Blasphemy Laws in India vis-à-vis Freedom of Speech and Expression



The Constitution of India, in its preamble, states the term ‘secular’, which means that the state shall not interfere in the religious matters of any religion, except for cases where the practice of one violates the fundamental rights given in the Indian Constitution. Further, the citizens are allowed to practice the religion of their choice.

With the ever-evolving society, numerous religions have also clashed for one reason or another, resulting in riots, murders, nuisance, et cetera. Therefore, to prosecute the individuals who violate the religious sentiments of other religions, Section 295A of Indian Penal Code, 1860[1] reserves a punishment of imprisonment for a term that may extend to three years or with a fine or both.


The intention to violate religious sentiments is not a new concept and has been practised since time immemorial. However, with time, the gravity of atrocities following any religious clashes have increased. However, that is a violation of the fundamental right guaranteed by the Constitution as well as a violation of Articles 25, 26, 27, and 28 o that guarantee the right to freedom of religion.


According to Black’s Law Dictionary, Blasphemy refers to the “speaking evil of the deity with an impious purpose to derogate from the divine majesty, and to alienate the minds of others from the love and reverence of God.”[2]


Blasphemy is one of the oldest forms of offence against religion. However, in contemporary times, it is not used to protect the rights of a particular religion but to suppress the freedom of speech and expression. Therefore, the punitive measures associated with blasphemy must be stopped.


India, known for its vast culture and unity in diversity, is struggling with the threat of religious clashes and derogatory comments on the religion to hurt sentiments. With the evolution in society, such laws are turning into a weapon. Instead of protecting the rights of people, it suppresses the freedom of speech and expression enshrined under Article 19(1)(a).


Historical Background of Section 295A of Indian Penal Code, 1860


India is primarily a Hindu-dominated nation. People have mostly been practising Hinduism for decades. However, it was only in 1927 that laws relating to blasphemy were enacted and enforced with the interference of the British.


Section 295A was enacted by the Criminal Law Amendment Act, 1927[3], and was primarily enacted due to the nationwide clashes against the judgment of Rajpaul v. Emperor,[4] which is famously known as the ‘Rangila Rasul Case’ where the Lahore High Court acquitted the accused while interpreting Section 153A of Indian Penal Code, 1860,


Sometime before the Rangila case, the Allahabad High Court in the case of Kali Charan Sharma v. Emperor[5] ruled that any person who makes any derogatory or bad-taste remarks against a particular religion or its founder can be prosecuted under Section 153A of IPC, and it was at this point where the British interfered and enacted Section 295A of IPC. The Section is even present in the penal codes of Pakistan and Bangladesh.[6]


The Constitutional Validity of Section 295A of IPC


The constitutional validity of Section 295A of IPC was challenged in the case of Ramji Lal Modi v. the State of UP,[7] where the Supreme Court of India ruled that Section 295A of IPC is well within the ambit of protection of Article 19(2) of the Constitution of India. Therefore, its validity is neither to be questioned nor is it violative of the right bestowed in Article 25(1) of the Constitution of India.[8]


In the Ramji Lal Modi case, the court also ruled that this Section does not penalise all the acts that violate or attempt to violate religious sentiments. This Section will only impose punitive measures in cases where there is an intention to violate the religious sentiments of the religion. The court also ruled that the provisions of Section 295A of IPC will only be applied in cases of aggravated forms of insult to a religion, and such insult is intended to destroy public order.


Section 295A of IPC vis-à-vis Article 19(1)(a) of the Constitution of India


Article 19(1)(a) of the Constitution of India bestows the right to freedom of speech and expression, and it includes the right to present one’s views through words, pictures, writings, films or movies.[9] However, the right is not absolute and is subject to reasonable restrictions under Article 19(2) of the Constitution of India, in which one of the grounds of restriction is public order.


In Ramji Lal Modi v. the State of UP,[10] the Supreme Court also ruled that certain activities tend to cause public disorder. Therefore, a law penalising such activities is a law imposing reasonable restrictions.


The court further ruled that Section 295A of IPC only punishes forms of insult to a religion when such an act is done with deliberate intention to violate the religious sentiments of a particular class. The intention to violate religious sentiments is clearly to cause public disorder. Since Section 295A of IPC penalises such acts, it is well within the ambit of Article 19(2) of the Constitution of India. Moreover, it is a reasonable restriction under freedom of speech and expression under Article 19(1)(a) of the Constitution of India.


Essentials of Section 295A of Indian Penal Code, 1860


The Supreme Court of India, in the case of Sujato Bhatra v. State of West Bengal,[11] held that to attract the offence of the provision of Section 295A of IPC, a person must

  1. by written' words

  2. with deliberate and malicious intention

  3. of outraging the religious feelings

  4. of any class of citizens of India,

  5. insults or attempts to insult the religion or the religious beliefs of that class.

In other words,

  1. the intention has to be deliberate and malicious both and

  2. for outraging the religious feelings

  3. of a class of citizens of India

  4. to insult or attempt to insult the religion or religious belief of that class, i.e. in India

  5. by written words.

The insults to religion offered unwittingly or carelessly, or without any deliberate or malicious intention to outrage the feelings of that class do not fall within the ambit of Section 295A of IPC, and the Section is only concerned with imposing punitive measures in such cases where the intention to violate the religious sentiments is caused deliberately.

The only essence of this Section is that the violation of an insult to any religion or class of people must be done deliberately and maliciously. In the case of Mahendra Singh Dhoni v. Yerraguntla Shyamsundar,[12] the Supreme Court of India, while quashing a criminal complaint, held that Section 295A of IPC does not attract every act that would cause insult or disrespect to any religion. Section 295A of IPC only penalises those acts which are done to outrage religious sentiments.


Conclusion


It is evident from the above discussion, case laws, judgments, and other references that Section 295A of IPC is not in conflict with freedom of speech and expression. However, there are also cases like Munnawar S/o Iqbal Faruqui vs. State of Madhya Pradesh,[13] where it has been observed that Section 295A in contemporary times has been violating fundamental rights of citizens and is also used as a weapon in some instances.


Primary responsibility is on the police, who are not well-equipped and trained to deal with such cases where it is essential to determine and find out the truth. However, the police only arrest the accused, which often leads to a violation of human rights in police custody.

While some are of the view that Section 295A of IPC is clashing with the freedom of speech and expression, the judiciary is of the view that Section 295A of IPC is only relevant in cases where there is a deliberate insult to a religion and not otherwise; it upholds the validity of Section 295A of IPC.


While those who contend that Section 295A of IPC are violative of freedom of speech and expression must carefully analyse their words, especially those who tend to have many listeners, like religious or non-religious leaders, public speakers, and influencers, must be careful be clear and precise with their words. It is possible that if a statement is capable of multiple interpretations, such statements will indeed violate the religious sentiments of other religions.

[1] Act no. 45 of 1860, Available at: https://legislative.gov.in/sites/default/files/A1860-45.pdf, [Accessed on 7 September 2021] [2] Henry Campbell Black, Black’s Law Dictionary, pg. 216, Revised fourth edition, St. Paul, Minn. West Publishing Co. 1968, Available at: https://www.latestlaws.com/wp-content/uploads/2015/04/Blacks-Law-Dictionery.pdf [Accessed on 7 September 2021] [3] Act no. 25 of 1927. [4] AIR 1927 Lahore 590. [5] AIR 1927 Allahabad 649. [6] Navjosh Singh Atwal, Blasphemy- legal status in India, pg. 5, Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3800192 [Accessed on 7 September 2021] [7] 1957 SCR 860. [8] T Parameswaran v. Distt. Collector, AIR 1988 Kerela 175. [9] Kumar Amrit, Right to Freedom of Speech and Expression Article 19(1) (a), Pg. 3, Available at: http://www.patnalawcollege.ac.in/notice/88274-e_content-_art_19.pdf [Accessed on 7 September 2021] [10] Supra, no. 7. [11] 2006 CrLJ 368 (Cal.) [12] AIR 2017 SC 2392 [13] Mis. Cr. Case No.2206/2021, Madhya Pradesh High Court Bench at Indore, Available at: https://images.assettype.com/barandbench/2021-01/b414a407-960f-4f4d-856f-5a23887a3bcf/Munawar_Faruqui_Order.pdf [Accessed on 8 September 2021]

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