SECTION 295-A: INDIA’S TRYST WITH ANTI-BLASPHEMY LAWS

Introduction

Religion has been an important part of man’s socio-political development. To quote Emile Durkheim, “If society has given birth to all that is essential in religion, it is because the idea of religion is the soul of society.” [1]The term blasphemy according to Black’s Law Dictionary means “irreverence toward[s] God, religion, a religious icon, or something else considered sacred.”[2] Karl Marx once famously said “Religion acts as an opium of the masses”. Given that religion as a sociological factor plays a major role in many societies, many Common Law Regimes in order to prevent the ripple effect irreligious acts would have on social order have criminalised blasphemy. One of the first common law regimes to implement this principle was the Kingdom of Great Britain and Wales who legally codified this principle through the passage of the Blasphemy Act, 1897.

Be the “Blasphemous Libel” under Section 296 of the Canadian Criminal Code of the Civil Equality Act, 2000 of South Africa, many common law regimes have criminalized the act of blasphemy. The Indian narrative of anti-blasphemy and its jurisprudence has an interesting story which is what we would explore in this article.[3]

The Rangila Rasul Case and the 1927 Criminal Amendment Act

Blasphemy is seen to be more associated with Judeo-Christian cultures[4] and was absent as a concept in Hindu-dominated India till 1927. As observed by John R. de Lingen, “Hinduism faces no fetters on intellect: there is no blasphemy in investigation.”[5]Though the first mention of an anti-blasphemy legal requirement can be referenced to the Lord Babington Macaulay’s Introductory Report to Indian Penal Code[6], the materialization in the Code happened after a landmark case in 1927.[7] In Rajpaul v. Emperor[8], the Lahore High Court bench presided over by Justice Dalip Singh was deliberating upon whether, Rangila Rasul, a series of “scurrilous” pamphlets and publications had intended to promote hatred among communities under Section 153-A. The conviction of the publisher by the trial court was eventually overturned by the Lahore High Court on the grounds that Section 153A of the Code was intended to prevent attacks on a particular community as it exists currently and was not intended to stop polemics (controversial discussions) against a deceased religious leader, no matter how scandalous (vulgar) and perverse such an attack might be[9]. The Muslim community widely condemned this judgement, which put a heavy strain on the British government to close this statutory gap. [10]As a result, the Criminal Law Amendment Act was enacted by the Indian Legislative Assembly after the report of the Selection Committee that added Section 295-A to Chaper XV of IPC. [11]

Section 295-A and its ingredients

There are five ingredients which have to be satisfied to attract a conviction under Section 295A. These include:

(i) by words, “spoken or written” (ii) with deliberate and malicious intention (iii) of outraging religious sentiments (iv) of any group of citizens of India and (v) insults or attempts to insult religion or religious beliefs. Some salient judicial decisions to understand their nuances as well the light in which they are to be interpreted

is next aspect that should be examined.[12]

Importance of 'malicious intent'

The report of the Select Committee recommended the addition of two words “deliberately” and “maliciously” which shows that the legislative intent was to penalise only those actions which had the intention of wantonly vilifying a religion. [13]As it was held in R.V. Bhasin v. State of Maharashtra[14], that insults made to religion carelessly or where there was no deliberate or malicious intention involved, as clear from the legislative intent, this section will not be applicable. Moreover it was held in the case of State of Mysore v. Henry Rodrigues [15] that even if the statements made were true, the defence of truth will not be considered a strong one if there was malicious intent. Malicious intent can be gathered only from circumstances and not from direct and tangible proof as held in the case of The Trustees of Safadar Hashmi Memorial Trust V. Govt Of NCT Of Delhi. [16]Thus, the foremost requirement under this Section is malicious intention as illustrated from the various cases above.

Words: Written or Spoken

The second prong to be tested is the concept of “words written or spoken” being one of essential parts for arriving at a conviction under this Section. A State Government is empowered to stop the distribution of any material under Section 95 of the CrPC if it causes animosity or hatred between different communities to offend the religious sentiments under Section 295A of the IPC. It was held in Baragur Ramchandrappa v. State of Karnataka that even a book in writing can be banned under Section 295-A read with Section 95 if it satisfies the “malicious intent” test[17]. Furthermore, in Bhau v. State of Maharastra, [18]it was held that even images can be construed within the meaning of “words” in Section 295-A and can be extended even to electronic media as held in Sony Pictures v. State of Tamilnadu.[19] Thus, the interpretative standard of “words” has been liberally

constructed by the courts.

“Class” of Citizens of India

The third prong is that Section 295-A deals not with cases where the malicious or deliberate intention to insult religious beliefs are directed against a specific person but against a class of Indian citizens as held in the Khalil Ahmad case.[20] Furthermore in Mahendra Singh Dhoni vs. Yerraguntla Shyamsundar[21], the Supreme Court reiterated this principle that a private individual’s religious sentiments getting violated cannot be addressed

under this section as it only deals with a class of Indian citizens.

Harm Principle Vs. Offence Principle

In order to understand the criminal responsibility and the nexus between the conduct and the malicious intention under Section 295-A, it is important to look at two important criminal law principles: Harm Principle and Offence Principle.

James Mill presented the "Harm Principle" as the sole reason for restricting the freedom of expression, which states that any interference with one's personal liberties is only acceptable if it avoids causing immediate harm to another person.[22] But Mill largely qualifies this protection to free speech and expression through two prohibitions: first, inciting speech, and second, indecent behaviour in public.[23] Speech that threatens or stigmatises a particular social group can be prohibited on the grounds that it would cause emotional harm.[24]

In the case of Ramji Lal Modi vs State of UP[25], the Court held that Section 295A is constitutionally valid under Article 19(2) which allows the State to impose restrictions on speech and expression in the interest of public order. In Superintendent v. Ram Manohar Lohia , the Supreme Court later ruled that "there must be a proximate link between speech and public disorder, and not a far-fetched, remote, or fanciful connection." which implies that in order for a comment to be labelled as blasphemous, all it takes is the idea that it might upset the peace of society or harm someone's feelings to lead to restrictions on the right to free speech. Here it should be noted that the Court upheld the constitutional validity of Section 295A not in the garb of its legislative intent to protect the sentiments of religious sentiments but regard uses Section 295A as a means to preserve public order so as to prevent "harm" to the societial status quo. These interpretations provide more credence to the harm principle used as a tool of construction under Section 295A.

In Superintendent v. Ram Manohar Lohia , the Supreme Court later ruled that "there must be a proximate link between speech and public disorder, and not a far-fetched, remote, or fanciful connection." which implies that in order for a comment to be labelled as blasphemous, all it takes is the idea that it might upset the peace of society or harm someone's feelings to lead to restrictions on the right to free speech.[26]

As an alternative to the "harm principle," Fienberg categorically contends that "offence" refers to a hated emotional state brought on by the wrongdoing of others and that it is less serious than harm. [27]When one is “offended” (i) one experiences a disliked condition, (ii) this state is linked to the incorrect (right-violating) action of another, (iii) one has resentment toward the other's wrongdoing. [28]The “Offence Principle” method of interpretation has been accepted by Indian Courts in the following cases. For instance, the court addressed the question of prohibiting an award-winning Kannada novel about the life of a venerated Saint on the grounds that it violated Section 295A in Sri Baragur Ramachandrappa & Ors v. State of Karnataka.[29]It upheld the ban because a certain section of the book enraged a group of believers in Saint Basaveshwara. In this instance, a certain segment undoubtedly experienced a disfavoured mental state because of the offender's wrongful behaviour, specifically, the spiteful criticism of their faith. [30]As a result, the court principally relied on the Offence Principle by limiting the subject to how people feel about something they consider to be "holy" in their religion and hence potentially offensive. Public order was not at issue in this case; rather, purported anti-religious attitude was being punished.[31]

A Critique of Section 295A and Suggestions

Though there is a well-established jurisprudence with regards to Section 295-A, there are some lacunae that need to be addressed. Firstly, the ambiguity this provision creates due to the many conditions it places. The 87th Report of the Law Commission of India pointed out that though Section 295A is a necessary provision, it is hedged with too many conditions and there is no clarity with regards to the import of the “malicious” with no objective standard being created by the Courts in their interpretations while the Commission suggests that the mere use of the word “deliberate” is enough to characterise the state of the mind of the accused.[32]

Secondly, under the principle of harm, the use of this strategy not only works against the intent of this clause but also gives the government a lot of latitude to censor expression. As a result, speech can be restricted if the government can establish a direct link between it and the disturbance of the peace. [33]In terms of free speech, this is known as the "heckler's veto"[34],wherein a socially strong group limits critical speech by threatening public disturbance. In the recent case of Shreya Singhal v. UOI, it was decided that the only thing that can be limited under the reasonable limitation of public order is "incitement to violence."[35] However, because Section 295A is an "over-broad regulation" that frequently encompasses even legal speech, it is challenging to interpret "intended insult to religious sensibilities" as being akin to inciting unlawful behaviour and can have repercussions on freedoms provided under Article 19.[36]

Thirdly, under the principle of offence, the adjectives "outrage” is very subjective and ambiguous, which frequently results in overcriminalization under this clause. For instance, as determined in Khalil Ahmad v. State, [37]even a speech that makes truthful statements may be prohibited if they offend religious sensibilities. In this instance, the concept of "malicious intention" has also been greatly diminished, making it possible to infer the existence of malice even in the absence of a valid defence. With such a scheme of interpretation, it becomes difficult of the custodians of free speech and expression like public intellectuals, scholars, artists and filmmakers in the exercise of their creative liberty. As held in Ramlal Puri vs. State of Madhya Pradesh, the Madhya Pradesh Court, while suggesting an objective test to be formulated under determining a conviction under Section 295A, held that literary works like books and theatres must be looked at from an objective and holistic perspective. The Court harmoniously tried to construct an author’s right to free speech and expression and a religious group’s sentiments being offended and held that stakeholders of works of arts cannot be held liable for specific instances of irreligious statements. [38] Moreover, it stifles the opportunities to bring about religious reforms which are essential for the progress of religions in the modern world through the process.[39]

Lastly, it is important to examine the applicability of these two principles in light of recent event. In 2014, Wendy Donegier’s book, “The Hindus: An Alternative History” had to pulped by the publishers, Penguin Books in an out-court settlement due to the petition filed by Dinanth Batra, Former Secretary of Vidya Bharati, an RSS- affiliated institution due to the law-and-order issues it had caused given the outrage it caused to the sentiments of certain Hindu groups.[40] In 2015, Section 144 had to imposed in parts of Sirsa given the law and order problem caused to the protests of various Sikh Groups against the movie , “The Messenger of God” which again attracted a criminal complaint under this provision. [41]Moving to recent times to the case of Nupur Sharma, the Vacation Bench of the Supreme Court, while ordering the clubbing of the FIRs filed against by various Islamic groups against the BJP spokesperson under Section 295-A for making objectionable comments had Prophet Mohammed, had orally remarked how the provocation of religious sentiments by her have caused repercussions to national security.[42] In all of the above cases , we see how the harm principle is also preceded by the offence principle and thus, it becomes important to relook at exclusively using these doctrines while determining a conviction under Section 295-A.

Conclusion

When dealing with matters involving Section 295A, the Supreme Court restricted its examination to just looking at Section 295A from the Harm Principle or Offence Principle. If just the former is taken into consideration, the section's intent will be undermined, and if only the Offence Principle method is used to interpret it, the section will become extremely specialised and subjective. When evaluating criminal culpability under Section 295A, the courts should take into account both the Harm and Offence Principles and must harmoniously construct both these tools of interpretation so as to make sure this provision of the IPC is enforced both in spirit and in letter.[43]

[1]Durkheim, Emile. Suicide: A study in sociology. Routledge, 2005. [2]Byran A. Garner (ed.), The Black’s law dictionary, (9th Ed. West Group 2009) p.193. [3]Perkins, Rollin Morris, and Ronald N. Boyce. Criminal law. Foundation Press, 1982 [4]Patel, Dipti. "The Religious Foundations of Human Rights: A Perspective from the Judeo-Christian Tradition and Hinduism." Human Rights Law Commentary 1 (2005). [5]John R. de Lingen, An introduction to the Hindu faith, (Sterling publishers‟ pvt. Ltd. 2008), pg. 2. [6]Thomas Babington Macaulay, “Introductory Report and Notes Upon the Indian Penal Code,” in The Miscellaneous Writings, Speeches and Poems of Lord Macaulay, Vol IV (London: Longmans, Green, and Co, 1880), 104 [7]Poonam Sharma, "Anti-Blasphemy Laws of India: A Critical Analysis," Jus Corpus Law Journal 2, no. 2 (December 2021 - February 2022): 88-101. [8]Rajpaul v. Emperor AIR 1927 Lahore 590 [9] Ratanlal, Ramchhods, and K. Th Dhirajlal. "The Indian penal code." New Delhi (2017). [10]Kumar, Girja. The Book on Trial: Fundamentalism and Censorship in India. Har-Anand Publications, 1997. [11]McLachlan, Erica. "The Story of Section 295-A: A Law and Literature Approach." Master's thesis, Graduate Studies, 2017. [12]Shreeja Utkalika Jena; Aryan Das, "The Ripple Effect of Section 295A IPC," Supremo Amicus 26 (2021): [476]-[481] [13]Sorabjee, Soli J. "Freedom of expression and censorship: some aspects of the Indian experience." N. Ir. Legal Q. 45 (1994): 327. [14]Raghuvansh Dewanchand Bhasin vs State Of Maharashtra & Anr 2008 AIR BOM R 3 235 [15]The State of Mysore (Complainant) v. Henry Rodrigues and Anr.1961 SCC ONLINE KAR 138 [16]The Trustees of Safadar Hashmi Memorial Trust V. Govt Of NCT Of Delhi 2001 CRLJ 3689 [17]Baragur Ramchandrappa & Ors. v. State of Karnataka 1998 SCC ONLINE KAR 229. [18]Bhau V. State of Maharashtra 2018 SCC ONLINE BOM 12872. [19]Sony Pictures Ltd v. State of Tamilnadu 2006 MAD LJ 3 289. [20]Khalil Ahmad v. State of Bombay AIR 1960 All 715 (SB). [21]Mahendra Singh Dhoni vs. Yerraguntla Shyamsundar and Anr. (2017) 7 SCC 760. [22]Turner, Piers Norris. "“Harm” and Mill’s harm principle." Ethics 124, no. 2 (2014): 299-326. [23]Holtug, Nils. "The harm principle." Ethical theory and moral practice 5, no. 4 (2002): 357-389.