Indian legal traditions invariably retain their British heritage to this day – this enduring legacy subsists unrivalled in the core of our criminal jurisprudence. The Indian Penal Code ("IPC"), with certain modifications, dates back to 1860. The exercise actually began in 1834, when the First Law Commission, under the chairmanship of Lord Macaulay, set out to codify law in India. It first came into force on 1 January, 1862, and represented a transplantation of English law to India. Interestingly, the UK does not have a criminal code. One relic of this legacy, and going by the frequency of reports of its invocation, one of the most active, is Section 295A – a provision that has, today, enabled just about anyone to claim to be a victim of a crime – the crime of hurting religious sentiments. But where does it come from? There seems to be no equivalent in other jurisdictions. It was also not a part of Macaulay's original draft.
The answer lies with the story of Rangila Rasul. Published in 1924 by one Mahashe Raj Pal, the 60-odd page pamphlet immediately stirred up a great deal of controversy between the Hindu and Muslim Communities, particularly in the Punjab. The author of the pamphlet remained anonymous, although researchers have since determined that it was the work of an Arya Samajist by the name of Pandit Chamupati. The pamphlet contained a most scurrilous attack on the Prophet. In his account of the various wives of the Prophet and the circumstances surrounding his marriage to each of them, "the author included subtle but direct criticisms of the Prophet and of Islam while continuing to maintain his 'persona' as an admirer of them". The pamphlet was widely viewed as blasphemous and highly offensive to Muslims.
Punjab, in the 1920s, was enveloped in a heavily charged atmosphere, following the Jallainwala Bagh Massacre, which, coupled with the passing of the Rowlatt Act, became the impetus for the launch of Gandhi's Non-Cooperation Movement. The Movement was withdrawn in 1922, following the Chauri Chaura incident. Of the 228 men put on trial for "rioting and arson" at Chauri Chaura, 172 had been sentenced to death, while 6 had died in custody during the course of the 8-month long trial. Protests erupted all over the country. Radical humanist, and founding member of the Communist Party of India, M. N. Roy, termed the verdict "legalised murder" and proclaimed that there could be no other "instance of imperialist "justice" which surpasses this one in its majestic vindictiveness and brutality." The Allahabad High Court ultimately confirmed 19 death sentences, commuted 110 to life, and sent the rest to long term imprisonment.
The Khilafat Movement originated at the end of the First World War, with the aim of protesting the harsh terms of the Treaty of Sévres, which dismembered the Ottoman Empire, and placed severe restrictions on the rights of the Caliph. The Movement sought to restore the Caliph to his rightful position. After the 1920 alliance between the Khilafat leaders and the INC, the Khilafatists became a major part of the Non-Cooperation Movement, which now called for Swaraj and the restoration of the Caliphate.
This marriage of convenience between the two Movements started collapsing as the participants were torn between supporting the secular Congress, the symbolic Khilafat, and the separatism-leaning Muslim League. With the abolition of the Empire in 1922, appointment of a nominal Caliph, and subsequent abolition of the Caliphate in 1924, the Khilafat Movement also faded into history.
As the leadership fragmented, and headed in different directions, communal tensions started rising. Punjab especially became ground zero for separatist overtures, which were at a nascent stage at that time. The period witnessed regular provocative, bitter and sometimes abusive public debates, and a remarkable increase in riots and communal violence. According to Dr Thursby, from 1923 through 1928, there were 112 riots which were classified as serious communal disorders. Approximately 450 people died, and more than 5000 were seriously injured. Even Dr Ambedkar takes note of the 1920s, which marked a watershed moment in development of communal tensions in India.
With this background, the publication of Rangila Rasul, in immediate response to Sitaka Chinala, which made some very uncharitable comments about Sita, was bound to add fuel to the fire. Initially circulated in very limited Arya Samaji circles, the pamphlet came to wider readership when it was mentioned by Gandhi in an article on Hindu–Muslim unity in June, 1924. There is indeed no such thing as bad publicity. The criticism also probably marked the beginning of Gandhi's falling out with the Samaj, which continues to this day.
The pamphlet was published in May, 1924, and by July, Muslim protests against it moved the authorities to act. Raj Pal was prosecuted under Section 153A of the Indian Penal Code. The text of 153A, with its explanation, prohibited the promotion of "enmity or hatred" as follows:
Whoever by words, either spoken or written, or by signs, or by visible representations, or otherwise, promotes or attempts to promote feelings of enmity or hatred between different classes of Her Majesty's subjects, shall be punished with imprisonment which may extend to two years, or with fine, or with both.
Explanation — It does not amount to an offence within the meaning of this section to point out, without malicious intention and with an honest view to their removal, matters which are producing or have a tendency to produce, feelings of enmity or hatred between different classes of Her Majesty's subjects.
As pointed out by Neeti Nair, the problem of motive or intention would be seminal to the crafting of section 295A of the IPC.
Hearings before the Magistrate began in October, and the trial dragged on for about 2 years, when the Magistrate Mr Phailbus finally found Raj Pal guilty of creating enmity between classes because "the natural result of the publication of such a pamphlet would be to incense the Muhammadans against the author of the book and those whom they conceive to be, rightly or wrongly, as the sympathizers of the author." Raj Pal was sentenced to eighteen months' rigorous imprisonment and a fine of one thousand rupees was imposed in lieu of an additional period of six months' imprisonment. Curiously, the identity of the author was never really made a serious issue, even though one of the defences employed on behalf of Raj Pal was that he was only semi-literate and did not fully understand the contents of what he was innocently publishing.
The judgement was carried to the Lahore Sessions Court. In his judgement of February 8, 1927, the Sessions Judge, Mr. F. Nicholas, reviewed the evidence in the case and upheld the conviction. He, however, reduced sentence to six months' rigorous imprisonment.
Following two orders of conviction, final appeal in the Rangila Rasul case lay before the Lahore High Court, where Justice Dalip Singh heard it, and handed down his judgement on May, 4 1927. It is with the pronouncement of this judgement (Raj Pal vs King Emperor, AIR 1927 Lah. 590) that the plot thickens.
Before the High Court, it was contended on Raj Pal's behalf that the subject facts could not have constituted a crime under 153A. It was further contended that while the lower courts had unequivocally arrived at the conclusion that the accused had no other intention than to "make a wanton attack upon the Prophet of Islam, to hold him up to ridicule and contempt, to ridicule his religion and thus to wound the feelings of his followers", and that "in the case of this publication the intention was obviously to wound and insult the feelings of a particular community", no such intention could, in fact, be discerned from the pamphlet.
According to Raj Pal, his sole motivation was social reform, through satire and criticism. Rajpal believed that people would be "wean[ed] and deter[ed]" from the 'evils of polygamy, concubinage, mutas, and gross disparity of age in marriage' from the pamphlet's discussion. This contention was rejected outright.
The question, the Court formulated for its consideration, was whether malicious satire on a religious leader could be viewed as an attack on the religion as a whole.
Justice Dalip Singh was clear that "the tone of the pamphlet as a whole is undoubtedly malicious and likely to wound the religious feelings of the Muslim community."
He was, however, unable to bring himself to accord a wide interpretation to 153A, whereby all adverse discussions of the life and character of a deceased religious leader were to be sanctioned. According to him, "that section was intended to prevent persons from making attacks on a particular community as it exists at the present time and was not meant to stop polemics against deceased religious leaders however scurrilous and in bad taste such attacks might be." In conclusion, though he wholeheartedly agreed that the pamphlet could only evoke feelings of "contempt of all decent persons of whatever community", and would especially wound the religious sentiments of certain Muslims, he could not "find anything in it which shows that it was meant to attack the Mahomedan religion as such or to hold up Mahomedans as objects worthy of enmity or hatred."
With a regret filled heart, he acquitted Raj Pal, but expressed a most earnest hope that the legislature would introduce amendments "by which the publication of pamphlets published with the intention of wounding the religious feelings of any person or of insulting the religion of any person might be made criminal", and take care of the "tragic flaw".
By last week of May, mass protests erupted, with meetings at which representatives of various Muslim organizations competed with one another in giving moving speeches, partly intended to enlarge their own following, in the course of which there was a good deal of fiery anti-Hindu and anti-government rhetoric. Add to that the fact that Sir Hailey, Governor of Punjab, criticised the Arya Samaj, and met a Muslim deputation, against protocol. This is how the Hindustan Times characterised the situation on 3 August, 1927:
In this powder magazine of communal hatred was thrown the 'Rangila Rasul' judgment as a bombshell.
The Government did not move immediately to amend the law. They had hoped a "test case" would verify whether or not such attacks fell under the purview of 153A. Their hopes were dashed when the Vichitra Jivan (Kalicharan Sharma v. King Emperor, AIR 1927 All. 649) and Risala-i-Vartman (Devi Sharan Sharma and another v. King Emperor, AIR 1927 Lah. 594) cases held either in similar vein as the Rangila Rasul judgement, or failed to remove the ambiguity.
Scholars have often referred to the "unprecedented level of virulence" that manifested in the "vicious campaigns of print warfare," and "almost daily newspaper headlines about religious riots," that characterized the 1920s. Those years saw an exponential increase in the number and diversity of publications, which provided a wide platform for communal confrontation. One term that is frequently used to describe a large number of publications of the time is "gutter press". Radical opinions found mainstream outlets. One such publication was the Muslim Outlook, which saw it fit to publish such opinions in a series of articles, on the frontpage. The first of these, titled "Resign", called for Justice Dalip Singh's resignation while attributing his judgement to a "deplorable lack of experience and sense of responsibility" and "remarkable want of competence and care as a Judge". The article further questioned his integrity and called for an enquiry into "circumstances under which that extraordinary judgment was written."
The editor and proprietor were cited by a Full Bench of the Lahore High Court (In the matter of Muslim Outlook, Lahore, AIR 1927 Lah. 610) for contempt and were handed severe sentences involving both imprisonment and fine. Hailey remarked that the contempt sentences were so severe as to appear vindictive. The following extract from the judgement might just resonate with more recent events:
Whether it is right or wrong it has to be borne in mind that Courts are of necessity presided over by Judges who, like all other men, are mortal and liable to err. It is no offence to subject their decisions to fair, honest and reasonable criticism. Indeed, these criticisms may be couched in strong, perhaps, even extravagant language, but to ascribe their decisions not to error but to improper motives is to bring the Judge himself and the whole Court into contempt and undermine the confidence of the public in all judicial pronouncements and determinations.
The contempt sentence only further aggravated the resentment that had already set in. Mounting tensions and increasingly prolific "gutter press" prompted Hailey to recommend the introduction of a bill within the Legislative Assembly to amend the Code. The fundamental question to be tackled, which the three recent judgements had also grappled with, was whether it was possible for a person to intend to insult a religion or religious feeling, without intending to promote hatred or enmity between classes of such persons. H. G Haig of the Home Department, who would go on to serve as Governor of the United Provinces, proposed that a law be drafted in which it were merely necessary to prove an intention to insult the religion or outrage the religious feelings of a class without having to show that such insult or outrage to feelings was intended to produce feelings of enmity or hatred. Haig's views were echoed in the Punjab Legislative Council debate of July 18, 1927, and with the Viceroy's approval, a draft was prepared along the proposed lines.
Soon, the Bill was introduced in the Central Legislative Assembly by the Home Member J. Crerar, and on August 27, 1927, published in the official gazette. The Hindustan Times of August 26 reproduced the original text of the proposed Section 295A:
Whoever by words either spoken or written or by signs or by visible representations or otherwise intentionally insult the religion or intentionally outrages or attempts to outrage the religious feelings of any class of His Majesty's subjects shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Support for the new law was expressed by different communities through public meetings, and was reported in the newspaper, as well as in editorials. Neeti Nair has painstakingly elaborated the Assembly debates that followed. The main objections in the Assembly, as stated by Pandit Thakur Das Bhargava was that "the right of criticism and the right of liberty of speech have been taken away to such a large extent that I fear that this Bill will ultimately, if passed into law in its present state, only perpetuate religious intolerance which it seeks to avoid." Jinnah himself had expressed the hope that "the fundamental principle that those who are engaged in historical works, those who are engaged in the ascertainment of truth and those who are engaged in bona fide and honest criticisms of a religion shall be protected." Erica McLachlan too has examined the debates in detail, while employing a unique literary style to narrate the story.
The Bill went into a Select Committee comprised of M.A. Jinnah, Srinivasa Iyengar and N.C. Kelkar. The Committee made three major recommendations (i) punishable intention should be described as "deliberate" and "malicious", (ii) insults to religious beliefs rather than to religious feelings should be made punishable, and (iii) the offense should be limited to verbal insults and "visible representations" rather than allowing additional reference to communication of insults or outrages "by signs . . . or otherwise." As a result, the substantive part of the amended bill read:
After section 295 of the IPC, the following section shall be inserted, namely—
295A. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of His Majesty's subjects, by words, either spoken or written, or by visible representations, 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 two years, or with fine, or with both.
(emphasis in the original)
The Select Committee's report was the subject of intense debate. According to Thursby, "on the one hand it was termed an undue concession to the Muslims, and on the other hand it was called an inadequate measure to stop attacks on the Prophet. Some referred to it as an ill-advised piece of panic legislation or as a government manoeuvre to further restrict the freedom of the press and to outlaw legitimate rational criticism of religion." Despite everything, the Bill was passed substantially intact, and on 22 September, 1927, it received assent of the Governor General. The new law entered the statute books through the Criminal Law Amendment Act, 1927 as:
295A – Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of His Majesty's subjects, by words, either spoken or written, or by visible representations, 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 two years, or with fine, or with both.
The original pamphlet, though, was not erased from memory. On 6 April, 1929, Ilam Din, "of some 19 or 20 years of age", son of a carpenter, stabbed Raj Pal to death. When apprehended, he was stated to have "repeatedly and loudly proclaimed that he was neither a thief nor a dacoit but had 'taken revenge for the prophet.'" It seems he had fallen prey to one of the many murderous campaigns launched by local fanatics. The boy had never read the pamphlet, or any other book for that matter. The Trial Court sentenced him to death. In his appeal before the Lahore High Court, he was defended by none other than Jinnah. Jinnah, apart from questioning the reliability of witnesses and admissibility of certain evidence, contended that the sentence of death was not called for, especially keeping in mind the accused's age, and the fact that "that his act was prompted by feelings of veneration for the founder of his religion and anger at one who had scurrilously attacked him." The appeal was dismissed, and the death sentence confirmed (Ilam Din vs King Emperor, AIR 1930 Lah. 157). Some say this is probably the only loss Jinnah faced in Court. Ilam Din was executed on 31 October, 1929. He has since been glorified in Pakistan as a shaheed, ghazi etc.
295A was enacted solely to keep the peace between Hinds and Muslims. It was a monumental failure in that regard. Now, almost a century later, things have come full circle. The law is making a spectacular comeback, not as an instrument of peace, but more as a coercive tool, prone to abuse. What is sad, though, is that despite the illustrious history, and prolific use in modern times, it remains bogged down in confusion and misunderstanding. It was recently invoked in a complaint by certain authors, against their critics, alleging "the offences of criminal intimidation and statements creating and promoting enmity, hatred, and ill will between classes under Sections 503, 505, 295A". Once again, with an entirely misguided effort, 153A steals the show.
There is something about 295A, that gets one's creative juices flowing –comedian Kiku Sharda was imprisoned for 'mimicking' Gurmeet Ram Rahim Singh; 21-year-old Shaheen Dhada was arrested over her Facebook status questioning the Mumbai shutdown over Bal Thackeray's death; Rehana Fathima was arrested for posting a picture of herself dressed as a Lord Ayyappa devotee, a month after the Supreme Court verdict on Sabrimala; the Supreme Court had to step in when the provision was invoked against Dhoni for posing as Lord Vishnu on a magazine cover; complaints were also filed when ONIDA featured Goddess Durga in one of their ads.
According to Soli Sorabjee, "The issue is to be determined in the context of how these will be viewed by the people who see them, the intensity of their beliefs and sentiments, and their likely reactions. The yardstick is not the standards of hyper-sensitive and volatile minds but those of ordinary persons of normal sensibilities." These principles, however, rarely percolate down to the overzealous policeman or the local political functionary, and the opposite seems to have become the norm. Many have called for the provision to be done away with, but that represents an entirely different set of problems which Gautam Bhatia has dealt with in some detail. Almost every aspect of this story from a bygone era – religious "restoration", rise in communal confrontations, debate on free speech, nature of criticism of the judiciary, and role of the press in promoting dissension and hatred between communities, is in vogue today.
Where does it all end.
Views are personal only.