A book called “Rangila Rasul” was based on the personal life of Prophet Muhammad. The content of the book was objected by some minority communities, which led to the threats of life to its publisher. They said it contained some explicit content about their founder and was an attempt to insult Prophet Muhammad. Initially, the publishers were arrested, but later they were acquitted due to the lack of legal basis
One won’t believe that this incident dates back to the 19th century and a century gap ahead here we are following the same “defect legacy”. Today in the 21stcentury humans might have the whole world at their fingertip, but sentimentally and religiously we are still stuck on that broken, inaccurate clock. Because very recently when the political satire series “Tandav” was released on the OTT platform, more than three FIRs were registered against the cast and the makers. The makers approached the Apex Court for interim protection, but the Court refused to grant the same and asked them to approach High Courts for anticipatory bail. Even after the fact that all the objectionable scenes and dialogues were deleted and an unconditional apology was given. The court plainly allowed the clubbing of FIR’s but refused prayers to quash the FIRs.
One common element in both the cases is Section 295-A of the Indian Penal Code (IPC), Which could not be found in the original draft of Indian Penal Code, 1860 because it was inserted after the incident of a book “Rangila Rasul”. The Muslim Community of undivided India demanded a specific law to protect their religious sentiments and the British Government duly obliged by inserting Section 295A the of IPC.
Section 295A of IPC talks about deliberate and malicious acts, intended to outrage religious feeling of any class with the intention of insulting its religion or its religious beliefs.
Essential ingredients of the Section 295A IPC are:
- Deliberate and malicious intention of outraging the religion of any class of the society.
- Usage of words or by signs either written or spoken or by visible representation attempts to insult the religion or religious feeling.
- Imprisonment upto three years, or with fine or with both.
It is important to note that Section 295A IPC is a cognisable, non-bailable, and non-compoundable offence. It means police can register an FIR without even any prior judicial oversight. The complaint can be lodged anywhere in the country at the instance of purportedly aggrieved complainants.
Section 295A IPC falls under the category of “reasonable restriction” of Article 19(1)(a) which deals with the freedom of speech and expression. This means no person should use this Fundamental Right to hurt the religious sentiments of any class and if committed, there is hardly any scope for relaxation of punishment for this offense.
The discourse on religion in India has become increasingly common nowadays. A news headline pops up every other day that the cinematic depiction and the action of the celebrity have outraged the religious sentiment of the particular group. In India, there is a lot of intolerances for those who are even engaged in bona-fide criticism. There are always these self-styled godman who try to blindfold society. and whosoever tries to open the eyes of the people, they try to reprimand and condemn them with the help of Section 295A.
Very recently we have seen the unfortunate case of comedian Munawar Faruqui, where the well-recognized principle “Bail is the rule and jail is the exception” was ignored. On the first day of the new year, a stand-up comedy show by Munawar at Indore’s Munro cafe was discontinued due to the complaint by the Chief of the Hindutva group. Indore police arrested Munawar and few other artists on the basis of the oral evidence. The complainant claimed that they have overheard the jokes, Munawar was going to crack. They were imprisoned only on the basis of the oral evidence by some vigilant man who had no concrete evidence to support their claim. The Police officer instead of dismissing the complaint was very pleased by the complainant and appreciated their alertness. Even Madhya Pradesh High Court did not grant interim bail.
All these instances really make us question the constitutionality of Section 295A IPC. To understand the scope of the Section these are some important judgements:
In the landmark case of Ramji Lal Modi v. The State of U.P., the Supreme Court held that Section 295A IPC does not penalise any and every act of insult. Only those acts can be penalised which are perpetrated with the deliberate and malicious intention of outraging the religious beliefs. Those aggravated forms of insult which intend to disrupt the “public order”
In the case The Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, the Supreme Court has widened the scope of freedomof speech and expression to include the right to educate, inform and entertain and the right to be educated, informed, and entertained. The former is the right of the telecaster and the latter is of the viewers.
All these judgements point out one thing that the Court has upheld the right to free speech to a large extent. But the main problem lies with the enforcement of such law by the enforcement officers. Police can arrest anyone upon mere suspicion and can act wrongfully as Indore police did in Munawar’s case. It not only prolongs the possibility for abuse of power by the police but also curbs one’s freedom of speech and expression.
It makes one thing crystal clear that having faith should be warmingly acceptable but blindly believing anything in the name of religion should be strictly unacceptable. The main motive behind implementing this law is to protect the religion and religious beliefs of thepeople from any malicious and deliberate acts of invoking religious outrage. But now this law is being used for completely different purposes than what it has been meant to be used for. In the current scenario, not only there is threat of large fines but also the way these vigilant and hypersensitive people behave is a deterring factor for various artists and publishers to contest in this hate speech litigation. Despite the number of difficulties associated with the Section 295A IPC, it could be much clearer than it currently is if Parliament took the initiative to amend the law to make it more justifiable-
Firstly, it should explain the term “religion” though it appears no less than eighteen times in the entire chapter on “Offenses related to religion” of IPC. The Constitution fails to explain the definition of religion. In the case SP Mittal v. Union of India, the Supreme Court instead of providing clarity upon the topic further muddies the water, where a constitutional bench held “religion to be a term which cannot be defined”.
Secondly, prior judicial consideration must be undertaken of any complaint lodged under this provision.
Thirdly, the aggravated insult must have the potential to disrupt the public order as upheld in the judgement of Ramji Lal Modi v. The State of U.P.
These amendments will definitely be useful when next time any other comedian and satirical series is wrongfully condemned. Merely expressing one’s opinionated comments on someone’s belief which holds no strength to disrupt the public order is very much part of our free speech and expression, and to limit our fundamental right just because it conciliates a few high-strung religious groups is not fair to our democratic rights. Religion in a country like India acts as a driving force for struggles, conflicts, and reforms. Engagement with religion always necessitates fair criticism of religion, which should be accepted with open minds. Efforts have to be made to update the laws and make them more absolute so that free speech and religious beliefs can coexist harmoniously.
