There is a distinction between grievous intent to insult and freedom of expression

Written by Ujjawal Krishnam | Published on: June 14, 2018

Our apex has ruled that there must be tolerance towards unpopular utterance but it also marked a line between obscenity and freedom of expression. We shouldn’t forget while practising our ultimate constitutional rights that our constitution also expects us to perform some minimum duties to maintain social integrity.


Freedom of Expression

There exists a wide gap between a pure free speech and an offensive statement. What may sound as a practice of free speech to the perpetrators may prove mischief for the victims, in judicial terms. As Tufail Ahmed has highlighted his concerns in this opinion piece, I think, that was more about his emotions than pragmatic legalities. I will recollect a personal account before anyone takes this opinion on face value.

Last year in November, I wrote a Facebook post targeting a community for their collective cry on a movie. Triggered by the post, thirty members of a fringe group entered my hostel room and tried thrashing me. Police intervention in the case saved me, otherwise, I might have been chopped into pieces, period. A momentary thought came into my mind that I practised my constitutional right, then what was the problem in that? I was wrong. I came to know the reason when I started studying and exploring the laws. I also thought that abolishing the treacherous 66A of IT ACT could help me, but no, that was a misconception. Thanks to mediators who led us to a compromise as I filed intimidation charges against them and they too wanted to file a case against for my blasphemous post.

Aligarh Muslim University is again in the lap of controversy because its Muslim students who made a post on Facebook intended to hurt the sentiments of the Muslim community. They are guided by a non-Muslim right winger who has his own religious and political biases. 295-A of IPC and IT 67 have been registered by Aligarh Police against all five accused. AMU’s Cultural Education Centre(CEC) has put a life term ban on students and students’ union is demanding for strict action. Accused have now been calling and apologizing for hurting sentiments. Against their apology, the solidarity for accused is growing on social media where I don’t find any guilt or remorse. The apology appears just a trick for withdrawing the complaint and not a heartfelt expression.

Some are calling it a psuedo-liberal intolerant practice of the Muslim community that led to the FIR, and some support the accused claiming freedom of speech. I would like to differ here as the constitutional boundary of freedom doesn’t allow to do so. If our constitution has provided immense rights, then it also expects us to follow some inescapable duties.

Lawyer Gautam Bhatia discusses 295A in this article, with reference to the Ramji Lal Modi v State of UP, where a five-judge bench of the Supreme Court upheld the constitutionality of 295A. Bhatia argues that, if the Supreme Court were to change its mind, it would need a bench of at least seven judges to overrule Ramji Lal Modi, and strike down the law. Procedurally, this would require the challengers to 295A to first convince a two-judge bench (before which any petition originally goes) that there are sufficient reasons for doubting the correctness of Ramji Lal Modi. If convinced, this two-judge bench would need to refer the question to a five-judge bench which, in turn (if convinced), would have to refer it to a seven-judge bench, which would finally hear the case on merits.

In Ramji Lal Modi, the court held that Section 295A was constitutionally valid since, in accordance with Article 19(2) of the constitution, it was a ‘reasonable restriction’ upon the freedom of speech, ‘in the interests of public order.’ The core of the court’s reasoning was that the phrase ‘in the interests of,’ as required by Article 19(2), was of very wide ambit, and allowed the state to make a variety of laws that bore some relation to maintaining public order. The court held that:
“[Section 295A] only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of clause (2) of Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19(1)(a).”

Thus, for now, 295A remains in its pure form. And incidents like mine or the recent Facebook post by AMU students may lead to slander or criminal libel charges. The differences between freedom of expression and obscenity have been well defined by Justice Kaul in MF Husain case, on which I recently wrote a piece. In another piece, I studied the important judgments delivered by Justice Sanjay Kaul which, for sure, upheld the constitutional freedom. But Justice Kaul well highlighted the strict line existing between expression and slander; hence, even abolishment of 66A can't save perpetrators.

Even without 66A of IT, and 295A of IPC, there are several other sections which stand in their pure forms and can be used by enforcement officers.
 
  • Section 153A in The Indian Penal Code
157 [153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.—

(1) Whoever—
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, 2[or] 2[(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the partici­pants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,] shall be punished with imprisonment which may extend to three years, or with fine, or with both. Offence committed in place of worship, etc.—(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious wor­ship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]
 
  • Section 505 in The Indian Penal Code
1[505. Statements conducing to public mischief.—2[

(1) ] Whoever makes, publishes or circulates any statement, rumour or report,—
(a) with intent to cause, or which is likely to cause, any offi­cer, soldier, 3[sailor or airman] in the Army, 4[Navy or Air Force] 5[of India] to mutiny or otherwise disregard or fail in his duty as such; or
(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or
(c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to 6[three years], or with fine, or with both. 7[(2) Statements creating or promoting enmity, hatred or ill-will between classes.—Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

(3) Offence under sub-section (2) committed in place of worship, etc.—Whoever commits an offence specified in sub-section (2) in any place of worship or in an assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]

(Exception) —It does not amount to an offence, within the meaning of this section when the person making, publishing or circulating any such statement, rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it 8[in good faith and] without any such intent as aforesaid.]

Further extension of brutal defamation law, i.e. Section 500, IPC to a religious community, may attract punishment up to two years with fine.

But why such upsurge? I am also not a believer constrained by any religious sentiments but over a period of time, I have learned how to be pragmatic and actually practise constitutional freedom.

So, coming to a counter question, I have to add that why do people even have to directly toss statements against any religion? If they really believe that something is wrong, there is an open gateway in the Indian democracy. As Triple Talaq was debated, I read several Op-Eds and even those asking for the abolishment of this against Islamic customs that had balanced insight. That tone was for change and certainly not for harming/hurting the sentiments. So, it is time to understand the concerns and have a conscience instead of mocking someone's beliefs.

The Author is a research scholar at The Maharaja Sayajirao University of Baroda and serves as an Editor to Academia.edu and WikiProjects.