Today, they are saying that even unsaid words are a crime. Tomorrow, will they say that your very existence, your breath, your being is a crime? What is happening to the Indian judiciary?
Published Oct 28, 2025 | 11:00 AM ⚊ Updated Oct 28, 2025 | 11:00 AM
File image of Allahabad High Court. (Creative Commons)
Synopsis: Recently, the Allahabad High Court declared that “unsaid words” are also a crime is an index of the state of our judiciary and of the dangerous consequences that lie ahead. If the definition of crime is allowed to expand arbitrarily in this way, without a clear, precise meaning, it will become a weapon in the hands of the unscrupulous.
A court of great repute like the Allahabad High Court — in a double bench verdict — declaring that “unsaid words” (yes, categorically “unsaid words”) are also a crime, is an index of the state of our judiciary and of the dangerous consequences that lie ahead.
Until now, an event, act, or deed was treated as a crime only when it caused loss of property, loss of life, or physical injury. Our society also recognises that words can insult and inflict mental injury on persons belonging to castes that have been oppressed for millennia, and hence, there are special laws that treat vilification, humiliation and shame as punishable in particular circumstances.
Colonial rulers classified writings, expressions and utterances that opposed their rule, their government or their policies as crimes — as “sedition” — and incorporated that crime into the Indian penal framework.
The Sangh Parivar government that loudly declared its intention to discontinue colonial laws even went on to replace the Indian Penal Code, the Criminal Procedure Code, and the Indian Evidence Act with three new “Codes” — the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam — and carried over, almost intact, the colonial tradition of treating words, written materials, signs and electronic messages as crimes.
The offence of “sedition” was preserved under new guises.
If the definition of crime is allowed to expand arbitrarily in this way, without a clear, precise meaning, it will become a weapon in the hands of the unscrupulous.
A police inspector with the power to register an FIR can, at will, allege any offence against anyone and launch an investigation; courts may intervene, find the case false, and release the accused on bail — but until the court reaches that conclusion and quashes the case after a full hearing, the accused will suffer illegal detention for months or years.
For decades, there has been a debate that such illegitimate use of procedure must not be permitted. While that debate was ongoing, the Allahabad High Court has now advanced a strange new argument. Even if the words in a message do not contain anything inherently criminal or inflammatory, “unsaid words” themselves are a crime, the court has bizarrely proclaimed.
Looking at the facts of the case, in which this judgement was delivered, shows how law, justice and reason have been turned upside down, rendered meaningless and misused in Uttar Pradesh.
On 19 July, in the Chandpur Police Station area of Bijnor district, Uttar Pradesh, an individual named Arif Ahmad was arrested following a complaint filed by a Rashtriya Swayamsevak Sangh (RSS) activist, Sandeep Kaushik. Arif Ahmad runs an electronics and gas-filling shop in Bijnor along with his father, Farooq Ansari.
The RSS activist alleged that Arif had publicly committed obscene acts that disturbed public peace, had indulged in criminal intimidation, and was practising “love jihad.”
Along with these allegations, the FIR prepared by the police added offences of rape, poisoning, cheating, forgery and an attempt to convert Hindu women. These allegations stood not only under the Bharatiya Nyaya Sanhita but also under the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act.
The truth or falsity of these charges must be determined in court, but even the FIR does not specify any woman whose religion was changed by Arif. No woman is named in the FIR as a victim of conversion. There is no evidence for the other allegations either. There are allegations that the case itself was concocted with mala fide intent and on communal lines.
It was this matter that Arif’s brother Afakh shared on 30 July as a WhatsApp message with his friends. He wrote that false charges had been fabricated against his brother without examining facts, that their family’s reputation and their business had been put in jeopardy, but that he still had faith in the judiciary and believed his brother would be released as not guilty.
When a false case is made against someone, it is natural for family members to express such outrage.
Yet the Chandpur Sub Inspector Prashant Singh registered another FIR alleging that Afakh’s WhatsApp message would incite communal enmity between religions, could lead to religious clashes, and that Afakh had sent the message with mala fide intention to destroy communal harmony.
In short, if the first arrest of the brother was wrongful and baseless, then the brother’s natural outcry shared with friends became another offence!
Afakh sought quashing of that FIR under Article 226 of the Constitution, asking the high court to set it aside. Afakh’s counsel, Syed Shanawaz Shah, argued that if one reads the entire WhatsApp message quoted verbatim in the FIR, it does not excite anyone; it merely expresses a man’s dissatisfaction and anguish about his brother’s arrest.
The message itself makes clear that the writer has full confidence in the judiciary and hopes his brother will be exonerated.
Normally, a court’s order records the defence and the government counsel’s submissions. In the present four-page judgement, the petitioner’s arguments by Shanawaz Shah are recorded in detail in more than twenty lines, while the Additional Government Advocate Shashi Shekhar Tiwari’s reply occupies only one sentence and two and a half lines (one of those lines merely noting “Mr Shashi Shekhar Tiwari, Learned Additional Government Advocate”).
The short note does not explain how the government counsel refuted the petitioner’s contentions or proved them wrong beyond a reasonable doubt. It only states that he “vehemently opposed the motion to admit this petition to hearing.”
In other words, the judges themselves appear to be saying that the true force of the case is in the petitioner’s arguments — nothing substantial on the contrary is recorded from the prosecution side!
But then, in words that defy law, logic and linguistics, the two judges — Justice JJ Munir and Justice Pramod Kumar Srivastava — wrote: “The words of the post quoted in the FIR may not speak per se about religion, but definitely conveys an underlying and subtle message that his brother has been targeted in a false case, because of him belonging to a particular religious community. These unsaid words in the message prima facie would 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.”
In other words, even though the words that the accused actually wrote — and which the police themselves quoted in the FIR — do not contain such meanings, the judges set out to discover a meaning that is not present in the words.
They say that punishment can be meted out not for what was done but for what was not done — for an inferred meaning. They imagine a reality not established by the evidence.
And they did not stop there. In another para the judgement continues: “quite apart, and, even if one were to think that no religious feelings of a class of citizens or community have been outraged, per se, by the WhatsApp message, 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, where 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… we are of the opinion that the petitioner is not entitled to grant relief under Article 226 of the Constitution, interdicting investigation in any manner or any of its processes.”
Thus the definition of crime has been lowered from the level of a physical act or event that causes death, loss of property, or bodily injury, to the level of expressions such as words, writings, signs that can have psychological impact — and now further degraded to an almost metaphysical, invisible thing: an “unsaid word” meaning that does not exist on the page or in the message anywhere.
This degraded level of “crime” is something that only the police or judges may imagine and discern. From now on, it will be possible to allege crimes not for deeds done, not even for words said, but for words not said. One can be charged for the “unsaid,” detained without bail for years, and after long investigations, perhaps punished.
There is an old folk tale: a fawn drinks water downstream; a tiger drinks upstream and scolds the fawn, “You are fouling my water.” The fawn answers, “How can I, who am downstream, pollute the water of one upstream?” The tiger replies, “How dare you answer me back?” and pounces and kills the fawn. That tale seems to be repeating now under the rule of Yogi Adityanath.
Today, they are saying that even unsaid words are a crime. Tomorrow, will they say that your very existence, your breath, your being is a crime? What is happening to the Indian judiciary?
(Views are personal. Edited by Muhammed Fazil.)
