MUMBAI: The Bombay High Court has said that in a democratic country like India, people do have a fundamental right to freedom of speech and expression but every word of criticism of government policy must be expressed with reason and proper analysis particularly on issues where emotions of large number of people are attached.
A bench of Justices M M Sathaye and Sunil B Shukre dismissed a writ petition filed by Javed Ahmed Hajam from Kolhapur to quash a criminal case lodged against him for putting out a WhatsApp status in August, 2022 declaring August 5 (when Article 370 of the Constitution was withdrawn) as black day for Jammu and Kashmir.
"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 good state of health. 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 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.
"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 bench said.
The court further reasoned that 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. 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," the bench said.
The court said whether 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 appreciation of evidence, which is a stage of trial.
"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 bench said.
In the case at hand, the bench said the first message posted on the Whatsapp application by the petitioner, a professor in a college 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. So, 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 bench said.
In his plea, 26-year-old petitioner submitted that he has not circulated any derogatory message much less any message with the intention of promoting enmity between different groups on grounds of religion, race, place of birth, residence etc.
Opposing his plea, the prosecutor contended that the petitioner is a Professor and if by these status messages, the petitioner is showing his certain likes and dislikes in a casual manner, without giving any reason or justification whatsoever for them, the prima facie inference would have to be drawn about constituting the offence punishable under Section 153-A and this is all the more so as the target audience is the organization of parent and teachers of an educational institution.
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