Indian Penal Code, 1860 under Section 295-A punishes the deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. The provision was inserted in the Code by Britishers in 1927 in the backdrop recurring Hindu- Muslim riots, which were fuelled by provocative statements.
It is clear that this provision curtails the individuals’ right to freedom of speech and expression protected under Article 19 (1)(a) of the Indian Constitution. Thus, the Section can only be protected by Article 19 (2), which allows for reasonable restrictions on freedom of speech and expression, in the interests of inter alia, ‘public order’ and ‘morality’.
The said provision works on the premise that some religious people get offended by offensive statements and might react through violence, and therefore to prevent the possibilities of violence, it is necessary to deter making of statements against religion.
This section has been used many times to shut the voices of writers, artists, comedians, rationalists, academicians, etc. and thus violates the very essence of democracy i.e. free voice.
The Supreme Court has recently devised the principle of Constitutional morality, which is to be achieved by all, meaning thus, that conventional morality must rise to the level of Constitutional morality. Our Constitution envisages the principle of dignity, equality, liberty and fraternity, which can be achieved through cultivating scientific temper, humanism and tolerance, which is antithetical to conventional morality.
Religion is the manifestation of the Divinity already in man: Swami Vivekananda
According to Swami Vivekananda, religion is the manifestation of the Divinity already in man. He also told, religion is the idea which raises the brute unto man, and man unto God.
The purpose of law is to establish order. This order cannot be established through Austinian theory, which regards physical sanction as the way to maintain social order, but through finding the “being” we are. The presence of soul or presence of some inner divine power in human person is an essential of almost all faiths. Gospel of Luke (17:21) mentions "the kingdom of God ... within you". Similar thoughts are shared by the Vedanta philosophy.
Thus, every human being has a soul enclaved in a body. This human person is perfect in all spheres of knowledge and there is a presence of divinity within this being. The task of this being is to manifest this through education both scientific, professional and spiritual.
‘Dignity of the human person’ and ‘worth of the human person’ which is the essence of the United Nations charter recognizes this very philosophy. Equality and fraternity envisaged in our Constitution can only be attained through the manifestation of this truth, that divinity lies within us and all of us.
Blasphemy, which makes insulting a religion or a religious belief offence, itself negates the very basis of any religion. The law disregards the very fact of “dignity” of the human person. Beliefs and ways to attain the supreme power may be different, but the essence of humanism is the basis of all major religions. A law punishing an act of insulting a religious belief for the mere reason that it would hurt the sentiments of a group of people actually demeans the very basis of any religion, which regards tolerance and shanti as their basic tenant.
SECTION 295 IPC, 1860 -A bird’s eye view
The validity of the Section was previously challenged in the Supreme Court in the case of Ramji Lal Modi versus State of Uttar Pradesh1.
CONTENTIONS OF THE PETITIONER
The petitioner contended the following:
Point 1- The section interferes with the right to freedom of speech and expression guaranteed to him as a citizen of India by Article 19 (1)(a) of our Constitution. Also, it cannot be regarded as a reasonable restriction under Article 19 (2).
Point 2- Interest of public order is the only thing in clause (2) which may possibly be relied upon by the State as affording a justification for its claim for the validity of the impugned section.
Point 3- Law which interferes with the freedom of speech and expression and imposes a punishment for its breach "in the interests of public order”, can only do so, if there is a likelihood of public disorder which is a matter of proximate and not remote consideration.
Point 4- Insulting the religion or the religious beliefs of a class of citizens of India may not lead to public disorder in all cases although it may do so in some case.
Point 5- Insults to the religion or the religious beliefs of a class of citizens of India may lead to public disorders in some cases, but in many cases they may not do so.
Therefore, a law which imposes restrictions on the citizens' freedom of speech and expression by simply making insult to religion an offence will cover both varieties of insults, i.e., those which may lead to public disorders as well as those which may not.
The law in so far as it covers the first variety may be said to have been enacted in the interests of public order within the meaning of clause (2) of Article 19, but in so far as it covers the remaining variety will not fall within that clause.
Failures of the Law
Mahendra Singh Dhoni case6
Ace cricketer M S Dhoni was seen on the cover of the magazine as Vishnu, holding several things including a shoe in his hands. Taking cognisance of the complaint, the trial court in Karnataka had directed registration of a case against Dhoni under section 295 (injuring or defiling place of worship with intent to insult the religion of any class) along with 34 (common intention) of the IPC.
Also, in S. Rangarajan versus P. Jagjivan Ram8, the Supreme Court justified the provision for its “maintenance of values and standards of society”.
Wendy Doniger’s ‘The Hindus: An Alternative History’
A book written by Wendy Doniger, was withdrawn by Penguin Books India (the publisher) in the face of Hindutva retaliations. Penguin, while defending the book for providing a useful alternative to the dominant narrative of Hindu history, feared that it would be caught under Section 295-A.
Reasons for striking down- Section 295-A IPC
1. Cannot rely on ‘public order’: Section 295-A cannot rely on public order restriction in first place. This is because, before introduction of Section 295-A in 1927, all offences of this nature, which posed threat to public order, were already covered under Section 153-A of the IPC. Therefore, the separation of blasphemy from Section 153-A and its independent criminalization post- 1927, could not have been for the purpose of preserving public order. Instead it was to reiterate the supposed morally reprehensible character of blasphemous expression.
2. Lack of exact definition: The first rule of a penal law is that the language of the provision must be unambiguous in nature. Also, there is a multiplicity of opinions as to what would be the standard for an expression to be considered as blasphemous, there is no exact definition as to what would be blasphemous.
One of the reasons for the lacunae is, the legislature does not take into account that religions are further segregated into factions/cults or sects which usually differ from each other on some major ideologies.
While such violence has social legitimacy, blasphemy laws give such a reaction a legal standard as well.
1. Ramji Lal Modi v state of Uttar Pradesh, AIR 1957 SC 620.
2. Baba Khalil Ahmed v. State of U. P., A.I.R. 1960 All. 715.
3. Kali Charan Sharma vs King-Emperor, AIR 1927 All 654 a.
4. The State Of Mysore vs Henry Rodrigues And Anr., 1962 CriLJ 564.
5. Sri Baragur Ramachandrappa and Ors versus State of Karnataka
6. Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, 2017 SCC OnLine SC 450
7. 2007 Insc 504.
8. 1989 SCR (2) 204.
9. Blasphemy Law In India: Thou Shall Not Blaspheme, available at: http://sbj.hnlu.ac.in/blasphemy-law-in-india-thou-shall-not-blaspheme/ (last visited on October 20, 2020).