The Preamble of the Constitution declares India to be a sovereign, socialist, secular and democratic republic. One of the guiding principles of our democracy is the fundamental rights of citizens, including the freedom of speech, enshrined in the Constitution. However, in recent years, this primary principle of liberty and justice in our democratic set-up has come under severe strain as India rapidly transforms itself into a republic of fragile sentiments. And the pretext of hurting sentiments has been given an unchallenging legal sanction by the penal provision – Section 295 (a) of the Indian Penal Code (IPC), 1860, framed by the British colonial rulers.
The widespread use of this provision – often referred to as the Indian version of the blasphemy law – has led critics to question the legitimacy of such legislation in a liberal democracy. Worse yet, there is a spirit of competition among political opponents weeping blasphemy, and the interpretation of the law is in line with their narratives. Its use, or rather misuse, was taken to a peculiar height in early July when the owner of a food stall in Uttar Pradesh was arrested for wrapping meat in a newspaper that carried pictures of Hindu deities. She was
The present interpretation of section 295A does not require the government to show that religious sentiments have been hurt. FIRs are registered on a large scale only by possibility
According to section 295A, if any person maliciously insults or attempts to insult the religious feelings of any class of citizens by words spoken or written or by signs or visible representations, he shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. can be punished with. Although there is no official law against blasphemy in India, this clause is the closest in scope to such a law. Blasphemy is usually defined as “the act or offense of speaking holiness about God or holy things” or “speaking evil of godly things”.
While it can be argued that if wrapping meat in a newspaper with an image of a deity is a deliberate insult to God, the fact that it is classified as a cognizable offence, a judicially sanctioned warrant to the police. without permission to arrest the accused. An instance of the FIR or complaint being deemed ‘proper’ by the police. This leaves room for misuse of the law. Along with judicial delay, political parties use the process of prosecution as a form of punishment.
That’s exactly what has happened. If former BJP spokesperson Nupur Sharma faces FIR in non-BJP ruled states for objectionable remarks on Prophet, BJP leader demands arrest of TMC MP Mahua Moitra for her description of Goddess Kali during India Today Conclave in Kolkata are doing. Meanwhile, Mohammad Zubair, the co-founder of a fact-checking website, has been in police and judicial custody for over two weeks after he was charged under section 295A, among other provisions of the IPC, by police teams from Delhi and Uttar Pradesh. spending time. The complainants say that a tweet posted by them in 2018 allegedly hurt their religious sentiments.
IIn fact, social media storms, often fueled by political motives, have swung the police into action. For example, social media in Assam sparked outrage when an actor dressed as Lord Shiva highlighted the issue of rising fuel prices in a street play in Nagaon. He was arrested by the police and later released on the intervention of CM Himanta Biswa Sarma, who publicly remarked: “The street plays on current issues are not blasphemy. It is not an offense to wear clothes unless said to have objectionable material.”
But not everyone has this good fortune – actors, writers, filmmakers and comedians are regularly haunted by the ghost of Section 295A. “The rationality of its application should not be left to the discretion of the police. I think the Supreme Court’s decision is needed to settle the four corners of reasonable restrictions while protecting the fundamental right to speech and expression. The provision is a sword hanging over the people, says Justice Govind Mathur, former chief justice of the Allahabad High Court.
What is even more worrying is that the scope of 295A is expanding beyond religion. On July 11, a 20-year-old man was arrested in Uttar Pradesh’s Kannauj for allegedly posting an objectionable picture of Chief Minister Yogi Adityanath on Facebook. A case was registered against him under sections 153, 295A, 505 of the IPC and section 67 of the Information Technology (IT) Act. Section 295A has been invoked against the publication or production of material on historical figures like Shivaji and Rani Padmavati.
development of law
This section was introduced by the British Government in 1927. A Monsieur Rajpal wrote a brochure called ‘Rangeela Rasool’ based on the life of Prophet Muhammad in 1926. According to Muslims, it insulted the Prophet, leading to widespread violence in Lahore. Rajpal was, however, acquitted by the Punjab HC, as the IPC lacked a provision to punish blasphemous acts. Rajpal was later assassinated, and the government thought that a law should be made so that people could get legal recourse against religious insults and not take the law into their own hands.
Independent India continued with Article 295A, though it neither prevented people from making derogatory remarks nor prevented violence. At the time of enactment nearly a century ago, the drafting committee had expressed concern over the broad wording of Section 295A and predicted that it could be used to target not only “derogatory scribblers”, but also religious dissent. can be made. It has been proved correct.
In 1957, in response to a challenge to Section 295A, the SC held that it was constitutionally valid because, according to Article 19(2) of the Constitution, it was a “reasonable restriction” on the right to freedom of expression, “for public order”. In the interest of”. Later, in another case, it insisted that a close relationship between the practice of speech and public disorder was necessary, not a far-fetched, distant connection.
In 1989, the top court held that the relationship between speech and disorder should be like a “spark in a powder keg”. In 2011, it further clarified that only speech which amounts to “incitement to imminent lawless action” can be punished. In the Shreya Singhal judgment in 2015, the SC differentiated between advocacy and provocation and said that the law prohibiting free speech should be interpreted narrowly, otherwise the chilling effect on free speech would be total.
However, such riders have little effect, as mass arrests continue under various IPC provisions. Although Section 295A is the one that deals directly with blasphemy, the IPC has a whole chapter for offenses against religion (Chapter 15), from Sections 295 to 298. Add to these sections 153, 153A and 153B, which deal with hate speech. Critics say their use often cannot differentiate between dissenter and hate-monger. “The feelings of highly sensitive people have no relevance. The test is whether an ordinary, prudent person would have been hurt,” says Faizan Mustafa, vice-chancellor of Nalsar University of Law, Hyderabad.
bFurther, the present interpretation of section 295A does not require the government to show that religious sentiments have actually been hurt. The mere possibility is enough, which can lead to registration of FIR on a large scale. “The investigation of other ingredients to constitute an offense under this section relies on excessive discretion, which does not augur well for the delivery of justice. We need more specific conditions for the identification of this charge,” Justice Mathur it is said.
The National Crime Records Bureau’s annual report for 2020 shows a 458 per cent increase in cases registered under Section 153A since 2014. This nearly doubled between 2018 and 2020, although only 20.4 percent of cases could lead to conviction. There is no separate data on section 295A, but other indicators are available. A recent study conducted by the Advertising Standards Council of India states that “one of the major reasons for complaints against advertisements in the last three years is a conspiracy against their faith about hurting religious sentiments within people”. There was emotion”.
legal impediment
In 2015, BJP leader Subramanian Swamy filed a petition, seeking to declare the hate speech sections unconstitutional. Legal experts say that it may be difficult to overturn the 1957 judgment on Section 295. Its constitutionality was upheld by a five-judge bench of the Supreme Court. Thus, if the court were to change its mind, it would need a bench of at least seven judges. Procedurally, this would require the challengers to first explain 295A to a two-judge bench (before any petition originally goes) that there are sufficient reasons to doubt the correctness of the 1957 decision. If convinced, this bench will be required to refer it to a five-judge bench, which in turn (if convinced), will be required to refer it to a seven-judge bench, which will be judged on merits. But the matter will be heard. Therefore, the only option left to the Parliament to get rid of 295A is to repeal or amend it. “In a modern liberal democracy, free speech should be valued and, therefore, blasphemy should be freed from crime. Accordingly, Section 295A should be dropped from the IPC,” says Professor Mustafa.
Justice Mathur feels that the time has not yet come to repeal Section 295. Instead, he advocates for the urgent need for reforms in the police and judiciary. We should make our police more independent and responsible. The judiciary has to be highly sensitive to deal with these cases… Fast track courts need to be set up so that they can be delivered.”
Irrespective of how the judiciary and legislature react, it is agreed that there should be more clarity in the application of Section 295A to protect it from being used as an intimidation tool by vulnerable groups. More than a stop-gap arrangement, comprehensive judicial and legislative reforms are needed to ensure the protection of the ideal of secularism as per the Constitution.
blasphemy laws in india
There is no specific law against blasphemy in India. Chapter 15 of the Indian Penal Code – sections 295 to 298 – deals with “offences relating to religion”. Section 295A is closest to the provisions of the anti-blasphemy law. Section 153, 153A and B deals with hate crimes
Illustration by Tanmay Chakraborty
Section 295 in force: If any person knowingly damages, destroys or defiles any religious object considered sacred by the followers of any religion in India, including objects other than statues and books Punishment: imprisonment for a term which may extend to two years, or fine, or both
On the application of section 295A: If any person maliciously insults or attempts to insult or insult the religious feelings of any class of citizens of India by words spoken or written or by signs or visible representations, Punishment: Three years in jail or fine, or both
Section 296 in force: Punishment if any person willfully obstructs any lawful religious assembly and ceremony: One year in prison or fine or both
Section 297 in force: If any person knowingly encroaches upon any cemetery knowing that such act is likely to hurt the religious sentiments of any class of citizens, the punishment shall be imprisonment for a term which may extend to one year, or with fine, or with both.
Section 298* in force: Any person who knowingly utters any word, by any sound or signal, visible or audible, to hurt the religious feelings of the aggrieved person, to hurt the religious feelings of the person Punishment: One year in prison or fine or both
Section 153, 153A and 153B in force: Punishment if any person knowingly or knowingly incites or spreads riots or religious enmity of any kind: imprisonment for a term which may extend to five years, or with fine, or with both
*Unlike other sections, offenses under this section are compoundable and non-bailable