Blasphemous: On the Blasphemy Law

Blasphemous: On the Blasphemy Law

Author: Ms. Teresa Dhar, CNLU, Patna.

Q1. What is blasphemy?

To understand blasphemy, we must understand secularism in the Indian context. 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.[1]Meanwhile, section 295 A of the Indian Penal Code (IPC), 1860 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.” Basically, insulting or using any profane against any religion, god, religious text, religious saints or godmen would constitute blasphemy.[2]

Q2. What are the blasphemy laws in India?

1. Laws related to blasphemy in India Section 295A of the IPC:[3]
2. It penalizes any deliberate intention of insulting the religion or religious beliefs of any class of citizen
3. Section 295A is a cognizable offence, which means that the police are authorized to arrest accused persons without the need of a judicially sanctioned warrant.
4. This law was added only in 1927. Earlier India never had a blasphemy law
5. It is often argued that Section 295A is not a section for blasphemy but a section against Hate Speech

Other laws[4]

• Sections 124A, 153A, 153B, 292, and 293 of IPC also related to blasphemy
• These sections prohibit any words or representations that insult any individual’s or group’s religious beliefs, or that are meant to incite enmity against a particular religion.

Q3. What is the constitutionality of the blasphemy laws?

1. In 1957, in Ramji Lal Modi v State of UP, a five-judge bench of the Supreme Court upheld its constitutionality. This means that, if the Supreme Court were to change its mind, it would need a bench of at least seven judges to overrule Ramji Lal Modi, and strike down the law. Procedurally, this would require the challengers to 295A to first convince a two-judge bench (before which any petition originally goes) that there are sufficient reasons for doubting the correctness of Ramji Lal Modi. If convinced, 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.[5]

While this entire process is procedurally daunting and quite unlikely to materialize, there are good arguments, in law, for the court to revisit and consider overruling the Ramji Lal Modi decision. In Ramji Lal Modi, the court held that Section 295A was constitutionally valid since, in accordance with Article 19(2) of the constitution, it was a ‘reasonable restriction’ upon the freedom of speech, ‘in the interests of public order’. The core of the court’s reasoning was that the phrase ‘in the interests of’, as required by Article 19(2), was of very wide ambit, and allowed the state to make a variety of laws that bore some relation to maintaining public order. 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).”

It was argued before the court that in order for a law to be a reasonable restriction upon the freedom of speech in the interests of public order, it would need to be limited to situations where there was a degree of proximity between the proscribed speech, and the possibility of public disorder (for instance, inciting an armed mob to destroy public property would qualify, but writing an article in a magazine in defense of the Naxalite movement would not). This argument was drawn from the court’s previous decisions, where it had been held that the requirement of ‘reasonableness’ meant that there must be a degree of proportionality between the speech, and the actual harm that the state feared. In Ramji Lal Modi, however, the court rejected this argument. The flaw in the decision lay in that the court focused exclusively upon the breadth of the phrase ‘in the interests of’, while ignoring the qualifying constraints placed by the term ‘reasonable restrictions’. Interestingly, however, within three years, the court departed from its stand: in a case called Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia, it held that there must be a proximate link between speech and public disorder, and not a ‘far-fetched’, ‘remote’, or ‘fanciful connection’.[6]

In the succeeding years, the court refined this test: it held that the connection between speech and disorder must resemble that of a ‘spark in a powder keg’; in 2011, it held that only speech that amounted to ‘incitement to imminent lawless action’ could be punished. This, as we can see, requires a very high threshold for the state to fulfill before invoking public disorder as a ground for restricting speech. In fact, in the case in question, the Supreme Court held that mere ‘passive’ membership in a terrorist organization was not a criminal offence, as long as the accused person had not resorted to inciting violence. And most recently, in the famous Shreya Singhal judgment, the Supreme Court distinguished between ‘advocacy’ and ‘incitement’, and held that laws restricting free speech would have to be narrowly tailored so that they only caught the latter kinds of speech within their net. Therefore, in fifty-plus years since the decision in Ram Manohar Lohia, the basic foundation of Ramji Lal Modi – that there is no requirement of proximity between speech and disorder – has been consistently undermined and discarded by the Supreme Court.

If the correct test is one of incitement to lawless action, then it is very clear that the terms of Section 295A are far too broad. Under no interpretation can it be said that intentional insult to religion, or to religious feelings, is necessarily equivalent to ‘incitement’. In Shreya Singhal’s Case, the Supreme Court made it clear that ‘over-broad laws’ that captured within their scope even legal and legitimate speech would have to be declared unconstitutional, because of their potential to chill core political and cultural speech.

Of course, the decision to actually overrule Ramji Lal Modi, and strike down Section 295A, can only be taken by a seven-judge bench. The constitutional arguments for doing so, as I have attempted to show, are strong and compelling. Constitutional courts all over the world admit, from time to time, that decisions of ancient vintage – taken by judges in a different era, with different sensibilities – have been bypassed by time and changed contexts. There is, thus, nothing unusual or embarrassing in reversing long-held judicial positions that are no longer apposite for contemporary society. The judgment in Ramji Lal Modi, upholding the constitutionality of the blasphemy law, is one such judgment that has outlived its utility.[7]

Q4. What is the ramification of obliterating blasphemy laws in India?

Anti-blasphemy laws do far more damage than good to society. They are used not to promote tolerance but as an excuse to commit violence. They do this in two ways: by encouraging extremist groups, and by restricting freedom of thought and religion itself. Without those rights a society inches towards becoming a religious dictatorship, as Pakistan is doing. The first point is important. By letting religious groups to get their way, we encourage them like spoilt kids. We end up giving them a license to whip up outrage for their own political agendas or against others. It has happened in Pakistan for decades and it’s increasingly happening in India. In June the police arrested a member of the radical Hindu group called Sanatan Sanstha, who are prime suspects behind the murders of three Indian rationalists. These activists were targeted simply for campaigning against religious superstition and fake sadhus. And that’s just one example. All India Bakchod had supposedly offended Christians or when writer Wendy Doniger had her book banned because a Hindu outfit called it “vulgar” or when the movie Nanak Shah Fakir was pulled because hardline Sikh groups were angry. India is now full of religious groups who threaten violence if they feel wounded on behalf of their gods.[8]

The second reason to oppose anti-blasphemy laws — to protect freedom of thought — is equally important. Could Guru Nanak Dev, founder of the Sikhs, be allowed to say today that God is neither Hindu nor Muslim without causing offence? Could he call on people to reject caste and idol-worship without facing an angry mob? Would Gautama Buddha be allowed to preach in India today without people accusing him of blasphemy? Or what about the great Hindu reformers such as Swaminarayan or Vivekananda – would they have been allowed to criticize Hindu traditions without controversy?[9]

We cannot have freedom of religion and thought without the freedom to criticize other beliefs. There isn’t a democracy in the world where freedom of religion co-exists peacefully with anti-blasphemy laws. They are incompatible. They will clash until one fades away.[10]

[1]YashTandon, Blasphemy Laws In India(Dec.19, 2017), iPleaders, https://blog.ipleaders.in/blasphemy-india/.

[2] Id.

[3] Blasphemy law in India (Aug. 25, 2018), Blog.forumias.com, https://blog.forumias.com/article/blasphemy-law-in-india.

[4] Id.

[5]Gautam Bhatia, The Constitutional Case against India’s Blasphemy Law(Jan. 8, 2016), The Wire, https://thewire.in/law/the-constitutional-case-against-indias-blasphemy-law.

[6] Id.

[7] Id.

[8]Gautam Bhatia, ‘Blasphemy’ law and the Constitution (Mar. 19, 2016), https://www.livemint.com URL: https://www.livemint.com/Sundayapp/TFCMsqPVQ8rK6dJj2E2kSN/Blasphemy-law-and-the-Constitution.html.

[9] Id.

[10] Id.