Bombay High Court Refuses To Quash FIR Against Kashmiri Professor Booked For WhatsApp Status Calling Abrogation Of Article 370 "Black Day For J&K"

The Bombay High Court has refused to quash an FIR against a young Kashmiri professor booked for his WhatsApp status terming the abrogation of Article 370 a “black day” for Jammu and Kashmir.

A division bench comprising Justices Sunil Shukre and MM Sathaye observed that the status was posted “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.”

Therefore prima-facie the professor had committed an offence punishable under Section 153A of the IPC (promotion of enmity between two groups), the bench observed.

“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 court added.

“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 judge observed

The professor Javed Ahmed Hajam (26) was working with Sanjay Ghodavat College in Kolhapur. He was also on the parent – teacher WhatsApp group. The complaint alleged that between 13- 15 August, 2022 he put up two WhatsApp messages saying (1) August 5 Black Day Jammu & Kashmir and (2) 14th August Happy Independence Day Pakistan. Below the first message it was written “Article 370 was abrogated, we are not happy.”

Subsequently the professor was booked by the Kolhapur Police under Section 153A of the IPC.

He approached the High Court in a petition under section 482 of CrPC to quash the FIR.

Advocate Karim Pathan for the petitioner submitted that the professor hasn’t circulated any derogatory message to promote enmity between any group on grounds of religion, race, place of birth, residence, language, caste or community.

He claimed the status was his way of protesting and to show his unhappiness with the decision. Mens rea to cause disharmony was sine-qua-non, however that was absent in this case. He relied on the judgement of Balwant Singh & Anr. v. State of Punjab wherein persons who raised slogans “Khalistan Zindabad” on the day of assassination of the former Prime Minister Indira Gandhi, were acquitted.

APP JP Yagnik submitted that whether the WhatsApp status had the tendency or intention to promote disharmony was a matter of trial. The AGP said that being a professor the petitioner showed certain likes and dislikes without justification therefore an offence under section 153A IPC was made out.

At the outset the court said there was no problem with the second message and as anyone could celebrate another country’s independence-day.

However, even as the court acknowledged that every word of criticism and every view of dissent is important in a democracy, it said that in sensitive matters dissenting views must be expressed after proper analysis and reasons must be given.

The court further said 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 resulting in ill-will and hatred.

The court said that whether the WhatsApp message really brought about consequences contemplated under Section 153A of the IPC would be a matter 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,” it said.

Case Title: Javed Ahmed Hajam vs State of Maharashtra [Criminal Writ Petition No.- 94/2023]

Click Here To Read/Download Order