So you have our idiotic law too!’’ a relative from Islamabad crowed after the Wendy Doniger affair hit the headlines. He was referring to Doniger’s statement that described Section 295A of the IPC as “the Indian law that makes it a criminal rather than civil offence to publish a book that offends any Hindu.” Why did Doniger, who must be familiar with the section under which her book, The Hindus: An Alternative History, was sought to be banned, describe a law which applies to all faiths as one that applies only to Hindus? Indeed, it was the offended feelings of Muslims that gave rise to this law. The story of how Section 295A came to be enacted shows its continuing relevance.
In 1927, the Punjab High Court ruled that while the book Rangila Rasool on Prophet Mohammed was offensive to Muslims, its Hindu publisher could not be prosecuted under Section 153A of the IPC, which related only to promoting disharmony between two communities. Sensing the mounting anger among Muslims, it was thought necessary to enact a law specifically targeted at wounded religious feelings. However, given its potential for misuse, it was carefully fine-tuned with stringent provisions.
Even trial courts have taken liberal views on cases filed under this law. In 1953, the trial court of Tiruchirappalli held that iconoclast Periyar’s act of breaking a Ganesh idol did not amount to an offence under this section, a view set aside only by the Supreme Court. However, because five years had by then elapsed, it decided not to punish him. In 2005, another landmark judgment on Section 295A was given by the Calcutta High Court, striking down the West Bengal government’s ban on Taslima Nasreen’s Dwikhandito.
Given the way courts have ruled, neither Doniger nor Penguin had any reason to blame the law. Whatever their reasons for hiding behind this smokescreen, it is alarming that well-known intellectuals have called for a reform of the two laws dealing with acts that hurt religious feelings and promote disharmony: Sections 295A and 153A. They must be amended, they say, to protect “Intellectual and artistic freedom and the right to self-expression… works of serious academic and artistic merit.”
That’s a dangerous demand. Consider the editorials of the late Bal Thackeray in Saamna at the height of the December 1992-January 1993 Mumbai riots. The counsel for the Shiv Sena, before the Srikrishna Commission of Inquiry into the riots, described them as literary masterpieces. Indeed, some have the power to make the average Hindu reader weep in anguish or send a rush of anger through her. That this anger is directed towards a government described as one that cynically allows “fanatic anti-national Muslims to kill young patriotic Hindus”, and that the anguish is at the loss of young lives (rioters) by police bullets, does not take away from their literary merit.
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MIM MLA Akbaruddin Owaisi’s seditious and anti-Hindu speech at Nirmal in December 2012 could well be described as an articulation of his right to self-expression. How else would one describe Raj Thackeray’s essay, “My stand, my fight”, published in Maharashtra Times when his men were assaulting north Indians in 2008? Was Subramanian Swamy’s revolting but meticulously argued essay in DNA in 2011, “How to wipe out Islamic terror?”, devoid of academic merit? On the other hand, didn’t we all lament when big guns like Bal Thackeray and Varun Gandhi were acquitted of charges under Section 153A?
Throughout the Srikrishna hearings, policemen were asked why they hadn’t filed cases under Sections 295A and 153A against Shiv Sainiks. A few of the slogans on their placards could be described as examples of “self-expression’’. Yet, these placards (and speeches) were relied upon to convict former Sena MP Madhukar Sarpotdar and two aides in 2008. This was the first and only time a Sena leader was convicted under Section 153A. It was also the only 1992-93 riots conviction upheld by a higher court. Can we celebrate this conviction without celebrating the provision under which it was made?
Sections 295A and 153A have been misused, but so have the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and the Protection of Women from Domestic Violence Act. Hate speech is as much a part of our society as are atrocities against Dalits and violence against women. The difference is this: the most powerful purveyors of hate speech are seldom prosecuted because prosecution needs government sanction. The prosecution of artists and dissenters gets noticed. What doesn’t is the non-prosecution of political leaders. We should demand more frequent application of Sections 295 A and 153 A against these influential offenders.
The writer is a Mumbai-based freelance journalist