The Allahabad High Court has observed that even a message on the platform WhatsApp that does not explicitly refer to religion may promote enmity, hatred or ill-will between communities through “unsaid” words, Live Law reported on Thursday.

A bench of Justices JJ Munir and Pramod Kumar Srivastava held that sending such “subtle” messages to several persons has the “potential” to attract the offence of promoting enmity under the Bharatiya Nyaya Sanhita.

The bench made the observations in a September 26 order, refusing to quash a first information report filed against the petitioner, Afaq Ahmad, for sending an allegedly inflammatory message to several persons on WhatsApp.

Ahmad allegedly claimed in the message that his brother had been arrested in a false case due to his religious identity, Live Law reported.

Representing Ahmad, advocate Syed Shahnawaz Shah had contended in the court that the petitioner had only shown resentment about his brother’s arrest in the message.

It was not intended to disturb public peace, tranquillity or communal harmony in any manner, Shah added.

The message also showed Ahmad’s faith in the judicial process, the advocate said, adding that the petitioner only lamented that false allegations had tarnished his family’s image and affected their business, according to Live Law.

However, the bench said that although Ahmad did not speak about religion in his message per se, it conveyed an “underlying and subtle message”.

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 said.

The court added that even if one were to assume that no religious feelings were directly outraged, it was certainly a message, which, by its unsaid words, was likely to create or promote feelings of enmity, hatred and ill-will between religious communities, Live Law reported.

In its order, the bench said that members of a community could think that they were being “targeted by members of another religious community by abusing the process of law”.

It held that sending such messages to several persons could attract the offence of promoting enmity under the Bharatiya Nyaya Sanhita, even if it does not fall within Section 353(3), according to Live Law.

Section 353 pertains to statements conducing to public mischief. Sub-section (3) under this imposes a harsher penalty, up to five years imprisonment and a fine, if such an offence is committed in a place of worship or during a religious ceremony.

The court said that the matter required an investigation and dismissed the petition.

The case

On July 19, Afaq Ahmad’s brother, Arif Ahmad, had been arrested after an FIR was filed by Rashtriya Swayamsevak Sangh worker Sandeep Kaushik, The Indian Express reported. Kaushik accused Arif Ahmad of obscenity in public, provoking breach of peace and criminal intimidation in his complaint.

The RSS is the parent organisation of the Bharatiya Janata Party.

In the FIR, Kaushik had claimed that Arif Ahmad, who ran an electronics and gas-filling shop with his father, had “connections with anti-national and anti-social elements”, the newspaper reported.

He was also “involved in love jihad”, the newspaper quoted the FIR as claiming.

Love jihad is a Hindutva conspiracy theory that Muslim men trick Hindu women into romantic relationships with the aim of converting them to Islam. The Union home ministry has told Parliament that Indian law has no provision defining such a term.

The FIR was subsequently expanded to include charges of rape, administering poison, cheating, forgery and unlawful religious conversion through misrepresentation or allurement under the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, The Indian Express reported.

On his part, Afaq Ahmad claimed that his brother had begun a relationship with a Hindu woman in July 202O.

“I knew about it and insisted that he should marry within our community,” The Indian Express quoted Afaq Ahmad as having said on October 14. “He [Arif Ahmad] agreed, and got married in 2023, and had a daughter. I thought the matter was over.”

However, Afaq Ahmad said that he received a call on July 19 from some persons asking him to attend a meeting where members of all communities were present, the newspaper reported. He was then told that his brother had allegedly attempted to convert a Hindu woman and planned to take her to Dubai.

Meanwhile, another FIR was filed against Afaq Ahmad on July 30 on the basis of a WhatsApp message he had sent to two people, The Indian Express reported. This case was filed based on screenshots of the message taken by one of the recipients of an alleged message.

Afaq Ahmad had allegedly claimed that his brother had been “framed in a false case by putting political pressure on the police”, the newspaper reported, citing court records.

A call had been made for a boycott of his family’s livelihood, Afaq Ahmad allegedly wrote in the message, adding that he also feared that he may be lynched.

The message also repeatedly expressed faith in the country’s legal system, The Indian Express reported.

On Sunday, another FIR was filed against Afaq under Bharatiya Nyaya Sanhita sections pertaining to criminal intimidation and breach of peace.

Additionally, a case was also filed on October 4 against Arif Ahmad’s uncle, Sadik, who had allegedly told a local news channel that his nephew had been framed.

The FIR, which was filed on the basis of a complaint by Kaushik, accused Sadik of promoting enmity under the Bharatiya Nyaya Sanhita.

On October 15, Kaushik told The Indian Express that he had filed the first complaint against Arif Ahmad as the family of the affected woman was “scared”, adding that he had helped them “as a responsible member of society”.

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