Authos – Shashank Sachi, Student from CPJ, Law College (GGSIPU), Delhi.

In a modern democracy, hate speech ought to be countered with more speech and not with jail and violence.

Introduction:

The summoning of BJP spokesperson by Maharashtra police (and other state) and charging her under section 295A of IPC for using strong words against Prophet Mohammed during a T.V debate and the subsequent incident of Friday prayers and gruesome murder at Udaipur rekindled the debate over India’s regressive speech law mainly, the blasphemy law. Interpretations were made of the controversial remark made by Nupur Sharma which was later triggered at the International level that subsequently led to her dismissal from the party.

It is ironic, that all this happened a day before Delhi high court held that, “Hate speeches delivered by religious and political leaders bulldoze the constitutional ethos” the further court said, “Hate speeches not only cause defamation but also incite offenses against a particular sect of the religion of this nation,” The court was hearing plea to various speeches made by politicians including the hate speeches like, “Desh ke gaddaron ko, goli maaron saalon ko”. [1]

The heart of the present controversy lies in the ambit of section 295A of the Indian Penal Code, a mutant of “blasphemy law”. Section 295A punishes the deliberate and malicious act of outraging the religious feeling or beliefs of any class (citizen of India).   Section 295A is a cognizable offense thus police can take action without a warrant of a magistrate moreover this section is way too broad on its own which provides an onus to get the most abused speech provision in the code.

Historical Aspect:

India was always a Hindu cultural majority state and the land of Indic faith which by principle declines the concept of “blasphemy” unlike the Semitic Abrahamic faiths. This blasphemy is a concept that is saleable in Islamic states that punishes for being an ‘Atheist’. Moreover, this concept was not even in the original draft of Lord Macaulay’s IPC. This legislation traces its history dates back to 1927 in the backdrop of Hindu-Muslim outrage which was fuelled by proactive statements on the account of a book by the name “Rangila Rasool”.

Constitutionality:

The constitutionality of this section came into question in 1957 through Ramji Lal Modi v. State of U.P [2] where the constitutional bench of the apex court. The court upheld the provision, reason was coated with the interest of public order and thus saved under article 19(2). Going one step ahead court rejected the argument that there stands no nexus between public order and the protection of religious feelings. The right to freedom of religion guaranteed by Articles 25 & 26 of the constitution is expressly made subject to public order, morality, and health. So, the above-convoluted logic of the court can be applied to section 295A which suggests having nexus of this section with “Public order”. However, the bone of contention arises when we look into the chapters of IPC, that this section is not in chapter VIII where the provisions affecting ‘public tranquility’ is dealt rather a special section has been made for religious purpose, which itself made it an unarticulated premise.

In a later decision in 2007 involving a book based on the life of Sri Basaveshwara, a 12th Century Saint from Karnataka, the Supreme Court held that a chapter of the book had been deliberately designed to be hurtful to the religious feelings of the followers of the Saint. The said chapter gave the impression that the sister of the Saint, who too was revered by the followers of the Saint, had conceived her son out of wedlock. The author defended himself on the ground that the issue of the son’s paternity remained the subject of intense debates among scholars and historians without any conclusion being arrived at, and therefore, he was justified in relying on some of the debated versions for his book. The Supreme Court rejected the defense after going through the literature cited in support of the assumptions made in the book and concluded that the entire book, despite its complementary passages in favor of the Saint, was merely a camouflage to spin and introduce a particularly sordid and puerile story in public discourse. [3]

Though the court prima facie decided about the case it again failed to provide a comprehensive aspect of section 295A. However the full bench of Calcutta High court in, Sujato Bhadra v. State of West Bengal [4] classified some aspects to give effect to the provision of section 295A excerpt from the judgment, “Therefore, insult or attempt to insult the religion or religious belief when made with an intention, which must be deliberate or malicious, of outraging the religious feelings of a class of citizens of India, then only the provisions of Section 295A would be attracted. The outrage to religious feelings or insult to religion or religious belief if made unwittingly or carelessly or without any deliberate and malicious intention, then the same would not come within the purview of Section 295A IPC. The expression ‘deliberate and malicious“.

This was perhaps one of those instances where the reasoning of the High court provides more clarity than the reasoning given by the highest court of the land.

The deterrence of this section arises when an artist or an intellectual or comedians etc. had to move to court to quash FIR against them. Likewise, makers of the movie “Oru Adaar Love” had to approach SC to quash an FIR registered against them on the allegation that Priya Prakash wink in a song was insulting Prophet Mohammed on which apex court subsequently quashed the FIR. Two years ago, cricketer M S Dhoni got booked under this section, for a magazine cover which depicted him as Lord Vishnu, with a caption “God of Big Deals”. The SC held that it would be a “travesty of justice” to prosecute him for this magazine cover. In an another incident comedian Kiku Sharda was arrested and booked U/s 295A for mocking rape accused saint Gurmeet Ram Rahim.

Here the question arises, do we need this legislation?

Answering to this I would like to differ with the current provision basically on two aspects firstly, it is colonial legislation whose concept itself was not secular and wholly on the principle invoked with bipartism which was never a neutral one. Secondly, India being a modern liberal democracy itself frames a question do we need such laws that deter based on religion which directly puts a chilling effect on freedom of speech and expression?

One thing that is clear as of now is that this provision is broad in itself and gives a broad subjective notion moreover the nature of this provision i.e. cognizable and non-billable aggravates more harm to the innocent as the concept of religion is sensitive in itself.

Going one step ahead (or behind?) in a recent development Punjab Assembly passed a resolution to punish sacrilege by injecting section 295-AA. This whole act was can be seen through the lenses that how it is on the path of a theocratic state and on the way of Islamic nations where special blasphemy provisions have been injected?

Revisiting Section 295A?

The unclear rationale arises in this provision has more than countable aspects firstly, this provision fails to meet the ‘harm principle’ of JS Mill which founds the basis of criminal law jurisprudence by granting punitive damage to prevent real and tangible harm.

Secondly, the problem with blasphemy laws is that they put religion on such a high pedestal and make it beyond the reach of criticism and thus shutting down the discovery of new truths.

Thirdly, the unclear rationale for the wide scope of implementation leaves this provision behind the bars. However, Calcutta high court in the Taslima Nasreen case pointed out some essentials to be taken into consideration for the application of section 295A.  Another broad perspective was given by the apex court in Amish Devgan v. UOI [5] in which the division bench drawing a fine line between hate speech and free speech laid emphasis on the ingredients to be considered to attract Sec295A.

Fourthly, the broad and unchallenged scope of article 19(2) as this section provides a nipping effect on free speech and puts a complete shadow over it.

Hence, we can find a series of reasons to revisit the 1957 judgment of Ramji Lal Modi and also incidents where the law has witnessed the misuse of the scope of section 295A.

Concluding Remarks:

It is off a debate whether India is a progressive modern liberal democracy. And there have been instances not only in past but in the present time also when the supreme court of India did amend various uncouth provisions like Articles 377 and 124A (in the process). Apart from this court has also expanded the scope of free speech and defined the boundaries of curbing hate speech by Shreya Singhal’s judgment and the recommendations of Dr. TK Vishwanathan’s committee. Moreover section 153A of IPC already dealing with speeches and acts that intended to disrupt communal harmony. Therefore section 295A should be omitted. And it is ludicrous that a pluralistic democratic society like India still have this hypocritical philosophically fallacious law like, Blasphemy.

Hence, it is time to either define the ambit of section 295A or to take it back so, that the wide ambit of article 19(2) so that the state machinery cannot act upon it as per their whims and fancies.

Prima facie it is the moral duty of statesmen and cult followers to refrain from making provoking statements. The same view was opined by the division bench in the Nupur Sharma row where the bench explicitly said that “These are not religious people, they make statements to provoke”. Hence it is a direction for all to refrain from making statements that are against the ethos of the constitution and those that provoke communal disharmony.

Apart from this, the concept of ‘hate speech’ needs strong consideration and a rigid backbone must be provided with the attempts of the legislative and judiciary to get it implemented properly. And a correct test needs to be laid down what shall be considered as blasphemous if not going to overrule in near future. Moreover, a proper doctrinal test is to be laid down seeking a clear distinction between ‘hate speech and ‘free speech as laid down in Amish Devgan v Union of India.

References:

• Hate Speeches Delivered By Political & Religious Leaders Bulldoze Constitutional Ethos, Warrant Stringent Peremptory Action: Delhi High Court, Nupur Thapiyal, available at, https://www.livelaw.in/top-stories/hate-speeches-delhi-high-court-201488 (last visited on 19 June, 2022)
• Ramji Lal Modi vs The State Of U.P,  1957 AIR 620, 1957 SCR 860
• Section 295A: The “Blasphemy” Provision, J. Sai Deepak, available at, https://thedailyguardian.com/section-295a-the-blasphemy-provision/ (last visited on 27 June, 2022)
• Sujato Bhadra v. State of West Bengal, 2005 (4) CHN 601, 2005 CriLJ 368
• Amish Devgan v Union of India, Writ Petition (Crl.) 160 of 2020