The Bombay High Court has emphasized the importance of expressing critical or dissenting opinions after thorough analysis in sensitive matters.
Justices Sunil Shukre and MM Sathaye made this remark while dismissing a plea to quash an FIR against a professor who had posted a WhatsApp status related to the repeal of Article 370 of the Constitution.
The Court noted that the Indian Constitution’s Article 19 guarantees the fundamental right to freedom of speech and expression in a democratic nation like India.
“…at least in sensitive matters any critical words or dissenting view 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. Whenever, appeal is to the reason, there is least possibility of stirring up emotions and whenever appeal is to the emotions, the reason is the casualty. When reason falls victim to the emotions, there results ill-will, hatred, public disturbance and negativity all around.”
Javed Hajam, a professor at a college in Kolhapur, had filed a petition with the High Court seeking dismissal of an FIR against him for violating Section 153-A (promoting enmity between different groups) of the Indian Penal Code.
He was accused of posting two WhatsApp statuses, one of which declared August 5 as a black day in Jammu and Kashmir and the other wishing Pakistan a happy independence day on August 14.
The Kolhapur police filed the FIR against him based on this message, which Hajam challenged before the High Court. The Court found the message conveying Independence Day greetings to Pakistan to be unobjectionable, but concluded that the message concerning Article 370 required further consideration.
“The first message which has been posted on the whatsapp application by the petitioner 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. In our view, this message has 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 has to tread cautiously in such a field, lest the emotions may reach up to such a level as to bring about consequences or reasonable possibility of consequences visiting as envisaged in Section 153-A of IPC,” the order said.
It concluded that a trial was necessary to determine whether or not this message constituted an offence under Section 153A of the Indian Penal Code.
“As of now, prima-facie it does seem to be having such impact on the mind of different groups of people, for the reasons stated just now, and hence prima-facie constitutes the offence under Section 153-A of IPC,” the Court observed.
