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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

ANALYSIS OF BLASPHEMY LAWS IN INDIA – Aryan Parashar

ABSTRACT

Blasphemy is one of the most misunderstood laws in the world with regards to stifling the voices of minorities, pragmatists, and, in specific cases, researchers, and it is regularly addressed concerning its legitimateness in the current world. In a modern world where freedom of speech and religion are generally regarded as a basic human right, despite India being a pluralist nation with unmatched population diversity and a large ocean of many competing viewpoints, India contains “Section 295-A of the Indian Penal Code, 1860”, which is a legislation against blasphemy. The author in this article tries to analyse the loopholes in blasphemy laws of India and how they have been misused recently.

I.                INTRODUCTION

Blasphemy is one of the most misunderstood laws in the world with regards to stifling the voices of minorities, pragmatists, and, in specific cases, researchers, and it is regularly addressed concerning its legitimateness in the current world. While it is frequently considered as an acceptable constraint on freedom of speech and expression, it sometimes is said to be a barrier to the formation of rationale reasoning among individuals, as well as a technique of forcing one community’s religious ideas and ideals on another. In a modern world where freedom of speech and religion are generally regarded as a basic human right, despite India being a pluralist nation with unmatched population diversity with a large ocean of many competing viewpoints, India contains ‘Section 295-A of the Indian Penal Code, 1860’, which is a legislation against blasphemy disguised as hate speech.

“All human rights are universal, indivisible and interdependent and interrelated. Yet nowhere is this interdependence more obvious than in the discussion of freedom of expression and incitement to racial or religious hatred”. [1]The term blasphemy is defined as, “Irreverence toward God, religion, a religious icon, or something else considered sacred”. [2]Because of its proclivity for causing public disturbances, it has been declared a common-law offence in the United States. Some statutes make it explicit that it is illegal. Despite having diverse population and legal systems, blasphemy laws exist in a number of countries around the world. Whether it’s Christian countries like Greece or Nordic countries like Iceland, Iraq and other Islamic majority countries. Countries all around the world have laws, whether it is secular nations like Canada or Germany or disturbed nation like Sri Lanka. Many countries, on the other hand, do not have blasphemy laws. The USA declared the Blasphemy Law unlawful because it violated the right to free speech. Approximately seventy-one countries maintain a provision for blasphemy and most of them are vaguely worded.

India, like America, is a pluralist and secular country with no provision against blasphemy until 1927, when ‘Section 295(A)’ was added to the ‘Indian Penal Code, 1860’.

II.              HISTORICAL BACKGROUND

The word blasphemy is derived from Middle English word blasfemenand Late Latin blasphemare. In the year 325 AD, the concept of blasphemy was born in Greece. Jews introduced the concept of blasphemy a somewhat definite structure in the 12th or 13th centuries. It legalised in European continent in the 13th century, with John Taylor’s important decision in 1675 enveloping the explanation of blasphemy in the framework of a state.[3] Blasphemy is defined as “treason against the state and the law itself,” according to the concept of Justice. In modern years, blasphemy has been defined as “the action or transgression of speaking sacrilegiously about God or sacred things.[4]

Blasphemy is punishable in India under Indian Penal Code 1860, since India is a secular nation no particular religion is protected under blasphemy and the laws protect all religions whereas in countries like Pakistan and Iran these laws safeguard only one religion, that is Islam.

The understanding of blasphemy is also different in religions. Blasphemy is forbidden in Christian theology. It is mentioned in Mark 3:29, where blasphemy against the Holy Spirit is described as an unforgivable—everlasting sin. In Islam, blasphemy is an impious utterance or action directed at God, Muhammad, or anything else regarded as sacred. [52][53] Blasphemy is condemned in the Quran, but no worldly punishment is specified for it. In Judaism Blasphemy is punishable by death. [5]There was no concept of Blasphemy in the Hindu religion. Blasphemy was introduced in the year of 1927 in India.

III.         THE RANGEELA RASUL CONTROVERSY

In 1923, an article was published by the Muslim community titled ‘Krishna teri Geeta jalanipadegi’, that criticised Hindu deity Krishna. This provoked the sentiments of people following the Hindu religion as a result of which ‘Rangeela Rasul’ was published anonymously under the name ‘doodh ka doodh aur panee ka panee’. In the year of 1924, the Muslim community filed a case against Mahashay Rajpal under the “section 153A of Indian Penal Code”.[6]

The case delayed for more than two years, first before the District Magistrate, then, before the Sessions Judge, lastly at the Punjab High Court. Rajpal was viewed blameworthy of prompting animosity between classes in the first two courts, and the pamphlet was found to be ‘intentionally offensive-undoubtedly malicious in tone and intent’. It was clear that the pamphlet was ‘undoubtedly’, ‘nothing more or less than a scurrilous satire on the founder of the Muslim religion,’ Justice Dalip Singh couldn’t find a thing in it that showed ‘it was meant to attack the Mahomedan religion as such or to hold up Mahomedans as objects worthy of enmity or hatred.’ The subject of a noxious parody on the private life of a religious philosopher, according to Justice Dalip Singh, was outside the scope of ‘section 153A of IPC’. The Justice concluded that the work in question could only “arouse the contempt of all decent persons of whatever community,” and that it would not “necessarily promote feelings of enmity and hatred between different classes of His Majesty’s subjects.” [7] That could be the outcome, but it couldn’t be used as the section’s test.’ Finally, Dalip Singh proposed adding a clause to “Section 297” that would make “pamphlets published with the intent of wounding the religious feelings of any person or insulting the religion of any person criminal.” Rajpal was acquitted, albeit reluctantly.[8] In 1929, Rajpal was murdered. In 1927, the colonial government of Britishers amended the ‘Indian Penal Code, 1860, and added Section 295(A)’ in response to a need. Even after India’s partition, the section remains in theIndian Penal Code.”

Since the freedom of country, this section has been said to be a valid limitation over right to speak freely. In “Ramjilalmodi Vs. State of UP”[9] the court held “law may not have been designed to directly maintain public order and yet it may have been enacted in the interests of public order.” [10]The court then found that ‘section 295A of IPC’ only punishes insults to religion ‘perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.’ Insults that are made ‘unwittingly or without malice’ do not fall within ‘section 295A of the Indian Penal Code’. The court took this position based on the fact that the ‘calculated tendency’ of malicious and intentional insult was to create public disorder. The court dismissed the idea of contiguity between violence and speech that is feared by state. This observation of proximity has been consistently disregarded in recent judgements.

In the case of “The Superintendent, Central vs Ram Manohar Lohia[11]”, the court held, “limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate connection or nexus with public order, but not one far- fetched, hypothetical or problematical or too remote in the chain of its relation with the public order.”[12]

Freedom of expression is given to a wider extent in the light of the above case law. However, in the actual approach, the concept of ‘immediate lawlessness’ makes it rather burdensome in the cases of blasphemous acts. It is difficult to assume the reaction of different communities in the cases of blasphemous acts. However, a massive range of blasphemous acts do not come within the eyes of people. There is no defined statement that can tell us what ‘imminent lawless action’ means. The punishment for blasphemy is fine, imprisonment for up to three years or both.

IV.          ANALYSIS OF BLASPHEMY LAW

Section 295 to 298 in Chapter 15 of ‘The Indian Penal Code, 1860’ contains the part for offenses committed against religion. Anyway, no part fits the bill to be held as a segment for impiety aside from Section 295(A).[13] It is generally said that rather than preventing blasphemy this section provides a discourse against hate speeches. If we think about the reason for which the section came into being in the IPC and the chapter under which it remains, the expectation of the administrators can be unmistakably comprehended that the segment 295(A) is a part to condemn blasphemous acts occurring in the society and preventing violence. There have been various discussions over the legitimacy of segment 295(A) in independent India, where a mainstream arrangement has been set up and the right to speak freely of discourse and articulation just as opportunity to proliferate and practice religion has been granted as a fundamental right under the constitution. Taking into account the contentions that have been raised around the world and in our country the legitimacy of the section in our country can be examined with contentions talked about as beneath-

V.             DISADVANTAGES OF BLASPHEMY LAW

  • It is not the role of government to suppress attacks on a religion in a nation. “India is a secular state by the virtue of its constitution. A secular state is neither a supporter of religion nor irreligion”.[14] But propagation of something that is irreligious may amount to can lead to a blasphemous act. The nature of our society is quite intricate. There are various religions with various factions and among them are extremely clashing thoughts. Since, India is a secular nation it becomes unscrupulous for it to meddle in to the strict issues of the general public with such clashing thoughts, as it will be truly challenging to keep an impartial methodology. The intricacy in the perspective of the Indian culture can be perceived from the way that a F.I.R was registered against two ladies under blasphemy over their comments identifying with a Hindu religious leader, or in simple words a religious leader was equated as a religious figure.[15]
  • Taking into account some recent happenings it can be said that blasphemy laws have tend to violate freedom of speech and expression of individuals to some extent. In a recent case a stand- up comedian, Munawar Faruqui and four other people were arrested during a comedy show on alleged charges of blasphemy. [16]One can see a new trend has started to emerge among the masses where we find cases being filed against movie directors for publishing content on historical figures. Here, we need to note that historical figures are being identified as religious figures and cases are being filed on these baseless grounds.[17] An individual may restrict himself from making any comments on religion out of the year that is created by this section. The author Wendy Doniger wrote a book named ‘The Hindus: An Alternate History’, and a case was filed against the publishers who finally decided to stop the printing of the work and went for a settlement rather than fighting the case.[18]
  • The very reason for which the section was introduced was to prevent violence in the society. As Adock noted Violence is the first part, as the ban on the book requires a strategy and provides us with an evidence that feelings of ‘class of Indian citizens’ has been hurt. He said “Violence thus becomes part of a legal strategy. Instead of simply responding to hurt feelings, the law has given strategic value to invoking or mobilizing wounded religious feelings in controversies of all kinds.”[19]

Some other examples such as protests against “Shivaji: The Hindu king in Islamic India” and removal of essay [20]“Three Hundred Ramayanas” from a university’s syllabus clearly provide a proof of intolerance that has created its roots in the country. The novel ‘The Satanic Verses’ was also banned in the nation and there were wide protests against the movie premiere of films like ‘Padmavat’ and ‘The Da Vinci Code’. These works got huge appreciation worldwide but were eventually hurtful to the religious sentiments of people in our country.

  • According to the Indian Constitution it is the fundamental duty of each and every citizen to develop scientific temper but sometimes it might not go hand in hand with religious feelings of the people. There are many examples to prove the same. “Dr. D‟ Avoine‟s article “Religion and Morality, outraged the religious feelings of Roman Catholics”.[21] Apart from this a man named Natraj H. was charged with ‘section 295A of the IPC’ for hurting religious sentiments just because he questioned the miracle that took place in the Sabrimala Temple. SanalEdamaruku who is known for challenging religious superstitions also faced charges of blasphemy after pointing out the holy water miracle incident in a Catholic church of Mumbai, after which he was forced to flee the country to escape an arrest. [22]These circumstances show that even after continuous reforms and development religion somehow or the other is still able to influence the rationale thinking of the citizens of this country.

VI.          REGULATORY PROBLEMS OF BLASPHEMY LAW

The offences under this section are cognisable and non-compoundable. “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”.[23] A complaint under this section can be filed anywhere across the country. The section has enough power to facilitate its misuse and harassment. The section is defined with a set of unclear words, chapter XV of IPC that contains ‘Offences Related to Religion’ does not provide with the definition of the term religion. This vagueness can be best described in an example where a comedian was arrested for merely impersonating a leader of a sect, who himself is now behind the bars facing an imprisonment of twenty years. [24]

The Section uses the term ‘deliberate and malicious intention’, in such a scenario it becomes difficult to identify whether the act was intentional. Also, few statements may lie within a grey area. Truth has not been provided as a defence against S. 295A. this is a matter of concern as comments can range from mere satires, genuine criticisms to truth.

VII.       FUTURE OF BLASPHEMY LAW IN INDIA

It is an undeniable fact that the religious intolerance in the country has risen. The current interpretation of the law is quite irrational as it is not required to prove that religious feelings are genuinely hurt a mere chance or probability of hurt is enough to prove the fault. Some recent legislations in the country show us that the political institutions in the country have lot to gain from such laws. In 2018, the Government of Punjab proposed to bring few changes in S. 295 of IPC. The ‘The Indian Penal Code (Punjab Amendment) Bill, 2018’ provided that provide that “whoever causes injury, damage or sacrilege to Sri Guru Granth Sahib, SrimadBhagwad Geeta, Holy Quran and Holy Bible with the intention to hurt the religious feelings of the people, shall be punished with imprisonment for life[25]”. Such legislations defile the sacredness of such holy books and reduce them to status to a section in IPC. The coercive power of state behind such law to enforce religious beliefs and sentiments, no matter how rationale, can never be justified. Such kind of laws serve political purpose rather than the purpose intended. At the point when the IPC was talked about during the 1920s, leaders were undeniably more aware of its conceivable encroachment on freedom. Presently the political class legitimizes any encroachment on freedom with the imprimatur of majoritarian opinion behind it. [26]However, there are sufficient existing laws to manage the individuals who might need to malevolently produce hatred between networks.  the intentions of these desecrators are blended. However, assuming they have a political reason, it is to ensure that they can utilize strict feelings to obliterate India’s liberal majority rule government. Recently, a web series on an OTT platform called ‘Tandav’ created controversy when the makers of the show were accused of blasphemy on passing comments on Hindu gods and goddesses and the makers had to deliver an apology.[27] These examples show us that blasphemy laws in India are going to stay. The nature of Indian society makes this scenario interesting as on the other hand some recent cases like Shreya Singhal vs. Union of India the court held that innocent people are being roped due to vagueness of few terms and held that “a very large amount of protected and innocent speech” needs to be protected. Justice DY Chandrachud in a judgement said, “Art, by virtue of that free essence I have tried to define, unites whereas tyranny separates. It is not surprising that artists and intellectuals should have been the first victims of modern tyrannies. Tyrants, know there is in the work of art an emancipatory force, which is mysterious only to those who do not revere it. Every great work makes the human face more admirable and richer, and this is its whole secret. Whatever the works of the future may be, they will bear the same secret, made up of courage and freedom, nourished by the daring of thousands of artists of all times and all nations.”[28]

Sadly, today, the state is caught in communal politics and in this situation, such laws that summon strict affectability become political instruments of polarization. The other issue is that the public authority is attempting to stifle right to speak freely of discourse. The honourable Supreme Court in a recent judgement while granting bail to a television reporter said that “Right of a journalist under 19 1 (a) higher, Free citizens can’t exist if news media can’t speak.”[29] Free speech has constantly been upheld by the courts around the country, S. 295A imposes unreasonable restriction on this freedom, yet in a diverse country like India where numerous religions are followed each and every community has a difference stance towards these laws and any attempt to predict the future of blasphemy law is futile as on one hand these laws are clearly against the very secular nature of the Constitution, they impose restriction on freedom of liberty and can be easily misused whereas on the other hand they act as a tool in Government’s hand to impose their will and increase their vote bank and even enjoy support from some sections in the society.

VIII.    CONCLUSION

Respect, endurance and compassion towards religious sentiments and diversified beliefs cannot be simply secured by using force and punishments. As societies turn more diverse this becomes more and more relevant. One cannot measure extent to which religious sentiments of a particular community are hurt and it is left on a particular section of society whether a statement can incite violence or not. This becomes difficult in light of the fact that named a cognisable offense, it permits the police to capture the charged without a magistrate authorized warrant This increases the probability of the maltreatment of law at the impulses of the leader authority. People with different opinions get prosecuted. Commitment with religion constantly requires reasonable analysis of religion and its practices and the section sabotages the reformative methodology towards religion.

IX.          BIBLIOGRAPHY

  • Alston P, INTERNATIONAL HUMAN RIGHTS(OXFORD University Press 2018).
  • Perkins M & Boyce RN, Criminal Law, (3rd Ed. Foundation Press 1982) pg. 474-475.
  • Richard W, A Brief History Of Blasphemy(Orwell Pr 1990).
  • ‘Blasphemy And Hate Crime: Indian Perspective’ (in, 2021) <https://www.ijalr.in/2021/08/blasphemy-and-hate-crime-indian.html> accessed 29 November 2021.
  • Shahrur Muhammad and Christmann Andreas, The Qur’an, Morality And Critical Reason(Brill 2009).
  • Ram B, 2021. The assassination of Mahashay Rajpal, the publisher of Rangeela Rasool.
  • Ambedkar BR and Mungekar B, The Essential Ambedkar.
  • Section 295 A: The Indian Blasphemy Law In Making | Newsclick’ (NewsClick, 2021) <https://www.newsclick.in/section-295-indian-blasphemy-law-making> accessed 6 December 2021.
  • Maria Schmid R, ‘Church And State In Contemporary Europe: The Chimera Of Neutrality, Edited By John T S Madeley And ZsoltEnyedi, Frank Cass Publishers, 2003, 245 Pp
  • Subramani A and D Srikkanth, ‘Roads Are Secular’ times of india(2021).
  • Why Comedian Munawar Faruqui Was Arrested: A Timeline’ (Hindustan Times, 2021) <https://www.hindustantimes.com/india-news/why-comedian-munawar-faruqui-was-arrested-a-timeline-101611823703715.html> accessed 6 December 2021.
  • The Politics Of Padmavati: Did A Mythical Queen Trigger Turmoil In The Nation?’ (India Today, 2021) <https://www.indiatoday.in/magazine/cover-story/story/20171204-padmavati-controversy-sanjay-bhansali-deepika-padukone-karni-sena-1092363-2017-11-24> accessed 6 December 2021.
  • Publish And Perish’ (The Statesman, 2021) <https://www.thestatesman.com/opinion/publish-and-perish-2-1503026087.html> accessed 6 December 2021.
  • Adcock CS, ‘Violence, Passion, And The Law: A Brief History Of Section 295A And Its Antecedents’ (2016) 84 Journal of the American Academy of Religion.
  • Quack J, ‘Organised Atheism In India: An Overview’ (2012) 27 Journal of Contemporary Religion.
  • The Indian Miracle-Buster Stuck In Finland’ (BBC News, 2021) <https://www.bbc.com/news/magazine-26815298> accessed 6 December 2021.
  • Peace and World Affairs Berkley Center for Religion, ‘National Laws On Blasphemy: Germany’ (georgetown.edu, 2021) <https://berkleycenter.georgetown.edu/essays/national-laws-on-blasphemy-germany> accessed 9 December 2021.
  • Aquinas T, Summa Theologica, Vol.3 Part-II (2nd Ed. Cosimo, Inc. 2013).
  • Kumar K, ‘Vague, Unreasonable, Constitutionally Untenable: Why Indian Variant Of ‘Blasphemy Law’ The Leaflet(2018).
  • Bhandare N, ‘Kiku’S Arrest Sends A Clear Message: Religion Is Out Of Bounds’ The Hindustan Times(2016).
  • English News, ‘Five Temples OfRavana In India Where Demon King Is Worshipped’ (com, 2021) <https://www.indiatvnews.com/news/india-five-temples-of-ravana-in-india-where-demon-king-is-worshipped-351861> accessed 9 December 2021.
  • The Indian Express, ‘A Blasphemous Law’ (2018).
  • Tandav Row: All The Controversies That Have Plagued Saif Ali Khan’s Amazon Show’ (Hindustan Times, 2021).
  • Chandrachud DY, ‘The artist is entitled to the fullest liberty to critique’ DY Chandrachud on free expression, SCROLL IN.
  • The Indian Express, ‘SC Refuses To Quash Firs Against Arnab Goswami, No Transfer Of Probe To CBI’ (2021).

[1]Philip Alston, International Human Rights (Oxford University Press 2018).

[2] Rollin M. Perkins & Ronald N. Boyce, Criminal Law, (3rd Ed. Foundation Press 1982) pg. 474-475.

[3]Richard Webster, A Brief History Of Blasphemy (Orwell Pr 1990).

[4] ‘Blasphemy And Hate Crime: Indian Perspective’ (Ijalr.in, 2021) <https://www.ijalr.in/2021/08/blasphemy-and-hate-crime-indian.html> accessed 29 November 2021.

[5] Muhammad Shahrur and Andreas Christmann, The Qur’an, Morality And Critical Reason (Brill 2009).

[6] bhagat ram, 2021. The assassination of Mahashay Rajpal, the publisher of Rangeela Rasool.

[7] B R Ambedkar and BhalchandraMungekar, The Essential Ambedkar.

[8] bhagat ram, 2021. The assassination of Mahashay Rajpal, the publisher of Rangeela Rasool.

[9]Ramji Lal Modi vs The State Of UP [1957]SCR, 620 AIR (SCR).

[10]Ibid.

[11]The Superintendent, Central vs Ram Manohar Lohia [1960] SCR, 633 AIR (SCR).

[12]Ibid.

[13] ‘Section 295 A: The Indian Blasphemy Law In Making | Newsclick’ (NewsClick, 2021) <https://www.newsclick.in/section-295-indian-blasphemy-law-making> accessed 6 December 2021.

[14]Raphaela Maria Schmid, ‘Church And State In Contemporary Europe: The Chimera Of Neutrality, Edited By John T S Madeley And ZsoltEnyedi, Frank Cass Publishers, 2003, 245 Pp

[15] ‘Court Directs Delhi Police To File FIR Against 2 Women For Trying To Disrupt Communal Harmony’ (ANI News, 2022) <https://www.aninews.in/news/national/general-news/court-directs-delhi-police-to-file-fir-against-2-women-for-trying-to-disrupt-communal-harmony20200507200324/> accessed 3 April 2022.

[16] ‘Why Comedian Munawar Faruqui Was Arrested: A Timeline’ (Hindustan Times, 2021) <https://www.hindustantimes.com/india-news/why-comedian-munawar-faruqui-was-arrested-a-timeline-101611823703715.html> accessed 6 December 2021.

[17] ‘The Politics Of Padmavati: Did A Mythical Queen Trigger Turmoil In The Nation?’ (India Today, 2021) <https://www.indiatoday.in/magazine/cover-story/story/20171204-padmavati-controversy-sanjay-bhansali-deepika-padukone-karni-sena-1092363-2017-11-24> accessed 6 December 2021.

[18] ‘Publish And Perish’ (The Statesman, 2021) <https://www.thestatesman.com/opinion/publish-and-perish-2-1503026087.html> accessed 6 December 2021.

[19] C S Adcock, ‘Violence, Passion, And The Law: A Brief History Of Section 295A And Its Antecedents’ (2016) 84 Journal of the American Academy of Religion.

[20] (Ijlljs.in, 2021)

[21] Johannes Quack, ‘Organised Atheism In India: An Overview’ (2012) 27 Journal of Contemporary Religion.

[22] ‘The Indian Miracle-Buster Stuck In Finland’ (BBC News, 2021) <https://www.bbc.com/news/magazine-26815298> accessed 6 December 2021.

[23]karankumar, ‘Vague, Unreasonable, Constitutionally Untenable: Why Indian Variant Of ‘Blasphemy Law’ The Leaflet (2018).

[24] Namita Bhandare, ‘Kiku’S Arrest Sends A Clear Message: Religion Is Out Of Bounds’ The Hindustan Times (2016).

[25]The Indian Penal Code (Punjab Amendment) Bill 2018.

[26] The Indian Express, ‘A Blasphemous Law’ (2018).

[27] ‘Tandav Row: All The Controversies That Have Plagued Saif Ali Khan’s Amazon Show’ (Hindustan Times, 2021).

[28] Justice DY Chandrachud, ‘The artist is entitled to the fullest liberty to critique’ DY Chandrachud on free expression, SCROLL IN.

[29]The Indian Express, ‘SC Refuses To Quash Firs Against Arnab Goswami, No Transfer Of Probe To CBI’ (2021).