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Law

Why Bombay HC’s Denial of Free Speech on the Basis of Profession Is Problematic

A division bench of the high court refused to quash FIR against a college teacher in Kolhapur for his WhatsApp status, on the ground that as a professor, he was not entitled to express his views in a casual manner.

New Delhi: A division bench of the Bombay high court had, on April 10, followed some strange reasoning while denying relief to a college teacher in Kolhapur. The teacher had sought quashing of an FIR against him for posting two messages on his WhatsApp status, one of which was critical of the abrogation of Article 370 of the Constitution in Jammu and Kashmir.

In the first message, the petitioner posted: “August 5 Black Day Jammu & Kashmir”. Below the message, it was written, “Article 370 was abrogated, we are not happy”.

The bench comprising Justices Sunil Shukre and M.M. Sathaye reasoned 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”.

According to the bench, 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. In such a case, the bench held that the criticism, disagreement, difference of opinion, dissent, whatever one may choose to call it, 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 reason.

The bench justified such a high threshold for the expression of dissent – as distinct from expressing a view in defence of the majority – on the ground that whenever an appeal is to reason, there is no possibility of stirring up emotions, and whenever appeal is to emotions, reason is the casualty. When reason falls victim to emotions, the bench elaborated, there results ill-will, hatred, public disturbance and negativity all around.

Poor reasoning

It is not clear why the bench singled out the expression of dissent for clearing the test of appeal to reason, rather than emotions, in order to be considered legitimate. The bench appears to suggest that there is no need to insist on a similar test to review legitimacy of expression of a majority view. Had the professor posted a message in defence of abrogation of Article 370, and described it as a milestone, without reasoning, it could have still appealed to emotions, and led to similar consequences which the bench imagined. But the bench has no explanation why it considered dissent should be subjected to such a stringent test.

The bench is oblivious to the fact that in WhatsApp status page, a user aims at brevity, rather than a lengthy explanation, which may be required for the test of reasoning which it has proposed for expression of dissent to be valid. The viewers of the status page are aware of its limitation, and therefore are not likely to be swayed by emotions, as the bench erroneously assumes.

Unlike what the bench assumes, the Constitution does not envisage two different kinds of free speech – one for expression of dissent, and another for expressing a seemingly majoritarian view. Therefore, to insist that the dissenter should back up her dissent with reasoning to be a valid dissent is bereft of any reason, as it is for the individual – whether expressing a dissent or a majoritarian view – to decide whether and when she should use reasoning to explain her view to an audience which may not understand terse messages, or the meaning implied in those messages.

More important, the bench appears to have added a new restriction on the freedom of expression which the Constitution does not envisage. The reasonable restrictions which the Constitution envisages under Article 19(2) does not include the ground of non-reasoned speech. Therefore, how the bench seems to have assumed that a speech – without reasoning – is prima facie capable of mischief, and therefore, has the potential of disturbing public tranquility is unclear. The bench’s logic is quite a stretch, and does not appeal to common sense.

The bench felt that as the Kolhapur professor did not base his criticism of repeal of Article 370 in Jammu and Kashmir upon “critical analysis”, it should be examined on merits; if the WhatsApp status message in question really brought about the consequences contemplated under Section 153-A of the 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 an impact on the minds 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 held.

Case law 

What is curious in this case (Javed Ahmed Hajam vs The State of Maharashtra) is that the bench agreed with the case law which leaned in favour of the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution. The bench also agreed with the petitioner that the case law supported his view that Section 153-A of IPC is an offence which is constituted only where the spoken words have the tendency or intention of creating public disorder or disturbance of law and order or adversely affect public tranquility. The bench accepted the petitioner’s contention that without such intention to cause disorder or incite people to violence or without any adverse impact on public tranquility, no offence punishable under Section 153-A IPC would be prima facie constituted.

More significant, the bench also cited the Supreme Court’s judgment in the case of Manzar Sayeed Khan v State of Maharashtra, in which it was held that merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections, i.e., Sections 153 and 153-A of IPC and that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view or in other words, the words must be evaluated and understood by applying the standards of a reasonable man having strong and firm mind.

Also read: All Is Not Well in Jammu and Kashmir

The bench also noted that a coordinate bench of the Bombay high court had recently followed the apex court’s ruling in Manzar Sayeed Khan in the case of Sandeep Arjun Kudale vs The State of Maharashtra. The bench also noted the petitioner’s reliance on Balwant Singh vs State of Punjab (1995), in which the Supreme Court held that mere raising of  slogans like ‘Khalistan Zindabad’ did not constitute offence under Section 153-A IPC.

Right to casual speech

But the bench – despite these agreements with the contentions advanced by the petitioner’s counsel – refused him relief  mainly on the plea of the state which questioned the right of the professor to post his likes and dislikes in a casual manner on the status page of his WhatsApp account.

The state appears to suggest that while others are entitled to exercise their free speech rights casually, college professors cannot do so, because of the possible inference under Section 153A IPC that it may lead to. This is unreasonable, and discriminatory between two classes of citizens based on their professions. The high court could well have rejected this contention at the preliminary stage.

Indeed, the bench found nothing wrong with the second message posted by the professor on his WhatsApp status wishing Pakistan on the occasion of its Independence Day on August 14 last  year. “In respect of this message, we do not think that the message would be covered by Section 153-A of the IPC as no reasonable person with strong mind would see anything wrong in celebrating Independence Day of other countries without denouncing celebration of Independence Day of one’s own country,” the bench observed.

The bench also noted the petitioner’s submission that he has not circulated any derogatory message, and that there was nothing with the intention of promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever or bringing about disharmony or feeling of hatred or ill-will between different religious, racial, language or rational groups or castes or communities.

By these status messages, the petitioner claimed that he did not commit any act which would be prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility.

Yet, the bench has uncritically accepted the state’s contention that as a professor, he can’t show his likes and dislikes in a casual manner, without giving any reason or justification whatsoever for them. Otherwise, the state argued that an inference under Section 153-A can be drawn, more so as the target audience is the organisation of parent and teachers of an educational institution, because the petitioner is a member of the WhatsApp group comprising parents and teachers.

The bench could have questioned the state about the existence of a causal link between casual speech and the inference under Section 153-A, but it didn’t.

The petitioner’s membership of the WhatsApp group of parents and teachers is incidental, as the members of WhatsApp groups very often come together to exchange views on one issue, despite disagreeing on several other issues. What the member posts on his WhatsApp status page is not aimed to influence the other members of his group, while the other members are free to ignore what is posted on a member’s status page. The state’s citing of the petitioner’s WhatsApp group of parents and teachers as a reason for its inference under Section 153-A, therefore, does not appeal to reason, and should have been rejected prima facie, without subjecting the petitioner to an unnecessary trial on the  issue.

Making a distinction between Sandeep Arjun Kudale and this case, the bench observed: “We find prima facie that the petitioner has, in a very casual manner posted at least the first status message about abrogation of Article 370.  He has not given any reason or justification when he declares by this message that as Article 370 is abrogated, we are not happy, and therefore, 5th August is a black day for Jammu and Kashmir.”

“But, about the first message proclaiming 5th August as a black day of India, we feel that there is something which needs consideration on merits of the matter,” the bench held.

The first message was without giving any reason and without making any critical analysis of the step taken by the Union government towards the abrogation of Article 370. “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 Section153-A of IPC,” the bench elaborated.

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 added.

Watch: Ground Report: The Untold Story of Kashmir After August 5, 2019

“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.  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 observed.

The bench elaborated as follows:

“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…”

In other words, the bench seems to believe in the dictum that procedure itself should be the punishment for imagined offences, even if after the trial, the accused is likely to be found innocent.

Besides, the judgment may have a chilling effect on the expression of dissent in a casual manner by common citizens on any public issue, as articulation of reasons may require expertise and consume more time and effort by a person of average intelligence.   As a result, it may act as an unreasonable restriction  on the right to participate in public discourse on any public issue, let alone those considered as sensitive by the judges.

The abrogation of Article 370 of the  Constitution was fiercely debated in the media and public platforms, besides inviting nationwide protests from citizens cutting across religious or geographical divisions. The legal challenges to it are still awaiting adjudication by the Supreme Court. Therefore, an innocuous expression of a view against the abrogation of Article 370 tersely by a citizen three years after the event could not, by any stretch of imagination, lead to a fresh communal polarisation, as the Bombay high court has prima facie found in this case. Its poor reasoning in this case can only make it even less persuasive.