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Business News/ Mint-lounge / Mint-on-sunday/  ‘Blasphemy’ law and the Constitution

During the recent parliamentary uproar regarding the apparent worship of the demon Mahishasur within the territory of the Peoples’ Democratic Republic of JNU, the word “blasphemy" was thrown around quite a bit by many of the contestants.

“Blasphemy" is a term unfamiliar to the Indian legal and constitutional landscape, perhaps because the Indian judiciary has long emphasized the inclusive and plural nature of Hinduism, which makes a concept such as blasphemy incoherent.

The Indian Penal Code (IPC) does have a provision, however, that can be reasonably approximated to an anti-blasphemy law: Section 295A of the IPC penalizes insulting the religion or religious beliefs of any class of citizens, if such insult is offered with the deliberate and malicious intention of outraging the religious feelings of that class.

Like many of the other speech-based offences in the IPC (some of which we have considered in previous essays in this series), the origins of Section 295A lie in the colonial period, and were driven by colonial logic.

At the risk of oversimplification, for many years, it was the express aim of the British to consolidate their rule by creating divisions between the religious communities of the subcontinent. Matters came to a head in north India in the 1920s, which saw sustained violence between Hindus and Muslims, ostensibly occasioned by the publication of tracts such as Rangeela Rasool, which mocked the Prophet Mohammed.

The existing penal laws did not cover tracts that insulted or mocked religious figureheads, and this was perceived to be a serious lacuna. As scholar Neeti Nair records, it was with a view to control such religiously triggered violence, while assuring religious communities that their “sentiments" were going to be protected, that Section 295A was drafted.

Even at the time, the drafting committee voiced its doubts about the wide wording of the section, and predicted that it might come to be used to target not just the “scurrilous scribbler", but also religious dissent and critique. History has proven those fears justified.

Like the provisions of sedition and obscenity, which we have discussed in previous columns, Section 295A was also challenged in the early years of the Supreme Court, and like the other provisions, upheld by a court that very evidently privileged social order over civil liberties.

In Ramji Lal Modi vs State of UP, decided in 1957, the editor of a cow-protection magazine had been booked under Section 295A, and he took his case all the way up to the Supreme Court, while challenging the constitutionality of the section itself.

His argument was very simple. Article 19(2) of the Constitution only allowed for reasonable restrictions upon the freedom of speech in the interests of public order. Section 295A, however, cast its net much wider, by criminalizing all speech that was intended to outrage religious feelings.

While, admittedly, there could be times when outraged religious freedom could cause public disorder, this was not necessarily true of every instance. In technical terms, this is called “over-breadth": Section 295A was so broad that it covered speech that the state could legitimately regulate under the Constitution (i.e., speech causing public disorder) and speech that it couldn’t (i.e., mere religious insult with no public disorder).

The court got around this argument by engaging in a few linguistic contortions. It noted that the term “in the interests of" was of very wide import (wider, for instance, than the phrase “for the maintenance of"). This allowed the state wide leeway to gauge what kind of speech might threaten public order, and make laws regulating it accordingly.

Any speech that might have a “tendency" to lead to public disorder could be proscribed and penalized. The court then held that Section 295A did not cover all forms of religious insult, but only intentional insults. And it was the “calculated tendency" of intentional insults to lead to public disorder. Therefore, the section was constitutional.

In technical terms, this is known as a “legal fiction"—that is, the court assumes that a certain state of affairs exists for legal purposes, whether or not it actually does. The legal fiction in Ramji Lal Modi’s case was that an intentional insult offered up to religion would necessarily “tend" to cause public disorder. Whether the constitutional right to free speech can be restricted on the basis of unproven assumptions, of course, is a different question altogether.

Over the years, however, the link between Section 295A and public order has been gradually eroded. For instance, in a 2007 judgement called Baragur Ramachandrappa vs State of Karnataka, the Supreme Court upheld a ban on a historical-fictional retelling of the life of Basaveshwara, noting that “no person has a right to impinge on the feelings of others on the premise that his right to freedom of speech remains unrestricted and unfettered. It cannot be ignored that India is a country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted".

If the original logic of 295A—and the basis on which the Supreme Court in the Ramji Lal Modi case upheld its constitutionality—was public order, then in the Baragur Ramachandrappa verdict, it did a sharp volte-face, and more or less echoed the language of an unvarnished blasphemy law: what was being punished was not the effect of speech upon public order, but its allegedly anti-religious content.

At this point, therefore, there is considerable conclusion about what Section 295A is really about. The controversy over Wendy Doniger, for instance, which involved 295A, was framed entirely in terms of causing religious offence, and not in the language of public order. Furthermore, the Supreme Court’s jurisprudence on public order has also undergone widespread changes since the time of Ramji Lal Modi.

In fact, merely three years after Modi, in Superintendent, Central Prison, Fatehagarh vs Ram Manohar Lohia, the Supreme Court emphasized that the state would have to show a close degree of proximity between the speech and public disorder, if it wanted to regulate it. In the Lohia case, a law criminalizing the act of asking people not to pay taxes was struck down, and the state’s argument that instigating people against paying taxes might prove to be a “spark" that could one day cause a revolution was dismissed by the court for being a “far-fetched" or “hypothetical" consideration.

Most recently, in Shreya Singhal vs Union of India, the Supreme Court held that only “incitement" to violence could be prohibited under the public order ground, and even advocacy (of revolution, etc.) was permitted. Under a standard as strict as that of “incitement", it is difficult to see how the language of Section 295A, which was upheld in the Modi case on the basis of a broad and vague “tendency" test, remains within the scope of Article 19(2).

In the present climate, however, it is as difficult to imagine the court reconsidering the constitutionality of the “blasphemy" law, as it is to imagine it rethinking obscenity or sedition.

Gautam Bhatia is a New Delhi-based lawyer. His book, Offend, Shock, or Disturb: Free Speech Under the Indian Constitution is available on Amazon.

Case Studies is a series that looks at why we have the laws that we have and what it means to change them.

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Updated: 19 Mar 2016, 11:39 PM IST
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