Section 295A of the Indian Penal Code 1860 is commonly known as the “Blasphemy” provision. Its origin story, while dark, is extremely interesting from a civilizational perspective since it sheds light on the larger undercurrents that have been animating the civilizational discourse for centuries now in this part of the world, which I will unpack in future pieces.
For the purposes of the current piece, I will start from the fact that subsequent to the coming into force of the Indian Constitution, the validity of Section 295A was challenged in Ramjilal Modi v. The State of U.P. on the ground that the provision did not constitute a reasonable restriction on free speech and expression within the meaning of Article 19(2) of the Constitution. The factual matrix of the decision itself is strikingly relevant to the times we live in. The Petitioner, the editor and publisher of a monthly magazine called “Gaurakshak”, was acquitted of a charge under Section 153A of the IPC, the “sister” provision of Section 295A which is usually invoked along with it. However, he was found guilty under Section 295A by the High Court of Allahabad for publishing an article “with the deliberate and malicious intention of outraging the religious feelings of Muslims”. Apart from challenging the verdict of the High Court, the Petitioner also challenged the constitutional validity of Section 295A in his petition under Article 32.
It was contended on behalf of the Petitioner that in order for Section 295A to pass muster on the anvils of Article 19(2), the only limb of the Article that could be relied upon was “in the interests of… public order”. However, according to the Petitioner, since likelihood of public disorder did not constitute a necessary ingredient of Section 295A, the provision could not be supported as one intended to preserve public order and therefore, ran afoul of Article 19(2). It was further contended that since not all acts intended to hurt religious feelings would lead to public disorder, the proscription under Section 295A amounted to an unreasonable and overbroad restriction.
A Constitution Bench of five Judges of the Supreme Court rejected this argument and took the view that the import of “in the interests of.. public order” in Article 19(2) was wider than “for the maintenance of public order”, which was the language of Article 19(2) prior to its amendment through the Constitution (First Amendment) Act, 1951. Consequently, according to the Supreme Court, a law which penalized activities that had a “tendency to cause public disorder” could not but be held to be a law imposing reasonable restriction “in the interests of public order” although in some cases those activities may not actually lead to a breach of public order.
However, the Supreme Court critically clarified that the provision did not penalize any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens, but penalized only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which were committed with the deliberate and malicious intention of outraging the religious feelings of that class. In other words, it only punishes an “aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class”. This calculated tendency, according to the Court, was well within the realm of those activities which may be reasonably restricted by law under Article 19(2). While this clarification might seem like a safeguard against abuse of the provision, it is unclear from the judgement whether the airing of even a genuinely held opinion, based on facts and scholarship, which is indifferent to the religious sentiments of a community, would attract Section 295A.
In a later decision in 2007 involving a book based on the life of Sri Basaveshwara, a 12th Century Saint from Karnataka, the Supreme Court held that a chapter of the book had been deliberately designed to be hurtful to the religious feelings of the followers of the Saint. The said chapter gave the impression that the sister of the Saint, who too was revered by the followers of the Saint, had conceived her son out of wedlock. The author defended himself on the ground that the issue of the son’s paternity remained the subject of intense debates among scholars and historians without any conclusion being arrived at, and therefore, he was justified in relying on some of the debated versions for the purposes of his book. The Supreme Court rejected the defense after going through the literature cited in support of the assumptions made in the book and concluded that the entire book, despite its complimentary passages in favour of the Saint, was merely a camouflage to spin and introduce a particularly sordid and puerile story in public discourse.
The Supreme Court may have had valid reasons for coming to the said conclusion in the facts of the case, but its reasoning does not address with clarity the question of applicability of Section 295A to the work of artists, story tellers and historians given the varying degrees of liberty with facts that are available to them. Guidance in this regard is important because the provision, on the face of it, is rife with subjectivity and in a country whose beating heart is religion, the so-called Blasphemy provision may come in the way of discussing even history. After all, it is possible that a true work of scholarship, authored without malice and based on facts collected from authentic sources, is objected to by a jaundiced and hyper-sensitive group of individuals because the work presents an uncomfortable, inconvenient and true facet of their faith. Would such a work be allowed to be published and read freely since there is no discernible deliberate malice in the author’s intentions? Conversely, it is equally possible for a clever author with respectable credentials to cloak his or her feelings of hatred and prejudice towards a certain community in the sophisticated language of scholarship with the calculated object of hurting religious feelings, and get away with it. How would the Court be able to pin down the true intentions of the author in such a case?
Though the Supreme Court is yet to provide comprehensive guidance on these aspects of the provision, a 2005 decision of the Full Bench of the Calcutta High Court in Sujato Bhadra v. State of West Bengal is one of the better judgements on Section 295A. This judgement was delivered in the context of adjudicating whether Taslima Nasreen’s book “Dwikhandita” attracted Section 295A Extracted below are the relevant excerpts from the judgement:
“Therefore, insult or attempt to insult the religion or religious belief when made with an intention, which must be deliberate or malicious, of outraging the religious feelings of a class of citizens of India, then only the provisions of Section 295A would be attracted. The outrage to religious feelings or insult to religion or religious belief if made unwittingly or carelessly or without any deliberate and malicious intention, then the same would not come within the purview of Section 295A IPC. The expression ‘deliberate and malicious” is indicative of the intention of the legislature. The conjunction ‘and’ conjoins both. It must be both deliberate and malicious i.e. deliberately malicious. If it is made knowingly, but with an intention not deliberate nor malicious, but with an intention oriented by clinching or revitalizing or striking a blow for the well-being of the society or for emancipation of the women, which is necessary for the mankind, in that event, such outraging of religious feelings or insult to religion or religious belief, though may be intentional but cannot be termed deliberate and malicious even if it is not made unwittingly or carelessly. If it is inflicted in good faith by an author in his/her endeavour or object to facilitate some measure on social reform by administering such a shock to the followers of the religion, as would ensure notice being taken by any criticism so made, would not attract the mischief of Section 295A by reason of the phrase “with deliberate and malicious intention” qualifying the intention. In order to establish the ingredient of Section 295A to be applicable in a case it is to be established that the author had the requisite mens rea, deliberate and malicious, to outrage the religious feelings of a class of citizens of India and to insult or to attempt to insult the religion and religious beliefs of that class of citizens of India. The offence must be intended deliberately and maliciously for the citizens of that class in India.”
This is perhaps one of those instances where the reasoning of a High Court provides greater clarity on a provision than the highest Court of the land. That said, despite the nuanced take of the Calcutta High Court which could reduce the potential for abuse of the provision and its ability to gag free thought, speech and expression, the very need for the provision and the sentiments it seeks to protect from scrutiny require a larger conversation. I will pull these threads in the coming pieces.
J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.