Understanding India’s Blasphemy Laws
Blasphemy, as defined in Black’s Law Dictionary, is “an irreverence towards God, religion, a sacred icon, or something else considered sacred.”[i] In other words, any slander or libel directed at God or anything that is considered sacred under a religious text or custom would qualify as blasphemy.
In the Abrahamic religions, blasphemy was considered a serious offense as per the law that God gave to Moses. And the punishment required that the blasphemer be stoned to death.[ii]
Blasphemy, as an offence in the U.K. common law, appears to have been first asserted in the Atwood Case of 1614, which later got affirmed in the Taylor case of 1676, where the court pronounced that “Christianity is a parcel of the Laws of England.”[iii]
The Quran, too, strongly forbids blasphemy and considers it a heinous crime. As a result, many Islamic countries prohibit blasphemy with heavy punishments.
The International Covenant on Civil and Political Rights, 1976, (signed and ratified by India), allows member states to prohibit any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.[iv] An analysis conducted by the U.S.-based Pew Research Centre suggests that about a quarter of the world’s countries and territories (26%) have anti-blasphemy laws or policies (as of 2014).[v] In the Indian context, Section 295A of the Indian Penal Code (IPC), 1860, is regarded as an anti-blasphemy law.
This article explores the legislative framework and the key challenges that Section 295A of the IPC poses to the freedom of religion in light of the landmark judgments delivered by the various constitutional courts of India.
A. Legislative Framework
Post the revolt of 1857, the colonial British government strengthened its hold in India by capturing the court system, deciding criminal legal procedures and enacting legislations. The British Raj enacted IPC, 1860[vi] to provide a general penal code for India. Section 295A, however, was an afterthought and was added vide Criminal Law (Amendment) Act, 1927.[vii]
Section 295A states that “whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or religious beliefs of that class”[viii] shall be punished with imprisonment which may extend up to three years[ix] or with fine or both. The intention of the legislature was not to cover all such acts, but only those which are deliberate and malicious. Therefore, whoever with such guilty mind insults or attempts to insult the religion or religious beliefs of a class is said to have committed an offence under this Section.
A.1 Rangila Rasul’s Case
Many believe that the said penal provision in the IPC was inserted due to largescale protests and widespread agitation that erupted against the judgment delivered in the 1927 “Rangila Rasul’s case” by the Lahore High Court.[x] While interpreting Section 153A of the IPC, which was there in the Statute then, the court held:
“Now this particular pamphlet discusses the matter in a way which as I have already stated, can only arouse the contempt of all decent persons of whatever community, might well wound the religious feelings of certain Mussalmans, but I cannot hold that it would necessarily promote feelings of enmity and hatred between different classes of His Majesty’s subjects. That might be the result, but, as I have endeavoured to show, that cannot be made the test of the section. The learned Government advocate admits that there is no other section which would cover the particular case.”[xi]
The Lahore High Court set aside the conviction of the accused and allowed a Revision Petition while regretting the decision that it was forced to make due to the said lacuna in law. In fact, a completely opposite view was taken earlier by the Allahabad High Court in Kali Charan Sharma v. King-Emperor[xii], wherein Justice Lindsay opined:
“I am not prepared to assent to the proposition that there is no limit to the license permitted to a missionary in the advocacy of the merits of his own religion, nor am I able to appreciate the distinction between an attack upon a system of religion in the abstract and one upon the people who believe in it. I do not think it is humanly possible to hold up to obloquy and derision a religious belief without stirring up resentment and hatred on the part of those who accept it as their creed… It must of course be recognized that in countries where there is religious freedom a certain latitude must of necessity be conceded in respect of the free expression of religious opinions together with a certain measure of liberty to criticize the religious beliefs of others, but it is contrary to all reason to imagine that liberty to criticize includes a license to resort to the vile and abusive language which characterises the book now before me.”[xiii]
At this juncture, the Legislature stepped in and a new provision criminalising blasphemy was introduced by adding Section 295A vide Criminal (Amendment) Act, 1927, which proposed “to insert a new Section in Chapter XV of the IPC with the object of making it a specific offence intentionally to insult or attempt to insult the religion or outrage or attempt to outrage the religious feelings of any class of His Majesty’s subjects.”[xiv]
Although the IPC was enacted under the British Raj, it passed the test of constitutionality when India adopted its Constitution in 1950. Section 295A also came to be seen as having a secular character, as it protected the religious sentiments of all, equally, by criminalising malicious and deliberate acts on religious sections and classes.
A.2 Jurisprudence post-independence
Freedom of speech and expression was granted to all citizens of India under the Constitution with reasonable restrictions. These restrictions have been challenged before the Supreme Court right from the early years of independence.
In Romesh Thappar’s case[xv] while interpreting the constitutional validity of Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, the apex court gave a wide connotation and significance to the phrase “public order.” It includes public tranquillity that “prevails among the members of a political society as a result of the internal regulations enforced by the Government which they have established.”[xvi] The decision establishes two propositions:
(i) maintenance of public order is equated with maintenance of public tranquillity; and
(ii) the offences against public order are divided into two categories, viz., (a) major offences affecting the security of the State, and (b) minor offences involving breach of purely local significance.[xvii]
Thereafter, Parliament soon rectified this vacuum in law and expanded the scope of these restrictions provided for in Article 19(2) vide the Constitutional (First Amendment) Act, 1951, with retrospective effect. The new amendment gave the State power to restrict the freedom of speech and expression in cases where such freedom poses a threat to “the interests of security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”[xviii]
In the case of Ramji Lal Modi v. State of Uttar Pradesh[xix], the Supreme Court for the first time held Section 295A to be constitutionally valid while considering that the said provision only imposes a reasonable restriction on the freedom of speech and expression[xx] and that the freedom of religion in India is subject to public order.[xxi] However, in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, the apex court clarified this proposition of law laid down in Ramji Lal case and held that “there must be a proximate link between speech and public disorder, and not a farfetched, remote and fanciful connection.”[xxii] In Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, which sought the quashing of a complaint case filed against the petitioner, the Supreme Court held:
“It is clear as crystal that Section 295-A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of a class of citizens. It penalises only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section.”[xxiii]
A.3 Related criminal law provisions
A.3.1 Section 196, Code of Criminal Procedure, 1973
Section 196(1) of the Code of Criminal Procedure (CrPC), 1973, states that no court shall take cognisance of any offence punishable under Section 295A of the IPC. The object of this section is to prevent frivolous or needless prosecutions, and the prosecution of offences mentioned in the section must be carried out only after proper consideration by the appropriate authority.[xxiv]
Section 196(1) does not give the authority to a court to try a person in a case falling within its purview, unless the Central Government or the State Government concerned has given a prior sanction. A court taking cognizance of an offence under this provision without the requisite sanction would be seen as having been done without jurisdiction.
Sanction for prosecution under Section 295A of the IPC, as required by Section 196(1) of the CrPC, is imperative as per the law of precedence, according to which it is the requisite sanction that confers jurisdiction on the court to try the case, and the prosecutors cannot correct this defect of jurisdiction as per Section 465 of the CrPC – which may then lead to the case being deemed null and void.
A.3.2 Section 95, Code of Criminal Procedure, 1973
Under Section 95 of the CrPC, a State Government has the power to prevent circulation of any matter (i) which is seditious as per Section 124A of the IPC or (ii) which promotes or is intended to promote feelings of enmity or hatred between different classes or communities so as to outrage the religious feelings of any class by insulting the religion or the religious beliefs of that class as per Section 295A of the IPC. Several books and movies have been banned under the garb of this provision by State Governments (such as “Rani Padmavati,” “Shivaji Maharaj,” “Satanic Verses” by Salman Rushdie, etc). The purpose here is preventive and not punitive.
B. Challenge to Freedom of Religion
Many argue that Section 295A has been used to curb freedom of speech and expression and as a tool to prevent honest discussion on religious issues. Any criticism which is fair, unbiased and without spite cannot be blasphemy. Further, if incitement to lawless action was the correct test, then it is noticeably clear that the terms of Section 295A are far too broad. For, under no interpretation can it be said that intentional insult to religion, or to religious feelings, is necessarily equivalent to “incitement.”[xxv]
B.1 Attack against India’s secularism
Under Article 25, the Indian Constitution guarantees freedom of conscience, which includes the right to be an atheist. This right confers an additional right of propagation of such ideas which support theories of “no God” or atheism. The wide, ambiguous and arbitrary interpretation of Section 295A poses a great threat to such arguments and undermines the constitutional right available to them under Article 25.
In St. Xavier’s College case, Khanna, J. opined:
“The object of Articles 25 to 30 was to preserve the rights of religious and linguistic minorities, to place them on a secure pedestal and withdraw them from the vicissitudes of political controversy. As long as the Constitution stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would not only (be an) act of breach of faith, it would be constitutionally impermissible and liable to be stuck down by the courts. Although the words secular state are not expressly mentioned in the Constitution, there can be no doubt that our Constitution-makers wanted establishment of such a state. Secularism is neither anti-God, nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the state and ensure that no one shall be discriminated against on the ground of religion.”[xxvi]
Further, Section 295A acts as a deterrent for citizens to perform their fundamental duty of developing “scientific temper, humanism and the spirit of inquiry and reform.”[xxvii]
B.2 Opposes religious reforms
While India is a secular state, the Constitution provides for reformatory jurisprudence in religious practices and India has been instrumental in curbing many unjust and discriminatory religious rituals. The abolition of Sati[xxviii], untouchability[xxix] and triple talak[xxx] are just a few of the many religious practices that have failed the constitutionality test. All this was a result of awareness, social reform and activism which made it possible for people to speak up against such atrocities and question religion and the practices associated with it.
In a shocking event on August 20, 2013, Narendra Dabholkar, a medical doctor and rationalist, was shot dead for his efforts from 2010 to get an anti-superstition law passed by the Maharashtra government. His attempts were strongly opposed by political parties, particularly the Shiv Sena and the Bharatiya Janata Party, which apparently believed that such a law would go against the “Hindu culture.”[xxxi]
Laws like Sections 295A of the IPC and 95 of the CrPC put tremendous pressure on State Governments when someone criticises a religious practice of the majority community and when that criticism, even if fair and reformatory, could result in breach of public order. In the present times, mobs are capable of taking extrajudicial “punitive” action, leaving the State Governments in an uncomfortable position and even forcing them to succumb to the demands of the majority. Likewise, a religious minority group may not be able to speak out against any religious practice affecting them.
B.R. Ambedkar, a social reformer and who chaired the committee that drafted India’s constitution, burnt the Manusmriti during the Mahad Satyagraha to voice his disagreement against discriminatory Brahminical practices. But current judicial interpretations of Section 295A of the IPC are so wide that the possibility of symbolically challenging discriminatory religious practices – in the manner that Ambedkar did – has been curbed.[xxxii]
While Section 295A of the IPC promotes fraternity among citizens and peaceful co-existence of all in the pluralistic setup of India, it also poses a danger to the freedom of religion and the freedom of speech and expression associated with it.
[i] Bryan A. Garder, Black’s Law Dictionary ¶ 181, 9th ed. 2009.
[ii] The Holy Bible, Leviticus 24: 10 – 16.
[iii] Eloise, Davies, Blasphemy: a very modern crime, https://eccleshistsoc.wordpress.com/2019/01/25/blasphemy-a-very-modern-crime/#_ftn6 (last visited Sep. 13, 2020)
[iv] Article 20, International Covenant on Civil and Political Rights, 1976.
[v]Angelina E. Theodorou, Which Countries still outlaw apostasy and blasphemy?, http://pewrsr.ch/2ahMQh8 (last visited Sep. 13, 2020)
[vi] Indian Penal Code, Act No. 45 of 1860.
[vii] Act 25 of 1927, § 2.
[viii] Indian Penal Code, 1860, §295A.
[ix] Act 41 of 1961.
[x] Rajpaul v. Emperor, AIR 1927 Lahore 590.
[xi] Ibid. ¶592.
[xii] Kali Charon Sharma v. Emperor, AIR 1927 All 649.
[xiii] Ibid. ¶862 – 863.
[xiv] Statements of Objects and Reasons, Criminal Amendment Act, Act No. 25 of 1927.
[xv] Ramesh Thappar v. The State of Madras, AIR 1950 SC 124.
[xvi] Ibid. ¶5
[xvii] The Superintendent, Central Prison, Fatehgarh vs. Ram Manohar Lohia, AIR 1960 SC 633, ¶9.
[xviii] The Constitution (First Amendment) Act, 1951, §3.
[xix] Ramji Lal Modi v. State of Uttar Pradesh, 1957 AIR 620.
[xx] The Constitution of India, 1950, §19(2).
[xxi] The Constitution of India, 1950, §25.
[xxii] Id. 17.
[xxiii] Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, (2017) 7 SCC 760, ¶6.
[xxiv] Inguva Mallikarjun Sharma v. State of Andhra Pradesh, 1978 Cr LJ 392 (AP).
[xxv] Gautam Bhatia, The Constitutional Case against India’s Blasphemy Law, The Wire, 18.01.2016.
[xxvi] Ahmedabad St. Xavier’s College Society and Anr. V. State of Gujarat and Anr., (1974) SCC 717, ¶75.
[xxvii] Constitution of India, 1950, § 51A(h).
[xxviii] Bengal Sati Regulation, 1829.
[xxix] Constitution of India, 1950, §17.
[xxx] Shayara Bano v. Union of India, WP(C) 118/ 2016.
[xxxi] Express Web Desk, Who was Narendra Dabholkar, August 19 2018, The Indian Express available at https://indianexpress.com/article/who-is/who-is-narendra-dabholkar/ (last checked Sept 12 2020)
[xxxii] Surbhi Karwa, Shubham Kumar, A Blasphemy Law is Antithetical to India’s Secular Ethos, Economic & Political Weekly, Sept. 14, 2019.