Unsaid Words Can Also 'Promote Enmity' Under BNS: Allahabad High Court On 'Subtle' Religious Undertones In WhatsApp Message

A Bench of Justice JJ Munir and Justice Pramod Kumar Srivastava observed thus while refusing to quash an FIR lodged against petitioner (Afaq Ahmad) who had allegedly forwarded an inflammatory message to several individuals on WhatsApp.

For context, in the alleged message, the petitioner had conveyed a subtle message that his brother had been targeted in a false case, because of him belonging to a particular religious community.

Before the HC, the applicant's counsel (Advocate Syed Shahnawaz Shah) argued that in the alleged post, only resentment was shown by the petitioner about his brother's arrest and the same was not intended to disturb public peace, tranquillity or communal harmony in any manner.

His counsel also argued that the post showed the petitioner's faith in the judicial process and only lamented that false allegations had tarnished his family's image and affected their business.

The Court, however, noted that the message and its underlying tone suggested that a person had been targeted because of belonging to a particular religious group.

Upon examining the FIR and the WhatsApp message quoted therein, the bench noted that though the message did not speak per se about religion, it conveyed an underlying and subtle message that his brother has been targeted in a false case, because of him belonging to a particular religious community.

The bench added that those unsaid words "would prima facie outrage religious feelings of a class of citizens hailing from a particular community, who would think that they are being targeted because of belonging to a particular religious community".

The bench further opined that even if one were to assume that no religious feelings were directly outraged, “it was 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 one community, the judges observed, could think that they were being "targeted by members of another religious community by abusing the process of law".

The Court added that sending such a message to multiple persons has the 'potential' to attract the offence of promoting enmity under Section 353(2) of the BNS, even if it does not fall within the mischief of Section 353(3).

In view of the context and the contents of the FIR, the Court concluded that the matter required investigation and cannot be scuttled at an incipient stage by foreclosing probe that must be carried to its logical conclusion.

Accordingly, the High Court dismissed the writ petition.

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