23 Sep 2018 8:01 AM GMT
In a mature democracy, speech ought to be countered with more speech and not with jail and violence.Section 295A of the Indian Penal Code, India's thinly disguised blasphemy law, is in news again, for wrong reasons as usual. Last week, Abhijit Iyer-Mitra, a Delhi based journalist, was booked under this section for a posting a satirical video on the erotic sculptures in Konark Temple. ...
Section 295A of the Indian Penal Code, India's thinly disguised blasphemy law, is in news again, for wrong reasons as usual. Last week, Abhijit Iyer-Mitra, a Delhi based journalist, was booked under this section for a posting a satirical video on the erotic sculptures in Konark Temple. The jestful tone of the video did not appeal to many, and the momentous social media outrage caused the Odisha police to immediately fly down to Delhi to swoop the journalist; because, a jester on prowl poses the greatest threat to society! He was later released on bail, on executing a bond of Rs. One Lakh,
It is ironic that all this happened in the very same week the Bombay High Court had held that "tolerance level in India have gone down due to the absence of humour". The Court was hearing a petition filed by one Ashok Deshmukh and four of his Facebook friends, who were booked under Section 295A IPC for 'insulting' Hindu religion by comparing Lord Parshuram with the famous character ‘Parshya’ of Marathi blockbuster, Sairat. His friends were booked for liking and commenting on his post. Quashing the FIR, the Court held that one has the right to question traditional beliefs, which cannot be curtailed by application of criminal law.
Section 295A IPC punishes deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. The provision was inserted in the Code by the Britishers in 1927 in the backdrop of recurring Hindu-Muslim riots, which were fuelled by provocative statements. The constitutionality of the section was upheld by a five judges' bench of Supreme Court in 1957 in Ramji Lal Modi v State of Uttar Pradesh . The Court reasoned that the provision was in the interests of public order, and hence saved by Article 19(2), which enables State to impose reasonable restrictions on free speech. The reasons given by the Court for rejecting the argument that protection of religious feelings has no nexus with public order were not elaborate and convincing. It was stated that right to religious freedom under Articles 25 and 26 are made subject to public order; so, protection of religious sentiments has nexus with public order. This convoluted logic is stated in Court's own words as : "A reference to Art.25 and 26 of the Constitution, which guarantee the right to freedom of religion, will show that the argument is utterly untenable. The right to freedom of religion assured by those Articles is expressly made subject to public order, morality and health. Therefore, it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order".
So, the reference to 'public order' in Articles 25 and 26 apparently meant that Section 295A has nexus with 'public order', though the section is not inserted in Chapter VIII of IPC which deals with offences affecting public tranquillity(where Section 153A, which punishes provocative statements intended to disrupt communal harmony, is inserted). The unarticulated premise of the decision seems to be that religious people who get offended by offensive statements might react through violence, and to prevent such possibilities of violence, it is necessary to deter making of statements against religion. The recent petition filed in Supreme Court seeking ban of Malayalam novel "Meesha" also employed a similar argument that allowing such publications will lead to "Charlie Hebdo" like situations. So, the provision seems to founded on the inability of religious followers to counter speech with speech. The invocation of the offence is directly proportional to incapacity of believers to exercise proportionality and balance in responding to 'insults'.
The section lacks objective criteria, and is based solely on the possible whimsical reactions of the recipient of the speech. It imagines that there is a direct correlation between religious insult and breach of public order, like a situation where one cries "bomb" in a crowded hall. The provision abandons 'ordinary man of reasonable prudence' for a 'hypersensitive man vulnerable to easy offence and provocation'.
True, that the Constitution Bench observed in Ramjit Lal Modi that "insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section". But to expect the Station House Officers of the country to make such careful discernment before registration of FIR under Section 295A is unrealistic.
The preys of this section are most often persons from the intellectual class like writers, artists, comedians, rationalists, academicians etc. Very recently, actress Priya Prakash Warrier and makers of the movie "Oru Adaar Love" had to approach SC to quash an FIR registered against them on the allegation that Warrier's wink in a song was insulting Prophet Mohammed. Two years ago, cricketer M S Dhoni got booked under this section, for a magazine cover which depicted him as Lord Vishnu, with a caption "God of Big Deals". He had to approach the Supreme Court to get the FIR quashed, after the High Court turned down the plea. The SC held that it would be a "travesty of justice" to prosecute him for this magazine cover.
Singer Vishal Dadlani had to face the heat of this provision, when he tweeted "monkery of democracy" referring to the incident of a Jain Monk addressing Haryana Legislative assembly. Comedian Kiku Sharda was arrested and send to custody for 14 days, when she mimicked Gurpreem Ram Rahim Singh(who got later convicted in a rape case) in a TV show. Academician Wendy Doniger was also targeted under this for her book "The Hindus : An Alternative History"
In Sri Baragur Ramachandrappa v State of Karnataka, the Supreme Court endorsed the forfeiture of novel, "Dharmkaarana", which presented an alternate narration of life of 12th century seer 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 country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted". The Court thus held that anything which is regarded as holy by any class of persons cannot be subjected to criticism.
Recently, in a rather strange order, the High Court of Kerala denied pre-arrest bail to a person who had allegedly posted comments against Prophet Mohammed in Facebook. The FIR was registered under Section 153A, and he sought bail contending that this provision was not attracted, since there was no intention to disrupt communal harmony. The High Court agreed that Section 153A was not attracted. However, in an odd twist, it held that Section 295A IPC was applicable in the case, though it was not mentioned in the FIR, and denied bail. "The fundamental right to freedom of speech and expression in a secular State is not an absolute license to injure and hurt the religious feelings and faiths and beliefs of fellow citizens.", observed Justice Narayana Pisharadi in the order, adding new grounds to Article 19(2) of the Constitution of India.
So, it can be seen that the application of the provision rests highly on the subjective notions of law enforcers and judges, and the safeguard read into the section by the SC - the test of deliberate and malicious intention to insult religion - has been mostly ineffective. Also, the fact that the provision is cognizable and non-bailable aggravates harm on innocent persons who might have unintentionally offended religious feelings of a random person from any corner of the country.
Recently, the Punjab Assembly went one step ahead (or behind?), by making sacrilege of Sri Guru Grant Sahib, Srimad Bhagawad Gita, Holy Quran and Holy Bible an offence punishable with life imprisonment, through insertion of Section 295AA to the IPC.
In the Navtej Singh Johar case where SC decriminalized homosexuality , Justice Chandrachud had discussed the jurisprudence of criminal law. The rational bedrock of criminal law was identified as "the harm principle" as propounded by J S Mill, which permits punitive action on a citizen only to prevent real and tangible harm to another. The harm principle restricts criminal law from penalising conduct merely on the basis of its perceived immorality or unacceptability when the same is not harmful. The provisions penalising blasphemy and sacrilege fail to meet the harm principle, as the 'harm' sought to be addressed here is not real harm, but a perceived harm to subjective sentiments.
The problem with blasphemy and sacrilege laws is that they place religion at a high pedestal beyond the reach of critical examination. It treats ancient wisdom as infallible, and shuts discovery of new truths. For example, certain passages of Holy Bible are blatantly homophobic and misogynistic. However, a criticism of those passages, which are anachronistic in these times, could expose one to prosecution, especially in Punjab. The provision discourages scientific temper and dialectical enquiry, and serves no other purpose except assuaging touchy sentiments of believers. In a mature democracy, speech ought to be countered with more speech, and not with jail and violence. The objective of law should be to create a peaceful climate for such free flow of ideas. But Section 295A IPC does the exact opposite, as it creates a climate of fear by giving a weapon to insecure believers.