Karan Kumar

| @CouldBeKaran | August 21,2018

Section 295A of the Indian Penal Code is the Indian variant of a blasphemy law. It penalises “acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs”, with the only necessary ingredient being “deliberate and malicious” intent. Classified as a cognisable offence, it allows the police to make arrests without a judicially sanctioned warrant. This means that the police can arrest anyone upon mere “suspicion” or against a “complaint” in furtherance of investigation, or to prevent the any further offence being committed. These provisions in tandem not only allow scope for abuse of power by the police, but also cast a chilling effect upon the exercise of one’s freedom of speech.

The inception of IPC 295A

Section 295A was not found within the original draft of the Indian Penal Code of 1860. It was inserted to rectify the deficiencies of the original iteration of Section 153A, in light of a couple of cases which led to great furore of a communal nature across the nation

Even though it finds its genesis in the colonial era, Section 295A was not found within the original draft of the Indian Penal Code of 1860. It was inserted to rectify the deficiencies of the original iteration of Section 153A, in light of a couple of cases which led to great furore of a communal nature across the nation. Section 153A was a provision aimed at penalising acts prejudicial to harmony, which promoted enmity between different groups on various grounds. These grounds, enlisted in an inexhaustive manner, include religion.

The primary distinction between Section 153A and Section 295A is the requirement of “malicious intent”, which is exclusive to the latter

The primary distinction between Section 153A and Section 295A is the requirement of “malicious intent”, which is exclusive to the latter. This jurisprudential development credits its inception to a pamphlet published and circulated in Punjab in 1924, and its criticism authored by Gandhi. The pamphlet Rangila Rasul was in Urdu and allegedly made distasteful remarks about the Prophet.

The pamphlet’s publisher, Mahashe Rajpal, was tried at three judicatory forums — the District Magistrate’s Court, the Sessions Court, and finally the Punjab High Court — charged under Section 153A. Though found guilty by the first two Courts, the High Court acquitted Rajpal. The judge, Dalip Singh, held the publication to be “undoubtedly … nothing more or less than a scurrilous satire on the founder of the Muslim religion…”, acquitted the publisher reasoning that nothing in the pamphlet displayed that “it was meant to attack the Mahomedan religion as such or to hold up Mahomedans as objects worthy of enmity or hatred.”

Interpreting Section 153A, Justice Singh held that “[the] Section was intended to prevent persons from making attacks on a particular community as it exists at the present time and was not meant to stop polemics against deceased religious leaders however scurrilous and in bad taste such attacks might be”. While concluding the judgment, Justice Singh proposed the addition of a clause to Section 297 of the IPC which would criminalise “pamphlets published with the intention of wounding the religious feelings of any person or of insulting the religion of any person”.

This judicial pronouncement led to widespread furore across the nation. While the Maulana of Jama Masjid in Delhi, Mohamed Ali, predicted “very serious consequences” to stem from the acquittal, and the press reportage of the verdict was split along communal lines with the Muslim Outlook calling for the judge’s resignation. The fires of the Muslim community’s angers were further fanned by the Punjab Governor, Malcolm Hailey, justifying the Muslim’s taking offence to the pamphlet and their victimisation in the absence of a “legal weapon by which its repetition could be prevented in the future.” He further stated the colonial government’s intent to devise a new law as suggested in the judgment, which came post a “test case”, and an imposition of Section 144 of the The Code of Criminal Procedure, 1973 (CrPC) in Lahore to quell instances of public gatherings where violence and disruption of public order were propounded.

This test case pertained to Risala Vartman, an Amritsar journal, which carried an article allegedly ridiculing the Prophet. In light of the mobilisation of Muslim dissent across Lahore and other cities in light of the previous judgment, this case was quickly transferred to the Lahore High Court

This test case pertained to Risala Vartman, an Amritsar journal, which carried an article allegedly ridiculing the Prophet. In light of the mobilisation of Muslim dissent across Lahore and other cities in light of the previous judgment, this case was quickly transferred to the Lahore High Court. The issue of whether Section 153A is attracted to cases where the prophet (or potentially any founder of a religious tradition) was insulted was then forwarded to a two-judge division bench of the Punjab High Court. Though the Bench’s verdict posited a significantly different position from the Rangila Rasul verdict, it did not categorically overrule it. Further, it failed in providing the necessary ingredients an offence under Section 153A needs to demonstrate.

The operative holding of the judgment by Justice Broadway which further complicated the issue was, “I am not prepared to accept the contention … that any criticism of a religious leader, whether dead or alive, falls within the ambit of section 153A IPC, I would hold that the writing of a scurrilous and foul attack on such a religious leader would prima facie fall under the said section.” The verdict though resulted in the the accused being imprisoned for three years and fined, did nothing to affect the ambiguity surrounding the question of whether criticisms pertaining to any religious leader would attract sanctions under the aforementioned section.

This “deficiency” of the IPC was then remedied by the insertion of Section 295A which laid down the requirement of a “deliberate and malicious intention” to outrage or insult the religious feelings of a particular class

This “deficiency” of the IPC was then remedied by the insertion of Section 295A which laid down the requirement of a “deliberate and malicious intention” to outrage or insult the religious feelings of a particular class.

 Problems with Section 295A

295A | Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.—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 or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Classified as a cognisable offence, the Section invites the application of Section 41 of the CrPC. It permits the police to arrest any person without a Magistrate’s sanction at the mere instance of an FIR or at the complaint being deemed as the police officer as merely “reasonable”

Classified as a cognisable offence, the Section invites the application of Section 41 of the CrPC. It permits the police to arrest any person without a Magistrate’s sanction at the mere instance of an FIR or at the complaint being deemed as the police officer as merely “reasonable”. Further, the criminality attached to the Section allows for a compliant to be registered at any police station across the nation. Paired with the fact that a suit can be filed at any of the 600 district courts across the nation, Section 295A prima facie seems facilitative of abuse and harassment. This misuse was pre-empted by the Section’s drafting committee which feared that it might be used to target not just the “scurrilous scribbler”, but also any form criticism or mere comment upon religious matters.

In addition to it being utilised as a tool for harassment, Section 295A prima facie seems violative of the fundamental right to freedom of speech provided by Article 19(1)(a)

In addition to it being utilised as a tool for harassment, Section 295A prima facie seems violative of the fundamental right to freedom of speech provided by Article 19(1)(a). This is primarily due to the vague terminology it employs. The IPC which contains an entire chapter upon “Offences Related to Religion”, which includes 295A, does not define the terms “religion” or “religious”, even though they appear no less than nineteen times. The Constitution too fails to provide for a conclusive definition of the terms. The Supreme Court, rather than providing clarity upon the issue further muddies the waters, vis-à-vis verdicts such as the one delivered in the SP Mittal vs Union of India case, where a seven-judge constitutional bench held religion to be a term which cannot be defined and further enhances mist the ambiguity surrounding it by stating it to be a “matter of belief and doctrine concerning the human spirit expressed overtly in the form of ritual and worship”.

Among the various instances of the Section’s vague wordings being employed as a tool of harassment, the most recent one pertains to the arrest of television actor Kiku Sharda for merely impersonating Gurmeet Ram Rahim Singh, the leader of the Dera Sacha Sauda sect currently serving a 20-year jail sentence for committing rape

Among the various instances of the Section’s vague wordings being employed as a tool of harassment, the most recent one pertains to the arrest of television actor Kiku Sharda for merely impersonating Gurmeet Ram Rahim Singh, the leader of the Dera Sacha Sauda sect currently serving a 20-year jail sentence for committing rape. With no definitive description of religion, the Section’s applicability as of now extends to cults such as the one in question, and lead to the registration of FIRs and Sharda’s subsequent arrest, which was later on quashed by the Punjab and Haryana High Court, due to its legal untenability.

Section 295A further faces a challenge with respect to the unreasonable restrictions it imposes upon the constitutionally guaranteed freedom of speech under Article 19(1)(a)

Apart from the aforementioned misuse, Section 295A further faces a challenge with respect to the unreasonable restrictions it imposes upon the constitutionally guaranteed freedom of speech under Article 19(1)(a). The Section’s susceptibility to misuse is often justified by critics citing the communally volatile nature of Indian society, which necessitates criminalisation of anything which may be deemed to be remotely religious. This defence of Section 295A is afforded further veracity in light of the fundamental rights pertaining to religious freedom enshrined within Articles 25 to 28 of the Constitution. State sanction is further invited due to the Nehruvian Model of secularism followed by India which puts all religions at an equal pedestal and allows for institutionalised protection for “essential religious practices” as defined by the Ismail Faruqui vs Union of India judgment. This departure from the classical French model of secularism which calls for a strict delineation between the Church and the State allows for the perpetuation of policy and laws along religious lines, availing political parties avenues to pander to their vote banks and appease communities by restraining anything which may be counter intuitive to their beliefs, no matter how regressive.

Jurisprudential developments

Post-independence, the constitutionality of Section 295A was challenged in 1957, in the Ramji Lal Modi v State of Uttar Pradesh case. Though the five-judge bench upheld the impugned Section’s constitutionality, in light of recent jurisprudential developments, the judgment does not hold up as good law

Post-independence, the constitutionality of Section 295A was challenged in 1957, in the Ramji Lal Modi v State of Uttar Pradesh case. Though the five-judge bench upheld the impugned Section’s constitutionality, in light of recent jurisprudential developments, the judgment does not hold up as good law. Further, in light of the recent trend of the apex court reviewing old judgments, with two primary instances being the matter pertaining to Section 377 being re-heard, and a nine-judge bench judgment of Justice Puttaswamy establishing privacy as right under Article 21 overruling the eight-judge bench judgment pronounced in MP Sharma v Satish Chandra, it bodes well for civil liberties.

Restrictions upon free speech necessarily have to be “reasonable”. Any law enforced by the State mandatorily have to be in line with provisions of Article 19(2), with “public order” being invoked as to protect Section 295A in the Ramji Lal verdict. It held that any law penalising a deliberate act which merely had a tendency to disrupt public order, was in line with the reasonable restrictions enlisted under Article 19(2). This tendency, could be construed in manner to invite sanction on anything which may even hint at being the inception of a public disorder, without considering factors such as the time difference or nexus with the chain of events, a holding which is extremely problematic.

Developing a case against 295A

Within three years of the Ramji Lal Modi judgment, the Supreme Court adopted a new legal position, with the five-judge pronouncement in The Superintendent, Central Prison Fatehgarh v Ram Manohar Lohia. The bench comprising of judges none of whom featured on the Ramji Lal Modi bench, necessitated the need for a “proximate link” between the exercise of speech and “public disorder”. The verdict explicitly admonished the “remote or fanciful connection between the impugned act and public order”, clearly in countenance with the “tendency” propounded by Ramji Lal Modi. This line of argumentation interestingly was refuted by the Bench in Ramji Lal Modi.

Further, developing upon the approach initiated by the Lohia judgment, the Rangarajan v Jagjivan Ram verdict of the Supreme Court provided for the impugned act of speech to be akin to a “spark in a powder keg”. This development further bolsters the proximity test laid down by the Central Prison Fatehgarh v Ram Manohar Lohia verdict, by necessitating a “proximate and direct nexus” between the act of speech and public order.

Reaffirming the Supreme Court of the United States of America devised Brandenburg Test, our Supreme Court held that criminalisation of speech is only permitted if it incites “imminent lawless action”

Additionally, the holding of Arup Bhuyan v State of Assam also seems counter intuitive to the impugned judgment. Reaffirming the Supreme Court of the United States of America devised Brandenburg Test, our Supreme Court held that criminalisation of speech is only permitted if it incites “imminent lawless action”.

The ratios of the aforementioned cases, when read in addition to the seminal observations in the Shreya Singhal v Union of India case, further bolster the case against the constitutionality of Section 295A. Apart from necessitating a narrow interpretation of the restrictions enlisted under Article 19(2) to be classified as reasonable, it further  draws a distinction between “advocacy” and “incitement”, with only the latter inviting legal sanction, in addition to establishing that “over broad laws” that affect legal and legitimate speech will have be to declared as unconstitutional as they have the potential to inflict a chilling effect upon speech rights.

Further, the analysis of the grounds under Article 19(2) which avail Section 295A the garb of “reasonability” present in the Dr. Ram Manohar Lohia vs State of Bihar judicial pronouncement of a five-judge constitutional bench.

“One has to imagine three concentric circles, the largest representing “law and order”, the next representing “public order” and the smallest representing “security of State”. An act may affect “law and order” but not “public order”.

Hence, the threshold for criminal liability as per judicial pronouncements of the Supreme Court is very high, which prima facie runs counter the application and textual provisions of Section 295A when read with corresponding sections of the CrPC. Further, the punitive sanction enabled by it has a clear chilling effect upon any legitimate criticism of any religious practices.

Constitutional untenability

The chilling effect it has upon any legitimate criticism of anything which can be remotely related to “religion”, a term yet to be given a definitive description, and “sentiments”, a term which is inherently personal and malleable to an individual’s will demonstrates it being bad in law

In light of the jurisprudential developments as well as academic critique of the aforementioned section, Section 295A necessarily displays its constitutional untenability. Further, the chilling effect it has upon any legitimate criticism of anything which can be remotely related to “religion”, a term yet to be given a definitive description, and “sentiments”, a term which is inherently personal and malleable to an individual’s will demonstrates it being bad in law. This unreasonable restriction on speech is furthered by its susceptibility to be used a tool for harassment in light of its assigned criminality.

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