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This article is written by Aditi Aggarwal, from Symbiosis Law School, Noida. The article gives a detailed analysis of anti-blasphemy laws in India and Pakistan and their impact on socio-political forces.

Introduction

Blasphemy is derived from the Greek term ‘blasphemia.’ This Greek word, as per scholars, is probably derived from two words: bapto and pheme. Bapto is believed to mean ‘to injure’, and pheme means ‘to speak’. Thus, the word means “injurious speech”. Another understanding of the meaning of blasphemy can be “speaking evil of the divine things”.

Sometimes, Anti-Blasphemy laws are used to protect the religious beliefs of a majority. Other times, they do the function of offering protection to the religious beliefs of minorities. Different laws are made on the offence of blasphemy in different countries. The punishments to differ from country to country. In some countries, it is not illegal.

Importance of religion in the two countries

The word ‘religion’ is derived from a latin word ‘ligare’, which means to link or to join. It means ‘the linking of human and divine’ classically.

When it comes to India, all the traditions of Buddhism, Hinduism, Jainism and Sikhism have emerged from this country and religion is more publicly visible here as compared to English-speaking Western countries. India gives to its citizens the right to Freedom of Religion broadly under Article 25 of the Indian Constitution. According to Article 25, all persons have the freedom of conscience and the right to freely profess, practise and propagate religion and everyone is equally entitled to this right. The explanation 1 attached to this article says that the wearing and carrying of kirpans would be included in the profession of the Sikh religion. The country also gives the right to file a case under Article 32 of the Constitution if anyone’s right to religion is violated. 

When it comes to Pakistan, almost all the people in the country are Muslims or those who follow Islamic traditions. Sunni sect is the major branch of Islam to which most of the Pakistanis belong. Shia Muslims are also significant in number in this country. Sufism is extremely popular and influential among Sunnis. In addition to the two main groups, Ahmadiyyah (also called the Qadiani) is a very small sect. The Constitution of Pakistan also gives the freedom to practice, profess and propagate religion to every citizen and to manage religious institutions under Article 20.

After seeing the importance of religion in both countries, one can imagine how offensive can blasphemy be for both countries. Blasphemy is considered to be a horrible sin and the punishments for it are also made accordingly in both countries.

Anti blasphemy laws in Pakistan and India – similarity in provisions and punishment

In India, three anti-blasphemy laws were introduced by the British in 1860 under the Indian Penal Code i.e. Section 295, 296, and 298.  Another anti-blasphemy law was enacted in 1927 as Section 295-A. Members of all of India’s faith groups can utilize anti-hate speech legislation when their religious sensibilities are hurt. 

When it comes to Pakistan, it adopted the same four laws in the initial stage. Later on, different amendments were made in terms of punishments and there was also an addition of Sections 295-B and 295C which were enacted during the government of General Zia ul Haq. 

Chapter XV of both, the Indian Penal Code 1860 and the Pakistan Penal Code,1860, deal with the offences relating to religion.

According to Section 295, it is an offence to destroy, damage or defile:

  1. Any place of worship.
  2. Any sacred object, the sacredness of which is judged by the fact that any class of persons finds or holds it sacred.

If a person does any of the above two mentioned things, along with insulting the religion of any class of persons or coupled with a knowledge that such class of persons would likely to consider them as an insult to their religion, that person shall be imprisoned with either imprisonment of a term which may extend to two years or with a fine or with both.

Section 295A says that it is an offence to insult the religion or religious beliefs of any class of citizens of India with a deliberate and malicious intent to outrage religious feelings by:

  1. Words (spoken or written) or
  2. Signs or by visible representations or otherwise

A person committing such an offence is compulsorily imprisoned either with a term which may extend to three years or with a fine or with both.

Section 296 states that an offence of disturbing any religious assembly which is lawfully engaged in the performance of religious worship or ceremony shall attract punishment of imprisonment of either one year or with a fine or both. An important element of this section is the word ‘voluntarily’. This offence needs to be done voluntarily by a person, only then will he be punished.

Section 297 talks about the following offences: 

  1. Offering an indignity to a human corpse, or
  2. Causing disturbance to persons who are assembled to perform a funeral ceremony, or
  3. Trespassing on any place which is a place of worship or on any place of burial or any place which is set apart for the performance of funeral rites or as a depository for dead person’s remains 

If either of the above things is done coupled to wound the feelings or to insult the religion of any person or with the knowledge that any person’s feelings are likely to be wounded. The Section further states that such a person shall be imprisoned for a term which is extendable to one year or with a fine or both. 

Section 298 states that if a person with deliberate intent to wound the religious feeling of any person:

  1. Utters any word, or
  2. Makes any kind of sound in the hearing of a person, or
  3. Or makes any gesture in the sight of that person or places any object in the sight of that person

A person committing such an offence would be compulsorily either imprisoned for a term extendable to one year or with a fine or both. 

It is to be noted that the above sections are cognizable, bailable, and non-compoundable except Section 298 which is compoundable, non-cognizable, and non-bailable.

When it comes to Pakistan, Sections 295, 296, and 297 of the Pakistan Penal Code are the same as the Indian Penal Code.

Do blasphemy laws hinder India’s secular image 

India is a secular country as known by every citizen of India. The word ‘secular’ was added in the Preamble by the 42nd amendment, 1976 (also called ‘Mini Constitution’) which makes it very clear that the state will not indulge in the religious matters of the people as all religions are equal to the state. 

In 2020, a petition was filed to remove the words ‘secular’ and ‘socialist’ from the Preamble added by the parliament. The petitioners in the petition tried to examine the concepts like secularism and socialism and their roots which prevail across the whole world. It was further examined that the world dubs them as a “political thought” which is little relevant for the country. Further, the fact was argued that these concepts were deliberately kept out of the Preamble by the Constitution-makers.

Northern India’s state, Punjab, was alleged to have disturbed the understanding of secularism when Section 295AA of IPC 1860 was introduced by the Punjab legislative assembly as an amendment in the early 20th century.

According to Section 295AA, if anyone causes injury, damage, or sacrilege (violation or misuse of what is regarded as ‘sacred’) to four of India’s religious texts- Sri Guru Granth Sahib, Holy Quran, Srimad Bhagwad Geeta and Holy Bible with an intention to hurt the religious feelings of the people, that person would compulsorily be punished with life imprisonment. Though the move has been justified as being done for preserving communal harmony in the state by the government, many public and even media have termed the amendments as regressive and politically motivated. Some also said that it is a threat to freedom of speech and expression. 

There have been many instances where the hypersensitivity in matters related to faith can be clearly seen. For example- an FIR on the actors, producers, and the director of Tandav, an Amazon Prime web series. Around six FIR’s from all over the country have been filed against the web series accused of insulting the Hindu Gods, indecently portraying the Prime Minister, and hurting the religious sentiments of people. We also have the case of Munawar Faruqui, a famous comedian who was accused of allegedly hurting religious sentiments under Sections 295A and 298 of IPC without any evidence/video against the comedian. Not only this, recently a complaint was filed by a Christian group on Kareena Kapoor Khan and two others for her book titled ‘Pregnancy Bible’ under Section 295A of IPC.  “The holy word ‘Bible’ has been used in the book’s title and this has hurt religious sentiments of Christians,” the complainant said.

Which state is more authoritarian with regard to blasphemy

Section 295A of the Pakistan Penal Code states the same offence as that of Section 295A of the Indian Penal Code but the punishment for this offence in Pakistan is either imprisonment of a term which may extend to two years or with fine or with both.

Further, Sections 295B and 295C were added to the Pakistan Penal Code which is as follows:

Section 295B states that if a person wilfully:

  1. Damages, defiles, or descartes a copy of the ‘Holy Quran’ or an extract of it; or
  2. Uses it in any derogatory manner; or 
  3. Uses it for any unlawful purpose.

Shall be punished with life imprisonment.

Section 295C states that whoever impair the sacred name of the Holy Prophet Muhammad directly or indirectly by:

  1. Words (spoken or written); or
  2. Visible representation; or
  3. Imputation, innuendo, or insinuation.

Shall be punished with death and also be liable for a fine.

Section 298 of the Pakistan Penal Code is slightly similar to that of India and it states that it is an offence to utter any word with a deliberate intention to wound/ outrage the religious feelings of any person or inciting religious, sectarian or ethnic hatred:

  1. By using a device like a loudspeaker or a sound amplifier or any other device; or
  2. Makes any sound in the hearing of that person; or
  3. Makes any gesture in that person’s sight. 

A person committing such an offence would be compulsorily imprisoned for a term extendable to three years but that should not be less than a year or with a fine of 0.5 million or with both.

Sections 298A, 298B, and 298C were also added.

Section 298A states the offence of using derogatory remarks in respect of holy personages and punishment for which is up to 3 years imprisonment or a fine or both. Section 298B talks about the offence of misusing descriptions, epithets, titles, etc. which are reserved for holy personages, punishment for which is up to 3 years imprisonment and fine. 298C states that if a person of qadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name) who “directly or indirectly” posing as a Muslim shall attract a punishment up to 3 years imprisonment, rigorous or simple, and fine.

After analysis of chapter X of both the countries’ penal codes, it is clear that Pakistan has stricter laws for the offence of Blasphemy as compared to India. Data provided by National Commission for Justice and Peace (NCJP) shows a total of 776 Muslims, 505 Ahmedis, 229 Christians, and 30 Hindus have been accused under various clauses of the blasphemy law from 1987 until 2018.

Pakistan’s blasphemy laws have come under hefty criticism, as they have often been used to target activists, minorities and to settle personal vendettas. Legal and social discrimination has always been highlighted by Pakistan’s Christians and other religious minorities. Many Hindus and Christians have been murdered brutally over blasphemy allegations that were not even proved.

One of the most shocking incidents relating to Blasphemy laws in Pakistan was the assassination of Salman Taseer, the Punjab Governor. He was brutally shot dead by his own security staff, Mumtaz Qadri. The security staff believed Salman Taseer to have backed blasphemies against the prophet Mohammad allegedly made by a member of Christian community girl, Asia Bibi. 

Do we need anti-blasphemy laws

Many countries have abolished, or reduced the penalty for blasphemy on various grounds like lack of definition of the term ‘religion’, for preserving the freedom of religion, and to follow Article 18 of ‘the Universal Declaration of Human Rights’ which protects atheistic and non-atheistic views to broader the term religion.

In India, in the case of Ramji Lal Modi v. State of U.P (1957), the constitutional validity of Section 295A was challenged on the ground that the provision did not constitute a reasonable restriction on free speech and expression under Article 19(2) of the Constitution. The Court upheld the constitutionality of the provision. The Court further observed that Section 295A puts a restriction which is reasonable upon the freedom of speech in accordance with Article 19(2) of the Constitution ‘in the interest of public order’.

But even after that, India has seen the arrests of newspaper editors for their articles criticizing the public nudity of certain Jain monks and arguing for the right to critique any religion. The fact cannot be changed that blasphemy is a subjective topic, what might be offending for one might not be for the other. We have many instances which prove the same and show us the narrowed scope of Article 295A. 

For instance, In Mathura in 2016, atheists’ private meeting was attacked. Expressing concerns that the meeting could have promoted communal disharmony, the police superintendent justified the move. Another incident is when Kiku Sharda was imprisoned for ‘mimicking’ Gurmeet Ram Rahim Singh during a comedy show which then rekindled the debate over India’s regressive speech laws. Another instance is the Shreya Singhal case where the Apex Court distinguished between ‘incitement’ and ‘advocacy’ and also held that the laws which restrict free speech have to be viewed from a narrow lens so that they only catch the former kinds of acts.

On the debate of ‘if anti-blasphemy laws are needed,’ many countries argue that “If the term religion is broadened enough to include atheism as a religion, then atheism also comes under the purview of freedom of religion and the practicing atheism may fall under the category of blasphemy at many instances.

Public response with regard to blasphemy

A large number of people in Pakistan support the contention that blasphemers should be punished. Many even believe the law is straight out of the Koran and thus, not man-made. 

People who are accused in blasphemy cases are usually deprived of the right to have a lawyer of their choice since most of the lawyers hesitate and thus, refuse to take up such sensitive cases. India has always seen riots and people’s outrage when their religious sentiments are hurt. A person who is accused of blasphemy starts feeling like a convict even when he is an undertrial.

In Pakistan, when before and after Asia Bibi was acquitted, protests continued for a long time and people demanded that she should be converted to Islam. The Christian left Pakistan after being acquitted. Munawar Faruqui, the Indian comedian, made a 10-minute long video titled ‘leaving comedy’ after being acquitted by the court. 

Can religious influence affect the overall development of a state

Religious fanaticism is uncritical zeal or obsessive enthusiasm which is related to one’s own, or one’s group’s, devotion to religion. And India is one such country where we are witnessing this fanaticism as a trend. Academicians and performers have found themselves at the receiving end of backlash even while expressing a legitimate or fair opinion on religion. Ideology is critical to a political party’s success. A political party’s win in a country like India or Pakistan always has a profound effect on the economy of that country, foreign policy, and state politics, as well as its future as a secular republic.

When it comes to Pakistan, it was created as a Muslim state and therefore religion plays a profound role in its political evolution. In the phase before the partition of India and Pakistan, an effective instrument was used as political mobilisation i.e. Islam. That was done to achieve a Muslim state. Because of this, when the objective of nationhood in Pakistan was accomplished, there was a significant decline in the leadership’s emphasis on the role of religion, and the conflict of ideology arose. Where leadership desired a secular state, the people yearned for a Muslim nation.

In India when we see from the legal lens, the Shah Bano case (Mohd. Ahmed Khan vs Shah Bano Begum And Ors, 1985) is the perfect example. The case and the controversy around it reflect how religious fundamentalism can pose a threat to liberal democracy when there is no uniform civil code in a country like India where there is a diversity of religions. The case began with a citizen of India utilizing the Fundamental Right to petition the court but it turned out to become a political dilemma with far-reaching consequences.

This was the first controversy under the Rajiv Gandhi government. After Congress became submissive in front of political considerations in the case, the Modi regime was determined to pursue its stand on triple talaq in the affidavit submitted before the Apex Court. This was done despite stiff resistance from the Muslim clergy. The widespread use of religiously inspired political appeals can be clearly witnessed in BJP’s move to use Hindu ideology to make India an autocratic country. So, when the BJP stands for elections, does it merely stand on political grounds, or does it challenge the secularity on which the Indian Republic was founded?

After the Shah Bano judgment, people started questioning the paradox of giving gender equity to Muslim women through the Triple Talaq Bill while on the other hand denying the right to all Hindu women to enter Sabarimala in the case of Indian Young Lawyers Association vs The State Of Kerala, 2018. Eventually, it was decided by the top court holding that “Where a man can enter, a woman can also go. What applies to a man, applies to a woman.” 

In crux, religious influence can affect a country’s overall development because we have seen these historic judgments change the course of modern India’s development. The SC has also justified the validity of Section 295A, claiming that this restriction is necessary for the preservation of ‘public order’. 

It can be said that India is growing its understanding of politics and secularism while judges are trying to find a perfect balance between religion and the legal development of a state.

Conclusion

In India, one of the biggest problems under blasphemy laws is that even Section 95 of the Criminal Procedure Code is used by state governments to ban publications hit by Section 295A of IPC. The current interpretation of the section does not require the government to show that religious sentiments were hurt. The mere possibility of hurting religious sentiments is enough. Where on one hand, the most stringent punishment India can give under blasphemy laws is life imprisonment. On the other hand, we have Pakistan’s brutal laws which give even the death penalty as a punishment under the offence of Blasphemy.

In Pakistan, Asia Bibi was held on death row because she was found guilty of blasphemy as she made derogatory remarks about the Prophet Mohammed while arguing with another woman over a cup of water. She was finally given a second chance at justice after eight years. The prosecutor failed to prove beyond a reasonable doubt that she was guilty of blasphemy. Thus, the Supreme Court found her innocent and this was a positive development in the fight against blasphemy laws.

Whether anti-blasphemy laws are needed or not and whether section 295A provides a wide clarity or does it need a wider scope and clarity are some of the questions which only the citizens should have the freedom to decide. In fact, even these questions are subjective and there is no end to this discussion. One positive step towards greater good and development which can be thought upon can be the enforcement of a Uniform Civil Code (a secular law, which is above all private laws of any religion or caste) in a country like India.

The main goal of anti-blasphemy laws in any country should be to persecute the wrongdoers and protect the innocent undertrials. As it is rightly said: “It is better that 100 guilty persons should escape than that one innocent person should suffer.

References

  1. https://www.epw.in/engage/article/blasphemy-law-antithetical-indias-secular-ethos
  2. https://www.bbc.com/news/world-asia-48204815
  3. https://www.bbc.com/news/world-asia-48198340
  4. https://www.newsclick.in/section-295-indian-blasphemy-law-making
  5. https://berkleycenter.georgetown.edu/essays/national-laws-on-blasphemy-india
  6. https://www.grin.com/document/512539
  7. https://thewire.in/south-asia/pakistani-academic-junaid-hafeez-blasphemy
  8. https://www.loc.gov/item/global-legal-monitor/2018-09-10/india-punjab-passes-amendments-to-indian-penal-code-and-code-of-criminal-procedure-making-sacrilege-of-certain-religious-texts-a-crime/
  9. https://culturalatlas.sbs.com.au/indian-culture/indian-culture-religion
  10. https://www.britannica.com/place/Pakistan/Religion
  11. https://www.indiatoday.in/movies/celebrities/story/complaint-against-kareena-kapoor-over-title-of-her-book-pregnancy-bible-1828139-2021-07-14
  12. https://www.ijsr.net/archive/v8i4/ART20197158.pdf
  13. https://foreignpolicy.com/2020/07/13/modi-india-hindutva-hindu-nationalism-autocracy/
  14. http://www.inquiriesjournal.com/articles/1061/the-shah-bano-controversy-a-case-study-of-individual-rights-religious-tolerance-and-the-role-of-the-secular-state
  15. https://www.dnaindia.com/india/report-bjp-s-shah-bano-moment-2263904
  16. https://ciaotest.cc.columbia.edu/olj/sa/sa_mar01chb01.html
  17. https://www.thehindubusinessline.com/opinion/columns/rasheeda-bhagat/the-political-circus-over-sabarimala/article25933856.ece
  18. https://indianexpress.com/article/entertainment/web-series/controversies-surrounding-tandav-heres-everything-you-should-know-7163727/
  19. https://www.barandbench.com/columns/munawar-faruqui-case-when-comedy-becomes-crime-and-bail-is-the-exception
  20. https://www.hindustantimes.com/india-news/delete-secular-socialist-words-from-the-constitution-plea-in-supreme-court/story-5JXAm1ml4eYKlYjCZRFJNM.html

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