Blasphemy Law in India: An Overview
“Freedom to
think as you will and to speak as you think are means indispensable to the
discovery and spread of the political truth.”- Justice Louis Brandeis
I.
Historical background
of Section 295A of IPC in India.
India has always been a Hindu (cultural sense)
majority nation and a birthplace of various Indic faiths, and hence the concept
of ‘Blasphemy’ has never existed as it exists in Semitic Abrahamic faiths. The
concept such as apostasy, disbelievers or unbelievers has never been prevalent
in Indian society as there is no one common god or one common set of belief
systems.
This land has always been very inclusive and has given
the liberty to individuals, to follow or to not follow ‘Dharma’, or to believe
or to not believe in god. To force someone to believe something or to not
believe something has never been the history of this civilization, except the
period of invasion where foreign rulers have staunchly forced the natives of
this land to convert to foreign faiths. Shri. K.M. Munshi has rightly said, “The conquest of India is the conquest of
culture by those who lacked it”[1].
It has been already established through various literature including the
writings of invaders and other sources of history that mass conversions took
place during the Islamic invasion; Mughal Empire and prior invading empires.[2]
In today’s times, the concept of Blasphemy is followed
in many Islamic states and it is no surprise, as there are various Islamic
states, where even today death penalty is granted for being an ‘Atheist’.[3]
Similarly, there are various Islamic states where Blasphemy still continues to
get a punishment in the form of death penalty.[4]
However, the legislation which is commonly referred to
as “Blasphemy” in India had its spark prior to Independence i.e. around 1920s. It
was around that time, when Swami Shradhanand of the Arya Samaj initiated an
important movement of re-converting the ‘converted’
Muslims of United India, back to the Hindu fold through peaceful means[5].
This particular act was followed by a series of events
and had repercussions in every sphere including social, political and even
legal. In terms of the social sector, certain pamphlets were published by the
people of other community with a derogatory and scurrilous picture of Devi Sita
in an absurd way challenging her fidelity and integrity. This act had a
befitting reply from the other side (Hindus) in the form of a book by name
“Rangeela Rasool”, which for obvious reasons did hurt the sentiments of the
other community. This was followed by some legal action that was filed against
the publisher and the author of the book.
In addition to this the editor of the book was
assassinated in the court premises itself by a member of the other community.
This got British under pressure and they had to start a discussion on the need
for blasphemy law in India, this was followed by a 300 page report and finally
it was passed as a law under section 295A of the Indian Penal Code, which is
commonly referred to as “Blasphemy”.
II.
Judicial Interpretation
of Section 295A and its Impact.
Section 295A of the Indian Penal Code states, “Deliberate and malicious
acts, intended to outrage religious feelings of any class by insulting its
religion or religious beliefs.—Whoever, with deliberate and malicious
intention of outraging the religious feelings of any class of [citizens
of India], [by words, either spoken or written, or by signs or
by visible representations or otherwise], insults or attempts to insult the
religion or the religious beliefs of that class, shall be punished with
imprisonment of either description for a term which may extend to [three
years], or with fine, or with both”[6]
It was not very long after the adoption of the
constitution when this section was challenged on grounds of infringement to
freedom of speech. Although, before coming to that, in the year 1951 the 1st
amendment was passed and ‘Freedom of Speech’ became a restricted right from an
absolute right under the lens of ‘reasonable restriction’.
There was no specific definition of what exactly was
‘Reasonable restriction’, the definition in itself was very broad and has never
been challenged. There were many people who had various contentions with the
implementation of this term, Dr. Shayama Prasad Mukherjee was one of them. He
was against this very amendment as he believed that this can be misused very
easily in future and in a way he was right in saying so.
The constitutional judgment of “Ramji Lal Modi vs The State of UP”[7]
is the case where the constitutionality of this section was challenged. There
was a publisher of a magazine named ‘Gaurakshak’ in the state of UP which was
dedicated to the cause of ‘Cow Protection’. He ended up writing a certain article
on certain practices of a section of the society. The article criticized the
Muslim community or certain aspects of attitude from the Muslim community which
resulted in his prosecution and he was even convicted under this section in the
Sessions court.
The accused then appeals the judgment in the High
Court and then in the Supreme Court. He got no relief and hence ended up filing
a writ petition under article 32 of the Constitution challenging the section as
an infringement to article 19 of the Constitution i.e. Freedom of Speech and
Expression. The petitioner submitted the argument that Section 295A fails to
make a distinction between criticism of religion which cause public disorder
and criticism of religion that does not cause public disorder. On this basis
the petitioner believed that the statute is an infringement to article 19(2),
which is reasonable restrictions on free speech.
The petitioner highlighted that in the year 1951
article 19(2) was amended, the amended definition of reasonable restriction
was, “in the interests of the security of
the State, friendly relations with foreign states public order, decency or
morality or in the relation to contempt of court, defamation or incitement to
an offence.”[8]
The petitioner hence stated that section 295A is covered under the chapter ‘Offenses
against Religion’ and not ‘Offences against Public Tranquility’ under the
Indian Penal Code.
Hence the petitioner concluded that the impugned
section does not enjoys the protection of article 19(2) because it is a law
that is imposing restriction on religion and is not a law that is covered under
the ambit of public tranquility. This primarily suggests that there is no
necessary relationship between offences against religion and its impact on
public order. The court however focused on the “Broader” aspect of article
19(2) and believed that if a provision is not working directly to maintain the
public order and is being used under a broader sense, to work in the ‘interest
of maintaining public order’, it should be still considered as constitutional[9].
“The justification for that decision was
that the statute only punishes aggravated forms of insult to religion
perpetrated with deliberate and malicious intention. However, the words
‘deliberate and malicious’ were inserted to ensure that the section would be
‘both comprehensive and at the same time of not too wide an application”[10].
Based on this rationale the petition was dismissed and
the accused had to serve his commuted sentence. This judgment became the
bedrock of this legislation as it approved the existence and constitutionality
of this legislation. This followed a series of cases that invited a restriction
to literature, books, commentaries etc.
The important question that was supposed to be answered
under this case was whether there is any connection between the speech and
literature in order to maintain public order; whether the speech directly or
indirectly vitiates public order. It becomes very imperative, as in other
provisions related to hate speeches, the question of public order is very relevant.
For example- Under sedition (Section 124A of the
Indian Penal Code), it was highlighted by the Supreme Court in the case of Kedarnath Singh vs State of Bihar[11],
that the state can implement reasonable restriction on free speech only when there
is either ‘incitement of violence’ or ‘public disorder’. Only under either of
these conditions the provisions of sedition can be implemented. In light of
this, it becomes very important that the same rationale shall be applied by the
Supreme Court when they deal with matters or offenses relating to religion and
reasonable restriction on the same.
In another judgment in the year 2007 with reference to
Saint Basaveshwara, the Supreme Court in the case of Baragur Ramachandrappa and Ors.
Vs. State of Karnataka and Ors[12]
clearly held that the impugned book, which was based on the life of Sri
Basaveshwara had a chapter that was intentionally added to insult the feelings
of the followers of the saint.
In this case, the author of the book mentioned a few
controversial statements about the sister of Sri Basaveshwara, and in his defense,
he stated that since the topic that he chose is still a part of academic
discussion with no concrete conclusion, he is justified to rely on some parts
of those debates[13].
However, the Supreme Court upheld the ban that the state government put and
advised the petitioner to alter the impugned chapter in order to remove the
ban.
The rationale and the reasoning applied by the Supreme
Court in both these cases appears to be unclear and ambiguous. There is a dire
need for a set of comprehensive guidelines on the implementation of this
section by the Supreme Court in order to clarify the ambit of section 295A with
respect to the free speech expressed by artists, story tellers, historians etc.
The provision for all practical purposes, is hampering academic discussions on
historical facts even if the author has no malicious intent.
Although,
one could refer to the judgment given by the Kolkata High Court, to get a better
idea of the implementation of this legislation and the guidelines provided by
them. In this judgment the court came up with an excellent test for
implementation of this particular section in the case of “Sujato
Bhadra vs State Of West Bengal”[14]. In this
particular matter a case was filed against the author Taslima Nasreen for her
book ‘Lajja’, where she mentioned the atrocities which were done on Hindus in
Bangladesh, post the Babri Masjid demolition.
The book had no objections
as she backed her claims with facts, history and reality. The Judgement of the
court categorically said that, “Insult or
attempt to insult the religion or religious beliefs when made with an intention
which must be deliberate or malicious of outraging the religious feeling of a
class of India”[15],
only then this section will be attracted. The court even mentioned, “The outrage to religious feeling or insult
to religious belief is made unwittingly or carelessly or without any deliberate
or malicious intention, the same would not come within the purview of section
295A IPC. The expression deliberate and malicious is indicative of the
intention of legislature and hence should be both in the form of deliberately
malicious. If it is made knowingly but with an intention oriented by securing
or stimulating the welfare of the society or emancipating the women, in such
case the outrage of religious susceptibilities or beliefs even though
intentional can’t be termed as deliberate and malicious.
If the author causes the same with bona fiddly in his or her effort for
his objective to facilitate certain measures such as societal reaffirmation by
giving a shock to the followers of a particular religion. It will ensure that
it will not attract the mischiefs of the section of 295A by the reason of the
phrase with deliberate and malicious intention qualifying the particular
provision. In order to establish the ingredient of 295A to be applicable in a
case it is to be established that the author had the requisite of Mens rea
deliberate and malicious to outrage the religious feelings of a class of
citizens of India and to attempt to insult the religion and the intent should
be deliberately and malicious for that class of citizens.”[16]
III.
Revisiting Section
295A of the IPC
The unclear rationale and its wide implementation by
the Supreme Court in different matters has already been discussed above. The
judgment of section 377 of IPC in the case of Navtej Singh Johar vs Union of India[17],
where the judgment concluded that all consensual sex between two consenting
adults including homosexuals were decriminalized, is of great relevance in the
present case. The judgment specifically highlighted that those provisions of
any statute which continue to exist and which were largely introduced by the
British, perhaps does not enjoy the same constitutional validity as compared to
those provisions which were introduced after the enforcement of the
constitution.
Therefore to an extent, the presumption of
constitutional validity which was previously imputed to section 377
(Homosexuality and Unnatural offences) of the IPC was significantly eroded and
subsequently the section was decriminalized. This rationale can become a
precedent for section 295A as well.
This rationale for all practical purposes has opened
up a door to revisit section 295A of the IPC. The objective, if not to scrap it
completely, can be of providing a better and comprehensive clarification on the
implementation of the section[18].
The second issue is the broad and unchallenged scope
of article 19(2). The rationale that a literature or speech can be restricted
even in the ‘interest of maintaining public order’ rather than a speech or
literature that could directly vitiate public order is something that needs a
reconsideration.
The Kolkata High Court Judgment on Taslima Nasreen’s
book as mentioned in 3.2 is a more fruitful litmus test of this section. The
Supreme Court should also take into consideration the judgment of Shreya Singhal vs Union of India[19]
where the court said, “The Supreme Court made the distinction
among discussion, advocacy and incitement. The first two are at the heart of
Article 19(1) (a) and as soon as a discussion or advocacy leads to incitement
Article 19(1) (b) is applicable.”[20]
The Supreme Court already has an option of visiting
this section because of the writ petition filed by Dr. Subramanian Swamy
challenging the constitutionality of this section[21].
This is the best time to revisit the Ramji lal Modi judgment as well as the legislation
as a whole if not visiting the idea of broad reasonable restriction under
article 19(2).
IV.
Concluding Remarks
In the evolving times that we are
currently living in, especially a time where the ambit of free speech and its
repercussions is a very controversial discussion, it is very important that we
relook our laws on hate speeches. Section 295A or commonly known as the
Blasphemy law is definitely one of them. It is fairly established that the
origins of this legislation and the objective of the legislators was an outcome
of pressure because of communal tension and the social-political scenario that
were prevalent then.
This is the reason that the tone
of the section is highly influenced by that vision. Unfortunately there has
never been an evident political will to either repeal the law in its entirety
or clarify its implementation, the outcome of this lack of will has always been
infringing freedom of expression of artists, authors or public at large. In
addition to this, the confounding stand of the Judiciary in implementation of
the same under the wide ambit of reasonable restriction has made the situation
trickier.
There are certain areas and
issues that require a strong reconsideration. The wide ambit of article 19(2)
which stands undefined, which is often used by the state machinery as per their
whims and fancies shall be one of them. The implementation of the section itself
should be reconsidered to make it for facile and at last the Judiciary’s stand
on the same shall be relooked, especially to recognize the true intent of the
author shall be relooked.
There shall be an aspect of
‘incitement of violence’ or ‘public disorder’ under this provision like that in
Sedition. The provisions of Blasphemy shall only be implemented when there is an
action by an individual which leads to violence or public disorder. The present
implementation of the section, by all means, is making all academic discussions
based on religion, history and culture very difficult.
It is very important for us to
understand that an educated and a modern democratic society shall have the
leverage and the liberty to have any forms of academic discussions on any
subject. The same shall under no circumstance be restricted unreasonably due to
ambiguity in the implementation of the law or political expediency.
This article was published by me at 'Manupatra' on June 28, 2021- www.manupatra.com.
*Third year student from NMIMS’ Kirit P Mehta School of
Law. [Authored on 15th June, 2021)
[1] A Deep-Dive into the
Mindset of Medieval Muslim Chroniclers: Preface, ,
https://www.dharmadispatch.in/history/a-deep-dive-into-the-mindset-of-medieval-muslim-chroniclers-preface
(last visited Jun 10, 2021).
[2] Saket Suryesh, “The myth of Mughal greatness: Mughals
were neither great rulers nor were they secularists competing with Nehru”,
Opindia,
https://www.opindia.com/2020/05/myth-of-mughal-greatness-neither-great-rulers-nor-secularists/.
[3] Abby Ohlheiser, “There are 13 countries where atheism is punishable by
death”, The Atlantic, 2013,
https://www.theatlantic.com/international/archive/2013/12/13-countries-where-atheism-punishable-death/355961/.
[4] Talal Al-Khatib, “Where Blasphemy Carries a Death Sentence”, Seeker, https://www.seeker.com/where-blasphemy-can-get-you-a-death-sentence-2041523454.html.
[5] J. Sai Deepak, A
civilisational approach to blasphemy, The
Daily Guardian (2020),
https://thedailyguardian.com/a-civilisational-approach-to-blasphemy/ (last
visited Jun 10, 2021).
[6] Section 295A, Indian Penal Code,
1860, , http://www.bareactslive.com/ACA/ACT225.HTM (last visited Jun 13, 2021).
[7] Ramji Lal Modi vs The
State of UP ,MANU/SC/0101/1957
[8] THE CONSTITUTION
(FIRST AMENDMENT) ACT, 1951|Legislative Department | Ministry of Law and
Justice | GoI, ,
https://legislative.gov.in/constitution-first-amendment-act-1951 (last visited
Jun 14, 2021).
[9] J. Sai Deepak, Section
295A: The ‘Blasphemy’ Provision, The
Daily Guardian (2020),
https://thedailyguardian.com/section-295a-the-blasphemy-provision/ (last
visited Jun 10, 2021).
[10] Supra note 7.
[11] Kedarnath Singh vs
State of Bihar, MANU/SC/0074/1962.
[12] Baragur Ramachandrappa and Ors.
Vs. State of Karnataka and Ors, MANU/SC/2239/2007.
[13] Deepak, supra
note 9.
[14] Sujato
Bhadra vs State Of West Bengal ,MANU/WB/0290/2005
[15] Id.
[16] Id.
[17] Navtej Singh Johar vs
Union of India
, MANU/SC/0947/2018
[18] SCLHR_SoL, Blasphemy
Laws and Free Speech by J Sai Deepak (Advocate, Supreme Court), Society for Constitutional Law & Human
Rights (2020), https://sclhrblogs.wordpress.com/2020/05/22/blasphemy-laws-and-free-speech-by-j-sai-deepak-advocate-supreme-court/
(last visited Jun 13, 2021).
[19] Shreya Singhal vs
Union of India
, MANU/SC/0329/2015
[20] Id.
[21] Dr. Swamy and Modi
Govt. spar over Hate speech Law - PGurus, (2015),
https://www.pgurus.com/dr-swamy-and-modi-govt-spar-over-hate-speech-law/ (last
visited Jun 5, 2021).
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