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This article is written by Zigishu Singh who is pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho

Introduction

The discourse on religion in India has become increasingly ubiquitous. Not a week goes by where we find headlines and news channel debates centered on some controversy over religion, whether it is related to elections, statements made by celebrities, outrage over cinematic depictions hurting religious sentiments, nationalism etc. Religion is an all-encompassing aspect of the lives of Indian people so it becomes quite easy to invoke the aspect of religion in the majority of the things happening around the country.

Recently, a comedian named Munawar Faruqui was booked under Section 295A for allegedly insulting Hindu Deities and was denied bail. This particular incident made a lot of headlines and has made several minds in the legal and entertainment fraternity to take notice. Many scholars, lawyers, and artists alike have made an appeal to the government to have a rediscussion on the tenability of Section 295A and to consider its alarming implications on the entertainment industry. The impulse for writing this present piece is also owed to the Munawar Faruqui case and the author is in agreement with the brilliant minds of the affected fraternities regarding that the provision needs deep introspection.

In India, for a long time, religion has been the driving force of various conflicts, struggles, riots and reforms. History is rife with events where religion was the focal point of invasions, mass struggles, wars and the evolution of Indian culture. Even the freedom fighters used religious symbols to unite the masses to mobilize them for the fight for independence. So one can impute that religion forms an inseparable part of the Indian identity.

Since religion is a core aspect of the nation’s values as well as its citizens, it is only fitting that our country has laws that seek to preserve the sacredness of the religion and to forbid any person in its territory from committing acts that are in any way slanderous to religion and can foment strife and conflict in the society. 

The Law on offences relating to religion

The controversial provision

In India, the Indian Penal Code is the statute which contains laws to punish offences committed against any religion. Chapter XV of the Indian Penal Code contains the majority of the provisions for offences relating to religion. Of particular significance in that Chapter is Section 295A, which is used prominently in cases where an offence against religion is involved. Of late the provision has come to be viewed as a law that muzzles a citizen’s right of free speech in the garb of protecting religious feelings, therefore, it becomes vital to have renewed discussions on this provision and its tenability in the present.

On a brief reading, Section 295A appears to be a perfectly reasonable provision seeking to deter a person from insulting or attempting to insult a religion or religious beliefs of a particular class of citizens through words, either spoken or written, visible representations, or other means. But as is the case with all laws, the misuse of a provision is always a possibility. The meaning of a provision through interpretation can be extended to envisage numerous scenarios, conditions or to use it upon innocent people for the purpose of vindictive prosecution. History has been dotted with events where laws have been used for completely different purposes than what they were meant to be used for.

Why Section 295A is needed?

To understand a particular Law and the reason for its existence, it is important to know the historical events that led to its enactment. It is interesting to know that Section 295A was not present in the Indian Penal Code at the time of its enactment. The catalyst for the enactment of this provision was the pre-independence case of Rajpaul v. Emperor. The case was filed against an accused who had published a pamphlet entitled ‘Rangila Rasul’. The pamphlet contained the portrayal of the central figure of Islam religion namely Prophet Mohammed. The pamphlet characterized Prophet Mohammed as a person who was sexually incontinent. 

At that time, Section 295A was not in the statute book, and the case was filed under Section 153A of the Indian Penal Code. The accused was convicted under Section 153A by a magistrate court. On appeal, however, the conviction was reversed by the Lahore High Court, who held that the ambit of section 153A (as it then was) is only limited to prevent attacks on a particular community as it exists in the present time, according to the court the law was not intended to prevent controversial discourse against a mythical or historical figure regardless of the degree of obscenity or abuse. The High Court, however, did declare that the act of vilification committed in the aforementioned case should have come under the ambit of Section 153A but owing to the lack of express provision in the law, it couldn’t. Therefore, for the reasons given by the High Court, the then British Government decided to add section 295A in the Indian Penal Code.

The major judicial pronouncements on Section 295A

For a long time, print media has been available for readers to gain knowledge and for writers to express their views on various subjects, therefore it was inevitable that Section 295A will cause grievance to a person trying to communicate with the reader about subjects that could be potentially insulting or libelous to religion. Even if written without the intention to hurt religious feelings, the person’s work could become the reason for him going behind bars, hence it was only a matter of time before someone would challenge Section 295A as being violative of the Right to Freedom of Speech and Expression guaranteed by Article 19(1)(a).

The challenge came in the case of Ramji Lal Modi vs.State of Uttar Pradesh, Mr. Ramji was convicted by a court under Section 295A for publishing an article, the content of which was injurious to the religious feelings of a community. His conviction was upheld by the Allahabad High Court on appeal and therefore a Special Leave Petition was filed to the Supreme Court challenging the constitutionality of Section 295A.

The apex court upheld the constitutionality of Section 295A and made the following observations:

  • It held that Article 19(2) of the Constitution protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression “in the interests of” public order, the word ‘interests’ is deemed to hold a wider meaning and is not merely limited to maintaining the public order.
  • If certain acts have a capacity to cause public disorder and a law is in place which penalizes such acts as an offence, then the restriction resulting from the penalization is definitely “in the interests of public order” despite the fact that in some cases those activities in actuality may not lead to any public disorder. 
  • The court also held that Section 295A does not penalize every act of insult or attempt to insult religious beliefs of a class of citizens, it penalizes only those acts of insults, which are committed with the deliberate and malicious intention of outraging the religious feelings of that class. 
  • Insults that are not deliberate or lack malicious intent to outrage the religious feelings of a class of citizens are exempted from the purview of the act. The aggravated acts which are deliberate and malicious in intent have a high tendency to disrupt public order, hence such acts are rightly punished under Section 295A and the law is rightly in the interest of public order under Article 19(2) of the constitution.  (In Ramji Lal Modi v. State of Uttar Pradesh, 1957 Supreme Court, see here: https://indiankanoon.org/doc/553290/)

The Madhya Pradesh High Court in Ramlal Puri vs. State of Madhya Pradesh has explained that Section 295A requires a deliberate and malicious intention of outraging the religious feelings of a particular class of citizens. If a literary work, such as a book or an article in a magazine, gives an objective picture based on historical facts, it will not come under the ambit of section 295A. The court had suggested a test which needs to be applied whether an alleged act falls under the mischief given in Section 295A, that is whether the complainant is an abnormal, hypersensitive person or is an ordinary person of ordinary common sense, if a complainant falls under the former category then an accused need not be prosecuted under Section 295A.

Recently, the Supreme Court in Mahendra Singh Dhoni vs. Yerraguntla Shyamsunder and another reiterated the principle laid down in the Ramji Lal case and held that Section 295A penalizes only those acts or attempts to insult which are perpetrated with the deliberate and malicious intention of outraging religious feelings of a class of citizens. Any insults which are made carelessly and unwittingly without any malicious intention are not covered under the act. The court also made a parting observation wherein it stated that Magistrates taking cognizance of cases should carefully scrutinize whether the allegations in a complaint properly satisfy the ingredients of the offence.

The case ‘for’ and ‘against’ Section 295A

The need for Section 295A

India is the most ethnically and religiously diverse country in the world and its history is dotted with numerous religious conflicts and riots. The danger of communal conflicts is ever-present and unlikely to wane anytime soon. The diverse and often diametrically opposed religious practices often become the point of clashes among various communities. Therefore, a law like Section 295A is needed to avoid situations where mischievous elements have a free run on bad-mouthing a religion and disturbing the peace in society. There have been several instances in the country, where hurting religious sentiments have led to protests and public disorders of the gravest types, a few of them are discussed below:

In 2013, a movie titled ‘PK’ also caused tremendous outrage and protests across various Indian cities for showing deities of Hinduism in a bad light and allegedly hurting Hindu religious sentiments, many theatres were vandalised and road protests were held demanding a ban on the movie. Many Hindu organisations also condemned the movie for showing religion in a bad light.

In 2015, around one lakh Muslims gathered in Muzaffarnagar, demanding death penalty for the head of a Hindu organisation leader named Kamlesh Tiwari, who allegedly insulted Prophet Muhammad by calling him the ‘first homosexual in the world’. Similar protests against Tiwari were reported from Bengaluru and Delhi. Eventually, the accused person was killed in retaliation after undergoing imprisonment.

In another instance in 2015, Section 144 of the criminal procedure code was invoked (banning assembly of five or more people in an area) at a few places in Sirsa, including near a Sikh shrine, Assembly of people was also banned at few places in Sirsa to maintain law and order in the wake of protests by Sikh organisations against the controversial film named ‘Messenger of God’. Certain Sikhs also gathered at a Gurudwara to register their protest against the film.

Similar incidents have been reported in the past where similar disruption of public order has happened due to controversial remarks on religion by persons, the depiction of religious figures or practices in a bad light in literary, artistic, cinematic works etc. What we can understand from such events is that it will always be a matter of perception whether a particular act under Section 295A really hurts religious feelings or not, but nevertheless it is an absolute surety that even if the act was done without malicious intent, it will incite public disorder.

So, it can be said that Section 295A exists in the statute book because in cases where religious feelings of a class of citizens are hurt, there is almost always a possibility of public disorder, whether the disorder actually happens or not does not matter. Many past incidents in the country have shown that any content hurtful to religious sentiments of a society can incite a mob in a very short time, and to avoid such incidents, Section 295A exists as a pre-emptive measure and does not violate Article 19(2).

The Supreme Court in the case of Superintendent, Central Prison, Fatehgarh vs. Ram Manohar Lohia had expounded the reasoning given in the Ramji Lal case(supra) by stating that the restriction under Article 19(2) cannot be justified if there is only a fanciful connection between Section 295A and public order.  According to the court, the judges in Ramji Lal were only making a distinction between those acts which expressly and directly purported to maintain public order and one which did not expressly state the said purpose but left it to be implied therefrom.

The distinction, however, cannot ignore the fact that there needs to be a nexus between the law and the maintenance of public order sought to be achieved through it (In Superintendent, Central Prison, Fatehgarh vs. Ram Manohar Lohia, 1957 Supreme Court, see here: https://indiankanoon.org/doc/1386353/). As has been held in Ramji Lal, Section 295A does fulfill the purpose of acting as a deterrent to potential public disorder and the connection between the law and maintenance of public order is perfectly valid.

The increasing scope of Section 295A

In earlier times the means to disseminate views that were capable of hurting religious sentiments were limited to cinema, literary works, and print media and due to that cases filed under Section 295A was not high, but in today’s time where owing to the numerous platforms on the internet like social networking sites, blogs, video sharing sites and many other means of content sharing, every person is equipped with the ability to disseminate or publish his/her views on any topic including religion.

Besides the online medium of sharing views and content, there has also been a rise in other forms of public spaces which do not involve digital medium, for example, college fests, literary fests, comedy clubs etc, these spaces also give people the means to propagate views on religion through seminars, public conversations, stand-up comedy shows, distribution or showcasing of literary material to name a few. From these developments, it can be implied that not only the means to disseminate content or propagate views that have the possibility of hurting religious sentiments of a class of citizens in India have increased but such means are accessible to nearly every person in the country.

This presents us with a multi-pronged situation, let’s discuss that:

  • Firstly, the ability to create content, publish views, is available to every person.
  • Secondly, such content can be viewed by every person not only if it is shared online, but also if any such act is done among an interested audience in a public space, as the contents or recording of it can be shared with other persons who are not present in that particular place.
  • Thirdly, it allows for a scenario where a person may have done a particular act which he/she considers to be non-offensive, (be it sharing a personal opinion, sharing personally created media, artwork, or literary piece) for an intended target audience, also for whom the act is not offensive in any way, but with the help of media and other means of communication the contents of the person’s act can reach out to a remote person or a class of citizens who may find it deeply offensive.
  • Fourthly, the provisions of the Indian Penal Code are applicable on all persons on its territory, so the law under Section 295A is applicable to every person who is capable of committing an act that insults the religious feelings of a class of citizens.

The case against Section 295A

While the purpose of maintenance of public order is justified in respect of Section 295A, the wide ambit of the law and the religious nature of the society makes things complicated. The law definitely does serve its purpose in punishing miscreants who deliberately commit acts to insult the religious feelings of a particular class of citizens. However, the same law becomes a tool of persecution with the following group of people:

  1. Creative depictions of religion by artists, actors;
  2. Fictional representations by novelists;
  3. Empirical accounts given by historians;
  4. People who engage in rational criticism of religious practices.

Although the above-mentioned list is by no means an exhaustive one, it covers the majority of the people who find themselves facing the unnecessary brunt of Section 295A. The vague words used in the law are subject to a wide interpretation by both the judicial and non-judicial mind alike which makes it easier to be inclusive of anything which is even remotely offensive to the religious feelings of a class of citizens.

Religion is a term that is hard to define. Legal experts, jurists, sociologists, and theologians have so far refrained from giving a conclusive definition as to what can be considered a religion. It is a mind-boggling task to come with a definition that can be inclusive of all the known religions of the world and still be open to accommodate any religion that has been missed out or has been newly formed. It is only natural that a law that protects religious feelings will have a boundless ambit. The ambiguity surrounding the word ‘religion’ also finds its way into Section 295A. The unclear and indefinite scope of what is meant by ‘religion’ and ‘religious feelings’ makes it prone to misuse by busybodies and curbing genuine critique of elements of religion. 

A similar law was in existence in one State of the USA which outlawed sacrilegious writings and utterances. The validity of the law was challenged in Joseph Burstyn Inc. vs. Wilson, the U.S. Supreme Court stepped in to strike down the impugned provision stating that, it is not a sufficient answer to say that ‘sacrilegious’ is definite because all subjects that in any way might be interpreted as offending the religious beliefs of any of the 300 sects of the United States are banned in New York. To allow such vague, undefinable powers of censorship to be exercised is bound to have stultifying consequences on the creative process of literature and art- as the inspiration for a lot of artistic and literary works is derived largely from literature. According to the court “We not only do not know but cannot know what is condemnable by ‘sacrilegious.’ And if we cannot tell, how are those to be governed by the statute to tell?”

Many people in India have not studied law and basic legal literacy is quite uncommon, people do not know about the various laws which have a bearing on their interests, and the fact that section 295A of the Indian Penal Code is a highly open-ended provision with no defined parameters, it makes it all the more dangerous for the common person to remain ignorant of its existence. These factors make it highly imperative to define the contours of the provision to a certain extent as much as possible and to simplify the law for laypersons.

Recently a television actor, Kiku Sharda was arrested under Section 295A for mimicking Gurmeet Ram Rahim Singh, the leader of the Dera Sacha Sauda which is basically a Cult and is registered as an NGO. Since cults are similar to religion in aspects of following and devotion, they’re prone to be misinterpreted as a form of religion. This is a major shortcoming of the law, the effect of which is seen at the stage of arrest. Since policemen are not well versed in law, they can commit blunders, by equating insults to Godmen, cults, and spiritual organizations to an insult to a religion itself.

Novelists and writers are no strangers to this particular provision, whether a work is the creation of an accredited fiction writer or an accurate representation of religion supported with facts given by a historian, all of them have been on the same boat and have faced the wrath of an offended public through Section 295A. From Wendy Doniger to Salman Rushdie, all of them will attest to the uncertainty that is prevalent in India for academicians and novelists alike due to the prohibitive nature of the law. Although the writer of a fictional work can be justifiably apprehended if it was done merely with the purpose of offending religious sentiments, the problem arises when researchers, academicians and historians publish their opinions and findings on concrete evidence of facts and empirical research.

Such works are essential in bringing out an accurate picture and history of a particular religion or its practices and these works often become the catalyst for positive reform in society. But if the legitimate use of the power of the pen can land the user behind bars, he/she is unlikely to take any initiative to write or research. Such a situation is not only unjust in the legal dimension but also robs the society of positive changes that can be brought through words.

These concerns were also seconded by the members of the assembly which brought the law into the statute book. Lajpat Rai was worried that bona fide criticism, historical research and all that leads to the interpretation of religious texts in such a way as to lead to progressive reform in social matters will be affected by the proposed measure. This sentiment was echoed by M.A. Jinnah. and B.P. Naidu, who thought that this reactionary legislation had the potential to deal a death-blow to religious and historical research.

Comedians have been at the target of Section 295A for a long time. It is hard to tell if something expressed as light humor could become offensive for a certain group of people and that is the exact problem that comedians find themselves in. Any person engaged in the entertainment industry cannot predict what is likely to offend anyone and artists will more or less lose their creative talents if they have to constantly vet their services for offensive elements. Unlike movies released on the big screen or shows aired on television, comedians don’t have the aid of a Censor Board to thoroughly check their content for any impermissible content, this makes them even more susceptible to be targeted by religious groups. Most mainstream comedians have been at the receiving end of the anger of a sentimentally charged public. Kapil Sharma, Kunal Kamra, Tanmay Bhatt, Rohan Joshi, Kiku Sharda to name a few.

The key point in the Munawar Faruqui case was the denial of bail to the accused all up to the level of High Court, the curtailment of liberty of a person on the mere accusation of entertaining an audience via some humor on religion sent ominous signals to the entire entertainment industry regarding the implications of tangling with the subject of religion. Though there have been similar incidents in the past, unlike in the current case the judicial forums have refrained from sending the accused to jail. It doesn’t help that the offence is non-bailable and the accused cannot be granted bail as a matter of right. The above exercise of law enforcement does not bode well for the independent and relatively new faces in the entertainment industry who neither have a thorough understanding of the law nor do they have the financial capacity to access qualified legal professionals for obtaining legal opinion on these matters.

The way forward

After studying law in detail and its varied usage in the country, it appears that the arguments against Section 295A overpower the arguments in favor of keeping it. The law does serve the purpose for which it was enacted in certain matters, however, as we have seen above the law encroaches upon a number of areas where it is not required to and sometimes it also does a disservice to society by muzzling legitimate criticism of religion. To understand whether the law is needed or not we need to look at certain factors:

  • The Constitution of India makes it a duty of every citizen to develop scientific temper, humanism and the spirit of inquiry and reform. Nevertheless, we cannot look away from the fundamental realities of the country and features of Indian society. India has been a deeply religious society since antiquity, the idea of nationhood came only in the past 150 years or so whereas religion has been the basis of belongingness and communal fraternity since time immemorial. Such deep attachment with religion is unlikely to disappear overnight and it will remain a part of the country forever. Although some religious practices and cultural habits will change with time and the needs of the society, there will always be a sacred reverence to particular elements of religion. It is the latter part of the previous statement which needs to be respected and protected by due process of a just law.
  • The advent of modernism and scientific revolution in all dimensions of human society has brought with itself a change in the thought process of the common man and his view towards life itself. Many uncertainties and predicaments of life, for which the average person used to look towards religion and God have been, have been eradicated by scientific progress, for example studies in medical science has made it possible to detect and prevent life-threatening diseases, similar, studies in topography and meteorology have made it possible to minimize the devastating impact of geographical and weather-related disasters.

The possibility of man conquering nature itself has made him question the existence of a higher power and its relevance. Such changes have created a class of citizens in all societies who have given up on unwavering devotion to religion. However, regardless of the progress man has made, he has not conquered every possible uncertainty and is unlikely to have all the answers which occupy the human mind, this is one of the reasons why belief in religion and religious practices will not die out. The other reasons are that religion serves an indispensable purpose of unifying society and is fundamental in the moral and spiritual progress of a person. In other words, the need for religion exists and it cannot be dispensed with even after developing a scientific temper and spirit of rationality.

  • While religion has served its purpose in society, it has also been the reason for numerous conflicts, wars and hatred pervading in the society. Many inhumane practices currently existing have the sanction of religion, the reason for the enormous conquests and the resultant bloodshed in the history of humanity has found its source in religion. The belief in the infallibility of religion is the source of numerous taboos and unscientific myths prevalent in society. Many times, rightful and just changes in society were avoided because they go against religious practices. The tendency of religious practitioners to resent any criticism against religion is a dangerous practice that has the potential to curb rightful changes in society and encouraging such practice definitely goes against the universal right to freedom of expression. The right to freedom of expression is cherished because of its use as a weapon against any form of tyranny, history has shown that speaking against established norms has been a powerful tool that has changed the course of human history. The Right to Dissent in a Democracy is the bulwark that is necessary to prevent a democracy from becoming a dictatorship. For these reasons Section 295A deserves a serious relook.
  • The criminal nature of the consequences which entail from breaching Section 295A is another serious problem, a genuine person pointing out the glaring defects in religious practices cannot be equated with someone who incites hatred, but unfortunately, the language of Section 295A puts the genuine reformer and the delinquent rioter on the same pedestal. The great Saint Kabir was persecuted by both Hindus and Muslims for criticizing their practices but he is revered today by both communities, this example indicates the need to amend the law by excluding legitimate criticism from its ambit.
  • The glacial pace of the judicial process in India coupled with the need to defend one’s stand at appellate stages is deterrent enough in itself to forbid a person from engaging in legitimate criticism of religion plus the Indian law does not have any provision for compensating a person who has been prosecuted wrongfully. For these reasons, it becomes crucial that the law is defined comprehensively as much as possible so that people have an understanding of what amounts to criticism before embarking on any such exercise which can have dire consequences.

From the above factors, it can be ascertained that Section 295A can neither be repealed nor it should continue in its current form. Societal realities dictate that there is both a need and a disdain for this particular provision. So, we are only left with the middle way which is to change the present structure of law. The most fundamental problem of law is its vagueness and highly subjective nature, its wide ambit coupled with the diverse nature of Indian society makes it prone to misuse. This ambiguity can only be solved by undertaking the most avoided task in history which is defining religion itself.

Defining religion and religious practices

In Vide Davis v. Benson, the Supreme Court of the United States held that the term ‘religion’ has reference to one’s views of his relation to his Creator and to the obligations they impose regarding reverence for “The Creator’s Being and character” and of obedience to the will of the creator. It is often confused with cults of form or worship of a particular sect but is distinguishable from the latter. 

The interpretation in the above-mentioned case was denied by the Supreme Court, the court defined the terms ‘religion’ and ‘religious practices’ with respect to Article 25 and 26 of the constitution in, The Commissioner, Hindu Religious Endowments, Madras vs. Sri Laskshmindra Thirtha Swamiar, the court observed that “Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well-known religions in India like Buddhism and Jainism which do not believe in God or in any ‘Intelligent First Cause’. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is nothing else but a doctrine of belief.

A religion may not only lay down a code of ethical rules for its followers to accept, but it might also prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.”(In The Commissioner, Hindu Religious Endowments, Madras vs. Sri Laskshmindra Thirtha Swamiar, see here: https://indiankanoon.org/doc/1820633/) The above definition given by the Supreme Court might not be exhaustive but it can be used for the purpose of simplifying the extent of Section 295A. We can expand the definition a bit more and decipher the things essential to religion, listed below:

  1. Belief in things that are sacred (for example, god, deities, messengers, holy books, places of worship, pilgrimage sites, festivals, figures etc).
  2. Ritual acts focused on sacred spaces and/or objects.
  3. A moral or ethical code that is believed to have a sacred or supernatural basis and is followed by the adherents of the religion (personal laws can come in this category).
  4. Characteristically religious feelings (awe, sense of mystery, sense of guilt, adoration), which tend to be aroused in the presence of sacred spaces and/or objects and during the practice of ritual which is focused on sacred spaces, objects, or beings.
  5. Prayers, recitations, songs, and other forms of communication with the supernatural.
  6. A worldview, ideology, or a general picture of the world as a whole and the place of individuals therein which contains a description of an overall purpose or point of the world and how individuals fit into it.
  7. A social group bound together by and around the above-listed principles.

The seven elements listed above can more or less cover the various Indian religions and their respective practices. An insult to religious feelings of a class of citizens can be attributed to insulting either of the above seven elements of a religion or insult to a combination of two or more elements of religion. Since the perception of religion and its practices is subjective, it varies not only among people of different religions but also among different people within the same religion, hence it will be unreasonable to consider all the above-listed elements to be beyond criticism as the aim here is to have clarity and to simplify the law not to complicate it further.

The following elements namely:

  1. Belief in things that are sacred (for example, god, deities, messengers, holy books, places of worship, pilgrimage sites and holy figures),
  2. Ritual acts focused on sacred spaces and/or objects,
  3. Prayers, recitations, songs and other forms of communication with the supernatural.

Generally form the subject of insults that have the highest potential to incite public disorder. Hence any act through words, actions, visible representations etc. that insults, slanders could form the basis of the offence under Section 295A. If the above elements are essential to religion and they are not opposed to public order, morality and health as given in Article 25 of the Constitution of India and/or universally recognized human rights, then any deliberate or malicious insult to the above-mentioned elements of religion are unwarranted in any form be it for the purpose of entertainment, research or works of fiction.

This kind of reading of the law allows for genuine criticism of as well as protection from unnecessary obtrusion into the domain of religion. In the above context, it is important to understand that the words public order, morality and health do not have a static meaning, what can be read into public order, morality and health will depend on the needs of the state and society at that time and circumstances. For example, animal sacrifice is an essential ritual in the religion of Islam, but if in the future the slaughter of animals is barred to control climate change, then any criticism of the ritual in any form will not be considered to be an insult.

The potential problems of the above suggestion are that it can be misused for the purpose of using the law as a tool for malicious prosecution by a class of citizens who may create a new religion or claim to be adherents of an unrecognized existing religion. In such cases, any person or a class of citizens who claim their religion to be genuine should be given an opportunity to do so, but the onus of proving lies on the person who claims it. The exercise of proving the existence of religion and the presence of elements that can be insulted might seem daunting and a consuming precious time of judiciary, it can, however, be counterbalanced by adding a provision for heavy penalty if the act of proving a religion was done with ulterior motives. No matter how small a religion might be in terms of a number of adherents, its authenticity can only be built over a significant period of time and not overnight.

Additionally, research-based articles and scholarly work based on concrete facts and evidence should be kept out of the purview of the provision. Works that document the religion’s origin, religious practices evolving with time and the society, facts about a religious figure’s life etc. are some of the things found in academic work. Truth based on facts forms the basis of the content in such works and is different from opinions which are based on an author’s beliefs and ideals, though both have the potential to insult religious feelings it is the former which needs to be protected to keep the spirit of inquiry alive.

Religious Cults and spiritual organisations should be kept out of the purview of Section 295A

India owing to its large population has high diversity which contributes to a large number of religious denominations, spiritual organizations and sects within the religions themselves. Hinduism in particular contains a number of such religious cults and spiritual organizations, the polytheistic nature of the religion allows for a diverse range of philosophies and ideas which have existed since ancient times. Now the critical question is whether these entities should be considered a religion in itself for the purposes of Section 295A. Let us see whether these entities can be considered a religion:

Cults usually start as social movements which may or may not have a religious character. Their genesis usually lies in one leader who could be spiritual or religious and their activities revolve around the ideals and practices developed by its leader. The word ‘cult’ is not used in legal terminology and is generally used by members of a religious or social group to denounce new religious movements or social practices which are not in conformity with the currently established ideals of major religions of a society. It can also be said that a lot of religions start in the form of cults but overtime they outlive the leader or founder and become a faith, for example, Buddhism came into existence after Buddha, Islam after Prophet Muhammad etc. Recent examples of cults becoming full-fledged religions are Mormonism started by latter-day saint Joseph Smith and Scientology founded by Author L. Ron. Hubbard. It’s hard to find similar examples in India though.

There are also some cults that generally avoid the label of religion itself even if it is existing after the death of its founder, for example, The Osho Foundation, Brahma Kumari foundation. Such cults or religious movements can be conveniently left out of the purview of Section 295A and any kind of slander or insult to its beliefs can be dealt with under the law of defamation. There are some cults, however, who consider their beliefs to be equivalent to religion and as such, they have used Section 295A in cases of what they perceive as an insult to their religious feelings. Generally, such institutions are registered as NGOs, associations, or trusts and their purposes are spiritual and betterment of its members. The beliefs and practices of such cults are not new and are derived from ancient texts and practices of old religions and usually taught under different names or with the use of modern equipment, for example, Art of living foundation, Isha Foundation, Dera Sacha Sauda etc. If the motive of such institutions is not to start a new religion itself then they need not be given the protection of a law like Section 295A, and as mentioned above they can take recourse to the law of defamation.

The punitive aspects of the law need to be revised

The time period, when Section 295A became a law, was rife with communal turmoils and sectarian conflicts. It was a communally charged atmosphere with a large number of fundamentalist organizations taking births and each community vying for a larger share of power in the stakes of running the country. Hatred towards a community by members of a different religion was commonplace and the clash of religious ideals was frequent. In such an atmosphere Section 295A needed to act as a strong deterrent to prohibit men from mobilizing one religion against another. For majorly these reasons the law was made cognizable and non-bailable and had a relatively high punishment period which could extend up to three years.

Currently in the 21st century, although religion still remains an important facet of society, the atmosphere is not as surcharged as it was in the times of religion and therefore the punitive aspects of law need a relook. 

  • It will be more prudent to create degrees of religious offences and allot punishments according to their magnitude, but if revision is to be made just to Section 295A alone then the purpose can be served by decreasing the sentence to a maximum of six months as individual freedom also needs to be taken into context. 
  • Next, the offence should be made bailable, generally, offences are classified as bailable and non-bailable according to the seriousness of the offence and the punishment it entails, on that basis alone the provision should be made bailable. Also, there is very little chance of an accused under the law to tamper any evidence or influence witnesses as the offence generally involves the society at large.
  • Other measures which could be added to the laws is that instead of sentencing the accused to imprisonment, he/she could be given the option to tender a public apology and be required to do community service for the people offended, though the conflict of religious ideologies must be kept in mind while giving the option of the type of community service. Optionally the accused could also be taught about the common values and the good aspects of the religion which he/she offended by persons of high social standing or the scholars of that religion. The benefit of this measure is that not only does the accused avoid imprisonment, it also helps to cultivate a feeling of mutual respect and calms down surcharged emotions.
  • Another measure that could be added to avoid misuse of the law is to add monetary punishments in the nature of fines and/or damages to the accused. This would keep a check on the mala fide exercise of the law by busybodies and curbing revenge-seeking behavior.

All the discussion above talks about some small measures that the author thinks could be implemented to make the law more suitable to the present needs of society. The author submits that just like the legislature cannot foresee all possible consequences regarding a law when it passes it, the author also cannot surmise all possible abuses or any shortcoming of the measures suggested at the time of writing this piece. Regardless of the inevitability, the progress of the country and the society is served better if there is certainty as compared to ambiguity.

It will be better if the legislature abolishes Section 295A and creates a separate Act altogether covering the issues of religion, religious feelings and its incidental aspects in a more detailed manner. The prohibitions should be minimal so that the mistakes of a wide interpretation of Section 295A are not repeated. The language should be simple enough for the learned and the layman alike and should be well-defined to avoid possible misuse. Incorporating the above measures will make the law a reasonable one and will also prevent unnecessary litigation and conflicts in society. The reformative and educative measures suggested above need to be given more importance rather than punishment, as it will act as an aid to foster fraternity among various religious groups.

Conclusion

We discussed the law and saw both sides of its operation in Indian society. On one hand, we discussed why the law still holds significance and its function as a deterrent preventing chaos in the society which was a daily occurrence during the struggle for freedom. On the other hand, we also saw incidents of misuse and the law’s unintended effect of being used as a tool of harassment. Section 295A was passed in a different societal paradigm but as society has changed the law needs to change as well. If the law still reflects the ghosts of the past then there is no need for that law.

Section 295A needs to change to accommodate both religious sentiments and freedom of expression in a harmonious manner. Rights of the individual need to be given the same importance as the right of the community. The author would like to end this piece with a famous quote given by Robert Kennedy, former Attorney General of The U.S.A. which reads “Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on.” Taking the wisdom from this quote Indian lawmakers should make Section 295A into a law that cultivates mutual understanding and forgiveness instead of vengeance and enmity.


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