Can a person be charged for trying to create discord between religious communities with “unsaid words”? In a deeply troubling decision, the Allahabad High Court recently said that a WhatsApp text can indeed give a “subtle message” to stoke interfaith strife, even without explicitly mentioning religion. It refused to quash an FIR and directed the accused, Afaq Ahmad, to face trial. The decision could have a chilling effect on free speech.
Ahmad had moved the HC after the Uttar Pradesh police had registered a case against him under the Bharatiya Nyaya Sanhita’s Section 352 — it criminalises intentional insults that provoke a breach of public peace. The police had sought to incriminate Ahmad on the basis of a WhatsApp text to two people. On October 23, this newspaper reported that in the message, Ahmad had alleged his brother had been “framed in a false case by putting political pressure on the police”. He had lamented that “a call has been made for a total boycott of my family’s livelihood”. The message contained repeated assertions of his faith in the judiciary. Ahmad’s lawyers also argued that their client only intended to convey resentment about his brother’s arrest. The HC, however, said that the Whatsapp text, “definitely conveys an underlying and subtle message that his brother has been targeted in a false case, because of his belonging to a particular religious community.” It went on to say, “even if one were to think that no religious feelings of a class of citizens or community have been outraged… it is certainly a message, which, by its unsaid words, is likely to create or promote feelings of enmity, hatred and ill-will between religious communities… members of a particular community, in the first instance, could think that they are being targeted by members of another religious community by abusing the process of law”.
Criminal laws, especially those that deal with the fundamental Right to Freedom of Speech and Expression, require a clinical interpretation. In looking for unsaid words and subtle messaging, the HC seems to have gone against the Supreme Court’s landmark 2015 ruling in Shreya Singhal v Union of India. The apex court had said that “a penal law is void for vagueness if it fails to define the criminal offence with sufficient definiteness”. It had underlined that “ordinary people should be able to understand what conduct is prohibited and what is permitted”. The Allahabad HC verdict, in contrast, frames a vague unlawful zone that people must steer clear of. It goes against Shreya Singhal’s strictures against the “arbitrary and discriminatory enforcement of the law”. The HC must course correct.
