Saving the Saviour- Law of Blasphemy in India

 

ABSTRACT

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.

The first saying of Prophet Jesus on the cross was “Father, forgive them; for they know not what they do” is traditionally called “The Word of Forgiveness”. This symbolizes that forgiveness is the essence of humanity.

SECTION 295 IPC, 1860 -A bird’s eye view

 

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. 

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.

Thus, so long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, the entire law should be held to be unconstitutional and void.

JUDGEMENT

This argument was rejected by the Court on the very premise that “in the interests of” occurring  in the amended Clause  (2) of Article 19 had the effect of making the protection  afforded by that clause very wide and a law not directly  designed  to maintain public order would  well  be within its protection if such activities as it penalised had a tendency to cause public disorder.

In Baba Khalil Ahmad² the Court held that insult to religion or religious belief of a class of citizens of India is the main ingredient of Section 295 A, IPC. 

While rejecting the argument of the petitioner that he lacked the intention of outraging anybody’ religious feeling, the Court referred to Kali Charan versus Emperor³, and held that the intention of the writer of a book must be judged from primarily by the language of the book itself.

The scope the word ‘malicious’ in Section 295- A was expanded in Henry Rodrigues⁴ where Court held, in order to establish malice as contemplated in Section 295-A, it is not necessary to prove that, the applicant bore ill-will or enmity against the specific persons. If the injurious act was done voluntarily without a lawful excuse, malice may be presumed.

Similarly, the scope of ‘public order’ was expanded in Baragur Ramachandrappa⁵ where the Supreme Court criminalized individual expression for its mere impingement “on the feelings of others”, thus giving an overly broad interpretation to ‘public order’.

Failures of the Law

Though, the apex court has interpreted Section 295-A in a manner so as to include deliberate or malicious insults to religion under its ambit, there have been several instances which have the tendency to gag as the fundamental right to speak and express.

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.

This led to Dhoni filing a Special Leave Petition challenging the Karnataka HC order. A bench of Justices Dipak Misra, A M Khanwilkar and M M Shantanagoudar said, “it would be a travesty of justice" if Dhoni and the editor are prosecuted as they did not do the alleged act “deliberately" or with “malicious" intent to hurt religious sentiments.

Sanal Edamaruku case

Though this case is related to Section 295, IPC holds much importance here. In April 2012, the Catholic Church filed a complaint against Sanal Edamaruku, the then President of Indian Rationalist Association. The complaint was regarding a factual or logical conclusion related to weeping of Jesus on the cross, which Edamaruku was arguing. He contented that the supposed ‘miracle’ was nothing but the result of a leaky drain. Edamaruku wa asked to surrender and face charges by the police since then he lives in exile in Finland.

Priya Prakash Varrier case:

Actress Priya Warrier and the makers of “Oru Adaar Love” had approached Supreme Court to quash an FIR registered against them on the allegations of Warrier’s wink in a song was insulting to Prophet of Islam.

Furthermore, these problems are exacerbated by Section 95 and 96 of the Code of Criminal Procedure, 1973. These provisions allow the widest discretion to government authorities to forfeit and seize publications that “appear” to be in violation of Section 295-A IPC, before the matter is even entertained by the Court. 

The Supreme Court in Sri Baragur Ramachandrappa and Ors versus State of Karnataka⁷ that the State need not even specify the grounds of forfeiture in its notifications. The over broad interpretation accorded to these provisions of the CrPC, coupled with the unreasonable interpretations of Article 19 (2) restrictions outlined above, allows the government to use Section 295-A for legitimizing mob justice.

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.

 

  3. Capability to legitimize mob violence: Section 295A or any blasphemy law (Section195, 296, 298, etc.) has the capacity to legitimize mob violence or vigilantism. The reason the Code has such a provision is to punish those who may incite violence by their speech or expression, in doing so, it establishes that such violence would be an obvious result and therefore such expressions must be criminalized.
 
While such violence has social legitimacy, blasphemy laws give such a reaction a legal standard as well.

 

 4.  Inconsistent with secular character: Blasphemy laws are inconsistent with the secular character of the Indian Constitution. The Indian Constitution provides for reformation, i.e. curbing of socially unjust practices like untouchability and throwing open of temples to every citizen. The Indian Constitution has a transformative as well as a reformative approach.⁹
 

 

 Conclusion

Former Chief Justice Dipak Misra while delivering a lecture at a Conference on Human Values and Legal World, Jurist Conference conducted by Sri Sathya Sai Seva Organisations India said, “divinity is humanity”. Humanity is the essence of every major religious thought. Rabindra Nath Tagore also highlighted the greatness of the idea of humanity.

 

In order to achieve social order and harmony as is enshrined in our Constitution, people must be spiritually enlightened. A law which curbs and punishes the exercise of freedom of speech and expression for outraging religious sentiments is against the basic tenants of religions itself.

 

Further, the law is ambiguous in its definition and lacks the first principle of criminal law, i.e. terms must be clear and unambiguous as they need to be interpreted strictly.

 

Also, the law works on the premise that people can become violent in name of religion and thus it is better to curb the voices than to stop the violence. This logic fails the first test for which a State was constituted i.e. security. Furthermore, from the religious angle this law tends to establish that some people are actually not spiritual, for the simple reason that they lack tolerance, stability of mind and are orthodox.

 

Finally, wearing the garb of public order and gagging the basic rights of citizens in a democracy, is nothing but subverting a holy book itself i.e. Constitution of India. Thus, the only way to uphold public order which might be disturbed by some people in name of religion, is the practice of meditation. Meditation, which has ancient and religious backing will help in the realization of the inner being i.e. divinity, and this is what I call as “Om Shanti jurisprudence”.

  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).