The challenge to fair criticism of religion under Section 295A of the Penal Code, 1860
Updated: Aug 1, 2020
The provision under Section 295A of the IPC has been accommodated under Chapter XV which deals with offences relating to religion. It states that any deliberate attempt and malicious intention of outraging the religious feelings of any class of citizens of India shall be punishable with imprisonment up to 3 years and/or with a fine which shall be decided on a case-by-case basis. Since crimes under this section have been categorized as cognizable offences, it vests the investigating agency with unfettered power to make arrests without a requisite warrant. Essentially, this would imply that police authorities are permitted to arrest any person upon mere “apprehension”, or against a “registered complaint” in order to facilitate the investigation procedure. Through this article, I argue that there is a lacuna between the legislative intent propounded by the provisions under IPC s.295A and its application in cases.
In order to substantiate the need to do away with this provision, the article has been divided into the following components:
1. Origin of the provision dealing with offences relating to religion
2. Development of the law and its intent
3. Analysis of the contentious issues and problems with s.295A
Origin of the provision dealing with offences relating to religion
The preceding events, that led to the enactment of this particular provision through the Criminal Law Amendment Act (25 of 1927), are rather interesting. In the case of Rajpaul v. Emperor, the issue deliberated upon by the Lahore High Court was whether Rangila Rasul, a controversial book, intended to promote hatred between religious communities under Section 153-A of the IPC. Justice Dalip Singh very ‘reluctantly’acquitted the publishers of the book in this case because the law, at that particular time, did not consider the satirization of saints and prophets as a legal offence. There was a large-scale condemnation of this decision by the Muslim community which placed a tremendous burden on the British Government to address this legislative lacuna which came about in the form of the previously mentioned Criminal Law Amendment Act (25 of 1927).
Development of the law and its intent
The Committee which presided over the enactment of s.295A stated that the purpose of the provision was to penalize those persons who engaged in deliberate and malicious vilification on a particular religious group or class or even upon founders/prophets of a particular religion. The foresight of this Committee was commendable when they predicted that an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a shock to the followers of the religion as would ensure notice being taken of any criticism so made. Jinnah elucidated that it was paramount to protect the interests of those who engaged in historical works, the ascertainment of truth or the bona fide criticism of religion. Therefore, the Committee recommended that the words ''with deliberate and malicious intention'' be inserted in the Section.
Thus, it can be ascertained that the primary ingredient required to satisfy an accusation under s.295A would be to prove that the intention of the person who utters/writes such words falls into the category of “deliberate and malicious intention”. In order to establish the ingredients, set in s.295A, it is not necessary to prove that the accused bore ill will or enmity against a certain group of people. One cannot simply prove malice directly and it whether a person has discharged his actions with malicious intent remains a question of fact to be proved. It has to be inferred from the surrounding circumstances with respect to the background, environment and interlinking facts in relation to the offending article.
Analysis of the contentious issues and problems with s.295A
In recent times, this provision has been misused by religious groups and political factions in order to defend their interpretation of religion which is guided by their personal prejudices and biased belief systems. Some prominent cases in which groups have tried to circumvent the ingredient of “malicious intent” prescribed in s.295A include the lawsuit filed against the Penguin India ,by conservative members of the Hindu community, for publishing Wendy Doniger’s book “The Hindus: An Alternative History” in which the author had adopted an unorthodox view of Hinduismand even more recently the case which involved the condemnation of Twitter CEO, Jack Dorsey by members of the Brahmin community for holding up a poster with the slogan “Crush Brahmanical Patriarchy”.Similar ploys are also used by political parties at the time of election campaigns to further their agenda by using the appeal to religious sentiments as a tool to secure their vote-banks. It is fair to state that there is a legislative gap between the aim of the provisions laid down in s.295A and its implementation. The result of its blatant misuse can be seen in the low rates of conviction (under this section) and also its disregard by the executive bodies at instances, wherein it could be used to curb the spread of communalism.
In the 1957 case of Ramji Lal Modi v. State of UP, the editor of a magazine filed a petition in the Supreme Court petition challenging the constitutional validity of s.295A of the Indian Penal Code and for quashing a pre-existing petition filed against him for publishing an article about a donkey on which an agitation was started by the Muslim community of Uttar Pradesh. He contended that the impugned section infringed his fundamental right to freedom of speech and expression conferred by Art. 19(1)(a) of the Constitution and placed unreasonable restrictions on his fundamental right in the interests of public order.
Although the court upheld the validity of the provision by stating that it had been enacted in favor of maintaining public order, it did not take into account that not every instance of an insult to religion or a religious class would lead to a disruption of public order. In doing so, the court unknowingly laid down the basis for a wide view of understanding s.295A by criminalizing all kinds of words/speech intended to outrage religious sentiments. By way of this judgment, the Court gave an unfettered license to the State to decide what kind of speech constituted an offence under s.295A while also allowing it to enact laws to regulate the same. This left out a very limited scope for fair critique of religion.
In recent times, our courts have placed cases involving the criticism of religion, which tends to offend/hurt the sentiments of a community, at a much higher pedestal than other forms of defamation. This trend is reminiscent of the “thick” role played by religion and religious groupings in the public sphere of Indian life which nullifies the adoption of the traditional “liberal” approach to the fundamental right to freedom of religion.Coupled with the stringency provided by the procedural law under Section 95 of the CrPC, the State is vested with the power to declare such publications, which are in violation of IPC s.295A, as forfeited while also giving police officers the requisite authority to seize publications of the same anywhere within the subcontinent. There is no acute perceptiveness that can be attributed to Cr.PC s.295A. Hence, the provision is expendable in a democracy such as ours.
It is pertinent to mention that any fair critique of the tenets of religion would inevitably bring up the need to engage with a minimal level of fair criticism of certain rituals and practices making it important to view issues from a different perspective. Freedom of speech and expression is an inviolable and fundamental human right, upon which the principle of our modern democratic society subsists. The intent of this provision, as seen in the cases discussed above, is to restrict dissent and subdue the dissidents of policies meted out by governmental institutions.
The ability to reason and share individual ideas defines and forms an integral part of the basic structure of our Constitution. These notions have been enshrined in Article 19(1) (a) of the Constitution of India. The court’s interpretation of offences to religion under s.295A, along with the procedural enactments adopted by the State machinery have intermittently limited the scope of any form of earnest or expressive engagement with religion thus undermining the basic tenets enshrined in the fundamental rights guaranteed to us by the Rule of Law. It is the need of the hour for both the legislative and judicial authorities to take cognizance of such laws which might possess archaic antecedents and amend them, so that instances of breaking figurines of revered deities may not be deemed as an attack on religious institutions but rather seen as a symbolic gesture of protest and expression of discontentment.
[ The author is 3rd-year undergraduate student, currently reading law at Jindal Global Law School, as part of the B.A., LL. B (Hons.) course ]
The Indian Penal Code, 1860, Section 295(A)
Rajpaul v. Emperor, AIR 1972 Lah 590 Girja Kumar, The Book on Trial: Fundamentalism and Censorship in India, (1997) available at https://books.google.co.in/books/about/The_Book_on_Trial.html?id=n-KUICFfA00C#:~:text=The%20Book%20on%20Trial%3A%20Fundamentalism,India%20%2D%20Girja%20Kumar%20%2D%20Google%20Books Id. Soli J. Sorabjee, Insult to Religion, THE INDIAN EXPRESS, June 25, 2006 available at: http://archive.indianexpress.com/news/insult-to-religion-/7214/ (Last visited on July 18, 2020). Sujato Bhadra vs State of West Bengal (2005) 3 CAL LT 436 HC. Sruthi Gottipati, Penguin withdraws book on Hindus after court case, February 11, 2014 available at: https://in.reuters.com/article/india-hindus-doniger-penguin/penguin-withdraws-book-on-hindus-after-court-case-idINDEEA1A0DV20140211 (Last visited on July 18, 2020). Jack Dorsey vs State of Rajasthan [CRLMP-2818/2019] available at https://indiankanoon.org/doc/150716343/ Ritika Patni and KasturikaKaumudi, Regulation of Hate Speech, (2009) 2 NUJS L. REV.749. Ram Ji Lal Modi v State of Uttar Pradesh, 1957 AIR 620. Id.
Surbhi Karwa and Shubham Kumar, ’A Blasphemy Law is Antithetical to India's Secular Ethos’, Vol. 54 (37) Economic and Political Weekly, (September 5-14, 2019). Gautam Bhatia, How courts decide on matters of religion, March 5, 2019 available at: https://www.livemint.com/news/india/how-courts-decide-on-matters-of-religion-1551715822881.html (Last visited on July 18, 2020). The Code of Criminal Procedure, 1973, Section 95. Gautaum Bhatia, Blasphemy’ law and the Constitution, March 19, 2016 available at: https://www.livemint.com/Sundayapp/TFCMsqPVQ8rK6dJj2E2kSN/Blasphemy-law-and-the-Constitution.html (Last visited on July 18, 2020) S. VeerabadranChettiar vs E. V. Ramaswami Naicker & Others, 1958 AIR 1032.