Recently, Bombay HC refused to quash criminal proceedings registered against a college professor from Kolhapur for putting up a message on his WhatsApp status that read - “August 5 Black Day (for) Jammu and Kashmir” in reference to abrogation of Article 370

The bench of justice Sunil Shukre and justice MM Sathaye while rejecting plea filed by Javed Ahmed Hajam, a professor with Sanjay Ghodawat College in Kolhapur said -“In our view, this message has the tendency to play with emotions of different groups of people as there are strong feelings of contrasting nature about the status of Jammu and Kashmir in India,” 

Hajam had moved the high court for quashing the FIR registered against him by Hatkanagale police station in Kolhapur district under section 153-A of the Indian Penal Code for allegedly promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever or bringing about disharmony or feeling of hatred or ill-will.

The basis for registration of the FIR were the two messages posted by him as WhatsApp status - “AUGUST 5 BLACK DAY JAMMU & KASHMIR” and “14th August Happy Independence Day, Pakistan.”

Since he was a member of a WhatsApp group of a parent-teachers association of the college, someone from the group had reported the matter to the police.

Hajam had contended that he had not circulated any derogatory message, much less a message intending to create any hatred or ill will and by posting the status messages, he did not commit any act which would be prejudicial to the maintenance of harmony, and which would disturb or is likely to disturb the public tranquillity.

A prosecutor opposed the plea, pointing out that when the petitioner, a college professor, shows his likes and dislikes in a casual manner without giving any reason or justification whatsoever, the prima facie inference would have to be drawn about constituting the offence punishable under Section 153-A.

The bench said in a democratic country like India, with a fundamental right of freedom of speech and expression available to its citizens, “every word of criticism and every view of dissent is important for maintaining democracy in a good state of health.”

But, the court said, at least in sensitive matters critical words or dissenting views must be expressed after proper analysis of the whole situation and must provide for the reasons for which the critic 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,” the bench said adding that in such a case, the criticism or the disagreement must be expressed upon in-depth analysis and accompanied by reasons, so that the appeal that such critique makes is not to the emotions but to the reason.

“Whenever an appeal is to the reason, there is the least possibility of stirring up emotions and whenever an appeal is to the emotions, the reason is the casualty,” the bench said. “And, 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 the IPC or not, which would be possible only upon appreciation of evidence at the trial.”

HC said prima facie posting of the DP constituted an offence under section 153-A of IPC.