Anshul Butani

Recent Controversies on Blasphemy law across the globe, necessitate revisiting the Indian Position on this point

The recent political division over a French teenager’s tirade on Islam, and the controversy over the extrajudicial killing of Tahir Naseem in Pakistan, have reinvigorated the international debate on blasphemy laws. India is no exception to this global controversy, as it criminalizes blasphemy under Section 295A of the Indian Penal Code (‘IPC’).

Sec. 295A criminalizes acts with “deliberate and malicious intention of outraging the religious feelings of any class of citizens of India”. It is clear that this provision curtails the individual’s right to freedom of speech and expression protected under Article 19(1)(a) of the Indian Constitution. In such a situation, the Section can only be protected by Article 19(2), which allows for reasonable restrictions to the freedom of speech and expression, in the interests of inter alia, ‘public order’ and ‘morality’. In this article, however, I will argue that the Section does not fall within either of these reasonable restrictions, and is therefore unconstitutional.

The Supreme Court of India (‘SC’) has previously justified the validity of Sec. 295A, claiming that this restriction is necessary for the preservation of ‘public order’. However, a bare reading of the Section shows that the only material consideration is the outrage caused to the “religious feelings of any class”. This has allowed the SC to erroneously equate an offence to ‘religious feelings’, with a disruption to ‘public order’. Consequently, this has led the court to curtail individual expression which offends religious sentiment, even when it does not disturb public order.

For instance, in Baragur Ramachandrappa v State of Karnataka, the SC criminalized individual expression for its mere impingement “on the feelings of others”, thus giving an overly broad interpretation to ‘public order’. Further, in Ramji Lal Modi v State of UP, the SC found a violation of Sec. 295A even when no actual breach to public order was proved. Rather, a remote “tendency” of public disorder was considered sufficient. The court based this reasoning on a rather pedantic interpretation of the Constitution. It stated that the term “in the interest of…public order” used in Art. 19(2), is wider than “for the maintenance of…public order”, thereby permitting restriction on free speech and expression, even when a remote possibility of public disorder exists. Perhaps the most startling consequence of this decision is reflected in another case, where a book was considered blasphemous, because the “possibility of its falling in the hands of an inflammable mob [could not] be ruled out”. This is, however, contradictory to the liberal manner in which the Indian courts have otherwise construed fundamental freedoms under Art. 19 [for instance, see here and here]. Therefore, under the garb of public order, the court is excessively curtailing constructive engagement with religion, in a manner that was not contemplated by the Constitution.

In any case, I argue that proponents of Sec. 295A cannot rely on the ‘public order’ restriction in the first place. This is because, before the introduction of Sec. 295A in 1927, all offences of this nature, which posed a threat to public order, were already covered under Sec. 153A of the IPC (the law criminalizing hate speech). Therefore, the separation of blasphemy from Sec. 153A and its independent criminalization post-1927, could not have been for the purpose of preserving public order. Instead, this legislative move was clearly intended to reiterate the supposed morally reprehensible character of blasphemous expression. Therefore, when determining the constitutionality of Sec. 295A under Art. 19(2), the SC in Ramji Lal Modi should have tested the Section not under the restriction of ‘public order’, but under the restriction of ‘morality’. In any case, I argue that the Section fails the ‘morality’ restriction as well.

At the outset, it may seem anomalous that in a liberal democratic society, the Constitution subjects individual liberties to abstract notions of morality. To resolve this, the SC has clarified in landmark decisions including Navtej Singh Johar v Union of India and Govt (NCT of Delhi) v. Union of India, that ‘morality’ refers not to common notions of ‘public-’ or ‘conventional-morality’, but rather, to ‘constitutional morality’. While conventional morality refers to the beliefs and morals held by society at a particular point in time and is therefore transient, constitutional morality is permanent, having a strong foundation in “human liberty, equality, fraternity and dignity”. This arguably westernized construction of morality recognizes freedom of expression as the sine qua non of a democratic society, and reveres “pluralism, tolerance and broadmindedness”.

Regrettably, however, this progressive understanding of ‘morality’ finds no place in the jurisprudence on blasphemy. While Sec. 295A has not been directly tested against this restriction, several judgments allude to the court’s regressive disposition. In a clear protection of ‘conventional morality’, the SC in S. Rangarajan v P. Jagjivan Ram, justified the provision for its “maintenance of values and standards of society”. Additionally, in Baragur Ramachandrappa, the SC categorically opined that “interference in the faith of others cannot be accepted” – in other words, defending public morality. Such a rigid protection of public morality and majoritarian values, breeds intolerance and erodes the fabric of a pluralistic society. As the Court reiterated in Navtej Johar, such a society should instead encourage open discussion of varied perspectives, without the threat of sanction from “popular sentiment or majoritarianism”. Therefore, when viewed from the perspective of constitutional morality rather than conventional morality, it becomes clear that Sec. 295A unreasonably infringes on a citizen’s individual liberties, and is therefore unconstitutional.

Furthermore, these problems are exacerbated by Sections 95 and 96 of the Criminal Procedure Code (‘CrPC’). These provisions allow the widest discretion to government authorities to forfeit and seize publications that “appear” to be in violation of Sec. 295A, before the matter is even entertained by the court. In fact, the SC has gone to the extent of holding that the State need not even specify the grounds of forfeiture in its notification. The overbroad interpretation accorded to these provisions of the CrPC, coupled with the unreasonable expansion of the Art. 19(2) restrictions outlined above, allows the government to use Sec. 295A for legitimizing mob justice. This of course strengthens the case for the unconstitutionality of Sec. 295A. But from a more normative point of view, the arbitrariness and obscurity of the law disables the public from predicting what behaviour is acceptable, and acting accordingly. Consequently, many individuals may refrain from partaking in constructive and constitutionally protected engagement with religion, for the fear that it may be caught under the ill-defined law.

An ideal example is the incident of Wendy Doniger, whose book titled ‘The Hindus: An Alternative History’, written in good faith, was withdrawn by Penguin Books India (the publisher) in the face of Hindutva retaliation. Penguin, while defending the book for providing a useful alternative to the dominant narrative of Hindu history, feared that it would be caught under Sec. 295A. Following the low standard laid down in the cases of S. Rangarajan and Baragur Ramachandrappa, this fear was certainly warranted, given the book’s “interference in the faith” of the Hindu community. However, this pre-emptive self-curtailment of constructive expression is antithetical to the values akin to a free, democratic and pluralistic society. This also helps to explain why General Comment No. 34 of the International Covenant on Civil and Political Rights (which India has ratified), cautions against adoption of blasphemy laws, for their chilling effect on individual liberties.

Therefore, Sec. 295A should be struck down for its unconstitutionality, and its impingement on the right to free speech and expression in the world’s largest democracy.

The Author is a penultimate year Student at NLSIU Bangalore.