The Uttarakhand High Court, on April 17, refused to quash the proceedings against a right wing leader after he was booked for “hurting religious sentiments of a minority community”. The single bench of Justice Sharad Kumar Sharma said that India is a secular country and other religions need to be respected.
The court elaborated over the concept of secularism being included in the Constitution by way of 42nd Constitutional Amendment Act. It said that the reason behind introducing the words ‘socialist’, ‘secular’ and ‘democratic republic’ was to inculcate in each and every citizen of this country, to have reciprocal respect and regards to the other religion.
“In the absence of the same, if this act of derogating the other’s religious sentiments is permitted to be continue, it rather acts as a parasite, which eats the society itself and creates an uncalled for animosity resulting into public disorder and unrest,” the court added.
Further reading the section 295A of the Indian Penal Code, the court stressed upon the words ‘deliberate’ and ‘malicious’ and stated that Deliberate means, it is a conscious act, made by a person belonging to a particular community to outrage the respect, which other religion equally enjoys in this country.
Referring to the case, the court noted that the Deputy District Secretary of so called Rashtriya Hindu Vahini, Udham Singh Nagar used derogatory words towards another religion. The court also pointed out that section 295A was excluded from the purview of section 320 of CrPC which allows compounding of certain offences.
“If being a citizen under Article 5 of the Constitution of India, if a person does not carry respect for other religion, it may lead to a certain catastrophic situation which at time becomes uncontrollable by the administration and particularly so called constructed religious groups of the country,” the order reads.
The court held that while the offence was simple, looking at its social effect, it was not inclined to quash it.
The order may be read here:
Sec 295A = blasphemy
Section 295A if IPC reads as follows:
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 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 4[three years], or with fine, or with both.
Section 295A is also known as the version of a law that is against blasphemy and its enactment and invocation are both controversial. The section imposes a limitation on free speech and is often misused for penalising political satire or booking comedians over critiques of faith practices, even if they be discriminatory or violent dubbing them ‘offensive’. Seeking a ban on literature or censoring art in any form is also resorted to (mis)using this section. Blasphemy means, “speaking evil of the divine things”.
Section 295A is often invoked along with section 153A (promoting enmity between groups) and section 505 (public mischief). Mostly they are invoked in cases of hate speech. While hate speech deserves to curtailed, legal experts and academicians do not vouch for section 295A or the law against blasphemy to be the appropriate law to penalise hate speech. It is pertinent to note that section 295A was introduced way back in 1920s when Punjab region was witnessing disturbance of peace due to religious hostilities.
While in the above case, the court upheld the blasphemy law against a right wing worker who allegedly made derogatory remarks against another minority religion and while such case shave been on the rise and need to be deterred, the usage of section 295A of IPC is often discouraged for its potential for misuse.
So far, this section has a record of misuse against even minority communities for “hurting sentiments of the majority.” In 2021 comedian Munawar Faruqui had to spend months in jail for a joke he never told and was simply booked under this section. On the other hand, former BPJ spokesperson, Nupur Sharma’s derogatory comments against Prophet Mohammed were also punished under section 295A.
Further, section 95 of CrPC [Power to declare certain publications forfeited and to issue search warrants for the same] is misused by government in congruence with section 295A of IPC allowing state government to ban publications by mere surmises.
The section does not expressly mention blasphemy and hence India is not considered among those countries especially from the Middle East, that punish blasphemy severely. Fair academic criticism of religion cannot be construed as blasphemy. But judicial interpretations have increasingly focused on anti-religious content in publications, without considering the law and order disruptions they might cause.[1]
295A of IPC vis-à-vis 66A of IT Act
Similar to sec 295A of IPC was section 66A of the Information Technology Act. However section 66A of the IT Cat was struck down by the Supreme Court in the Shreya Singhal vs Union of India AIR 2015 SC 1523 judgement for being vague. In the judgement, Justice Rohinton Fali Nariman correctly observed that it is quite clear that the expressions used in 66A are completely open-ended and undefined.” “We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth”, he said.
Section 66A, introduced in the Information Technology Act by virtue of an Amendment Act of 2009 penalised any person with imprisonment for a term which may extend to three years and with fine who sent, by means of a computer resource or a communication device, any information that is grossly offensive or has menacing character; or any information for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.
Validity of 295A
In Ramji Lal Modi vs The State Of U.P 1957 AIR 620, the constitutional validity of section 295A of IPC was challenged before the Supreme Court. The court held that section 295A was well within the ambit of restriction to freedom of speech as detailed under Article 19(2). It further held that It was absurd to suggest that insult to religion as an offence could have no bearing on public order so as to attract restrictions under Article 19(2). The court had held thus, “s.295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deli. berate or malicious intention to outrage the religious feelings of that class do not come within the section. It 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.
295A a necessary evil?
The misuse of the offence has been discussed hereinabove but at the same time 295A is needed to ensure that “aggravated” threats to religion do not go unpunished in the interest of communal harmony. Does that then mean that 295A is a necessary evil?
One of the stated objectives of the section at the time of its drafting was that “everyman should be suffered to profess his own religion and that no man should be suffered to insult the religion of another”[2].
Other Penal Provisions rarely invoked
While Section 295A has a controversial legacy and application, there are other sections of Indian Penal Code (IPC) that are more often than not used in cases of targeted hate speech against the minorities:
Section 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.
Section153B- Imputation, assertions prejudicial to national-integration.
268- Public Nuisance
Section 503- Criminal intimidation
Section 504. Intentional insult with intent to provoke breach of the peace
Section 505 – Statements conducing to public mischief and Statements creating or promoting enmity, hatred or ill-will between classes
Related:
Where does the law stand on your “objectionable” posts on social media?
Continued use of unconstitutional section 66A of IT Act in UP