“Insult-to-religion-law” of India: An overview from enactment to interpretation

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In August, 2020, in Jammu & Bangaluru two separate blasphemous messages were uploaded on social media which gave rise to massive protests by Muslims against the blasphemous remarks against the Holy Prophet Muhammad (PBUH) in both the places. The police claimed arrest of the culprits that were involved in the “communally sensitive” video in Jammu & face-book post in Bangluru. 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.  However, 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”, and 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 historical development of “insult to religion law” in India as standing till date on the statute book:

Before Partition Scene: (Blasphemy)

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 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 Raj Paul v. Emperor, 1927 Lahore 590.  The facts of the case were that in 1924, a Hindu publisher, Mahashay Raj Paul, of Lahore published a ‘blasphemous’ pamphlet, ”Rangila Rasul” , for which he was booked by the government for the offence under section 153-A.  The lower courts convicted Mahashay Raj Paul under section 153-A for publishing the tract that was found by the Sessions Court “intentionally offensive, scurrilous, and wounding to the religious feelings of the [Muslim] community” promoting “feelings of enmity or hatred between” Hindus & Muslims. Mahashay Raj Paul did not disclose the name of the author of the blasphemous booklet. His name was Pandit Chamupati LalHowever, 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 4-5-1927. 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 & Hindus within the meaning of section 153-A, which is & 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, 591, 592)

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 24th  February,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, for writing a blasphemous book entitled “Bichitra Jiwan”. The accused had written a book which was held by all the three judges, Walsh, Lindsay & 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 , 1927 All 649 (emphasis mine) After the FB 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 23-05-1927 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 & what is now commonly known as “Ghar Wapsi” campaign of Sanghparivar.  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”. (Ibid, 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 a propaganda started by a class of persons who are not Muhammadans”. (Ibid at 160)

Now coming back to the Lahore High Court’s Dalip Singh J acquittal order of Mahashay Raj Paul. The wide spread agitations erupted from the decision in Mahashay Raj Paul. The acquittal order gave rise to firestorm of protests & debates across Punjab & 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 22nd September, 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 & 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 & 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 a religion shall be protected”.

Even after enactment of section 295-A, during 1927-1929, the Indian & International Press reported that many Hindus had come in open support for Mahashay Raj Paul & “republished” his blasphemous booklet in new Hindi versions that were banned by the respective provincial governments. The tide of the enmity & 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 6th April, 1929 by a young Muslim man of 19 or 20 years age, named Ilam ud Din, who had fatally stabbed Mahashay Raj Paul in chest with a dagger that killed Mahashay Raj Paul on the spot. Ilam ud Din was ultimately convicted of murder & sentenced to death on May 22, 1929.  ( Ilam Din 1930 Lahore 157) He was executed in Mianwali Jail in Lahore on 31st October, 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”. It is said that this was the only case that the founder of Pakistan would ever lose in his illustrious career. (TOI 25-10-2019)

Apart from above-discussed Mahashay Raj Paul’s killing on 6th April, 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 19-03-1935 & when his dead body was carried in a funeral procession, & when it reached Chawkiwara Karachi , the police & a platoon of the Royal Sussex Regiment opened fire at the procession killing  between 47 or 100 plus & injuring 134 , that included men, women and children. (Dr. Babasaheb Ambedkar, writings and speeches, 8: 156, 180; The Dawn 20-03-2006) 

It may be noted that after insertion of section 295-A in the IPC on 22nd September, 1927, just two extra-judicial killings took place in what became later known as “Islamic Republic of Pakistan” till the dawn of freedom from British Rule on 14/15 August, 1947: one was of above-discussed Mahashay Raj Paul on 6th April, 1929 & the other was of Nathuramal Sharma by Abdul Quayum in September, 1934. Nathuramal Sharma who had published a blasphemous book was attending his trial & seated in the Sessions Courtroom, Karachi where he was stabbed to death by one, Abdul Quayum in September 1934. Abdul Quayum was hanged on 19-03-1935 & when his dead body was carried in a funeral procession, & when it reached Chawkiwara Karachi , the police & a platoon of the Royal Sussex Regiment opened fire at the procession killing  between 47-100 plus & injuring 134 , that included men, women and children.  (Dr. Babasaheb Ambedkar, writings and speeches, 8; 156, 180); the Dawn 20-03-2006).

After Partition Scenario:  (Insult to religion law)

After 1947-Partition of India, 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. 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 & 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 appeal against the High Court decision before the Supreme Court, Ramji Lal Modi argued  that section 295-A was ultra vires the Constitution that guaranteed him with rest of the citizenry of India the right to freedom of speech & 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 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 & 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. The book like ‘Bible Bandaram’ which 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 & 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 & 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)

There are two pertinent cases of Lalai Singh Yadav that need a mention here. In one case, Lalai Singh Yadav , decided on 14-05-1971  the Allahabad High Court refused to ban a collection of speeches of Dr Ambedkar in a book  titled “Samman Ke liye dharm parivartan Karen” in which Dr Ambedkar has castigated casteism & made references to the killing of low caste, Shambuk by Ram as mentioned in the Valmiki Ramayan . In second case, (Lalai Singh Yadav , decided on 19-01-1971) the State government in exercise of its powers under section 99-A forfeited the book “Sachchi Ramayan” (Hindi version) or The Ramayan (A True Reading)” (English version), which ban was upheld by the Allahabad High Court but the Supreme Court in appeal observed that it is statutorily mandatory that the State should set forth the grounds of forfeiture in its order passed under section 99-A. (Lalai Singh Yadav, AIR 1977 SC 202)

In a Patna case, a book “Vishwa Itihas” in Hindi was written by Dhanpati Pandey, Reader, Post Graduate Department of History, Bhagalpur University, which contained 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 & 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 & 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 religious feelings of a particular community is allowed. So is any writing in the nature of historical research. (R.V. Bhasin, 2010 Bom HC (FB) It is wedded to rule of law which is foundation of a democratic form of government. (Anand Chintamani Dighe case, 2002, Bom HC) But it will be reduced to husk if the criticism is not academic & 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 strict path of history is not by itself a complete defence to a charge under section 153-A & section 295-A of the IPC . (R.V. Bhasin case; ref also section 95 (1) of the Cr PC, 1973)   The Supreme Court has repeatedly confirmed the logic behind section 295-A. It has said that India is 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 a law on free speech & expression as envisaged under Article 19 (1) must be read in an exclusive sense of public peace, safety and tranquility which must have a proximate relationship or nexus with the subjectmatter banned by the government & 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 & perpetrated with deliberate and malicious intention of outraging the religious feelings of a class of citizens, will have a proximate relationship or nexus with public peace & as such it will be hit by section 295-A of the IPC .

What “ some liberals” say about law?

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, etc, 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 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”.

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 & 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 & expression to its citizens?  Let us look at the premise on which the edifice of the whole opposition to section 295-A has been built. 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 Britishers who divided this “composite culture” of India between different religious entities, ( The LiveMint 19-03-2016) to be precise, between Hindus & Muslims. The retention of this “blasphemy” law on Indian statute book is dangerously poised to re-ignite trouble as was witnessed during 1920s-1930s when Mahasay Raj Paul episode took place & that Muslim-ire is still continuing in new shape against Charlie Hebdo cartoons in France, Kurt Westergaard cartoonist in Denmark & India-born British novelist Salman Rushdie. (The TOI (Blog) on 22-10-2016) It is not difficult to gauge the “Brahman or Hindu bias” behind this opposition. It is just anti-Muslim bigotry advanced under the robes of liberal thought. The floodgates it would open for unscrupulous & communal fascist elements for denigrating & insulting others’ faith & religion is not difficult to imagine if such a destructive idea of abrogating these sections is ever implemented. India can’t be compared to Western secular democracies. India has its own value based social, cultural & political system. It would send mortal blow to the social & cultural fabric of India which is already & immensely damaged since the Hindu right-wingers came to power & the worst victims will be minuscule minorities like Christians & larger minority like Muslims who are already at receiving end of abuse of power from the overwhelming majority.

This baseless point of the opponents is aptly 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 a 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 IE 25-06-2006 )

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 subjectmatter 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 & 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, etc, & arresting its writer. ( The LiveMint 19-03-2016)  The law implies that the subjectmatter 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’. (TheWire 18-01-2016) 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 LiveMint 19-03-2016 )

It may be noticed that there are presumptions of fact & law raised under several statues in India & as upheld by the judiciary. Section 295-A envisages a terrible situation where public peace & communal harmony  may get immensely disturbed by deliberate & 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 ground. Such situations have happened & are most likely to happen in a country like India which is volatile & 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) 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, & is of aggravated nature, is an incitement & has a tendency to create“legal fiction, or simply, “outraging of religious feelings” of that class of citizens & 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 & jurists, as discussed above.  To cite just one, Dalal J of the Allahabad High Court.  

M J Aslam is a columnist



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