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The High Court of Jammu & Kashmir in India refused to quash a complaint against the petitioner under the Unlawful Activities Prevention Act, 1967 (“UAPA”) in relation to his Facebook Posts. The petitioner had published a series of Facebook posts regarding a blast at a gunfight site that had occurred in his village on October 21, 2018, wherein six civilians were killed and more than sixty people were injured, including men, women and children. The incident triggered outrage across Kashmir. The police officials contended that the petitioner was responsible for spreading sedition by posting pro-separatist content on social media. The Court ruled that while the petitioner had the right to criticize the negligent attitude of the government authorities and inhuman behavior of security forces under Article 19 of the Indian Constitution, he could not advocate separatist claims by suggesting that the people of Kashmir were treated as slaves by the Indian military occupation, and further question the sovereignty and territorial integrity of the country.
Muzamil Butt (“the petitioner”), an advocate practicing in District Court, Kulgam in Jammu & Kashmir since 10 years, filed this petition before the High Court challenging the validity of the First Information Report (“FIR”) No.187/2018 filed against him under section 13 of the UAPA, and registered with the Police Station in Kulgam [para. 1].
The petitioner had published a series of posts on Facebook regarding an incident that had occurred in his village on October 21, 2018 wherein six civilians were killed and more than sixty people were injured including men, women and children, in a blast at a gunfight site at Laroo Village in Kulgam, triggering outrage across Kashmir [para. 2]. In these Facebook posts, the petitioner had highlighted the negligence of the State authorities, police officials and local administration which had led to the killing of these civilians. The petitioner had expressed his outrage and shock on similar other incidents in his Facebook posts and had commented that India had lost the opportunity to resolve the issue with Pakistan by not responding to the offer of the Prime Minister of Pakistan [para. 2].
Some of the relevant extracts from his Facebook posts included: “Karbala in Laroo: Genocide and mayhem in my native hamlet Laroo. One of the most intense gunfights in my village culminated into mass massacre, bloodshed, cries, wailings, and brutal carnage. A military operation culminated into an organised state negligence which led to killings of teenagers and injuring 60 others……..For the first time in my life, I felt broken and weak and I could acknowledge that we are slaves and slaves have no life of their own……My village is not that busy hustle bustle hamlet anymore now the blood soaked roads are testament to a genocide perpetuated and organized by colonial establishment……Occupation is like a cancer which will consume everyone of us” [para. 12].
The police officials contended that the petitioner was responsible for “uploading/spreading sedition, pro-separatist content through social media especially on Facebook, and as such, there was an apprehension of disruption of peaceful atmosphere in South Kashmir, particularly in District Kulgam” [para. 4].
A single-judge bench comprising Justice Sanjay Dhar of the High Court of Jammu & Kashmir delivered the judgment. One of the central issues for consideration before the Court was whether the complaint filed by the police against the petitioner in relation to his Facebook posts violated the petitioner’s freedom of expression.
The petitioner contended that his Facebook posts were not “intended to create any disaffection or encourage any anti-national activities but he had only expressed his outrage at the happenings which had taken place in his native village” [para. 6]. While buttressing his arguments, he referred to Vinod Dua v. Union of India and others, wherein the Supreme Court of India held that, “a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder”, and according to the petitioner, his posts did not incite public violence against the government nor created an apprehension of public disorder [para. 6].
While evaluating the petitioner’s arguments, the court referred to section 2(o) of the UAPA under which “unlawful activity” has been defined and observed that,” ‘unlawful activity’ means any action taken by an individual, whether by committing an act or by words, either spoken or written or otherwise, which is intended or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India from the Union or which incites any individual or group of individuals to bring about such cession or session. ‘Unlawful activity’ also includes any action which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India or if it is intended to cause disaffection against India” [para. 10].
In the light of the aforesaid observations, the Court examined whether the Facebook posts of the petitioner fell within the ambit of ‘unlawful activity’. The Court noted that the petitioner’s suggestion that “the people of Kashmir were slaves who were under the Indian military occupation that was like a cancer” did not fall within the ambit of freedom of expression [para. 13]. As per the Court, the freedom of speech and expression guaranteed under the Indian Constitution did not “allow a person to question the status of a part of the Country or its people” [para. 14]. While criticizing the government for its negligence and the violation of human rights of the people was allowed under Article 19 of the Constitution, according to the Court, it did not permit a person “to advocate that the people of a particular part of the Country are slaves of the Government of India or that they are under occupation of armed forces of the Country” [para. 14].
The Court upheld the reasoning as, “while the former i.e., expression of outrage at the negligence and inhuman attitude of the security forces, police and establishment would come within the ambit of freedom of expression of an individual which includes freedom to criticize the Government of the day which is permissible under law but the same may not be the position if an individual questions the fact of a State being a part of the Country by using the expression ‘occupation of military or the people being slaves’ etc” [para. 14]. The Court opined that the petitioner had questioned the sovereignty and territorial integrity of the country by making comments like Kashmiris were reduced to the status of slaves by Indian security forces [para. 14].
The Court further opined that under Article 19, there were reasonable restrictions and since the petitioner had advocated the ideology of cession of Jammu and Kashmir from India, which impacted “sovereignty and integrity of India”, the FIR was therefore well within reasonable restrictions on his freedom of expression as his posts prima facie fell within the definition of ‘unlawful activity’ under the UAPA [para. 15]. Thus, the Court concluded that it could not quash the proceedings or the FIR against the petitioner [para. 17].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By incorrectly determining that the petitioner had advocated separatist/secessionist claims and had questioned the territorial integrity of the country, when he had merely highlighted the systemic failures and inhuman treatment meted out to the people residing in Kashmir in India, the Court contracted the freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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