Bombay High Court refuses to quash case against college professor over WhatsApp status on abrogation of Article 370

The Bombay High Court recently observed that in sensitive matters, any critical or dissenting views must be expressed after proper analysis of the whole situation [Javed Ahmed Hajam v. State of Maharashtra & Anr.]

A Division Bench of Justices Sunil Shukre and MM Sathaye made the observation while refusing to quash a first information report (FIR) registered against a professor who put up a WhatsApp status about the abrogation of Article 370 of the Constitution.

The Court opined that while in a democratic country like India, there was a fundamental right to freedom of speech and expression under Article 19,

“...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."

The Court also elaborated, 

“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."

The High Court was approached by Kolhapur college professor Javed Hajam seeking quashing of an FIR registered against him for an offence under Section 153-A (promoting enmity between different groups) of the Indian Penal Code.

The professor had allegedly put two WhatsApp statuses - one calling August 5 (the day on which the Presidential Order of 2019 paved the way for the removal of Article 370) a black day in Jammu & Kashmir, and the other wishing Pakistan Happy Independence Day on August 14. 

On the basis of this message, the Kolhapur police registered the FIR, which Hajam challenged in the High Court.

The Court did not find anything wrong with the message about the message regarding the Independence Day wishes to Pakistan. However, the message regarding Article 370, the Court opined, required 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 stated.

It concluded that it was a matter of trial to examine whether that message really attracted an offence under Section 153A of IPC. 

“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 held while refusing to quash the FIR.

[Read order]