In this article, Yash Tandon discusses the constitutionality of Blasphemy Laws in India.
What does the word “Secular” mean?
In the constitution of India, the word “secular” was added in the preamble by the 42nd Amendment, which made it crystal clear that India is a secular country and the state will not indulge in the religious matter of the people as all religions are equal to the state.
Section 295 A of Indian Penal Code: Blasphemy Law
With the aforementioned concept of secularism, section 295 A of the Indian Penal Code (IPC), 1860[1] criminalizes insult to any religion. It allows up to three years imprisonment and fines for “whoever, with the 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 a class.” But the laws should not be read in their strict sense and should not be applied strictly going by the words. It should be interpreted keeping in mind the relevant facts of the respective cases.
The aforementioned section does not stipulate everything to be penalized and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of a class of citizens, it only penalizes malicious acts which are deliberate in nature.
Instances of Blasphemy/ How to Institute a case against someone?
- Burning a religious document such as the Bible or the Quran is considered blasphemy.
- Vandalizing a church is a form of blasphemy.
- Worshipping Satan is blasphemous.
- Committing suicide is a form of blasphemy.
- To state that God is unkind, unjust or cruel is blasphemous.
If a person does any of the act mentioned in the aforementioned list then a case of Blasphemy can be instituted against that individual. One can go to District Court.
What Not is Blasphemy: Defence to Blasphemy Law
In Mahendra Singh Dhoni v. Yerraguntla Shyamsundar[2], a case for allegedly harming the religious conclusions of individuals when a picture of Mahendra Singh Dhoni, being depicted as Lord Vishnu was distributed in a magazine with an inscription “Divine force of Big Deals”, the Court said that Section 295A IPC does not stipulate everything to be punished and any and each demonstration would equivalent to affront or endeavor to affront the religion or the religious convictions of a class of subjects. It punishes just those demonstrations of the affront to or those assortments of endeavors to affront the religion or religious conviction of a class of natives which are executed with the ponder and vindictive goal of insulting the religious sentiments of that class of residents. The same reasoning was given by the apex court in The State Of Haryana And Ors vs Ch. Bhajan Lal And Ors[3]
In the aforementioned cases, the courts have interpreted rightly and made it clear the rationale of Section 295 A.
Procedure to file a Blasphemy Case: A Cognizable Offence
- File an FIR – Make sure that you file an FIR with the police at the police station after the happening of the criminal event with you.
- Vakalatnama – Once you have filed an FIR, know that the Vakalatnama has to be filed because the lawyer or the advocate will need to represent you on your behalf.
- Investigation– the process of investigation starts after the cognizance of the case to the court and sometimes even before that if the nature of the offense is serious in nature.
- Laying of charges – If the crime is heinous then the police will frame the charges in the police diary and then report the same to the court. The court will then decide whether to prosecute based on the witnesses and the statements provided in the court.
- Enquiry – Inquiry will be conducted by the court to determine the guilt of the offender and if no such guilt is found, then the statements will be recorded under the Section 164 of the CRPC, where the accused will be required to say whether he feels he is guilty or not and he can admit the guilt.
- Trial- The process of trial starts when the investigation is over and the court now needs to decide upon the facts and the evidence upon whether the accused is guilty of the offense or not.
Constitutional Arguments in Favour of Blasphemy Law
There are many instances in which the debate on the validity of Blasphemy laws vis-a-vis the constitution of India, some of which dates back in the colonial period, have arisen and there are also in the current period which sparks the debate to such issue.
Ramji Lal Modi v. State of Uttar Pradesh
In Ramji Lal Modi v. State of Uttar Pradesh[4], a five-judge bench of the Supreme Court upheld the constitutionality of Section 295 A.
Mr. Ramji Lal was the editor of the magazine called “Gauraksha”. His contention was that under Article 19 1 (a) of the constitution which talks about freedom of speech and expression, and stated that his work is protected under the aforementioned article. Also, it was contended that Section 295A, cast its net much wider, by criminalizing all speech that was intended to outrage religious feelings. But the court held that- “Section 295A 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. The “calculated tendency” of this aggravated form of insult is clearly to disrupt the public order and the section, which penalizes such activities, is well within the protection of clause (2) of Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19(1)(a).”
Constitutional Arguments Against Blasphemy Law
The Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia
Unlike the previous judgment which gave the order on the guideline that if there is a slight connection of freedom of speech with public disorder along with Section 295 A then that will be struck down, the present one namely The Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia[5] laid down the foundation which is now the foundational test in current period that the speech which is prohibited should have a connection to disrupt public order and it should not be just a remote connection.
But unlikely over the years the aforementioned test has not seen much essence over the years, as the Ramji Lal case was a five-judge bench and Ram Manohar Lohia one is also a five-judge bench, so in order to overrule a seven-judge bench is required, but it is a cumbersome process. First, a two-judge bench (before which any petition originally goes) has to be convinced then this two-judge bench would need to refer the question to a five-judge bench which, in turn (if convinced), would have to refer it to a seven-judge bench, which would finally hear the case on merits.
Sri Baragur Ramachandrappa & Ors vs State Of Karnataka & Ors
This case came up in 2007 and it proved that the test laid down in Ram Manohar Lohia case has not seen much essence and the link between Section 295 A and public order has been gradually vanishing, because in this case the Supreme Court maintained a prohibition on a recorded anecdotal retelling of the life of Basaveshwara, taking note of that “no individual has a privilege to encroach on the sentiments of others on the introduce that his entitlement to the right to speak freely stays unhindered and liberated. It can’t be disregarded that India is a nation with huge inconsistencies in dialect, culture, and religion and ridiculous and noxious feedback or obstruction in the confidence of others can’t be acknowledged”.
So the ratio which was laid down in Ram Ji Lal Case was the relation of speech to public order but in this present case it is crystal clear that the speech and expression are related to anti-religious comments and if the speech is anti-religious then it that will be struck down because of Section 295 A.
Comparative Analysis of Other Countries
Below is the list of some countries, where blasphemy law is compared with that of the Indian scenario. They are-:
Pakistan
There is a death penalty for blasphemy in Pakistan. The ones who are prosecuted are usually minorities but it seems that they are also increasingly other Muslims. Persons accused of blasphemy as well as police, lawyers, and judges have been subject to harassment, threats, attacks, and murders when blasphemy is the issue.
Qatar
The penalty for committing blasphemy in Qatar is a jail sentence of up to 7 years.Religious criticism on websites is censored in Qatar.
The United Arab Emirates
The United Arab Emirates discourage blasphemy by controlling what is published and distributed, by using Sharia punishments against Muslims, and by using judge-made penalties against non-Muslims.
United Kingdom
Blasphemy laws in the United Kingdom were specific to blasphemy against Christianity. In 1985, the Law Commission (England and Wales) published a report, Criminal Law: Offences against Religious and Public Worship, that concluded that the common law offenses of blasphemy and blasphemous libel should be abolished without replacement. On 5 March 2008, an amendment was passed to the Criminal Justice and Immigration Act 2008 which abolished the common law offenses of blasphemy and blasphemous libel in England and Wales.
USA
A prosecution for blasphemy in the United States would be a violation of the U.S. Constitution and no blasphemy laws exist at the federal level.
Misuse of Blasphemy Law
There are many instances where the misuse of blasphemy law can be seen, like on August 20, 2013, driving hostile to superstition campaigner Narendra Dabholkar was shot and murdered by two men on a motorbike. The murder came days after the state government swore to represent an against superstition charge, went for making it an offense to abuse or dupe individuals with ‘otherworldly’ customs, charms and cures. This bill was nearly connected with Dabholkar’s work and was contradicted by numerous conservative and Hindu patriot bunches who marked it “hostile to Hindu”[6].
Conclusion
In light of the above judgments and reasoning along its scenario with respect to its constitutionality, the interpretation by the courts of Section 295 A has been in the wrong way and to solve this issue a complete ban or repeal Section 295 A is not the solution.
In the introduction itself, it has been said that India is a secular country and this section of IPC helps to maintain the purity of the secular nature. Though IPC came way earlier than the constitution, but the aforesaid section maintains the essence of secularism by protecting the religious sentiments equally, by criminalizing intentional acts on religious sections. Rather than to shut down this section or repeal it, the misuse of such section should be curb down and that can happen with the proper interpretation of the aforesaid section. The state will only interfere or the judiciary should only interfere when the speech or expression will create public disorder, and not when it has a slight connection or remote one to create public disorder.
References
[1] https://indiankanoon.org/doc/1803184/(last visited Dec 12, 2017).
[2] 1992 AIR 604, 1990 SCR Supl. (3) 259(last visited on Dec 12, 2017).
[3] Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, 2017 SCC OnLine SC 450.
[4] Ramji Lal Modi v. State of Uttar Pradesh:1957 AIR 620, 1957 SCR 860,
https://indiankanoon.org/doc/553290/(last visited on Dec 12,2017).
[5] The Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia:1960 AIR 633, 1960 SCR (2) 821, https://indiankanoon.org/doc/1386353/(last visited on Dec 12, 2017).
[6]https://end-blasphemy-laws.org/countries/asia-central-southern-and-south-eastern/india/(last visited on Dec 12, 2017).
