status message about the abrogation of Article 370 without giving any reason or justification when he declared by this message that as Article 370 is abrogated, 'we' are not happy, and therefore, August 5 is a black day for Jammu & Kashmir.
It added that this message had the tendency to play with emotions of different groups of people in India as "there are strong feelings of contrasting nature about status of Jammu and Kashmir in India and, therefore, one had to tread cautiously in such a field, lest the emotions might reach up to such a level" as to bring about consequences or the reasonable possibility of consequences emerging as envisaged in Section 153A of the IPC.
The court thus went on to hold that "if any criticism is to be made, it must be upon evaluation of all pros and cons of the situation and backed by reason." It added that at least in sensitive matters, any critical words or dissenting view must be expressed after proper analysis of the whole situation and must provide the reasons for which the criticism or dissent is made.
"This is all the more so, when the emotions and sentiments behind a particular thing or aspect being criticised run high with different shades and hues among different groups of people. In such a case, the criticism, disagreement; difference of opinion, dissent, whatever one may choose to call, must be, expressed upon an in-depth analysis and accompanied by reasons, so that the appeal that such critique makes is not to the emotions of groups of people but to the reason; the logic; the rationale of the groups of people," the court held.
It further elaborated that when reason falls victim to emotions, there results ill-will, hatred, public disturbance and negativity all around.
"Such is the importance of criticism based upon critical analysis and same being not here, now it would be required to be examined on merits; if the whatsapp status message in question, really brought about the consequences contemplated under Section 153-A of IPC or not, which would be possible only upon the appreciation of evidence, which is a stage of trial," the court held in its oral judgment.
Regarding the second WhatsApp message about celebrating the Independence Day of Pakistan, the court took a different view. It observed that that message would not be covered by Section 153A, as "no reasonable person with a strong mind would see anything wrong" in celebrating the independence day of another country as the denouncing of the celebration of the independence day of one's own country.
Interestingly, last week, the same Bench of the high court had quashed an FIR against the director of a campaigning organisation, who was sought to be prosecuted for obstructing the discharge of public duties by bombarding Ashwini Bhide, a member of the Indian Administrative Service, working at that time as managing director of the Mumbai Metro Rail Corporation, with thousands of calls and messages to save the Aarey forest in Mumbai. The Bench had then said that those text messages were assertions of "a democratic right of [citizens] of this country to put forth their view point, to object, to protest, to persuade, to urge, and so on".
The Bench's refusal to quash the FIR against Hajam is also in contrast with the Supreme Court's 2021 ruling in the case of journalist Patricia Mukhim for her Facebook post condemning atrocities on non-tribals in Shillong. The Supreme Court, while quashing an FIR against Mukhim, had said, "Disapprobation of governmental inaction cannot be branded as an attempt to promote hatred between different communities. … The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed."
Click here to view the Bombay High Court's full judgment in Javed Ahmad Hajam versus The State of Maharashtra & Anr.