Bombay HC observes expressing views on sensitive matters without analysis could be criminal offence

Mumbai: Although every citizen has the right to protest and express his views and opinions under the Constitution, the Bombay High Court's observation that opinions on sensitive matters should only be expressed after analysing the situation appears to limit the scope of Article 19 even further.

The High Court made this observation while rejecting a plea that sought the quashing of an FIR against a professor for putting a WhatsApp status expressing his protest against the abrogation of Article 370.

The most significant part of the court's observation is that individuals who wish to express their views and opinions on sensitive matters should conduct a thorough analysis of the situation, considering the emotions of different groups of people, and supporting their views and opinions by valid reasons or else it may amount to a criminal offence inviting penal actions.

A division bench of Justices S B Shukre and M M Sathaye in its order of April 10 said it prima facie finds that the professor, 26-year-old Javed Ahmed Hajam has in a very casual manner posted the status message about the abrogation of Article 370, which ended the special status of Jammu and Kashmir.

The allegation against Hajam is that between August 13 and 15, 2022 he had put a status on his WhatsApp 'August 5 Black Day Jammu & Kashmir' with a message below saying 'Article 370 was abrogated, we are not happy' and '14th August Happy Independence Day Pakistan'.

Hajam, originally from the Baramulla district of Jammu and Kashmir, was a professor at a college in Kolhapur.

Hajam, in his plea in the High Court, said he had not circulated any messages that would promote enmity or bring disharmony or feeling of hatred between religions. He claimed that he had merely put his view on his WhatsApp status.

The bench, however, opined that though the first status message on Article 370 constituted an offence under section 153A of the IPC, the second status message on Pakistan's Independence Day did not.

"The first message which has been posted on WhatsApp by the petitioner (Hajam) is without giving any reason and without making any critical analysis of the step taken by the central government towards abrogation of Article 370 of the Constitution," the court said in its order.

"In our view, this message has the tendency to play with the emotions of different groups of people in India as there are strong feelings of contrasting nature about the status of Jammu and Kashmir in India and therefore, one has to tread cautiously in such a field," the high court said.

If any criticism is to be made, it must be upon evaluation of all pros and cons of the situation and backed by reason, the court added.

"No doubt, in a democratic country like India where there is a fundamental right in the nature of freedom of speech and expression under Article 19, every word of criticism and every view of dissent is important for maintaining democracy in a good state of health," HC said.

"But we may add 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 critique or dissent is made," it added.

This is 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.

"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 order said.

It added that when an appeal is to the reason then there is the least possibility of stirring up emotions, but when the appeal is to the emotions then the reason is the casualty.

"When reason falls victim to the emotions, there results from ill-will, hatred, public disturbance and negativity all around," the high court said.

The court, however, noted that the second status wishing Pakistan a Happy Independence was not covered by section 153A of the IPC as "no reasonable person with a strong mind would see anything wrong in celebrating Independence Day of other countries without denouncing the celebration of Independence Day of one's own country".

The bench refused to quash the FIR and dismissed Hajam's petition.