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Hate speech in India : an analysis in light of Section 153A and 295A of IPC

September 26, 2021
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This article is written by Anushka Singhal, a student of Symbiosis Law School NOIDA. In this article, she discusses Sections 153A and 295A of the IPC.

Introduction

Every freedom comes with certain restrictions, there is no concept of absolute freedom. Our Constitution gives us a plethora of fundamental rights, freedom of speech and expression being one of them. Article 19(2) of the Indian Constitution lays down the right to freedom of speech and expression but with reasonable restrictions. These reasonable restrictions are not per se defined under the Indian Constitution but through other laws like Indian Penal Code,1860 (IPC) restrictions are laid down. Sections 153A and 295A of the IPC lay down such restrictions that aim to punish those spreading religious enmity.  

Section 153A

Section 153A of the Indian Penal Code lays down the provisions for punishing those who –

  1. By words, signs, pictures, or other similar things spread disharmony among people belonging to different caste, creeds, religions, regions, languages or any other group of the same kind. 
  2. Disrupt the public harmony and tranquillity.
  3. Prepare armed forces of a particular religion or group with the purpose of inciting violence against another group or religion.

Such persons can be punished with imprisonment of up to three years. And if the above activities are carried out in a religious institution then the punishment prescribed can be extended up to five years of imprisonment. Thus in totality, this section resolves to preserve the integrity of our country. India is inhabited by a diverse group of people and we are known to the world as a country with ‘unity in diversity,’ thus anyone who threatens this harmony is punished under the criminal law. 

This Section is nowadays used in a variety of cases but it is interesting to note that once it was on the verge of being deleted from the Constitution. The famous case of Tara Singh v. The State (1951) challenged this section saying that it was in contravention of Article 19(2) of the Indian Constitution. It was after the First Amendment that the words “in the interest of public order” were added, this section escaped the threat of being declared as contrary to the law. 

Section 295

Section 295 of IPC lays down the provisions for punishment in the cases wherein a person with malicious intention damages, destroys, or defiles any religious symbol or ideal or anything which is seen as sacred by a group of people. A person committing either of the above-mentioned things would be imprisoned for a term that can extend up to two years or will be fined or will be punished with both fine and imprisonment. Unintentional acts are not covered under this Act. Jan Mohd. v. Narain Das (1883) is one such case, wherein a person without any mens rea to spread hatred removed some stones from a dilapidated mosque and was not held liable. But in cases where the act is intentional, like in Saidullah Khan v. State of Bhopal (1995) where a person is aware of the fact that the object is sacred, he is held liable. 

Section 295A

Section 295A of the IPC lays down a punishment of imprisonment up to three years, fine or both for people who maliciously insult or attempt to insult a religion or religious feelings of a group of people by words, gestures or things alike. The offence under Section 295-A is non-bailable and non-compoundable and the police can easily invoke Section 41 of the Code of Criminal Procedure,1973 (CrPC). Both these sections i.e. 153A and 295A are related to religion, the distinction being that the former deals with creating enmity between two groups and the latter lays down provisions for those who insult a group or religion. 

Religious enmity in India

India is famous for its diversity but as it is rightly said, “Too many heads, two many headaches.” The instances of religious enmity in India are numerous and with rising intolerance, the incidents are on the rise. The first such religious enmity was seen during the partition and since then with riots like Godhra riots, Bengal riots, Muzaffarnagar riots etc. The religious enmity has made its presence in the public. Vote bank politics through hate speeches have incited violence in the country leading to curfews and loss of lives. The Shri Krishna Committee which was constituted to report on the infamous Bombay riots held that the riots arose due to some articles in newspapers like ‘Saamna’ and ‘Navakal’. This report held a particular political group liable for inciting violence among the people. The advent of technology proved to be fuel for the already ignited fire and we had tweets and Whatsapp messages leading to disharmony. The Baduria riots in Bengal were incited by one such tweet by a class eleventh student who posted an objectionable post of Prophet Mohammed. Similarly, hearsays have led to mob lynchings like in the Akhlaq incident where the victim was killed on mere suspicion. Sections like 153A are needed to curb the enmity between different religions. Hate speeches, texts, and movies aggravate the already poor situation and those aiming to spread violence for their selfish interests are punished under these sections.

Need for religion-specific laws 

Britishers had already framed Section 153A of the Indian Penal code but Section 295A came into existence after a well-known incident. In 1927, a book called ‘Rangeela rasul’ was published which talked of the marital and sex life of the Prophet Mohammed. This book garnered a lot of hatred from the followers of Islam. The publisher was first arrested and then he was acquitted. When the publisher came out of jail, he was killed by a man called Ilm-ud-Din. Muslims of the country demanded a law that would punish anyone insulting the religion or religious symbols. Thus came Section 295A of the IPC with the Criminal Law Amendment Act,1927. Freedom of speech is an indispensable right. Even the international community through the Universal Declaration of Human Rights considers this right as the highest aspiration of the common people. The American Constitution is very liberal when it comes to freedom of speech and expression. But in the aftermath of World War II, when people realised that there was an obvious link between racist propaganda and the holocaust, the international community started recognising hate speech. Even the US has removed hate speech from constitutionally protected expression. There is an ardent need for religion-specific laws as religion being a sensitive issue can easily sow the seeds of hatred among communities. To ensure that in the garb of freedom of speech and expression, people do not propagate abhorrence, there arose the need for religion-specific laws. We had the law of sedition vide Section 124A of the IPC but it was felt that this law was not enough to curb the separatist tendencies and thus Sections like 153-A, 153-AA and 153-B were enacted.

Relevance of “intention” to hurt feelings

To charge someone under either of these Sections i.e.153A and 295A one needs to prove ‘mens rea’ i.e. the intention. The crimes committed under these sections should not be unintentional. Ramji Lal Modi v. State of U.P (1957) is an authority when it comes to ‘intention’. 

Let us delve deeper into this case

Ramji Lal Modi v. State of U.P (1957)

Facts

 An article was published in a Hindi daily called ‘Amrita Patrika’, about a donkey on which protests were carried out by Muslims of Uttar Pradesh. He was charged initially but was then acquitted. There was another magazine too that was called ‘gaurakshaka’. It also published an article for which it was charged under Section 153-A and 295-A. Ultimately, he was charged with 295-A only. The petitioner contended that the Section was ultra-vires and went against Article 19(2).

Judgment

The Court held the petitioner liable. It also said that the Section was not ultra vires and it resolves to punish not for all acts but for those acts which are done with deliberate malicious intent.

Mahendra Singh Dhoni v. Yerraguntla Shyanmmdar and Another (2017)

Facts

In this case, the petitioner was charged under Section 295-A and his complaint was pending before the Additional District First Class Magistrate of Anantapur, Andhra Pradesh. His photograph was printed on a magazine and the words ‘god of big deals’ was written with certain symbols of gods. A complaint was filed against him and the publisher as well.

Judgment

The Hon’ble Court quashed the FIR as the case did not fulfil the requirements of 295-A as there was no intention on the petitioner’s part.

The courts have also taken not only intention but also the reasonableness factor. The Court in Ramesh v. UOI (1988) talked about reasonable conduct.

Ramesh v. UOI (1988)

Facts

 In this (1988), A film named ‘Tamas’ was being screened on television. The film was based on a famous academy award-winning writer’s novel which was being read in the universities for a long time. The petitioners alleged that the screening of the film would be against Section 153-A.

Judgment

The Court held the respondents not liable and said that the effects of a film, TV show etc. have to be seen from the perspective of a reasonable man and as English cases have laid down, a reasonable man is the one ‘on a Clapham omnibus’.

Need to avoid trivial cases in the name of religion

There has been a trend in the applications being filed under both these sections. Even trivial criticisms and comments are being charged under Section 153-A and Section 295-A of the IPC. In order to satisfy their followers, political leaders file cases in the name of religion. The rising intolerance and the advent of social media have led to an increase in such cases and the concern is that 295-A is a non-bailable offence and once a case is filed under this Section, the situation becomes very difficult for the person charged with the offence. Last year during November-December,  an FIR was filed against the makers of a film called, ‘A suitable boy’, on an alleged kissing scene in a temple. Such FIR’s ring an alarm for all of us. One needs to avoid trivial issues like this and should refrain from using the draconian sections for them. Criticisms like those done by music composer and singer Vishal Dadlani should be taken in a good spirit and not every tweet or comment should be taken as insulting. In a case relating to Terrorist and Disruptive Activities (Prevention) Act,1987 (TADA), the Hon’ble Court warned against vague laws that give excessive powers to judicial magistrates and policemen and thus victimise the innocents. Therefore, before filing a case under Section 153-A and 295 one should carry out a balancing exercise. The outrage of an individual needs to be separated from the sentiments of a group collectively and it should be left at the discretion of the viewers as a whole to consider something as objectionable or not.

Criticism of the sections

These sections have acted as a barrier in exercising the right to freedom of speech and expression. Their excessive use has undermined their importance and there is a need to reconsider them. Recently the Hon’ble Supreme Court has said that we need to reconsider Section 124-A of the Indian Penal Code. The Court said that it is a colonial period law and thus there is a need to reconsider the same. In the light of the above-mentioned statement, one can also demand some amendments in Sections 153-A and 295-A. It should be made necessary for the police or the judicial magistrate to decide whether the complaint passes the reasonability test or not. In the absence of adequate provisions, the law is being blatantly misused and the sobering reality is that a large number of persons in various fields, including actors, writers, and artists, have borne the brunt of this draconian provision. Even humour or smart criticism that is critical for a healthy democracy is being censored or removed as it does not meet the already set standards of decency and morality. The matter of  Wendy Doniger’s book ‘The Hindus: An Alternate History,’ is a good example wherein Penguin India had to decide not to release the book in India when the book faced a case of Section 295-A. The publishers then decided on an out-of-court- settlement. The government is even planning to materialise the recommendations made by the Law Commission and the expert committee headed by T.K Vishwanathan on adding sections 153-C and  505-C to the IPC. But before adding these two provisions, the government must try to fix the loopholes that are associated with Sections 153-A and 295-A of the IPC.

Conclusion

India is a sovereign, socialist, secular and republic country, says our Preamble. Thus, to live up to the spirit of our preamble and to ensure that our sovereignty and secularity are maintained, no one should be allowed to insult the religion of the other. As rightly said every right comes with a duty and restriction, the right to freedom of speech and expression is also affected by duties and restrictions. One should criticise and comment but not at the cost of hurting the feelings of others. The Indian Penal Code through these Sections ensures that we live in harmony and follow the Gandhian ideology of ‘live and let live.

References


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