Blasphemy laws exist in India too, though selectively implemented

Notwithstanding the tall claim of Article 19(1)(a) of the Constitution of India, guaranteeing a fundamental right to freedom of speech and expression, which cannot be curtailed by ordinary laws and cannot perhaps be curtailed even by way of an amendment of the Constitution if the doctrine of basic features of the Constitution is to be applied to it, India has its own version of blasphemy laws.  However, our blasphemy laws go with a different name.  Moreover, unlike in some Islamic countries, punishment for committing the offence of blasphemy is not death, but imprisonment for a varying number of years.  Our blasphemy laws may outwardly appear to be religion-neutral, but they are implemented selectively and their tone sometimes is in favour of certain particular religions. 

Let’s first be clear that it is a myth to state that India has an absolute right to freedom of speech and expression.  The right to freedom of speech and expression, as guaranteed under Article 19(1)(a) of the Constitution is circumscribed and encumbered in many ways.  In fact, clause (2) of Article 19 itself makes it abundantly clear that notwithstanding anything guaranteed in Article 19(1)(a), reasonable restrictions can be imposed on the exercise of the right to freedom of speech and expression by an existing law or a new law in the interests of (1) the sovereignty and integrity of India, (2) the security of the State, (3) friendly relations with foreign States, (4) public order, (5) decency or (6) morality or (7) in relation to contempt of court, (8) defamation or (9) incitement to an offence. 

A mere reading of the issues “in the interest of…” which the freedom of speech and expression can be restricted shows that such issues may encompass almost everything under the Sun. 

For example, “offence” basically means anything made punishable under the Indian Penal Code or any other (special or local) law.  Now, there are thousands of laws, both Central and State laws, which make various acts punishable as offence. 

Look at what is “morality”.  It is very difficult to define it since it is not a legal term.  Moreover, it is a relative term which may have different meanings to different people and to different societies.  Morality basically implies conformity to the rules of right conduct.  But again, what is the “right conduct”?  How to define it?  It is again a relative and vague term. 

Consider “decency” now.  It is again not a legal term and is difficult to be defined.  It is also a relative term, meaning different things to different people.  It basically means behaviour that conforms to accepted standards of morality or respectability.  These are all relative and vague expressions. 

Likewise, “defamation” is a very wide term, and shorn of unnecessary details, it may basically be an all-encompassing term that covers any statement that hurts someone’s reputation. 

Next, it is nowhere defined as to which are the “friendly countries”.  The expression “public order” may also involve several aspects. 

This brief study itself indicates that the Constitution itself permits reasonable restrictions to be imposed on the right to freedom of speech and expression for a very vast set of issues as mentioned above.  In fact, with passage of time, more and more restrictions are being placed on the freedom of speech and expression.  The latest example is the provision under Section 66-A of the Information Technology Act that takes away much of the freedom of speech and expression in as much as an offence is defined under this section in very wide terms. 

Thus, the fact remains that the fundamental right to freedom of speech and expression, guaranteed under Article 19(1)(a) of the Constitution, is a very limited right, in practical terms, notwithstanding the grand language used in the Article.  Many of the things that we speak or write can be classified under one or the other offence, thereby making this right a hollow promise. 

Well.  Let me now turn to the main issue raised in this article.  Blasphemy.  Let me first point out what is meant by blasphemy. 

In its broader meaning, blasphemy refers to the act of insulting or showing contempt or lack of reverence for God, to religious or holy persons or things, or toward something considered sacred or inviolable. 

Laws aimed at punishing acts of blasphemy are particularly common in Muslim-majority nations.  In Islamic countries, a variety of actions, speeches or behaviour may be considered as blasphemous.  For example, the following acts may be considered blasphemous: insulting or cursing Allah, or Prophet Muhammad; mockery or disagreeable behaviour towards beliefs and customs common in Islam; criticism of Islam’s holy personages; apostasy (i.e., the act of abandoning Islam), finding faults or expressing doubts about Allah and Quran; rejection of Prophet Muhammad or any of his teachings; leaving the Muslim community to become an atheist.  In some Islamic countries, questioning fatwa (i.e., religious opinion), improper dress, drawing offensive cartoons, tearing or burning holy literature of Islam, creating or using music or painting or video or novels to mock or criticize Prophet Muhammad are also considered as acts of blasphemy. 

Now, let us consider some of the legal provisions in India which prohibit and/or punish blasphemous acts, though the nomenclature for such offences may be different (e.g., in the form of, say, hate speech). 

Section 295-A of the Indian Penal Code (IPC) lays down punishment for deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.  This section is reproduced below:

“295-A. Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.—Whoever, with 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 that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 

Thus, any person either insulting or even attempting to insult the religion or religious beliefs of any class of citizens of India, even through words spoken or written or by visible representations (such as cartoons, movies, etc.)  or in any other manner, can be punished for those acts with imprisonment up to 3 years, if he had a deliberate and malicious intention. 

Likewise, Section 298 of IPC makes it punishable to uttering words or making any sound or even making a gesture with the intention of wounding the religious feelings of any person.  This section is as under:

“298.  Uttering words, etc.,  with deliberate intent to wound religious feelings.—Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.” 

Section 296 of IPC makes it punishable to disturb a religious assembly, whereas trespassing on burial places with the intention to insult the religion of any person, etc.,  is made punishable under Section 297 of IPC. 

Similarly, Section 153-A of IPC also prohibits and makes it punishable the use of words (spoken or written or by signs or by visible representations or otherwise) that promote or attempt to promote disharmony or feelings of enmity, hatred or ill-will between different religions, etc.  This section also makes certain other acts punishable.  It is reproduced as under:

“153-A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.,  and doing acts prejudicial to maintenance of harmony.—(1) Whoever—

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or

(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity, for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,

shall be punished with imprisonment which may extend to three years, or with fine, or with both. 

Offence committed in place of worship, etc.—(2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.” 

Likewise, Section 153-B of IPC makes it punishable the act of using words (spoken or written or by signs or by visible representations or otherwise) for making or publishing any imputation that any class of persons cannot, by reasons of their being members of a specific religion, etc.,  bear true faith and allegiance to the Constitution of India or uphold the sovereignty and integrity of India.  Similarly, claiming that people belonging to a specific religion, etc.,  be deprived of their rights as citizens of India is also made punishable under this section.  It is reproduced below:

“153-B. Imputations, assertions prejudicial to national integration.—(1) Whoever, by words either spoken or written or by signs or by visible representations or otherwise,—

(a) makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India, or

(b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied or deprived of their rights as citizens of India, or

(c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons,

shall be punished with imprisonment which may extend to three years, or with fine, or with both. 

(2) Whoever commits an offence specified in sub-section (1), in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.” 

It is obvious that Section 153-B IPC is tilted in favour of certain minority communities since it prohibits raising of doubts about the loyalty of people belonging to those communities.  For example, if someone waves a Pakistani flag during a cricket match between India and Pakistan and another person objects to that on the ground that such person’s loyalty is not towards India, it may amount to an offence under this section. 

It may be noted that most of these provisions make various acts punishable which directly or indirectly come in the category of blasphemy.  Of course, it is true that such blasphemous acts may be committed in respect of any religion, and they are not specific to any particular religion such as Islam, as is the case in Islamic countries. 

At the same time, the experience shows that generally the implementation of these provisions is quite selective.  Our law-enforcers are more worried about the blasphemous acts committed against a particular religion, such as Islam. 

For example, the famous painter M.F. Hussain was in the habit of painting nude pictures of Hindu goddesses.  He was not doing it with any noble intention.  He was creating these paintings for his commercial gains and most of his paintings were sold in crores of rupees each and many of his paintings were purchased by Muslim rulers in middle-east countries.  He never created any paintings that would depict Prophet Muhammad, and he never created any paintings (nude paintings or even otherwise) that directly or indirectly involved any Muslim personalities.  Being himself a Muslim, M.F. Hussain was habitually involved in creating only nude paintings of Hindu goddesses.  However, the Indian state never bothered to apply the aforesaid provisions of law to take legal actions against him.  Some private cases were registered against him, but, he always got protection from the Indian judiciary and ultimately no legal action was taken against him. 

Recently, the Hindi movie “PK” was in news for ridiculing various Hindu traditions and customs.  Here again, the hero of the movie, Aamir Khan, is a Muslim by religion.  No action has been taken against him or against the movie under the aforesaid legal provisions by the Indian State.  On the other hand, State Government of Uttar Pradesh announced tax-free status for that movie.  In fact, it has been reported that PK has been the highest grosser ever in terms of revenue collection so far in India.  Of course, a few private cases were filed, but so far no coercive action has been taken against him or other persons associated with that film. 

These are only a couple of examples.  The Governments, the media, the so-called intelligentsia, and even the judiciary to some extent, have all protected and supported them in the name of artistic freedom, notwithstanding the fact that they were indulging in huge commercial gains. 

Now, just imagine (only for the sake of comparison) that someone (either Hindu, or even Muslim, for that matter) makes a movie, or creates a painting or cartoon, or writes a book, directly or indirectly ridiculing Islam or any Islamic personalities.  I bet that, immediately, such movie, painting, cartoon or book would be completely banned in India and criminal cases would be registered by the state agencies themselves; all copies of such creations would be immediately confiscated, etc.  Remember, what happened when Salman Rushdie wrote Satanic Verses book?  Several persons were killed in protests that took place, the book was completely banned and continues to be banned till date, and he lives in exile in other countries under strong police protection for last few decades. 

India is thus a country that has the so-called fundamental right to freedom of speech and expression; but, it also severally curtails such freedom for a large number of reasons and makes it punishable to commit blasphemous acts; however, the implementation of these anti-blasphemous laws is highly selective. 

On the other hand, United States of America is a country where the freedom of speech is more or less absolute, and there are very few exceptions to such freedom.  For example, a few years back, a movie called “Innocence of Muslims” was made by an American.  This movie was a satire on the Prophet.  Muslims in the world as a whole had got agitated.  This movie resulted into a lot of protests, violence, destruction and deaths.  This movie may have been bad and stupid.  But, while other countries banned it (even Google and YouTube banned it, if I remember correctly), it was not banned in USA. 

France is another such country.  It does not penalise blasphemous acts.  That is how a cartoon magazine like Charlie Hebdo could survive for so long.  However, a heavy price has been paid by the cartoonists and editors of that magazine recently in the form of 12 lives lost through a terrorist attack by a few Muslim gunmen, as is well known.  Though it is too early to say anything, but it appears that France is not going to change its laws in respect of the blasphemous acts. 

Now, which form of freedom of speech and expression is better?  Indian version?  Version prevalent in Islamic countries?  Or that prevalent in countries such as US and France?  Well, there can be no answer in the form of either black or white.  The answer perhaps contains various shades between black and white.  However, the answer provided by the Indian laws is also not perfect and it needs refinement.  Ultimately, unless some criticism of outdated and illogical religious practices and traditions is permitted, how can we grow from being completely intolerant people (like in some Islamic countries) to those having a modern outlook and developing some tolerance towards the religions of one-another?  Moreover, criticism needs to be directed more at those religions which are completely out of touch with today’s way of life, and not merely at the religions which allow such criticism without much violent reaction.  This is not to give a licence to ridicule religions of others like what a person like M.F. Hussain would do, but a fair and constructive criticism of the illogical and unscientific practices that are no more valid in today’s technological age.  Of course, people may differ on where to draw the Laxman Rekha; but, truly rational people would broadly agree where the line has to be drawn. 

Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, and is author of 3 law books.  He is the founder of this law portal.  Read more by clicking here.  List of his articles.  List of his Forum Replies.  Email: info@tilakmarg.com

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