by M J Aslam
Any act “by words, either spoken or written, or by signs or by visible representations or otherwise” which “insults or attempts to insult the religion or the religious beliefs” of any class of citizens of India, and is of aggravated nature, is incitement and has a tendency to create “legal fiction, or simply, “outraging of religious feelings” of that class of citizens and hence, punishable under the law.
In August 2020, in Jammu and Bangaluru two separate blasphemous messages were uploaded on social media which gave rise to massive protests by Muslims against the remarks against the Holy Prophet Muhammad (PBUH) at both the places. The police claimed arrest of the culprits who were involved in the “communally sensitive” video in Jammu and the Facebook post in Bangaluru. (see The Times of India and Deccan Chronicle on August 17, 2020, and The Tribune, August 12, 2020)
The question arises – which law in India deals with the acts of “blasphemy” against any religion? At the threshold, it may be noticed that there is “no specific” blasphemy law in India.
But the fact is there is a law, section 153-A of the Indian Penal Code (IPC), 1860, which, among other things, also covers the acts that mean “insult to religion”. Section 153-A has been in the IPC from the date of its codification by the British Colonialists. The “insult to religion law” subsequently found a specific confirmation in section 295-A that was inserted to the IPC in 1927.
In the following discussion, I propose to describe the course of the historical development of “insult to religion law” in India as standing till date on the statute book:
Before Partition Scene
The first provision of law that deals with the “related” issues of blasphemy, not blasphemy exclusively, inter alia, caused by any written material disturbing communal harmony is section 153-A of the Indian Penal Code, 1860/IPC. This earliest provision of the law of British India, though widely worded, criminalises, inter alia, the acts of “promoting feelings of enmity or hatred between different classes of people” of India by “words, either spoken or written or by signs or by visible representations or otherwise”. The earliest application of section 153-A was pleaded before a single judge of the Lahore High Court in a well-known case of (2. Raj Paul v. Emperor, AIR 1927 Lahore pp 590)
The facts of the case were that in 1924, a Hindu publisher, Mahashay Raj Paul, of Lahore published a ‘blasphemous’ pamphlet, for which he was booked by the government under section 153-A. The lower court convicted Mahashay Raj Paul and the Sessions Court found it “intentionally offensive, scurrilous, and wounding to the religious feelings of the [Muslim] community” promoting “feelings of enmity or hatred between” Hindus and Muslims.
Mahashay Raj Paul did not disclose the name of the author of the blasphemous booklet. His name was Pandit Chamupati Lal. However, Mahashay Raj Paul was granted leave by the Sessions Court to appeal against the conviction order. In appeal before the Lahore High Court, he was acquitted of the charges under section 153-A on My 4, 1927. Justice Dalip Singh of the Lahore High Court, who acquitted Mahashay Raj Paul, could not find the accused had intended to create hostilities or hatred between Muslims and Hindus within the meaning of section 153-A, which is and was the gist of the offence under section 153-A, although the judge admitted in his judgment that the attack was on the founder of the religion itself. He looked at it as “tragic flaw” of the law that he could not uphold the Sessions Court’s conviction order, though in concluding paragraphs of his judgment, Dalip Singh J admitted that such a publication “can only arouse the contempt of all decent persons of whatever community, [and]… wound the religious feelings of …..Mussalmans”.
In concluding part of his judgment, the judge suggested: “that a clause might well have been added to section 297 of the IPC, by which the publication of pamphlets published with the intention of wounding the religious feelings of any person or of insulting the religion of any person might be made criminal. I can only say, that, speaking for myself, I regret the absence of such clause, but I am unable to hold that this particular case comes within the purview of section 153-A. I, therefore, reluctantly accept the revision and acquit the petitioner”. (Ibid, AIR 1927 Lahore pp 591, 592)
The Allahabad Case
Before we discuss the resultant development that followed the acquittal order of the Lahore High Court in Mahashay Raj Paul ante, it is important to notice that earlier on February 24, 1927, on the identical facts, the Full Bench of the Allahabad High Court convicted the accused, Kali Charan Sharma, for the offence under section 153-A. The accused had written a book which was held by all the three judges, Walsh, Lindsay and Banerji JJ in their separate but concurring opinions, as only containing the matter that promoted “Hindus feelings of hatred or enmity against their Muslim fellow-subjects”. Banerji J rejected the contention of the accused that “he wrote the book as a [Brahman] missionary and in the exercise of a legitimate right to induce people to embrace Hinduism”. Linsay J observed that the accused “admitted before us that some 6,000 copies of it have been given away or sold by way of propaganda in furtherance of the Shudhi movement”. (Kali Charan Sharma v. Emperor, AIR 1927 All 649 )
After the bench of the Allahabad High Court upheld his conviction order passed by the Sessions Court, the accused, Kali Charan Sharma, sought to challenge the order of the Sessions Judge on some technical grounds, the mention whereof here is unimportant. Enough to say that he filed Criminal Revision Application before the Single Judge of the Allahabad High Court. Rejecting his application, Dalal J in his order dated May 23, 1927, made pertinent observations.
He said: instead of facing the trial before the Sessions Court, the accused had “adopted scholar’s course” before the High Court. The Judge was clearly satirical in his remark to Kali Charan Sharma’s argument of “missionary Hindu” who had written the [blasphemous] book only for “reconversion” of Muslims to Hinduism under what was then called Shudhi movement and what is now commonly known as Ghar Wapsi campaign of Sangh Parivar.
The learned Dalal J hit the nail on the top. He said: “In order to understand what effect a book of that nature, whose contents were rightly advertised by its title, would have on the minds of devout Muhammadans, it is sufficient to give the meaning of these words and to state that the life was that of the Prophet Muhammad who is considered to be a holy personage by the Muhammadans”. (Emperor v. Kali Charan Sharma, (1928) ILR 50 All 157, at 159)
Dalal J also made a critical reference to Dalip Singh J of the Lahore High Court for his acquitting Mahashay Raj Paul, as stated above. He said: “With all respect to the learned Judge, I am not prepared to agree with the nice distinction he has drawn between a book which may hurt the feelings of Muhammadans and a book which may cause feelings of enmity or hatred between different classes of His Majesty’s subjects. Speaking for myself, I look at such matter not as a somewhat learned Judge of a High Court, but as a common citizen of a town in India. I would place myself in the position of a Muhammadan who honours his Prophet, and then consider what my feeling would be towards a Hindu who ridiculed that Prophet, not out of any eccentricity (some vichitrin mind), but in the prosecution of propaganda started by a class of persons who are not Muhammadans”. (Ibid at pp 160)
The Lahore Acquittal
Now coming back to the Lahore High Court’s Dalip Singh J acquittal order of Mahashay Raj Paul. The widespread agitations erupted from the decision in Mahashay Raj Paul. (Bijumon v. the State of Kerala, (2019) 1 Crime (Ker HC) 311)
The acquittal order gave rise to a firestorm of protests and debates across Punjab and elsewhere in British India about the “tragic flaw” in the law, as was pointed out by Dalip Singh J. The then Punjab Governor, Malcolm Hailey, whom the delegation of Muslim leaders met, said that the Muslims were “justifiably offended” by the pamphlet and that “legal weapon by which its repetition could be prevented in the future” was required to be found.
Ultimately, on September 22, 1927, the Indian Legislative Assembly approved an amendment to the IPC. Section 295-A was inserted in the IPC by Amendment Act 25 of 1927 that criminalizes the wanton acts of insulting any religion, religious feelings of any community or the prophets and deities of any community in India. However, it is clearly stated in the section that the blasphemous act must be ‘‘with deliberate and malicious intention’’.
This protection-clause was inserted in the section at the suggestion of M A Jinnah who was a member of the Drafting Committee of the law. In the words of former Attorney General of India and well known Indian Jurist, Soli Jehangir Sorabjee: “Jinnah…. wisely stressed the necessity of securing ”the fundamental principle that those who are engaged in historical works, those who are engaged in the ascertainment of truth and those who are engaged in bona fide and honest criticisms of religion shall be protected”.
Even after enactment of section 295-A, during 1927-1929, the Indian and International Press reported that many Hindus had come in open support for Mahashay Raj Paul and “republished” his blasphemous booklet in new Hindi versions that were banned by the respective provincial governments. (The Times of India, November 25, 1927; October 10, 1927; October 14, 1927; The Tribune, April 9, 1929)
The tide of the enmity and hatred that the blasphemous pamphlet had caused between the two communities did not die down which ultimately led to the killing of Mahashay Raj Paul in his shop on April 6, 1929, by a young Muslim man of 19 or 20 years age, named Ilam ud Din, who had fatally stabbed Mahashay Raj Paul in the chest with a dagger that killed Mahashay Raj Paul on the spot. Din was ultimately convicted of murder and sentenced to death on May 22, 1929. (Ilam Din v. Emperor, AIR 1930 Lahore 157) He was executed in Mianwali Jail in Lahore on October 31, 1929. It was observed by the Court that M A Jinnah forcefully pleaded before the DB of the High Court that “the sentence of death was not called for and urged as extenuating circumstances, that the appellant [was] only 19 or 20 years of age and that his act was prompted by feelings of veneration for the founder of his religion and anger at one who had scurrilously attacked him”. (Ibid)
It is said that this was the only case that the Jinnah would ever lose in his illustrious career. (The Times of India, October 25, 2019) The body of Ilam ud Din was placed in his grave by none other than Dr Allama Iqbal himself. (The New Indian Express October 22, 2016)
Apart from above-discussed Mahashay Raj Paul’s killing on April 6, 1929, there was [only] one more killing of Nathuramal Sharma by one Abdul Quayum in September 1934 for publishing a blasphemous book. Abdul Quayum was hanged on March 3, 1935, and when his dead body was carried in a funeral procession, and when it reached Chawkiwara Karachi, the police and a platoon of the Royal Sussex Regiment opened fire at the procession killing between 47 and 100 people as 134 were injured, that included men, women and children. (Dr Babasaheb Ambedkar, writings and speeches, pages 8m 156, 180, also see The Dawn March 20, 2006)
Post Partition Scenario
After 1947, section 295-A of the IPC has been argued at length in the Indian Judiciary in a plethora of cases. For the first time in 1957, the constitutionality of the section came in question before a Bench of five judges of the Supreme Court in the authoritative case of Ramji Lal Modi v. the State of UP. Ramji Lal Modi is the authority on section 295-A followed till date by the Indian Courts.
In Ramji Lal Modi, the petitioner who was editor, printer and publisher of an Allahabad-based monthly magazine called Gaurakshak published an article in its issue for the month of November 1952 for which he was held guilty of the offence under section 295-A of the IPC by the Allahabad High Court. In an appeal against the High Court decision before the Supreme Court, Ramji Lal Modi argued that section 295-A was ultra vires to the Constitution that guaranteed him with rest of the citizenry of India the right to freedom of speech and expression under Article 19 (1) (a) of the Constitution.
Rejecting the submission, the Supreme Court held that Article 19(2) protects a law [here section 295-A] which imposes reasonable restrictions on the exercise of the right to freedom of speech and expression “in the interest of public order”. The expression “in the interest of public order” in amended Article 19(2) makes the ambit of protection, the Court said, much wider than the expression “for maintenance of public order”.
If therefore, certain activities have a tendency to cause public disorder, a law [here section 295-A] penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction “in the interest of public order” although in some cases those activities may not actually lead to a breach of public order. However, the Court clarified that section 295-A does not penalize any and every act of insult to religion or religious beliefs of a class of citizens, made unwittingly or carelessly, but only those acts of aggravated nature which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of a class of citizens. The Court further held that “it is absurd to suggest that insult to religion as an offence under section 295-A has no bearing on public order so as to attract Article 19 (2).
In 1958, the Supreme Court following Ramji Lal Modi supra reconfirmed that section 295-A has been intended to respect the religious susceptibilities of persons of different religions, persuasions or creeds. The courts have got to be very circumspect in such matters and to pay due regard to the feelings and religious emotions of different persons with different beliefs irrespective of the consideration whether they are rational or otherwise in the opinion of the Court. (S Veerabhadra Chettiar case of 1958 (SC)
It follows from these observations of the Supreme Court that the Courts in India cannot in a light-hearted way brush aside the religious susceptibilities of a class of persons. If the inevitable consequence of writing is the excitement of feelings of hatred between the followers of two religions, then it must be put an end to.
Bible Bandaram was published by the petitioner, N. Veerabrahmam. It was forfeited to the AP government in exercise of its powers under section 99-A of the old Code of Criminal Procedure, 1898. It may be noted that section 99-A to section 99-G of old Code have been substituted by sections 95 and 96 of the new Code of Criminal Procedure, 1973. The AP High Court held the ban valid under section 295-A as the book had deliberately and maliciously intended to outrage the religious feelings of the Christians community. (N Veerabrahmam case of 1959(All HC)
To the question that some part/s of a book may be so offending religious feelings but not the whole book, the AP Court held that the impugned book/writing must be read as a whole in order to arrive at a conclusion whether it deliberately and maliciously intended to outrage the religious feelings of a class of citizens. (Ibid; ref also two cases of (a) Lalai Singh Yadav, 1971 All HC and (b) State of UP v. Lalai Singh Yadav, 1977 SC )
The Patna case
In a Patna case, a book Vishwa Itihas in Hindi was written by Dhanpati Pandey, Reader, Post Graduate Department of History, Bhagalpur University, contained a chapter about History of Islam which was banned by the State government in 1983 vide a notification issued under section 95 of the Code of Criminal Procedure, 1973 on the ground that the book contained “objectionable matters and derogatory references ….. which outraged the religious feelings of the Muslim community and was an offence punishable under section 295-A of the Penal Code”.
It was the contention of the petitioner before the High Court that to be an offence under section 295-A, the publication must be with a deliberate and malafide intention which must be first established before banning a book. Negating this submission, the Patna High Court observed that “it would be somewhat fallacious to mathematically equate the proceedings under sections 95 and 96 of the Code with a trial under section 295-A of the Penal Code with the accused in the dock. Proceedings under section 95 do not require such a thing. To require that a deliberate and malicious intention must first be proved at the threshold stage before the Government by evidence (including any rebuttal thereof) as a condition for acting under section 95(1), as if an accused person was in the dock, would, in effect, virtually frustrate the preventive purpose of the said section. The stringent requirement of the mens rea to be proved and established are for the purpose of a conviction under this offence. The government can gather such intention from the language, contents and import of writing and the onus to dislodge the same is on the petitioner. (Nand Kishore Singh case, 1986 Pat HC)
Pure and simple criticism without any intention to hurt the religious feelings of a particular community is allowed. So is any writing in the nature of historical research. (RV Bhasin, 2010 Bombay HC (FB) It is wedded to the rule of law which is the foundation of a democratic form of government. (Anand Chintamani Dighe case, 2002, Bombay HC) But it will be reduced to husk if the criticism is not academic and the author, writer, goes on to pass insulting comments in an aggravated form on a class of citizens, “that is most objectionable” which must be banned. Moreover, adherence to the strict path of history is not by itself a complete defence to a charge under section 153-A of the IPC. (RV Bhasin case; ref also section 95 (1) of the Cr PC, 1973)
The Supreme Court Assertion
The Supreme Court has repeatedly confirmed the logic behind section 295-A. It has said that India is a country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted. No person has a right to impinge on the feelings of others on the premise that his right to freedom of speech remains unrestricted and unfettered. (Sri Baragur Ramachandrappa case, 2007 SC)
Even though in a different context of tax laws, seven judges of the Supreme Court, in 1960, elucidated that reasonable restriction as envisaged under Article 19 (2) imposed by law on free speech and expression as envisaged under Article 19 (1) must be read in an exclusive sense of public peace, safety and tranquillity which must have a proximate relationship or nexus with the subject matter banned by the government and not remotely or hypothetically connected with it. (The Superintendent, Central Prison Fatehgarh case, 1960 SC) The written material whatever the shape if in aggravated nature and perpetrated with the deliberate and malicious intention of outraging the religious feelings of a class of citizens will have a proximate relationship or nexus with public peace and as such it will be hit by section 295-A of the IPC .
The Liberal Talk?
As seen above, it is well-established law that any writing, be it in any shape of a book, pamphlet, poster, article/column in a newspaper, magazine, whatever, or message on canvass, or uploaded on social media networking channels if it hurts religious feelings of any religious community, it comes within the ambit of the ban under the cited provisions of law.
“The trend of judicial decisions is that one may legitimately criticise the tenets of a particular religion as irrational or historically inaccurate” which is protected under the section itself “but it is not permissible to revile the founder of a religion or the prophets it venerates as frauds and charlatans or to expose them to scorn. Courts would in such cases infer ”deliberate and malicious intention” to insult the religion”. (Soli Jehangir Sorabjee, The Indian Express, June 25, 2006)
But, there is a section of writers relentlessly writing in media why should section 295-A of the IPC still exist on the statute book when it was enacted by the British colonialists; when India has gained freedom way back in 1947 from them and when India is a secular, constitutional democracy now? What is the need to retain this colonial law on the statute book when the highest law of India [Constitution] guarantees freedom of speech and expression to its citizens?
The Basis Of Debate?
Let us look at the premise on which the edifice of the whole opposition to section 295-A has been built. The opposition has two limbs: one limb looks at the whole matter of insult-to-religion-law as something like Hindus v. Muslims in the background in which the law was enacted. This limb of opposition states that the Indian society is basically “inclusive and plural nature of Hinduism” to which “a concept such as blasphemy is incoherent”. It were the Britons who divided this “composite culture” of India between different religious entities, (The Live Mint, March 19, 2016) to be precise, between Hindus and Muslims.
The retention of this “blasphemy” law on the Indian statute book is dangerously poised to re-ignite trouble as was witnessed during the 1920s and 1930s when Mahasay Raj Paul episode took place and that Muslim-ire is still continuing in new shape against Charlie Hebdo cartoons in France, Kurt Westergaard cartoonist in Denmark and India-born British novelist Salman Rushdie. (The Times of India October 22, 2016)
This baseless point is split to pieces by jurist, Soli Sorabjee, who says that under section 295-A, it is the religious feelings of the class of the citizens whose God, Prophet, is put to ridicule. Take the instance of, he writes further, the outrageous cartoons of the Prophet Muhammad (PBUH). “It would be fallacious to judge the matter from the perspective of a non-Muslim or an agnostic. The issue is to be determined in the context of how these will be viewed by the people who see them, the intensity of their beliefs and sentiments, and their likely reactions. The yardstick is not the standards of hyper-sensitive and volatile minds but those of ordinary persons of normal sensibilities. In this exercise, one should never forget that Muslims have deep and abiding reverence for the Prophet. And remember that freedom of religion, in the words of Lord Scarman, ”by necessary implication imposes a duty on all of us to refrain from insulting or outraging the religious feelings of others”. Therefore freedom of expression cannot be invoked in India for publication of the cartoons. Nor can freedom of religion justify excessive violent reaction”. (The Indian Express, June 25, 2006)
Hussain Haqqani, a former Pakistani diplomat living in the USA, in his well known pejorative style has traced the “origin of the problem” to the time much earlier than the British period. Wonderful! He says that during Muslim Rule of India, when “Muslim preachers and Sufi mystics worked to proselytize and win converts to Islam, there is no record of blasphemy against [the Holy Prophet] Muhammad [PBUH] or Islam allegedly committed by Islam’s enemies in distant lands. The seeds of this phenomenon were sown during the Western Colonial rule. “Secular leaders focused on opposing foreign domination, and Islamists emerged to claim that Islam is not merely a religion but also a political ideology”. (Cited by a critical blogger in his blog in The Times of India, October 22, 2016)
The Second Argument
The second limb of the opposition is set forth in some legal robes. It is stated by the protagonists of this opposition that Ramji Lal Modi ante is a bad law for the following reasons: The decision is based on an “assumption” that the subject matter under section 295-A may cause public disorder which is a “legal fiction”. The “assumption” or “legal fiction” is that if the material is not banned then it has a “tendency” of hurting religious feelings and causing public disorder. The doctrine of “in the interest of public order” is vague, much wider than the expression “for maintenance of public order”, giving wider powers to police to misuse the law by banning any book, and arresting its writer. (The Live Mint, March 19, 2016)
The law implies that the subject matter under ban has a tendency of “incitement” but, the protagonists say, under no interpretation can it be said that intentional insult to religion, or to religious feelings, is necessarily equivalent to ‘incitement’. (The Wire January 18, 2016) So, the law needs reconsideration, the protagonists say, but they admit that under the present climate it is as difficult to imagine the Supreme Court reconsidering the constitutionality of the “blasphemy” law. (The Live Mint March 19, 2016)
It may be noticed that there are presumptions of fact and law raised under several statues in India and as upheld by the judiciary. Section 295-A envisages a terrible situation where public peace and communal harmony may get immensely disturbed by deliberate and malicious acts of any person in the form of his “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 any class of citizens” of India. This is not a mere assumption or presumption. It is backed up by the facts on the ground. Such situations have happened and are most likely to happen in a country like India which is volatile and susceptible to such flare-ups due to several reasons, known to all.
According to Nine Judges Constitutional Bench of the Apex Court, (Attorney General for India case, 1994 SC) the Parliament is competent to, create a legal fiction or, say by creating a legal fiction that when an order is issued by the executive, (e.g., notification under section 295-A) it must be deemed that there are grounds for its issuance. (Ref section 95 of the Code of Criminal Procedure, 1973 (government must state grounds of forfeiture of the material); It can be created for the purposes of the statute, (Naresh Kumar Madan, 2008 SC) and it is the bounden duty of the Court to assume, ascertain, all those facts and consequences which are incidental or inevitable corollaries to giving effect to the legal fiction. (Laljit Rajshi Shah, 2000 SC) The purpose of creating a legal fiction by a statutory provision is to create an imaginary thing to be legally in existence, which has to be recognized as real, even if it does not exist in reality, otherwise, the purpose of such legal fiction would stand frustrated. (Shiv Kumar Pankha, (All HC, 2019)
So, any act “by words, either spoken or written, or by signs or by visible representations or otherwise” which “insults or attempts to insult the religion or the religious beliefs” of any class of citizens of India, and is of aggravated nature, is incitement and has a tendency to create “legal fiction, or simply, “outraging of religious feelings” of that class of citizens and hence, punishable under the law. Such an act is always an “intentional insult” to religion or religious beliefs of a class of citizens. And, what will be the impact of that “outrage”, “intentional insult”, on the minds of the followers of any particular religion, one must have a deeper understanding like that of farsighted judges and jurists, as discussed above. To cite just one, Dalal J of the Allahabad High Court.
(M J Aslam is the author of 2-volume Law of Contract, that was published by Thomson Reuters Publication in 2017. The opinions expressed in this article are those of the author’s and do not purport to reflect the opinions or views of Kashmir Life.)