-By Jai Babaria
While India is deemed to be a secular country, religion has always divided us. There is a constant tussle between various religious groups, be it explicit or dormant and ‘outrage’ is a fairly common term nowadays where everything has the potential to offend, shock or disturb religious sentiments. Section 295-A of the Indian Penal Code provides a potent weapon in the hands of purported ‘aggrieved’ persons to file ill-motivated and vexatious complaints because of what they perceive to be deliberate and malicious acts against their religion.
What exactly is Section 295-A and how did it come about? In a divided country like India, hate speech with the underlying context of religion is a grave problem. The origin of section 295A IPC can be traced back to 1927, when a book ‘Rangila Rasul’ was published. This book was objected to by the Muslim Community of the then undivided India because it contained certain explicit and objectionable passages about the founder of Islam, Prophet Mohammad.
The publisher was arrested initially, but was later acquitted due to lack of any legal basis to convict him. The Muslim community was agitated and demanded for a specific law against causing insult to religious feelings and the British Government duly obliged by enacting Section 295A IPC.
The said section makes a person criminally liable for ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’. Thus, we can make out that the essential ingredients of Section 295-A are as follows:
- Deliberate and malicious intention of outraging religious feelings of any class of citizens of India
- By words- either spoken or written or by signs or by visible representations or otherwise
- Insult or attempt to insult religious beliefs of that class
- Punishment- up to three years or fine or both
It is also important to note that the offence is classified as a cognizable, non-bailable and non-compoundable offence. This means the police can arrest the ‘accused’ without a warrant and there is no scope of relaxation of punishment- this shows that it is a serious offence. The IPC also empowers the Magistrate to try a case under this section.
In India, there is no dearth of the religiously sensitive kind and there is a lot of intolerance for those who even engage in bona fide criticism of certain religious practices, such as comedians or cinema artistes. These religious fanatics wield Section 295-A as a sword to cut down anyone who offends them. We do not have to look farther than the past two months to find evidences of this intolerance-
Firstly, we have the Madhya Pradesh police filing an FIR against two Netflix executives for portrayal of kissing scenes in the web series ‘A Suitable Boy’ as such scenes were shot at a temple and this allegedly hurt religious sentiments.
Secondly, we have the ongoing row over the political satire series ‘Tandav’ where Section 295-A was invoked amongst others and FIRs were filed in several states for certain objectionable scenes. The series makers approached the Apex Court for interim protection from coercive action but the Court refused to grant the same and asked them to approach High Courts across the country for anticipatory bail. One of the judges even remarked ‘Your right to freedom of speech is not absolute’. The Court simply allowed the clubbing of FIRs but refused prayers to quash them.
Thirdly, we have the unfortunate case of Munawar Faruqui, who had to stay in jail for over a month for a vague complaint filed under this section before the Supreme Court finally came to his rescue and granted interim bail and stayed production warrants against the comic.
The brief facts show us the indiscriminate invocation of the penal provision of Section 295-A: On the first day of the new year, a stand-up comedy show by Munawar at Indore’s Munro Café was halted by Aklavya Singh Gaur, convenor of the Hind Rakshak Sangathan (Hindu Protection Union) entered the café and demanded the performance be halted.
The Indore police arrested Munawar and a few others in charge of organising the show on the basis of “oral evidence” of one of the complainants, who claimed that Faruqui was going to crack such jokes because he had overheard rehearsal jokes. To summarise, the only evidence based on which Faruqui and others were imprisoned and charged with Section 295-A inter alia was the statement of a Hindu vigilante who had no concrete proof to back his claim. Instead of dismissing the complaint unless evidence was gathered, the Indore police chief was visibly pleased and praised the Hindu vigilantes for their activeness and alertness.
These instances really make us question the manifest arbitrariness of this provision and we must understand its true scope in light of numerous judicial decisions relating to Hate Speech in India:
In the landmark case of Ramji Lal Modi v. State of U.P., the constitutionality of Section 295A was challenged. It was difficult for the Court to strike down the law as unconstitutional in light of the 1st Constitutional amendment that placed reasonable restrictions in Article 19 which covers free speech as well. However, it did clarify that the provision cannot be casually invoked and be read to penalise any and every act of insult or attempt to insult the religion or the religious beliefs of a class of citizens. 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.
A criminal statute has to fulfil the basic constitutional requirement of being specific and unambiguous to be valid. This helps avoid indiscriminate imposition of criminal liability without any serious cause. We cannot allow for selective prosecution based on the whims and fancies of the law enforcement agencies. The Supreme Court, in Shreya Singhal v. Union of India, rightly struck down Section 66A of the IT Act, which penalized offensive online speech causing annoyance or inconvenience. The wide phraseology had potential to play mischief due to its open-endedness and thus was declared unconstitutionally vague.
In the same case the court differentiated between the elements of speech: discussion, advocacy and incitement. The first two elements are intertwined and essential tenets of the right of free speech, the essence of Article 19(1) of the Constitution of India. Thus, expression can only be restricted when discussion and advocacy take a malicious turn towards incitement with the tendency to disrupt public order- which is the only way the exercise of free speech can cause danger.
Even in the case of Ramesh v. Union of India, the Supreme Court refused to judge speech in isolation and upheld that a movie intending to impart a message of peace is not violative of the reasonable restrictions under Article 19 simply because it shows fanaticism and violence in order to express how futile such acts are. It is not the act itself but the potentiality of the act and the adverse effect it can have on public tranquillity which would justify placing restrictions on it. The Court further refused to treat freedom of expression at par with societal interests provided for under Article 19(2).
It has also been pointed out by the courts in various cases that context of the speech plays an important role in deciding the extent of its legitimacy under Article 19(1)(a) of the Constitution. The test of the reasonable man has to be applied even when it comes to hate speech and cannot be viewed from the viewpoint of weak minds who scent danger in every hostile point of view.
All these judicial precedents point to one thing: that the Courts have upheld the right to free speech to a large extent in the past and the order of the Supreme Court Bench in the Tandav case must be viewed as bad in law, especially with regard to the fact that objectionable scenes were deleted and an unconditional apology was rendered. Even the decision of the Madhya Pradesh High Court to not grant interim bail to Munawar Faruqui was not a just decision as it is a well-recognised principle that bail is the rule and jail is the exception.
However, apart from these anomalous decisions by the Higher Judiciary we must realise where the root of the problem lies. Penal hate speech provisions such as Section 295-A are mainly misused by the law enforcement officers who act as enablers to frivolous complaints from the religiously fanatic kind and over-zealous vigilantes. The way the Indore police acted to wrongfully detain Munawar Faruqui until the Supreme Court finally had to intervene is a glaring example of abuse of power by the police authorities, especially when the offence is a cognizable one.
Thus, the way forward is to identify certain criteria for prosecuting an accused under Section 295-A and since the Courts are reluctant to strike the provision down, the Parliament must take the initiative to amend the law to make it more tenable-
- Firstly, it must be explicitly mentioned that the said section can only be attracted in cases of aggravated insults made with a deliberate and malicious intention. It should be noted that this will depend upon facts and circumstances of the case but key identifying factors will be whether the speaker was deliberately speaking in a certain manner with malicious intent to insult religious feelings and incite feelings of communal hatred. Again, the test of the reasonable man must be applied.
- Secondly, the aggravated insult must have a tendency to disrupt public order.
These amendments will have the effect of formally recognising that not every offensive speech is illegitimate. The nexus between restriction of free speech and public order must be proximate and not remote or fanciful. Merely cracking a few harmless jokes on Hindu gods and goddesses or portraying the politicisation of religion in a satirical series is very much a part of our free speech and placing limitations on the same to appease a few hyper-sensitive religious groups is not true to our democratic ideals.
The balance between religious sentiments and the freedom of speech and expression is a tricky one to maintain, especially in a country like India where religion is put on such a high pedestal. The solution cannot be found in the binary i.e., allowing absolute freedom of speech or absolute prevalence of religious sentiments over free speech. It is a complicated nexus and efforts have to be made to update the law so that free speech with reasonable restrictions and religious beliefs and sentiments can co-exist harmoniously. These proposed amendments will have the effect of ensuring that only the real criminals are apprehended and free speech and plurality of opinion is upheld, unreasonable restrictions on which would sound the death knell for our democracy.
[The author is a second-year law student at Symbiosis Law School, Pune.]